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, Ninth Circuit.

Argued and Submitted Dec. 7, 1994.

Filed March 9, 1995.

Order Granting Rehearing En Bane Aug. 1, 1995.

Argued and Submitted Oct. 26, 1995.

Decided March 6, 1996.

As Amended May 28, 1996.

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Christine Gregoire, Attorney General, and William L. Williams, Senior Assistant Attorney General (argued), Olympia, Washington, for defendants-appellants.

Kathryn L. Tucker (argued), David J. Burman, Thomas L. Boeder, Kari Anne Smith, Perkins Coie, Seattle, Washington, for plaintiffs-appellees.

Wesley J. Smith, San Francisco, California, for amicus curiae Intern. 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. Brockman, 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, McCuthchen, Doyle, Brown & Enersen, San Francisco, California, for amicus euriae 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, Americans United for Life, Chicago,

Illinois, for amici curiae, Washington State Legislators.

Barbara Allan Shickich, Joseph E. Shiekich, Jr., Graham & James, LLP/Riddel] Williams, P.S., Seattle, Washington, for amicus curiae Washington State Hospital Association and Catholic Health Association of the United States.

Catherine W. Smith, Edwards, Sieh, Hathaway, Smith & Goodfriend, P.S., Seattle, Washington, for amicus curiae Amici State Legislators.

Todd Maybrown, Allen, Hansen & Maybrown, Karen Boxx and Juli Farris, Keller Rohrback, 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 the 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. He, David Orentlicher, Jack R. Bierig, Sidley & Austin, Chicago, Illinois, Paul E. Kalb, Sidley & Austin, Washington, D.C., for amicus curiae American Medical Association.

Appeal from the United States District Court for the Western District of Washington, Barbara J. Rothstein, Chief District Judge, Presiding.

Before BROWNING, HUG, SCHROEDER, FLETCHER, PREGERSON, REINHARDT, BEEZER, WIGGINS, THOMPSON, FERNANDEZ, and KLEINFELD, Circuit Judges.

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

REINHARDT, Circuit Judge:

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 exists, we must next decide whether or not the state of Washington may constitutionally restrict its exercise by banning a form of medical assistance that is frequently requested by terminally ill people who wish to die. We first conclude that there is a constitutionally-protected liberty interest in determining the time and manner of one's own death, an interest that must be weighed against the state's legitimate and countervailing interests, especially those that relate to the preservation of human life. After balancing the competing interests, we conclude by answering the narrow question before us: We hold that insofar as the Washington statute prohibits physicians from prescribing life-ending medication for use by terminally ill, competent adults who wish to hasten their own deaths, it violates the Due

Process Clause of the Fourteenth Amendment.

II.

Preliminary Matters and History of the Case

This is the first right-to-die case that this court or any other federal court of appeals has ever decided.^{Footnote 1} The plaintiffs are four physicians who treat terminally ill patients, three terminally ill patients, and a Washington non-profit organization called Compassion In Dying.^{Footnote 2} The four physicians-'Dr.

Harold Glucksberg, Dr. Thomas A. Preston, Dr. Abigail Halperin, and Dr. Peter Shalit' are respected doctors whose expertise is recognized by the state. All declare that they periodically treat terminally ill, competent adults who wish to hasten their deaths with help from their physicians. The doctors state that in their professional judgment they should provide that help but are deterred from doing so by a Washington statute that makes it a felony to knowingly aid another person to commit suicide.

Under the Washington statute, aiding a person who wishes to end his life constitutes a criminal act and subjects the aider to the possibility of a lengthy term of imprisonment, even if the recipient of the aid is a terminally ill, competent adult and the aider is a licensed physician who is providing medical assistance at the request of the patient. The Washington statute provides in pertinent part: "A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide." RCW 9A.36.060 (emphasis added). A violation of the statute constitutes a felony punishable by imprisonment for a maximum of five years and a fine of up to $10,000. RCW 9A.36.060(2) and 9A20.020(l)(c). On appeal, the four plaintiff-doctors asserted the rights of terminally ill, competent adult patients who wished to hasten their deaths with the help of their physicians so that they might die peacefully and with dignity. That group included the three patientplaintiffs. The district court described the patient-plaintiffs, each of whom desired to obtain prescription drugs to hasten his death, as follows:

Jane Roe is a 69-year-old retired pediatrician who has suffered since 1988 from cancer which has now metastasized throughout her skeleton. Although she tried and benefitted temporarily from various treatments including chemotherapy and radiation, she is now in the terminal phase of her disease. In November 1993, her doctor referred her to hospice care. Only patients with a life expectancy of less than six months are eligible for such care.

