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Cite as 95 C.D.O.S. 1816

COMPASSION IN DYING, a Washington nonprofit corporation; JANE
ROE; JOHN DOE; JAMES POE; HAROLD GLUCKSBERG, M.D., Plaintiffs
-Appellees,
        v.
STATE OF WASHINGTON; CHRISTINE GREGOIRE, Attorney General of
Washington, Defendants-Appellants.

No. 94-35534
United States Court of Appeals for the Ninth Circuit
D.C. No. CV-94-00119-BJR
Appeal from the United States District Court for the Western
District of Washington Barbara J. Rothstein, Chief District
Judge, Presiding
Argued and Submitted December 7, 1994--Seattle, Washington
Before: Eugene A. Wright, John T. Noonan, Jr., and Diarmuid F.
O'Scannlain, Circuit Judges.
Filed March 9, 1995

        COUNSEL
        William L. Williams, Senior Assistant Attorney General,
Olympia, Washington, for the defendants-appellants.
        Kathryn L. Tucker, David J. Burman, Thomas L. Boeder,
Kari Anne Smith, Perkins Coie, Seattle, Washington, for the
plaintiffs-appellees.
        Wesley J. Smith, San Francisco, California, for amicus
curiae International Anti-Euthanasia Task Force.
        Katrin E. Frank, Robert A. Free, Kathleen Wareham,
MacDonald, Hoague & Bayless, Seattle, Washington, for amicus
curiae Ten Surviving Family Members.
        James Bopp, Jr., Thomas J. Marzen, Daniel Avila, John
Altomare, Jane E.T. Brockmann, National Legal Center for the
Medically Dependent and Disabled, Inc., Indianapolis, Indiana,
as amicus curiae.
        John R. Reese, Robert A. Lewis, Page R. Barnes, Amy J.
Metzler, Holly Morris, McCutchen, Doyle, Brown & Enersen, San
Francisco, California, for amicus curiae Americans for Death
with Dignity.
        Mary D. Clement, Junction City, Oregon, for amicus curiae
Euthanasia Research & Guidance Organization.
        Mark E. Chopko, Michael F. Moses, Washington, D.C., for
amicus curiae United States Catholic Conference.
        Paul Benjamin Linton, Clarke D. Forsythe, Chicago,
Illinois, for amicus curiae Americans United for Life.
        Barbara Allan Shickich, Joseph E. Shickich, Jr., Riddell,
Williams, Bullitt & Walkinshaw, Seattle, Washington, for amicus
curiae Washington State Hospital Association and Catholic Health
Association of the United States.
        Catherine W. Smith, Edwards, Sieh, Wiggins & Hathaway,
Seattle, Washington, for amicus curiae Amici State Legislators.
        Todd Maybrown, Allen, Hansen & Maybrown, Seattle,
Washington, for amici curiae the American Civil Liberties Union
of Washington, the Northwest Women's Law Center, Lambda Legal
Defense and Education Fund, Inc., AIDS Action Council, the
Northwest AIDS Foundation, the Seattle AIDS Support Group, the
Gray Panthers Project Fund, the Older Women's League, the
Seattle Chapter of the National Organization for Women, the
American Humanist Association, the National Lawyers Guild, Local
6 of Service Employees International Union, Temple De Hirsch
Sinai, the Unitarian Universalist Association, the Seattle
Chapter and the Pacific Northwest District Council of the
Japanese American Citizens League.
        Kirk B. Johnson, Michael L. Ile, David Orentlicher,
Chicago, Illinois; Jack R. Biering, Sidley & Austin, Chicago,
Illinois; Paul E. Kalb, Sidley & Austin, Washington, D.C., for
amicus curiae American Medical Association.

::::::::::::::::::::::::::: SUMMARY :::::::::::::::::::::::::::

