gastronomy tubes, otherwise terminate or withhold all other forms
of medical treatment, and, may even administer lethal doses of
drugs with full knowledge of their "double effect."[FOOTNOTE 102]
Given the similarity between what doctors are now permitted to do
and what the plaintiffs assert they should be permitted to do, we
see no risk at all to the integrity of the profession. This is a
conclusion that is shared by a growing number of doctors who
openly support physician-assisted suicide and proclaim it to be
fully compatible with the physicians' calling and with their
commitment and obligation to help the sick.[FOOTNOTE 103] Many
more doctors support physician-assisted suicide but without openly
advocating a change in the legal treatment of the practice. A
recent study of Oregon physicians found that 60% of those who
responded believed that physician-assisted suicide should be
legal.[FOOTNOTE 104] A recent study of attitudes among physicians
in Michigan, where the state legislature adopted a law banning
assisted-suicide as a result of Dr. Jack Kevorkian's activities,
found that only 17.2% of the physicians who responded favored a
law prohibiting assisted-suicide. Almost all the rest supported
one of three options: legalizing physician-assisted suicide
(38.9%); permitting the medical profession to regulate the
practice (16.1%); or leaving decisions about physician-assisted
suicide to the doctor-patient relationship (16.6%).[FOOTNOTE 105]
Thus over 70% of the Michigan doctors answering the poll appear to
believe that professional ethics do not preclude doctors from
engaging in acts that today are classified as "assisted suicide."
Even among those doctors who oppose assisted suicide medical
ethics do not lie at the heart of the objections. The "most
important personal characteristic" separating those doctors from
their colleagues is a strong religious identification.[FOOTNOTE
106]
Whether or not a patient can be cured, the doctor has an
obligation to attempt to alleviate his pain and suffering. If it
is impossible to cure the patient or retard the advance of his
disease, then the doctor's primary duty is to make the patient as
comfortable as possible. When performing that task, the doctor is
performing a proper medical function, even though he knows that
his patient's death is a necessary and inevitable consequence of
his actions.[FOOTNOTE 107]
As noted earlier, the American Medical Association filed an amicus
brief urging that we uphold the practice of administering medicine
with a dual effect. At the same time, it takes the position that
physician-assisted suicide should not be legalized, at least as of
this time.[FOOTNOTE 108] Twenty years ago, the AMA contended that
performing abortions violated the Hippocratic Oath; today, it
claims that assisting terminally ill patients to hasten their
death does likewise. Clearly, the Hippocratic Oath can have no
greater import in deciding the constitutionality of physician
assisted-suicide than it did in determining whether women had a
constitutional right to have an abortion. In Roe, the Court cited
a scholar's conclusion that the Hippocratic Oath "originated in a
group representing only a small segment of Greek opinion and that
it certainly was not accepted by all ancient physicians." The
Court stressed the Oath's "rigidity" and was not deterred by its
prohibitory language regarding abortion.[FOOTNOTE 109] As Roe
shows, a literalist reading of the Hippocratic Oath does not
represent the best or final word on medical or legal controversies
today.[FOOTNOTE 110] Were we to adhere to the rigid language of
the oath, not only would doctors be barred from performing
abortions or helping terminally ill patients hasten their deaths,
but according to a once-accepted interpretation, they would also
be prohibited from performing any type of surgery at all,[FOOTNOTE
111] a position that would now be recognized as preposterous by
even the most tradition-bound AMA members. More important,
regardless of the AMA or its position, experience shows that most
doctors can readily adapt to a changing legal climate. Once the
Court held that a woman has a constitutional right to have an
abortion, doctors began performing abortions routinely and the
ethical integrity of the medical profession remained undiminished.
Similarly, following the recognition of a constitutional right to
assisted suicide, we believe that doctors would engage in the
permitted practice when appropriate, and that the integrity of the
medical profession would survive without blemish.
Recognizing the right to "assisted-suicide" would not require
doctors to do anything contrary to their individual principles. A
physician whose moral or religious beliefs would prevent him from
assisting a patient to hasten his death would be free to follow
the dictates of his conscience. Those doctors who believe that
terminally ill, competent, adult patients should be permitted to
choose the time and manner of their death would be able to help
them do so. We believe that extending a choice to doctors as well
as to patients would help protect the integrity of the medical
profession without compromising the rights or principles of
individual doctors and without sacrificing the welfare of their
patients.[FOOTNOTE 112]
6. Fear of Adverse Consequences
We now consider the state's final concern. Those opposed to
permitting physician-assisted suicide often point to a concern
that could be subsumed under the state's general interest in
preserving life, but which for clarity's sake we treat separately.