Jane Roe has been almost completely bedridden since June of 1993 and experiences constant pain, which becomes especially sharp and severe when she moves. The only medical treatment available to her at this time is medication, which cannot fully alleviate her pain. In addition, she suffers from swollen legs, bed sores, poor appetite, nausea and vomiting, impaired vision, incontinence of bowel, and general weakness.

Jane Roe is mentally competent and wishes to hasten her death by taking prescribed drugs with the help of Plaintiff Compassion in Dying. In keeping with the requirements of that organization, she has made three requests for its members to provide her and her family with counseling, emotional support, and any necessary ancillary drug assistance at the time she takes the drugs.

John Doe is a 44-year-old artist dying of AIDS. Since his diagnosis in 1991, he has experienced two bouts of pneumonia, chronic, severe skin and sinus infections, grand mal seizures and extreme fatigue. He has already lost 70% of his vision to cytomegalovirus retinitis, a degenerative disease which will result in blindness and rob him of his ability to paint. His doctor has indicated that he is in the terminal phase of his illness.

John Doe is especially cognizant of the suffering imposed by a lingering terminal illness because he was the primary caregiver for his long-term companion who died of AIDS in June of 1991. He also observed his grandfather's death from diabetes preceded by multiple amputations as well as loss of vision and hearing. Mr. Doe is mentally competent, understands there is no cure for AIDS and wants his physician to prescribe drugs which he can use to hasten his death. James Poe is a 69-year-old retired sales representative who suffers from emphysema, which causes him a constant sensation of suffocating. He is connected to an oxygen tank at all times, and takes morphine regularly to calm the panic reaction associated with his feeling of suffocation. Mr.

Poe also suffers from heart failure related to his pulmonary disease which obstructs the flow of blood to his extremities and causes severe leg pain. There are no cures for his pulmonary and cardiac conditions, and he is in the terminal phase of his illness. Mr. Poe is mentally competent and wishes to commit suicide by taking physician-prescribed drugs.

Compassion In Dying, 850 F.Supp. at 145857. The names of the patients are pseudonymous in order to protect their privacy. All three patients died after the case began.

Two had died by the time the District Court issued its decision. See Compassion In DyWASH. ing v. State of Washington, 850 F.Supp. 1454, 1456 n. 2 (W.D.Wash.1994). The other died prior to the date of the decision by the three-judge panel of this court. Compassion In Dying v. State of Washington,  49 F.3d 586, 588 (9th Cir.1995).

Since the District Court properly granted the physicians standing to assert the rights of their terminally ill patients in general, 850 F.Supp. at 1467, it is clear that this case was not rendered moot by the death of the three named patients. The physicians meet both Article III and jurisprudential standing requirements. See Singleton v. Wulff,  428 U.S. 106, 116-17, 96 S.Ct. 2868, 2875-76, 49 L.Ed.2d 826 (1976) (holding that doctors had standing to challenge'on behalf of women patients in general'a Missouri law banning Medicaid reimbursement for abortions that were not medically required). See also Doe v. Bolton,  410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973) (holding that physicians, asserting the rights of thenpatients, have standing to challenge the constitutionality of a criminal abortion statute even though "the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State's abortion statutes"); Planned Parenthood of Cent Mo. v. Danforth,  428 U.S. 52, 62, 96 S.Ct. 2831, 2837, 49 L.Ed.2d 788 (1976) (same). Although there is some ambiguity in Bolton as to whether the physicians were asserting their own rights or the rights of their patients, the Court in Singleton, after discussing Griswold v. Connecticut,  381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), described Bolton as a case "where the Court also permitted physicians to assert the rights of their patients." ^{Footnote 3}