        The court of appeals reversed a district court judgment.
The court held that there was no basis for concluding that a
Washington state statute that criminalizes promoting a suicide
attempt violates the United States Constitution.
        A Washington state statute states that a person is guilty
of the felony of promoting a suicide attempt when he knowingly
causes or aids another person to attempt suicide. Appellee
Compassion in Dying, three now-deceased individuals who were
suffering from diseases, and four physicians asserting their own
rights and those of their patients, sued appellant State of
Washington, seeking a declaration that the statute violated 42
U.S.C. section 1983 and the Constitution of the United States.
They also asked that enforcement of the statute be enjoined.
        On motions for summary judgment, the district court
denied the motion of the physicians asserting their own claims
and denied Compassion's claim on its own behalf. The court,
however, granted the motion for summary judgment of the now
-deceased individuals and the similar motion of the physicians on
behalf of their "terminally ill patients." The court declined to
enjoin enforcement of the statute, but declared the statute
violated the Constitution of the United States. The court held
that the statute violated the liberty guaranteed by the
Fourteenth Amendment against deprivation by a state. The court
quoted a Supreme Court case concerning abortion, Planned
Parenthood v. Casey, in which the Court stated that "choices
central to personal dignity and autonomy" are "central to the
liberty protected by the Fourteenth Amendment." The court also
quoted a Supreme Court case, Cruzan v. Director, Missouri Dept.
of Health, in which the Court referred to the recognition of a
"general liberty interest in refusing medical treatment." The
court concluded that there was a constitutional right to
physician-assisted suicide. The court further stated that the
"total ban" on physician-assisted suicide for the terminally ill
was "an undue burden" on the constitutional right, and
consequently the statute was invalid. The court also held that
the statute violated the Equal Protection Clause, seeing no
constitutional distinction between the terminally ill able to
direct the withdrawal or withholding of life support and the
terminally ill seeking medical aid to end their lives. The State
appealed.
        The district court's conclusion that the statute deprived
the plaintiffs of a liberty protected by the Fourteenth
Amendment and denied them equal protection of the laws could not
be sustained. The language taken from Casey was not to be
removed from the context in which it was uttered. Furthermore,
the district court's decision lacked foundation in recent
precedent and in the traditions of our nation. The facial
invalidation of the statute was wholly unwarranted; the district
court conceded that there were circumstances in which the
statute could operate constitutionally. The district court
declared the statute unconstitutional on its face without
adequate consideration of the state's interests that,
individually and convergently, outweigh any alleged liberty of
suicide. The state had interests in not having physicians in the
role of killers of their patients; not subjecting the elderly
and even the not-elderly but infirm to psychological pressure to
consent to their own deaths; protecting the poor and minorities
from exploitation; protecting all of the handicapped from
societal indifference and antipathy; preventing abuse similar to
what has occurred in the Netherlands where legal guidelines have
tacitly allowed assisted suicide or euthanasia in response to a
repeated request from a suffering, competent patient. In
addition, the scope of the district court's judgment was
indefinite; one could only guess which definition of the
"terminally ill" would satisfy the constitutional criteria of
the district court; an amorphous class of beneficiaries was
created in a non-class action. Finally, at the heart of the
district court's decision appeared to be its refusal to
distinguish between actions taking life and actions by which
life is not supported or ceases to be supported; however, the
plaintiffs did not show that the distinction drawn by the
legislature was irrational.
        Circuit Judge Wright dissented, stating that the
Washington statute violates the plaintiffs' privacy and equal
protection rights.
        AUTHOR: Noonan
        BEFORE: Noonan (Circuit Judge), O'Scannlain (Circuit
Judge) and Wright (Senior Circuit Judge)

Summary reprinted under license from Barclays Law Publishers.
                   Copyright Barclays 1995

::::::::::::::::::::::::::: OPINION :::::::::::::::::::::::::::

