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WASHINGTON et al. v. GLUCKSBERG et al.

certiorari to the united states court of appeals for the ninth circuit

No. 96­110. Argued January 8, 1997--Decided June 26, 1997

It has always been a crime to assist a suicide in the State of Washington. The State's present law makes "[p]romoting a suicide attempt" a felony, and provides: "A person is guilty of [that crime] when he knowingly causes or aids another person to attempt suicide."

Respondents, four Washington physicians who occasionally treat terminally ill, suffering patients, declare that they would assist these patients in ending their lives if not for the State's assisted-suicide ban.

They, along with three gravely ill plaintiffs who have since died and a nonprofit organization that counsels people considering physician-assisted suicide, filed this suit against petitioners, the State and its Attorney General, seeking a declaration that the ban is, on its face, unconstitutional.

They assert a liberty interest protected by the Fourteenth Amendment's Due Process Clause which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide.

Relying primarily on Planned Parenthood of Southeastern Pa. v. Casey,  505 U.S. 833, and Cruzan v. Director, Mo. Dept. of Health,  497 U.S. 261, the Federal District Court agreed, concluding that Washington's assistedsuicide ban is unconstitutional because it places an undue burden on the exercise of that constitutionally protected liberty interest.

The en banc Ninth Circuit affirmed.

Held: Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide does not violate the Due Process Clause. Pp. 710­736. (a) An examination of our Nation's history, legal traditions, and practices demonstrates that Anglo-American common law has punished or otherwise disapproved of assisting suicide for over 700 years; that rendering such assistance is still a crime in almost every State; that such prohibitions have never contained exceptions for those who were near death; that the prohibitions have in recent years been reexamined and, for the most part, reaffirmed in a number of States; and that the President recently signed the Federal Assisted Suicide Funding Restriction Act of 1997, which prohibits the use of federal funds in support of physician-assisted suicide.

Pp. 710­719. (b) In light of that history, this Court's decisions lead to the conclusion that respondents' asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.

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The Court's established method of substantive-due-process analysis has two primary features: First, the Court has regularly observed that the Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition. E. g., Moore v. East Cleveland,  431 U.S. 494, 503 (plurality opinion). Second, the Court has required a "careful description" of the asserted fundamental liberty interest.

E. g., Reno v. Flores,  507 U.S. 292, 302. The Ninth Circuit's and respondents' various descriptions of the interest here at stake--e. g., a right to "determin[e] the time and manner of one's death," the "right to die," a "liberty to choose how to die," a right to "control of one's final days," "the right to choose a humane, dignified death," and "the liberty to shape death"--run counter to that second requirement.

Since the Washington statute prohibits "aid[ing] another person to attempt suicide," the question before the Court is more properly characterized as whether the "liberty" specially protected by the Clause includes a right to commit suicide which itself includes a right to assistance in doing so.

This asserted right has no place in our Nation's traditions, given the country's consistent, almost universal, and continuing rejection of the right, even for terminally ill, mentally competent adults.

To hold for respondents, the Court would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. Respondents' contention that the asserted interest is consistent with this Court's substantive-due-process cases, if not with this Nation's history and practice, is unpersuasive. The constitutionally protected right to refuse lifesaving hydration and nutrition that was discussed in Cruzan, supra, at 279, was not simply deduced from abstract concepts of personal autonomy, but was instead grounded in the Nation's history and traditions, given the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment.

And although Casey recognized that many of the rights and liberties protected by the Due Process Clause sound in personal autonomy, 505 U. S., at 852, it does not follow that any and all important, intimate, and personal decisions are so protected, see San Antonio Independent School Dist.v. Rodriguez,  411 U.S. 1, 33­34.