The argument is a purely pragmatic one that causes many people
deep concern: permitting physician-assisted suicide would "open
Pandora's Box."[FOOTNOTE 113]
Once we recognize a liberty interest in hastening one's death, the
argument goes, that interest will sweep away all restrictions in
its wake. It will only be a matter of time, the argument
continues, before courts will sanction putting people to death,
not because they are desperately ill and want to die, but because
they are deemed to pose an unjustifiable burden on
society.[FOOTNOTE 114] Known as a slippery slope argument or what
one commentator has called the "thin edge of the wedge"
argument,[FOOTNOTE 115] the opponents of assisted-suicide conjure
up a parade of horribles and insist that the only way to halt the
downward spiral is to stop it before it starts. See Compassion In
Dying, 49 F.3d at 590-91 (providing list of horribles).
This same nihilistic argument can be offered against any
constitutionally-protected right or interest. Both before and
after women were found to have a right to have an abortion,
critics contended that legalizing that medical procedure would
lead to its widespread use as a substitute for other forms of
birth control or as a means of racial genocide. Inflammatory
contentions regarding ways in which the recognition of the right
would lead to the ruination of the country did not, however, deter
the Supreme Court from first recognizing and then two decades
later reaffirming a constitutionally-protected liberty interest in
terminating an unwanted pregnancy. In fact, the Court has never
refused to recognize a substantive due process liberty right or
interest merely because there were difficulties in determining
when and how to limit its exercise or because others might someday
attempt to use it improperly.
Recognition of any right creates the possibility of abuse. The
slippery slope fears of Roe's opponents have, of course, not
materialized. The legalization of abortion has not undermined our
commitment to life generally; nor, as some predicted, has it led
to widespread infanticide. Similarly, there is no reason to
believe that legalizing assisted suicide will lead to the horrific
consequences its opponents suggest.
The slippery slope argument also comes in a second and closely
related form. This version of the argument states that a due
process interest in hastening one's death, even if the exercise of
that interest is initially limited to the terminally ill, will
prove infinitely expansive because it will be impossible to define
the term "terminally ill." See Compassion In Dying, 49 F.3d at
593. (After all, all of us are terminal in some sense of the word,
are we not?). See id. The argument rests on two false premises.
First it presupposes a need for greater precision than is required
in constitutional law.[FOOTNOTE 116] Second, it assumes that the
terms "terminal illness" or "terminal condition" cannot be
defined, even though those terms have in fact been defined
repeatedly. They have, for example, been defined in a model
statute, The Uniform Rights of the Terminally Ill Act,[FOOTNOTE
117] and in more than 40 state natural death statutes,[FOOTNOTE
118] including Washington's. The model statute and some of the
state statutes have defined the term without reference to a fixed
time period; others have taken the opposite approach, defining
terminal to mean that death is likely to ensue within six months.
As we have noted earlier, the Washington Act, like some others,
includes persons who are permanently unconscious, that is in an
irreversible coma or a persistent vegetative state. RCW
70.122.020(6). While defining the term "terminally ill" is not
free from difficulty, the experience of the states has proved that
the class of the terminally ill is neither indefinable nor
undefined. Indeed, all of the persons described in the various
statutes would appear to fall within an appropriate definition of
the term. In any event, it is apparent that purported definitional
difficulties that have repeatedly been surmounted provide no
legitimate reason for refusing to recognize a liberty interest in
hastening one's death.
We do not dispute the dissent's contention that the prescription
of lethal medication by physicians for use by terminally ill
patients who wish to die does not constitute a clear point of
demarcation between permissible and impermissible medical conduct.
We agree that it may be difficult to make a principled distinction
between physician-assisted suicide and the provision to terminally
ill patients of other forms of life-ending medical assistance,
such as the administration of drugs by a physician. We recognize
that in some instances, the patient may be unable to
self-administer the drugs and that administration by the
physician, or a person acting under his direction or control, may
be the only way the patient may be able to receive them.[FOOTNOTE
119] The question whether that type of physician conduct may be
constitutionally prohibited must be answered directly in future
cases, and not in this one. We would be less than candid, however,
if we did not acknowledge that for present purposes we view the
critical line in right-to-die cases as the one between the
voluntary and involuntary termination of an individual's life. In
the first case -- volitional death -- the physician is aiding or
assisting a patient who wishes to exercise a liberty interest, and
in the other -- involuntary death -- another person acting on his
own behalf, or, in some instances society's, is determining that
an individual's life should no longer continue.[FOOTNOTE 120] We
consider it less important who administers the medication than who
determines whether the terminally ill person's life shall end. In
any event, here we decide only the issue before us -- the
constitutionality of prohibiting doctors from prescribing
medication for use by terminally ill patients who wish to hasten
their death.