NOONAN, Circuit Judge:
        The State of Washington (Washington) appeals the decision
of the district court holding unconstitutional Washington's
statute on promoting a suicide attempt. Finding no basis for
concluding that the statute violates the Constitution, we
reverse the district court.
        The Statute
        The challenged statute reads as follows:
        Promoting a suicide attempt
        (1) A person is guilty of promoting a suicide attempt
when he knowingly causes or aids another person to attempt
suicide.
        (2) Promoting a suicide is a Class C felony. Wash. Rev.
Code 9A.36.060.
        The Plaintiffs
        Compassion in Dying is a nonprofit incorporated in the
state of Washington. Its avowed purpose is to assist persons
described by it as "competent" and "terminally ill" to hasten
their deaths by providing them information, counselling, and
emotional support but not by administering fatal medication.
        Three individuals were plaintiffs in their own right.
Their identities are cloaked by an order permitting them to
litigate under pseudonyms. They are now deceased. Jane Roe was a
69-year-old physician, suffering from cancer; she had been
bedridden for seven months at the time the suit was brought and
died before judgment was entered by the district court. John Doe
was a 44-year-old artist, who was partially blind at the time of
suit and was also suffering from AIDS; he had been advised that
his disease was incurable; he died prior to judgment. James Poe
was a 69-year-old patient suffering from chronic obstructive
pulmonary disease; he was connected to an oxygen tank at all
times. He died after judgment but prior to the hearing of this
appeal.
        Four physicians also joined the suit asserting their own
rights and those of their patients. Harold Glucksberg has
specialized in the care of cancer since 1985 and is a clinical
assistant professor at the University of Washington School of
Medicine. According to his sworn declaration, he "occasionally"
encounters patients whom he believes he should assist in
terminating their lives, but does not because of the statute; he
refers to two such patients, both deceased. Abigail Halpern is
the medical director of Uptown Family Practice in Seattle and
serves as a clinical faculty member at the University of
Washington School of Medicine. In her practice, according to her
sworn declaration, she "occasionally" treats patients dying of
cancer or AIDS, whose death she believes she should hasten but
does not because of the statute; she refers to one such patient,
now deceased. Thomas A. Preston is chief of cardiology at
Pacific Medical Center in Seattle and professor of Medicine at
the University of Washington School of Medicine. According to
his sworn declaration, he "occasionally" treats patients whose
death he believes he should hasten but does not on account of
the statute; he refers to one such patient, now deceased. Peter
Shalit is in private practice in Seattle and the medical
director of the Seattle Gay Clinic; he is a clinical instructor
at the University of Washington School of Medicine. According to
his sworn declaration, he "occasionally" treats patients whose
death he believes he should hasten, but does not on account of
the statute; he refers to one such patient, now deceased.
        PROCEEDINGS
        On January 29, 1994, the plaintiffs brought suit against
Washington, seeking a declaration that the statute violated 42
U.S.C.  1983 and the Constitution of the United States;
additionally, they asked that enforcement of the statute be
enjoined.
        The plaintiffs introduced the declarations of the
physicians already noted, together with declarations from the
executive director of Compassion in Dying and from Jane Roe,
John Doe, and James Poe. They also introduced the sworn
declaration of John P. Geyman, who had served from 1976 through
1990 as professor and chairman of the Department of Family
Medicine at the School of Medicine of the University of
Washington and is now engaged in rural practice at Friday
Harbor. According to him, there is "often a severe adverse
emotional and psychological effect" on patients unable because
of the statute to broach the subject of their desire to hasten
their deaths or who do broach the subject and are rebuffed.
        The plaintiffs moved for summary judgment, and the
defendants made a cross-motion for summary judgment. On May 3,
1994, the district court ruled on these motions. It denied the
motion of the four physician plaintiffs asserting their own
claims "on the grounds that the basis for those claims has not
been adequately addressed." It denied Compassion in Dying's
claim on its own behalf "for the same reason." It denied the
cross-motion of Washington. It granted the motion for summary
judgment of Jane Roe, John Doe and James Poe and the similar
motion of the physician plaintiffs "on behalf of their
terminally ill patients." The court declined to enjoin
enforcement of the statute but declared the statute to violate
the Constitution of the United States.
        The district court reached its conclusion as to
unconstitutionality on two grounds. First, the court held that
the statute violated the liberty guaranteed by the Fourteenth
Amendment against deprivation by a state. The court reached this
conclusion by noting "a long line of cases" protecting "personal
decisions relating to marriage, procreation, contraception,
family relationships, child rearing and education." The court
quoted as the explanation of this line the statement made in
Planned Parenthood v. Casey, 112 S. Ct. 2791, 2807 (1992):
"These matters, including the most intimate and personal choices
a person may make in a lifetime, choices central to personal
dignity and autonomy, are central to the liberty protected by
the Fourteenth Amendment. At the heart of the liberty is the
right to define one's own concept of existence, of meaning, of
the universe, and of the mystery of human life. Beliefs about
these matters could not define the attributes of personhood were
they formed under compulsion of the State."
        The district court analogized the "terminally ill
person's choice to commit suicide" to the choice of abortion
protected by Casey, stating: "this court finds the reasoning in
Casey highly instructive and almost prescriptive." Like the
abortion decision, the court found the decision by a terminally
ill person to end his or her life to be one of the most intimate
and personal that could be made in a lifetime and a choice
central to personal autonomy and dignity.
        The district court also found Cruzan v. Director,
Missouri Dept. of Health, 497 U.S. 261 (1990) to be
"instructive." It quoted that case's reference to "the