The doctors in Bolton were held to have standing to assert their patients' rights even though the doctors had never been threatened with prosecution. The doctors here also meet the standing requirements because they run a severe risk of prosecution under

the Washington statute, which proscribes the very conduct in which they seek to engage. The state has never indicated that it would not prosecute doctors who violate that law. See Babbitt v. United Farm Workers National Union,  442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (holding that plaintiff does not have to risk arrest or prosecution in order to have standing to challenge the constitutionality of a criminal statute). See also Planned Parenthood of Cent. Mo., 428 U.S. at 62, 96 S.Ct. at 2837; Bolton, 410 U.S. at 188, 93 S.Ct. at 745 (saying that the "physician is the one against whom these criminal statutes directly operate" and that the "physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. ... [and] should not be required to await and undergo a criminal prosecution as the sole means of seeking relief). We need not decide whether, the deaths of the three patient-plaintiffs would negate the ability of their lawyers to continue the challenge that those patients brought while they were still alive. See Southern Pacific Terminal Co. v. ICC,  219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911) (holding a case is not moot when the controversy is capable of repetition yet evading review). We note, however, that in invoking the capable-of-repetition-yet-evading-review doctrine in Roe v. Wade,  410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Court specifically relied, in part, on the fact that other women would become pregnant. ^{Footnote 4}

The Court said: [W]hen, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate procedure is complete. If that termination makes a case moot, pregnancy litigation will seldom survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us.

Roe, 410 U.S. at 125, 93 S.Ct. at 713 (emphasis added). So, too, unfortunately, will terminal illness. ^{Footnote 5}

The District Court in this case reached only claims asserted by two of the three categories of plaintiffs: the patients' claims that they had a right to receive medical assistance from their physicians and the claims that the physicians asserted on behalf of their patients. It did not address the claim asserted by Compassion In Dying.

Nor, correlatively, did it reach the claim by the terminally ill patients that they had a

OF WASH. right to receive assistance from organizations such as Compassion In Dying.

Like the District Court, we decide only claims brought by the terminally ill patients and the doctors. ^{Footnote 6}

We consider those claims to the extent that they relate to the provision of certain medical assistance to terminally ill persons by physicians or persons acting pursuant to their authorization or direction.

The claims involving Compassion In Dying are not before us. The district court suggested that it would reach those additional claims at a later stage in the proceedings if Compassion In Dying so desired. We have jurisdiction over this appeal from partial summary judgment because the district court certified the appeal at the request of both parties under Federal Rule of Civil Procedure 54(b).

The plaintiffs do not challenge Washington statute RCW 9A.36.060 in its entirety. Specifically they do not object to the portion of the Washington statute that makes it unlawful for a person knowingly to cause another to commit suicide. Rather, they only challenge the statute's "or aids" provision.

They challenge that provision both on its face and as applied to terminally ill, mentally competent adults who wish to hasten their own deaths with the help of medication prescribed by their doctors. ^{Footnote 7}

The plaintiffs contend that the provision impermissibly prevents the exercise by terminally ill patients of a constitutionally-protected liberty interest in violation of the Due Process Clause of the Fourteenth Amendment, and also that it impermissibly distinguishes between similarly situated terminally ill patients in violation of the Equal Protection Clause. In an extremely thoughtful opinion, Chief District Judge Barbara Rothstein held that "a competent, terminally ill adult has a constitutionally guaranteed right under the Fourteenth Amendment to commit physicianassisted suicide." 850 F.Supp. at 1462. Ruling on cross-motions for summary judgment, the District Court concluded that the Washington statute places an undue burden on the exercise of that constitutionally-protected liberty interest. Id. at 1465. The District Court held that the Washington law also violates the Equal Protection Clause because it impermissibly treats similarly situated groups of terminally ill patients differently. Id. at 1467. Although the scope of the relief the District Judge ordered is not clear, id. at 1456, 1459, 1462-1464, 1467, it appears that she declared the statute invalid only insofar as it applies to the prescription of medication to terminally ill competent adults who wish to hasten their deaths'or, to use the district court's precise terminology, only insofar as it applies to "physician-assisted suicide," id. at 1467. ^{Footnote 8}

On appeal, a three-judge panel of this court voted 2-1 to reverse the district court decision. Compassion In Dying v. State of Washington,  49 F.3d 586 (9th Cir.1995). The majority held that there is no due process liberty interest in physician-assisted suicide. It also concluded that the Washington statute does not violate the Equal Protection Clause. Accordingly, the majority held that the statute is not invalid facially or as applied. Judge Wright dissented and would have held that the statute is invalid as applied to terminally ill, mentally competent adults because it violates their privacy and equal protection rights. Id. at 594, 597 (Wright, J., dissenting). Because of the extraordinary importance of this case, we decided to rehear it en bane. Compassion In Dying v. State of Wash.,  62 F.3d 299 (9th Cir.1995).