Casey did not suggest otherwise. Pp. 719­728. (c) The constitutional requirement that Washington's assisted-suicide ban be rationally related to legitimate government interests, see, e. g.,Heller v. Doe,  509 U.S. 312, 319­320, is unquestionably met here. These interests include prohibiting intentional killing and preserving human life; preventing the serious public-health problem of suicide, especially among the young, the elderly, and those suffering from untreated pain or from depression or other mental disorders; protecting

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the medical profession's integrity and ethics and maintaining physicians' role as their patients' healers; protecting the poor, the elderly, disabled persons, the terminally ill, and persons in other vulnerable groups from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide toward voluntary and perhaps even involuntary euthanasia.

The relative strengths of these various interests need not be weighed exactingly, since they are unquestionably important and legitimate, and the law at issue is at least reasonably related to their promotion and protection.

Pp. 728­735.

 79 F.3d 790, reversed and remanded.

delivered the opinion of the Court, in which O'ConRehnquist, C. J., and Thomas, JJ., joined. filed a nor, Scalia, Kennedy, O'Connor, J., concurring opinion, in which Ginsburg and Breyer, JJ., joined in part, post, p. 736. post, p. 738, Souter, J., post, p. 752, Ginsburg, Stevens, J., post, p. 789, and Breyer, J., post, p. 789, filed opinions concurring in J., the judgment.

William L. Williams, Senior Assistant Attorney General of Washington, argued the cause for petitioners. With him on the briefs were Christine O. Gregoire, Attorney General, and William Berggren Collins, Senior Assistant Attorney General.

Acting Solicitor General Dellinger argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Hunger,Deputy Solicitor General Waxman, Deputy Assistant At-torney General Preston, Irving L. Gornstein, and BarbaraC. Biddle.

Kathryn L. Tucker argued the cause for respondents. With her on the brief were David J. Burman, Kari AnneSmith, and Laurence H. Tribe.^{Footnote *}

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delivered the opinion of the Chief Justice Rehnquist Court.

The question presented in this case is whether Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide

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offends the Fourteenth Amendment to the United States Constitution. We hold that it does not. It has always been a crime to assist a suicide in the State of Washington. In 1854, Washington's first Territorial Leg-

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islature outlawed "assisting another in the commission of self-murder." ^{Footnote 1} Today, Washington law provides: "A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide." Wash.

Rev. Code § 9A.36.060(1) (1994). "Promoting a suicide attempt" is a felony, punishable by up to five years' imprisonment and up to a $10,000 fine. §§ 9A.36.060(2) and 9A.20.021(1)(c). At the same time, Washington's Natural Death Act, enacted in 1979, states that the "withholding or withdrawal of life-sustaining treatment" at a patient's direction "shall not, for any purpose, constitute a suicide."

Wash.

Rev. Code § 70.122.070(1). ^{Footnote 2} Petitioners in this case are the State of Washington and its Attorney General. Respondents Harold Glucksberg, M. D., Abigail Halperin, M. D., Thomas A. Preston, M. D., and Peter Shalit, M. D., are physicians who practice in Washington. These doctors occasionally treat terminally ill, suffering patients, and declare that they would assist these patients in ending their lives if not for Washington's assisted-suicide ban. ^{Footnote 3}

In January 1994, respondents, along with three gravely ill, pseudonymous plaintiffs who have since died and

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Compassion in Dying, a nonprofit organization that counsels people considering physician-assisted suicide, sued in the United States District Court, seeking a declaration that Wash. Rev. Code § 9A.36.060(1) (1994) is, on its face, unconstitutional.

Compassion in Dying v. Washington, 850 F. Supp.

1454, 1459 (WD Wash. 1994). ^{Footnote 4} The plaintiffs asserted "the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide."

Ibid. Relying primarily on Planned Parenthood of Southeastern Pa. v. Casey,  505 U.S. 833 (1992), and Cruzan v. Director, Mo.Dept. of Health,  497 U.S. 261 (1990), the District Court agreed, 850 F. Supp., at 1459­1462, and concluded that Washington's assisted-suicide ban is unconstitutional because it "places an undue burden on the exercise of [that] constitutionally protected liberty interest."