recognition of a general liberty interest in refusing medical
treatment," Cruzan at 278, and the assumption for purposes of
the decision in Cruzan "that the United States Constitution
would grant a competent person a constitutionally protected
right to refuse lifesaving hydration and nutrition." Id. at 279.
The district court stated that it did not believe that a
distinction of constitutional significance could be drawn
"between refusing life-sustaining medical treatment and
physician-assisted suicide by an uncoerced, mentally competent,
terminally ill adult." Combining its exegesis of Casey and
Cruzan, the district court reached its conclusion that there was
a constitutional right to physician-assisted suicide.
        The district court then reviewed the statute to determine
whether, on its face, it imposed an "undue burden" on a personal
right of the Casey kind. See Casey at 2830 (concluding that a
statute regulating abortion was invalid on its face because "in
a large fraction of the cases" in which the statute would
operate it would "operate as a substantial obstacle to a woman's
choice to undergo an abortion" and therefore placed "an undue
burden"). The district court declared that there was "no
question" that the "total ban" on physician-assisted suicide for
the terminally ill was "an undue burden" on the constitutional
right that the district court had discovered. Consequently, the
statute was invalid.
        Secondly, the district court held that the statute
violated the Equal Protection Clause of the Fourteenth
Amendment, requiring that all similarly situated persons be
treated alike. Washington law, enacted in 1992, provides: "Any
adult person may execute a directive directing the withholding
or withdrawal of life-sustaining treatment in a terminal
condition or permanent unconscious condition." Wash. Rev. Code
70.122.030. Any physician who participates in good faith "in the
withholding or withdrawal of life-sustaining treatment" in
accordance with such a directive is immune from civil or
criminal or professional liability. Id. 70.122.051. The district
court could see no constitutional distinction between the
terminally ill able to direct the withdrawal or withholding of
life support and the terminally ill seeking medical aid to end
their lives. Accordingly, it found an unequal application of the
laws.
        Washington appeals.
        ANALYSIS
        The conclusion of the district court that the statute
deprived the plaintiffs of a liberty protected by the Fourteenth
Amendment and denied them the equal protection of the laws
cannot be sustained.
        First. The language taken from Casey, on which the
district court pitched its principal argument, should not be
removed from the context in which it was uttered. Any reader of
judicial opinions knows they often attempt a generality of
expression and a sententiousness of phrase that extend far
beyond the problem addressed. It is commonly accounted an error
to lift sentences or even paragraphs out of one context and
insert the abstracted thought into a wholly different context.
To take three sentences out of an opinion over thirty pages in
length dealing with the highly charged subject of abortion and
to find these sentences "almost prescriptive" in ruling on a
statute proscribing the promotion of suicide is to make an
enormous leap, to do violence to the context, and to ignore the
differences between the regulation of reproduction and the
prevention of the promotion of killing a patient at his or her
request.
        The inappropriateness of the language of Casey in the
situation of assisted suicide is confirmed by considering what
this language, as applied by the district court, implies. The
decision to choose death, according to the district court's use
of Casey's terms, involves "personal dignity and autonomy" and
"the right to define one's own concept of existence, of meaning,
of the universe, and of the mystery of human life." The district
court attempted to tie these concepts to the decision of a
person terminally ill. But there is no way of doing so. The
category created is inherently unstable. The depressed twenty
-one year old, the romantically-devastated twenty-eight year old,
the alcoholic forty-year old who choose suicide are also
expressing their views of the existence, meaning, the universe,
and life; they are also asserting their personal liberty. If at
the heart of the liberty protected by the Fourteenth Amendment
is this uncurtailable ability to believe and to act on one's
deepest beliefs about life, the right to suicide and the right
to assistance in suicide are the prerogative of at least every
same adult. The attempt to restrict such rights to the
terminally ill is illusory. If such liberty exists in this
context, as Casey asserted in the context of reproductive
rights, every man and woman in the United States must enjoy it.
See Yale Kamisar, "Are Laws Against Assisted Suicide
Unconstitutional?" 23 Hastings Center Report 32, 36-37 (1995).
The conclusion is a reductio ad absurdum.
        Second. While Casey was not about suicide at all, Cruzan
was about the termination of life. The district court found
itself unable to distinguish between a patient refusing life
support and a patient seeking medical help to bring about death
and therefore interpreted Cruzan's limited acknowledgment of a
right to refuse treatment as tantamount to an acceptance of a
terminally ill patient's right to aid in self-killing. The
district court ignored the far more relevant part of the opinion
in Cruzan that "there can be no gainsaying" a state's interest
"in the protection and preservation of human life" and, as
evidence of that legitimate concern, the fact that "the majority
of States in this country have laws imposing criminal penalties
on one who assists another to commit suicide." Cruzan, 497 U.S.
at 280. Whatever difficulty the district court experienced in
distinguishing one situation from the other, it was not
experienced by the majority in Cruzan.
        Third. Unsupported by the gloss on "liberty" written by
Casey, a gloss on a gloss, inasmuch as Casey developed an
interpretation of "liberty" first elaborated in Eisenstadt v.
Baird, 405 U.S. 438, 453 (1972), and implicitly controverted by
Cruzan, the decision of the district court lacks foundation in
recent precedent. It also lacks foundation in the traditions of
our nation. See Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)
(Cardozo, J.); Lochner v. New York, 198 U.S. 45, 76 (1905)
(Holmes, J., dissenting). In the two hundred and five years of
our existence no constitutional right to aid in killing oneself
has ever been asserted and upheld by a court of final
jurisdiction. Unless the federal judiciary is to be a floating
constitutional convention, a federal court should not invent a