We now affirm the District Court's decision and clarify the scope of the relief. We hold that the "or aids" provision of Washington statute RCW 9A.36.060, as applied to the prescription of life-ending medication for use by terminally ill, competent adult patients who wish to hasten their deaths, violates the Due Process Clause of the Fourteenth Amendment. ^{Footnote 9}

Accordingly, we need not resolve the question whether that provision, in conjunction with other Washington laws regulating the treatment of terminally ill patients, ^{Footnote 10} also violates the Equal Protection Clause.

III.

Overview of Legal Analysis: Is There a Due Process Violation?

In order to answer the question whether the Washington statute violates the Due Process Clause insofar as it prohibits the provision of certain medical assistance to terminally ill, competent adults who wish to hasten their own deaths, we first determine whether there is a liberty interest in choosing the time and manner of one's death'a question sometimes phrased in common parlance as:

Is there a right to die? Because we hold that there is, we must then determine whether prohibiting physicians from prescribing life-ending medication for use by terminally ill patients who wish to die violates the patients' due process rights.

The mere recognition of a liberty interest does not mean that a state may not prohibit the exercise of that interest in particular circumstances, nor does it mean that a state may not adopt appropriate regulations governing its exercise. Rather, in cases like the one before us, the courts must apply a balancing test under which we weigh the individual's liberty interests against the relevant state interests in order to determine whether the state's actions are constitutionally permissible. As Chief Justice Rehnquist, writing for the Court, explained in Cruzan v. Director, Missouri Dept. of Health,  497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), the only right-to-die case that the Court has heretofore considered: [D]etermining that a person has a "liberty interest" under the Due Process Clause does not end our inquiry; "whether respondent's constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests." Youngberg v. Romeo,  457 U.S. 307, 321, 102 S.Ct. 2452, 2461, 73 L.Ed.2d 28 (1982); See also Mills v. Rogers,  457 U.S. 291, 299, 102 S.Ct. 2442, 2448, 73 L.Ed.2d 16 (1982). Cruzan, 497 U.S. at 279, 110 S.Ct. at 2851-52 (footnote omitted).

The Court has invoked a balancing test in a number of substantive due process cases, not just in the right-to-die context. For example, as the Cruzan Court noted, the Court applied a balancing test in Youngberg and Mills, liberty interest cases involving the right to refuse medical treatment. Youngberg addressed the rights of patients involuntarily committed to state mental institutions. The Court said: "In determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance the liberty of the individual and the demands of organized society." Youngberg, 457 U.S. at 320, 102 S.Ct. at 2460 (internal citation and quotation omitted). Mills addressed the question of the right of mental patients to refuse treatment with antipsychotic drugs. There, the Court stated explicitly that the "state interests" are "to be balanced against an individual's liberty interests." 457 U.S. at 304,102 S.Ct. at 2451. As the Cruzan Court also noted, the use of a balancing test is deeply rooted in our legal traditions. The Court has been applying a balancing test in substantive due process cases at least since 1905, when in Jacobson v. Massachusetts,  197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), "the Court balanced an individual's liberty interest in declining an unwanted smallpox vaccine against the State's interest in preventing disease." Cruzan, 497 U.S. at 278, 110 S.Ct. at 2851.

As Justice O'Connor explained in her concurring opinion in Cruzan, the ultimate question is whether sufficient justification exists for the intrusion by the government into the realm of a person's "liberty, dignity, and freedom." Cruzan, 497 U.S. at 287, 289, 110 S.Ct. at 2856, 2857 (O'Connor, J., concurring). If the balance favors the state, then the given statute'whether it regulates the exercise of a due process liberty interest or prohibits that exercise to some degree'is constitutional. If the balance favors the individual, then the statute'whatever its justifications'violates the individual's due process liberty rights and must be declared unconstitutional, either on its face or as applied. Here, we conclude unhesitatingly that the balance favors the individual's liberty interest."

IV.

Is There a Liberty Interest?

Before beginning our inquiry into whether a liberty interest exists, we reiterate a few fundamental precepts that guide us. The first lies in the Court's cautionary note in Roe v. Wade,  410 U.S. 113, 116, 93 S.Ct. 705, 708, 35 L.Ed.2d 147 (1973):

We forthwith acknowledge our awareness of the sensitive and emotional nature of the ... controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitude toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence a