Compassion in Dying v. Washington

Opinion by Judge REINHARDT; Dissent by Judge BEEZER; Dissent by Judge FERNANDEZ; Dissent by Judge KLEINFELD.

I.

This case raises an extraordinarily important and difficult issue. It compels us to address questions to which there are no easy or simple answers, at law or otherwise. It requires us to confront the most basic of human concerns — the mortality of self and loved ones — and to balance the interest in preserving human life against the desire to die peacefully and with dignity. People of good will can and do passionately disagree about the proper result, perhaps even more intensely than they part ways over the constitutionality of restricting a woman’s right to have an abortion. Heated though the debate may be, we must determine whether and how the United States Constitution applies to the controversy before us, a controversy that may touch more people more profoundly than any other issue the courts will face in the foreseeable future.

Today, we are required to decide whether a person who is terminally ill has a constitutionally-protected liberty interest in hastening what might otherwise be a protracted, undignified, and extremely painful death. If such an interest…

Dissenting:

Wash.Laws 1975, 1st Ex.Sess., ch. 260, § 9A.36.060 says:

This law is codified as RCW 9A.36.060. A Class C felony is punishable by imprisonment of up to five years and a fine of up to $10,000. RCW 9A.20.020(1)(c).

The question is whether Washington’s criminal prohibition of promoting a suicide attempt, defined as knowingly causing or aiding another person to attempt suicide, violates the constitutional substantive due process or equal protection rights of mentally competent, terminally ill adults to commit physician-assisted suicide. The district court held the Washington statute unconstitutional and I would reverse.

To succeed in arguing that a statute violates substantive due process, the party challenging the statute must show either: (1) that the statute violates a fundamental right and is not narrowly tailored to serve a compelling state interest, or (2) that the statute violates an ordinary, nonfundamental, liberty interest and does not rationally advance some legitimate governmental purpose. Reno v. Flores, 507 U.S. 292, 301-306 , 113 S.Ct. 1439, 1447-1449 , 123 L.Ed.2d 1 (1993). I would hold that the mentally competent, terminally ill adults do not have a…

dissenting:

I join in Judge Beezer’s dissenting opinion, with two qualifications.

First, I doubt that there is a constitutional right to commit suicide. “[N]o ‘substantive due process’ claim can be maintained unless the claimant demonstrates that the state has deprived him of a right historically and traditionally protected against state interference.” Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 294 , 110 S.Ct. 2841, 2860 , 111 L.Ed.2d 224 (1990) (Scalia, J. concurring). Suicide has not been traditionally or historically protected as a right:

Cruzan, 497 U.S. at 293 , 110 S.Ct. at 2859 (Scalia, J. concurring).

That a question is important does not imply that it is constitutional. The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia, while all great questions would be decided by the judiciary. The majority treats the remark in Planned Parenthood v. Casey, 505 U.S. 833 , 112 S.Ct. 2791 , 120 L.Ed.2d 674 (1992), about “the most intimate and personal choices a person may make ... the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human…

dissenting:

I join in Judge Beezer’s dissenting opinion with one caveat. Nothing in his opinion, or in that of the majority, convinces me that there is any constitutional right whatever to commit suicide. In my view, no one has an even nonfundamental constitutional right to become what our legal ancestors pithily denominated a felo de se. See e.g., Sir Edward Coke, Institutes of the Laws of England, 3d Institute, 54 (Brooke ed. 1797) (1644); 1 Sir Matthew Hale, Pleas of the Crown 411 (Nutt ed. 1736) (1680); 4 Sir William Blackstone, Commentaries on the Laws of England 189 (15th ed. 1809) (1765). The arguments for and against suicide raise an issue which would elicit competing responses from even our most well trained moral philosophers. Like so many other issues, it is one “for the people to decide.” Guadalupe Org., Inc. v. Tempe Elementary Sch. Dist. No. 3, 587 F.2d 1022 , 1027 (9th Cir.1978). Our Constitution leaves it to them; it is they and their representatives who must grapple with the riddle and solve it.