constitutional right unknown to the past and antithetical to the
defense of human life that has been a chief responsibility of
our constitutional government.
        Fourth. The district court extrapolated from Casey to
hold the statute invalid on its face. That extrapolation, like
the quotation from Casey, was an unwarranted extension of
abortion jurisprudence, often unique, to a very different field.
The normal rule -- the rule that governs here -- is that a
facial challenge to a statute "must establish that no set of
circumstances exists under which the Act would be valid." United
States v. Salerno, 481 U.S. 739, 745 (1987). The district court
indeed conceded that there were circumstances in which the
statute could operate constitutionally, for example to deter
suicide by teenagers or to prevent fraud upon the elderly. The
district court did not even attempt the calculation carried out
in Casey to show that in "a large fraction of the cases" the
statute would operate unconstitutionally. From the declarations
before it the district court had at most the opinion of several
physicians that they "occasionally" met persons whom the statute
affected detrimentally and their recitation of five case
histories. There was no effort made to compare this number with
the number of persons whose lives were guarded by the statute.
The facial invalidation of the statute was wholly unwarranted.
        Fifth. The district court declared the statute
unconstitutional on its face without adequate consideration of
Washington's interests that, individually and convergently,
outweigh any alleged liberty of suicide. The most comprehensive
study of our subject by a governmental body is When Death Is
Sought. Assisted Suicide and Euthanasia in the Medical Context
(1994). The study was conducted by the New York State Task
Force, a commission appointed by Governor Cuomo in 1985, which
filed its report in May, 1994. The Task Force was composed of
twenty-four members representing a broad spectrum of ethical and
religious views and ethical, health, legal, and medical
competencies. Its membership disagreed on the morality of
suicide. Unanimously the members agreed against recommending a
change in New York law to permit assisted suicide. Washington's
interest in preventing such suicides is as strong as the
interests that moved this diverse commission to its unanimous
conclusion. A Michigan commission, set up in 1992, by majority
vote in June 1994 recommended legislative change in the Michigan
law against assisted suicide and set out a proposed new statute
as a legislative option; the commission did not challenge the
constitutionality of the existing Michigan legislation. Michigan
Commission on Death and Dying, Final Report (1994). Neither the
New York nor the Michigan reports were available to the district
court. We take them into account on this appeal as we take into
account the legal and medical articles cited by the parties and
amici as representative professional judgments in this area of
law. In the light of all these materials, Washington's interests
are at least these:
        1. The interest in not having physicians in the role of
killers of their patients. "Physician-assisted suicide is
fundamentally incompatible with the physician's role as healer,"
declares the American Medical Association's Code of Medical
Ethics (1994)  2.211. From the Hippocratic Oath with its
promise "to do no harm," see T.L. Beauchamp and J.F. Childress,
Principles of Biomedical Ethics (1993) 330, to the AMA's code,
the ethics of the medical profession have proscribed killing.
Washington has an interest in preserving the integrity of the
physician's practice as understood by physicians.
        Not only would the self-understanding of physicians be
affected by removal of the state's support for their
professional stance; the physician's constant search for ways to
combat disease would be affected, if killing were as acceptable
an option for the physician as curing. See Alexander M. Capron,
"Euthanasia in the Netherlands: American Observations," 22
Hastings Center Report 30, 32 (1992). The physician's commitment
to curing is the medical profession's commitment to medical
progress. Medically-assisted suicide as an acceptable
alternative is a blind alley; Washington has a stake in barring
it.
        2. The interest in not subjecting the elderly and even
the not-elderly but infirm to psychological pressure to consent
to their own deaths. For all medical treatments, physicians
decide which patients are the candidates. If assisted suicide
was acceptable professional practice, physicians would make a
judgment as to who was a good candidate for it. Physician
neutrality and patient autonomy, independent of their
physician's advice, are largely myths. Most patients do what
their doctors recommend. As an eminent commission concluded,
"Once the physician suggests suicide or euthanasia, some
patients will feel that they have few, if any alternatives, but
to accept the recommendation." New York State Task Force, When
Death Is Sought, 122. Washington has an interest in preventing
such persuasion.
        3. The interest in protecting the poor and minorities
from exploitation. The poor and minorities would be especially
open to manipulation in a regime of assisted suicide for two
reasons: Pain is a significant factor in creating a desire for
assisted suicide, and the poor and minorities are notoriously
less provided for in the alleviation of pain. Id. at 100. The
desire to reduce the cost of public assistance by quickly
terminating a prolonged illness cannot be ignored: "the cost of
treatment is viewed as relevant to decisions at the bedside."
Id. at 129. Convergently, the reduction of untreated (although
treatable) pain and economic logic would make the poorest the
primest candidates for physician-assisted and physician
-recommended suicide.
        4. The interest in protecting all of the handicapped from
societal indifference and antipathy. Among the many briefs we
have received from amici curiae there is one on behalf of
numerous residents of nursing homes and long-term care
facilities. The vulnerability of such persons to physician
-assisted suicide is foreshadowed in the discriminatory way that
a seriously-disabled person's expression of a desire to die is
interpreted. When the nondisabled say they want to die, they are
labelled as suicidal; if they are disabled, it is treated as
"natural" or "reasonable". See Carol J. Gill, "Suicide
Intervention for Persons with Disabilities: A Lesson in
Inequality," 8 Issues in Law & Med. 37, 38-39 (1993). In the
climate of our achievement-oriented society, "simply offering
the option of 'self-deliverance' shifts a burden of proof, so