Id., at 1465. ^{Footnote 5} The District Court also decided that the Washington statute violated the Equal Protection Clause's requirement that " `all persons similarly situated . . . be treated alike.' "

Id., at 1466 (quoting Cleburne v. Cleburne Living Center, Inc.,  473 U.S. 432, 439 (1985)).

A panel of the Court of Appeals for the Ninth Circuit reversed, emphasizing that "[i]n the two hundred and five years of our existence no constitutional right to aid in killing

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oneself has ever been asserted and upheld by a court of final jurisdiction." Compassion in Dying v. Washington, 49 F.

3d 586, 591 (1995). The Ninth Circuit reheard the case en banc, reversed the panel's decision, and affirmed the District Court. Compassion in Dying v. Washington,  79 F.3d 790, 798 (1996). Like the District Court, the en banc Court of Appeals emphasized our Casey and Cruzan decisions. ^{Footnote 79} F. 3d, at 813­816. The court also discussed what it described as "historical" and "current societal attitudes" toward suicide and assisted suicide, id., at 806­812, and concluded that "the Constitution encompasses a due process liberty interest in controlling the time and manner of one's death--that there is, in short, a constitutionally-recognized `right to die.' "

Id., at 816. After "[w]eighing and then balancing" this interest against Washington's various interests, the court held that the State's assisted-suicide ban was unconstitutional "as applied to terminally ill competent adults who wish to hasten their deaths with medication prescribed by their physicians."

Id., at 836, 837. ^{Footnote 6} The court did not reach the District Court's equal protection holding. Id., at 838. ^{Footnote 7} We granted certiorari, 518 U. S. 1057 (1996), and now reverse.

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I

We begin, as we do in all due process cases, by examining our Nation's history, legal traditions, and practices. See, e. g., Casey, supra, at 849­850; Cruzan, supra, at 269­279; Moore v. East Cleveland,  431 U.S. 494, 503 (1977) (plurality opinion) (noting importance of "careful `respect for the teachings of history' ").

In almost every State--indeed, in almost every western democracy--it is a crime to assist a suicide. ^{Footnote 8} The States' assisted-suicide bans are not innovati ons. Rather, they are longstanding expressions of the States' commitment to the protection and preservation of all human life.

Cruzan, supra, at 280 ("[T]he States--indeed, all civilized nations--demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the major-

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ity of States in this country have laws imposing criminal penalties on one who assists another to commit suicide"); see Stanford v. Kentucky,  492 U.S. 361, 373 (1989) ("[T]he primary and most reliable indication of [a national] consensus is . . . the pattern of enacted laws").

Indeed, opposition to and condemnation of suicide--and, therefore, of assisting suicide--are consistent and enduring themes of our philosophical, legal, and cultural heritages.

See generally Marzen 17­56; New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 77­82 (May 1994) (hereinafter New York Task Force).

More specifically, for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide. ^{Footnote 9} Cruzan, 497 U. S., at 294­295 (Scalia, J., concurring). In the 13th century, Henry de Bracton, one of the first legal-treatise writers, observed that "[ j]ust as a man may commit felony by slaying another so may he do so by slaying himself."

2 Bracton on Laws and Customs of England 423 (f. 150) (G. Woodbine ed., S. Thorne transl., 1968). The real and personal property of one who killed himself to avoid conviction and punishment for a crime were forfeit to the King; however, thought Bracton, "if a man slays himself in weariness of life or because he is unwilling to endure further bodily pain . . . [only] his movable goods [were] confiscated."

Id., at 423­424 (f. 150).

Thus, "[t]he principle that suicide of a sane person, for whatever reason, was a punishable felony was . . . introduced into

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English common law." ^{Footnote 10} Centuries later, Sir William Blackstone, whose Commentaries on the Laws of England not only provided a definitive summary of the common law but was also a primary legal authority for 18th- and 19th-century American lawyers, referred to suicide as "self-murder" and "the pretended heroism, but real cowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not the fortitude to endure . . . ." 4 W. Blackstone, Commentaries ^{Footnote *} 189.