B.
The Means by Which the State Furthers Its Interests
In applying the balancing test, we must take into account not only
the strength of the state's interests but also the means by which
the state has chosen to further those interests.
1. Prohibition -- A Total Ban for the Terminally Ill
Washington's statute prohibiting assisted suicide has a drastic
impact on the terminally ill. By prohibiting physician assistance,
it bars what for many terminally ill patients is the only
palatable, and only pra********************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************e technique generally
depends, however, on the assistance of a physician, whether tacit
or unknowing (although it is possible to end one's life with
over-the-counter medication). Even if the terminally ill patients
are able to accumulate sufficient drugs, given the pain killers
and other medication they are taking, most of them would lack the
knowledge to determine what dose of any given drug or drugs they
must take, or in what combination. Miscalculation can be tragic.
It can lead to an even more painful and lingering death.
Alternatively, if the medication reduces respiration enough to
restrict the flow of oxygen to the brain but not enough to cause
death, it can result in the patient's falling into a comatose or
vegetative state.
Thus for many terminally ill patients, the Washington statute is
effectively a prohibition. While technically it only prohibits one
means of exercising a liberty interest, practically it prohibits
the exercise of that interest as effectively as prohibiting
doctors from performing abortions prevented women from having
abortions in the days before Roe.[FOOTNOTE 121]
2. Regulation -- A Permissible Means of Promoting State Interests
State laws or regulations governing physician-assisted suicide are
both necessary and desirable to ensure against errors and abuse,
and to protect legitimate state interests. Any of several model
statutes might serve as an example of how these legitimate and
important concerns can be addressed effectively.[FOOTNOTE 122]
By adopting appropriate, reasonable, and properly drawn safeguards
Washington could ensure that people who choose to have their
doctors prescribe lethal doses of medication are truly competent
and meet all of the requisite standards. Without endorsing the
constitutionality of any particular procedural safeguards, we note
that the state might, for example, require: witnesses to ensure
voluntariness; reasonable, though short, waiting periods to
prevent rash decisions; second medical opinions to confirm a
patient's terminal status and also to confirm that the patient has
been receiving proper treatment, including adequate comfort care;
psychological examinations to ensure that the patient is not
suffering from momentary or treatable depression; reporting
procedures that will aid in the avoidance of abuse. Alternatively,
such safeguards could be adopted by interested medical
associations and other organizations involved in the provision of
health care, so long as they meet the state's needs and
concerns.[FOOTNOTE 123]
While there is always room for error in any human endeavor, we
believe that sufficient protections can and will be developed by
the various states, with the assistance of the medical profession
and health care industry, to ensure that the possibility of error
will be remote. We do not expect that, in this nation, the
development of appropriate statutes and regulations will be taken
lightly by any of the interested parties, or that those charged
with their enforcement will fail to perform their duties properly.
In treating a prohibition differently from a regulation, we are
following the approach that the Court took in the only
right-to-die case to come before it. In Cruzan, the Court
recognized that the states had a legitimate role to play in
regulating the process of refusing or terminating life-sustaining
medical treatment even if they could not prohibit the making of
decisions that met applicable state standards. The Court
explicitly recognized that states did not have to refrain from
acting, but rather could adopt appropriate regulations to further
their legitimate interests. Missouri's requirement for clear and
convincing evidence of a patient's wishes was a regulation
designed to reduce the risk of erroneous decisions. The Court
upheld that regulation, a requirement that, of course, had far
less impact on the exercise of the due process liberty interest
than the de facto prohibition at issue here.
To those who argue that courts should refrain from declaring that
the terminally ill have a constitutional right to
physician-assisted suicide and that we should leave such matters
to the individual states, we reply that where important liberty
interests are at stake it is not the proper role of the state to
adopt statutes totally prohibiting their exercise. Rather, the
state should enact regulatory measures that ensure that the
exercise of those interests is properly circumscribed and that all
necessary safeguards have been provided. In the case of abortions
and in the case of the withdrawal of life-sustaining medical
treatment, the Court permitted states to enact appropriate
regulations that would further its legitimate interests. In this
case, like the others, the guiding principle is found in the words
of Justice O'Connor. "[T]he more challenging task of crafting
appropriate procedures for safeguarding . . . [terminally ill
patients'] liberty interests is entrusted to the 'laboratory' of
the states in the first instance." Cruzan 497 U.S. at 287, 292