that helpless patients must ask themselves why they are not
availing themselves of it." Richard Doerflinger, "Assisted
Suicide: Pro-choice or Anti-Life?" 19 Hastings Center Report 16,
17 (1989). An insidious bias against the handicapped -- again
coupled with a cost-saving mentality -- makes them especially in
need of Washington's statutory protection.
        5. An interest in preventing abuse similar to what has
occurred in the Netherlands where, since 1984, legal guidelines
have tacitly allowed assisted suicide or euthanasia in response
to a repeated request from a suffering, competent patient. In
1990, approximately 1.8 per cent of all deaths resulted from
this practice. At least an additional .8 percent of all deaths,
and arguably more, come from direct measures taken to end the
person's life without a contemporaneous request to end it. New
York State Task Force, When Death Is Sought, 133-134.
        Sixth. The scope of the district court's judgment is,
perhaps necessarily, indefinite. The judgment of the district
court was entered in favor of Jane Roe and John Doe although
they were dead. This unheard-of judgment was a nullity. The
judgment in favor of James Poe lapsed with his death pending
appeal. The judgment in favor of Doctors Glucksberg, Halperin,
Preston and Shalit was "insofar as they raise claims on behalf
of their terminally ill patients." No such patients were
identified by these doctors except patients who were already
deceased. Presumably, then, the judgment was behalf of
terminally ill patients that these doctors might encounter in
the future. The term "terminally ill" was not defined by the
court. No class was certified by the court. There is a good deal
of uncertainty on whose behalf the judgment was entered.
        It was suggested in argument that a definition of the
terminally ill could be supplied from the Washington statute on
the refusal of life-sustaining treatment which does define
"terminal condition." Wash. Rev. Code 70.122.020(9). There are
three difficulties: "terminal condition" and "terminally ill"
are different terms; the examples given by the plaintiffs show
considerable variation in whom they considered terminally ill to
be; there is wide disagreement in definition of the terminally
ill among the states. See New York State Task Force, When Death
Is Sought, 23-35. Life itself is a terminal condition, unless
terminal condition is otherwise defined by a specific statute. A
terminal illness can vary from a sickness causing death in days
or weeks to cancer, which Dr. Glucksberg notes is "very slow" in
its deadly impact, to a heart condition which Dr. Preston notes
can be relieved by a transplant, to AIDS, which Dr. Shalit
declares is fatal once contracted. One can only guess which
definition of the terminally ill would satisfy the
constitutional criteria of the district court. Consequently, an
amorphous class of beneficiaries has been created in this non
-class action; and the district court has mandated Washington to
reform its law against the promotion of suicide to safeguard the
constitutional rights of persons whom the district court has not
identified.
        Seventh. At the heart of the district court's decision
appears to be its refusal to distinguish between actions taking
life and actions by which life is not supported or ceases to be
supported. This refusal undergirds the district court's reading
of Cruzan as well as its holding that the statute violates equal
protection. The distinction, being drawn by the legislature not
on the basis of race, gender or religion or membership in any
protected class and not infringing any fundamental
constitutional right, must be upheld unless the plaintiffs can
show "that the legislature's actions were irrational." Kadrmas
v. Dickerson Public Schools, 487 U.S. 450, 458 (1988). The
plaintiffs have not sustained this burden.
        Against the broad background of moral experience that
everyone acquires, the law of torts and the law of criminal
offenses against the person have developed. "At common law, even
the touching of one person by another without consent and
without legal justification was a battery." Cruzan, 497 U.S. at
269. The physician's medical expertness is not a license to
inflict medical procedures against your will. Protected by the
law of torts, you can have or reject such medical treatment as
you see fit. You can be left alone if you want. Privacy in the
primordial sense in which it entered constituted parlance --
"the right to be let alone" -- is yours. See Olmstead v. United
States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
        Tort law and criminal law have never recognized a right
to let others enslave you, mutilate you, or kill you. When you
assert a claim that another -- and especially another licensed
by the state -- should help you bring about your death, you ask
for more than being let alone; you ask that the state, in
protecting its own interest, not prevent its licensee from
killing. The difference is not of degree but of kind. You no
longer seek the ending of unwanted medical attention. You seek
the right to have a second person collaborate in your death. To
protect all the interests enumerated under Fifth above, the
statute rightly and reasonably draws the line.
        Compassion, according to the reflections of Prince
Myshkin, is "the most important, perhaps the sole law of human
existence." Feodor Dostoevsky, The Idiot, 292 (Alan Myers,
trans.) (1991). In the vernacular, compassion is trumps. No one
can read the accounts of the sufferings of the deceased
plaintiffs supplied by their declarations, or the accounts of
the sufferings of their patients supplied by the physicians,
without being moved by them. No one would inflict such
sufferings on another or want them inflicted on himself; and
since the horrors recounted are those that could attend the end
of life anyone who reads of them must be aware that they could
be attendant on his own death. The desire to have a good and
kind way of forestalling them is understandably evident in the
declarations of the plaintiffs and in the decision of the
district court.
        Compassion is a proper, desirable, even necessary
component of judicial character; but compassion is not the most
important, certainly not the sole law of human existence.
Unrestrained by other virtues, as The Idiot illustrates, it
leads to catastrophe. Justice, prudence, and fortitude are
necessary too. Compassion cannot be the compass of a federal
judge. That compass is the Constitution of the United States.
Where, as here in the case of Washington, the statute of a state
comports with that compass, the validity of the statute must be
upheld.
        For all the foregoing reasons, the judgment appealed from
is REVERSED.