Blackstone emphasized that "the law has . . . ranked [suicide] among the highest crimes," ibid., although, anticipating later developments, he conceded that the harsh and shameful punishments imposed for suicide "borde[r] a little upon severity." Id., at *190.

For the most part, the early American Colonies adopted the common-law approach. For example, the legislators of the Providence Plantations, which would later become Rhode Island, declared, in 1647, that "[s]elf-murder is by all agreed to be the most unnatural, and it is by this present Assembly declared, to be that, wherein he that doth it, kills himself out

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of a premeditated hatred against his own life or other humor: . . . his goods and chattels are the king's custom, but not his debts nor lands; but in case he be an infant, a lunatic, mad or distracted man, he forfeits nothing."

The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647­1719, p. 19 (J. Cushing ed. 1977). Virginia also required ignominious burial for suicides, and their estates were forfeit to the Crown. A. Scott, Criminal Law in Colonial Virginia 108, and n. 93, 198, and n. 15 (1930). Over time, however, the American Colonies abolished these harsh common-law penalties. William Penn abandoned the criminal-forfeiture sanction in Pennsylvania in 1701, and the other Colonies (and later, the other States) eventually followed this example.

Cruzan, supra, at 294 (Scalia, J., concurring). Zephaniah Swift, who would later become Chief Justice of Connecticut, wrote in 1796:

"There can be no act more contemptible, than to attempt to punish an offender for a crime, by exercising a mean act of revenge upon lifeless clay, that is insensible of the punishment.

There can be no greater cruelty, than the inflicting [of] a punishment, as the forfeiture of goods, which must fall solely on the innocent offspring of the offender. . . . [Suicide] is so abhorrent to the feelings of mankind, and that strong love of life which is implanted in the human heart, that it cannot be so frequently committed, as to become dangerous to society.

There can of course be no necessity of any punishment." 2 Z. Swift, A System of the Laws of the State of Connecticut 304 (1796).

This statement makes it clear, however, that the movement away from the common law's harsh sanctions did not represent an acceptance of suicide; rather, as Chief Justice Swift observed, this change reflected the growing consensus that it was unfair to punish the suicide's family for his wrongdoing. Cruzan, supra, at 294 (Scalia, J., concurring).

Nonethe-

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less, although States moved away from Blackstone's treatment of suicide, courts continued to condemn it as a grave public wrong.

See, e. g., Bigelow v. Berkshire Life Ins. Co.,  93 U.S. 284, 286 (1876) (suicide is "an act of criminal selfdestruction"); Von Holden v. Chapman, 87 App. Div. 2d 66, 70­71, 450 N. Y. S. 2d 623, 626­627 (1982); Blackwood v. Jones, 111 Fla. 528, 532, 149 So. 600, 601 (1933) ("No sophistry is tolerated . . . which seek[s] to justify self-destruction as commendable or even a matter of personal right").

That suicide remained a grievous, though nonfelonious, wrong is confirmed by the fact that colonial and early state legislatures and courts did not retreat from prohibiting assisting suicide.

Swift, in his early 19th-century treatise on the laws of Connecticut, stated that "[i]f one counsels another to commit suicide, and the other by reason of the advice kills himself, the advisor is guilty of murder as principal."

2 Z.

Swift, A Digest of the Laws of the State of Connecticut 270 (1823). This was the well-established common-law view, see In re Joseph G., 34 Cal. 3d 429, 434­435, 667 P. 2d 1176, 1179 (1983); Commonwealth v. Mink, 123 Mass. 422, 428 (1877) (" `Now if the murder of one's self is felony, the accessory is equally guilty as if he had aided and abetted in the murder' ") (quoting Chief Justice Parker's charge to the jury in Com-monwealth v. Bowen, 13 Mass. 356 (1816)), as was the similar principle that the consent of a homicide victim is "wholly immaterial to the guilt of the person who cause[d] [his death]," 3 J. Stephen, A History of the Criminal Law of England 16 (1883); see 1 F. Wharton, Criminal Law §§ 451­452 (9th ed. 1885); Martin v. Commonwealth, 184 Va. 1009, 1018­ 1019, 37 S. E. 2d 43, 47 (1946) (" `The right to life and to personal security is not only sacred in the estimation of the common law, but it is inalienable' ").