        WRIGHT, Circuit Judge, Dissenting:
        This case involves the state's power arbitrarily to
deprive terminally ill, mentally competent adults of the right
to choose how to die. Because RCW 9A.36.060 violates plaintiffs'
privacy and equal protection rights, I dissent. The majority's
approach subjects such patients to unwanted and needless
suffering. See Brief of Amicus Curiae of Ten Surviving Family
Members In Support of Physician-Assisted "Suicide."
        The majority views the asserted right as illimitable
because it depends upon the meaning of "terminally
ill."[FOOTNOTE 1] But if we were to affirm, our task would not
be to specify the parameters of the right. We are limited, as
was the district court, to the dispute before us. The majority's
"depressed twenty-one year old" is not a party before
us.[FOOTNOTE 2] The deceased plaintiff patients were terminally
ill, mentally competent adults, entitled to be free from
unwarranted state interference in their last days.
        A. Due Process
        1. Privacy Right
        Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992),
defines the scope of protected liberty interests. The Court
there explained that:
        [M]atters [ ] involving the most intimate and personal
choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment. At the heart of liberty
is the right to define one's own concept of existence, of
meaning, of the universe, and of the mystery of human life.
Beliefs about these matters could not define the attributes of
personhood were they formed under compulsion of the State.
        Id. at 2807. The majority contends that this language is
out of context in this case. Yet that general language was not
tailored specifically for the abortion context but derived from
well-established Supreme Court precedent. The same paragraph
explains:
        Our law affords constitutional protection to personal
decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education.
        Id. (citation omitted).
        The district court's application of Casey hardly amounts
to "an enormous leap" that does "violence to the context."
        An aspect of the liberty interest is the right to
personal privacy, or a guarantee of certain areas or zones of
privacy. Carey v. Population Servs. Int'l, 431 U.S. 678, 684
(1977)(quotation omitted). This privacy right includes "the
interest in independence in making certain kinds of important
decisions." Whalen v. Roe, 429 U.S. 589, 599-600 (1977).
        The right to die with dignity falls squarely within the
privacy right recognized by the Supreme Court. The decision by a
terminally ill, mentally competent adult to request physician
assistance in hastening death is a highly personal one, directly
implicating the right to privacy. The Supreme Court recognized
that "[t]he choice between life and death is a deeply personal
decision." Cruzan v. Director, Missouri Dept. of Health, 497
U.S. 261, 281 (1990). The Court declared that the "principle
that a competent person has a constitutionally protected liberty
interest in refusing unwanted medical treatment may be inferred
from our prior decisions." Id. at 278. Accord In re Quinlan, 355
A.2d 647, 663 (N.J. 1976)(privacy right "is broad enough to
encompass a patient's decision to decline medical treatment
under certain circumstances."); Superintendent v. Saikewicz, 370
N.E.2d 417, 424 (Mass. 1977).
        A constitutional distinction cannot be drawn between
refusing life-sustaining medical treatment and accepting
physician assistance in hastening death.[FOOTNOTE 3] "[I]f an
individual has a constitutionally protected right to refuse
lifesaving medical treatment and life sustaining nutrition, it
would seem logically impossible to make it a crime for that
person to take active steps to terminate his life." 3 Rotunda &
Nowak, Treatise on Constitutional Law 388 (1992).[FOOTNOTE 4]
Such a distinction yields patently unjust results. For example,
a respirator-dependent patient may demand that the respirator be
removed when the pain becomes unbearable. Terminally ill
patients not dependent on such life support, however, cannot
receive physician assistance to end unwanted agony. So says the
majority opinion.
        Along with established precedent, "this Nation's history
and tradition" help to define the content of substantive due
process. Moore v. East Cleveland, 431 U.S. 494, 503 (1977).
Because medicine is constantly evolving and presenting new legal
questions,[FOOTNOTE 5] whether American history and tradition
support the right asserted must be answered at a more abstract
level than the majority would permit. For example, in Loving v.
Virginia, 388 U.S. 1, 12 (1967), the Court looked beyond the
historical and traditional bars to interracial marriages to the
more abstract principles of the "rights essential to the orderly
pursuit of happiness by free men."
        Likewise, we must ask whether American history and
tradition reflect the values of self-determination and privacy
regarding personal decisions. In the late nineteenth century,
the Court wrote: "No right is held more sacred, or is more
carefully guarded, by the common law, than the right of every
individual to the possession and control of his own person, free
from all restraint or interference of others unless by clear and
unquestioned authority of law." Union Pac. R. Co. v. Botsford,
141 U.S. 250 (1891). The right to die with dignity accords with
the American values of self-determination and privacy regarding
personal decisions.
        2. Standard of Review
        The applicable standard of review is strict
scrutiny.[FOOTNOTE 6] Because a fundamental right is involved,
the statute that limits this right can be justified only by a
"compelling state interest," Shapiro v. Thompson, 394 U.S. 618,
634 (1969), and it must be narrowly drawn to serve only that
interest. Aptheker v. Secretary of State, 378 U.S. 500, 508
(1964).
        3. The Statute is Invalid as Applied
        The state has an interest in preserving the lives of its
citizens. But the state's interest weakens and the individual's
right to privacy grows as natural death approaches. In re
Quinlan, 355 A.2d 647, 664 (N.J. 1976); Superintendent v.
Saikewicz, 370 N.E.2d 417, 426 (Mass. 1977)(rational decision by
terminally ill, competent patient to refuse life-sustaining
treatment has no connection with state interest in preserving
life).
        The Washington Legislature is capable of enacting
regulations that serve the state's interest in preserving human
life, while protecting the fundamental liberties of terminally
ill, mentally competent adults. As Washington law now stands,
the statute prevents all terminally ill, mentally competent
adults from exercising their right to physician-hastened death.
Because the legislature can draft laws that would protect
plaintiffs' right to privacy, the existing legislation is not
narrowly tailored.
        The district court invalidated the statute on its face.
According to plaintiffs' reply brief before the district court
and their oral argument before us, they challenge the statute as
it is applied to them as well as on its face. I would hold the
statute invalid only as it is applied to terminally ill,
mentally competent adults.
        B. <IB>Equal Protection
        Washington law permits terminally ill persons to obtain
medical assistance in withdrawing life-sustaining treatment. See
In re Grant, 747 P.2d 445 (Wash. 1987); RCW 70.122.010. Yet it
prohibits other forms of physician-hastened death for terminally
ill, mentally competent adults. Because Washington's laws
abrogate the fundamental rights of one group, but not those of a
similarly situated group, they must be subjected to strict
scrutiny and upheld only if the classifications are suitably
tailored to serve a compelling state interest. City of Cleburne
v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985).
        The two groups of patients are similarly situated because
they are both comprised of terminally ill, mentally competent
adults. As observed by the district court, "[b]oth [groups of]
patients may be terminally ill, suffering pain and loss of
dignity and subjected to a more extended dying process without
some medical intervention, be it removal of life support systems
or the prescription of medication to be self-administered." 850
F. Supp. at 1467. There is but one difference: one group can
hasten death through withdrawal of life support; the other can
do so only with affirmative medical assistance. Washington's
disparate treatment drawn on this difference is not suitably
tailored to serve a compelling state interest. Therefore, RCW
9A.36.060 violates plaintiffs' right to equal protection.
        C. Conclusion
        The majority has denied plaintiffs the right to die with
dignity. Terminally ill, mentally competent adults, like
plaintiff patients, have a fundamental privacy right to choose
physician-hastened death. RCW 9A.36.060, as applied to those
persons, violates the privacy and equal protection guarantees of
the Constitution.
        I dissent.

:::::::::::::::::::::::::: FOOTNOTES ::::::::::::::::::::::::::

        FN1. A federal district court that recently decided
against recognizing the asserted right did not have such
definitional concerns. Quill v. Koppell, 870 F. Supp. 78, 84
(S.D.N.Y. 1994)("Plaintiffs are, of course, suggesting a limited
form of physician assisted suicide.").

        FN2. In any event, the state has a legitimate interest in
preserving the life of a "depressed twenty-one year old" because
he or she has a significant life expectancy while the terminally
ill plaintiffs before the court had only a limited amount of
life left. The state's interest in preserving life declines and
the individual's right to privacy grows as natural death
approaches. In re Quinlan, 355 A.2d 647, 664 (N.J. 1976). For a
complete discussion of the state's interest in preserving the
lives of non-terminally ill adults see Robert Sedler,
Constitutional Challenges to Bans on "Assisted Suicide": The
View From Without and Within, 21 Hastings Const. L.Q. 777, 790
-795 (1994); Robert L. Risley, Ethical & Legal Issues in the
Individual's Right to Die, 20 Ohio N.U. L. Rev. 597, 610 (1993).

        FN3. Contrary to the majority's assertion, the Cruzan
Court did not draw such a distinction. The majority lifts
language from Cruzan that indicates only that states have a
general interest in prohibiting the assistance of suicide. This
begs the question whether a state can prohibit physician
-hastened death for terminally ill, mentally competent adults.

        FN4. Indeed, as Justice Scalia framed the problem in his
concurring opinion in Cruzan: "Starving oneself to death is no
different from putting a gun to one's temple as far as the
common-law definition of suicide is concerned; the cause of
death in both cases is the suicide's conscious decision to put
an end to his own existence. Of course the common law rejected
the action-inaction distinction in other contexts involving the
taking of human life as well. . . . A physician . . . could be
criminally liable for failure to provide care that could have
extended the patient's life, even if death was immediately
caused by the underlying disease that the physician failed to
treat." 497 U.S. at 296-97 (quotations and citations omitted).
See also James Rogers, Punishing Assisted Suicide: Where
Legislators Should Fear to Tread, 20 Ohio N.U. L. Rev. 647, 650
(1993)(explaining impossibility of distinguishing between
letting die and assistance in death).

        FN5. "With the development of the new techniques, serious
questions as to what may constitute acting in the best interests
of the patient have arisen." Superintendent v. Saikewicz, 370
N.E.2d 417, 423 (Mass. 1977). "An inadvertent and unintended
side effect of medicine's growing effectiveness is that the
dying process has been elongated. . . . [F]or those who are
suffering greatly . . . it has become harder and harder to die."
Timothy E. Quill, M.D., Death and Dignity: Making Choices and
Taking Charge 50 (1993).

        FN6. The district court applied the "undue burden"
standard because "the constitutional rights at issue in this
case are analogous to those in Casey and other decisions using
an undue burden standard." Compassion in Dying v. State of
Washington, 850 F. Supp. 1455, 1463-64 (W.D. Wash. 1994). But
Casey does not reject the strict scrutiny standard of review in
non-abortion cases. Because the instant case does not involve a
challenge to a regulation of abortion rights, the traditional
strict scrutiny test must be applied.