And the prohibitions against assisting suicide never contained exceptions for those who were near death. Rather, "[t]he life of those to whom life ha[d] become a burden--of those who [were] hopelessly diseased or fatally wounded--nay, even the lives of criminals

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condemned to death, [were] under the protection of the law, equally as the lives of those who [were] in the full tide of life's enjoyment, and anxious to continue to live."

Blackburn v.

State, 23 Ohio St. 146, 163 (1872); see Bowen, supra, at 360 (prisoner who persuaded another to commit suicide could be tried for murder, even though victim was scheduled shortly to be executed).

The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828, Act of Dec. 10, 1828, ch. 20, § 4, 1828 N. Y. Laws 19 (codified at 2 N. Y. Rev. Stat. pt. 4, ch. 1, Tit. 2, Art. 1, § 7, p. 661 (1829)), and many of the new States and Territories followed New York's example.

Marzen 73­74. Between 1857 and 1865, a New York commission led by Dudley Field drafted a criminal code that prohibited "aiding" a suicide and, specifically, "furnish[ing] another person with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life."

Id., at 76­77. By the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a suicide. See Cruzan, 497 U. S., at 294­295 (Scalia, J., concurring). The Field Penal Code was adopted

in the Dakota Territory in 1877 and in New York in 1881, and its language served as a model for several other western States' statutes in the late 19th and early 20th centuries. Marzen 76­77, 205­206, 212­213.

California, for example, codified its assisted-suicide prohibition in 1874, using language similar to the Field Code's. ^{Footnote 11}

In this century, the Model Penal Code also prohibited "aiding" suicide, prompting many States to enact or revise their assisted-suicide

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bans. ^{Footnote 12} The code's drafters observed that "the interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another, even though the act may be accomplished with the consent, or at the request, of the suicide victim."

American Law Institute, Model Penal Code § 210.5, Comment 5, p. 100 (Official Draft and Revised Comments 1980).

Though deeply rooted, the States' assisted-suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology, Americans today are increasingly likely to die in institutions, from chronic illnesses. President's Comm'n for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 16­18 (1983).

Public concern and democratic action are therefore sharply focused on how best to protect dignity and independence at the end of life, with the result that there have been many significant changes in state laws and in the attitudes these laws reflect.

Many States, for example, now permit "living wills," surrogate health-care decisionmaking, and the withdrawal or refusal of life-sustaining medical treatment.

See Vacco v. Quill, post, at 804­806; 79 F. 3d, at 818­820; People v. Kevorkian, 447 Mich. 436, 478­480, and nn. 53­56, 527 N. W. 2d 714, 731­732, and nn. 53­56 (1994). At the same time, however, voters and legislators continue for the most part to reaffirm their States' prohibitions on assisting suicide.

The Washington statute at issue in this case, Wash. Rev.

Code § 9A.36.060 (1994), was enacted in 1975 as part of a revision of that State's criminal code. Four years later,

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Washington passed its Natural Death Act, which specifically stated that the "withholding or withdrawal of life-sustaining treatment . . . shall not, for any purpose, constitute a suicide" and that "[n]othing in this chapter shall be construed to condone, authorize, or approve mercy killing . . . ."

Natural Death Act, 1979 Wash. Laws, ch. 112, § 8(1), p. 11 (codified at Wash. Rev. Code §§ 70.122.070(1), 70.122.100 (1994)). In 1991, Washington voters rejected a ballot initiative which, had it passed, would have permitted a form of physicianassisted suicide. ^{Footnote 13}

Washington then added a provision to the Natural Death Act expressly excluding physician-assisted suicide. 1992 Wash. Laws, ch. 98, § 10; Wash. Rev. Code