Chapter 4 - Decisions at Life's End: Existing Law
THE CLINICAL, LEGAL, AND
DECISIONS AT LIFE'S END: EXISTING LAW page 49
New York law distinguishes between four types of practices
that can arise at the end of a person's life: the withdrawal and
withholding of life-sustaining treatment, whether based on the
consent of patients or others close to them; suicide; assistance to
commit suicide; and active euthanasia. The laws governing each of
these practices reflect a judgment about the appropriate balance
between individual autonomy and society's interest in preventing
harm. At one end of the spectrum, the law covering treatment
decisions embraces individual autonomy as its central concern,
granting competent individuals a broad right to refuse medical
treatment necessary to sustain their lives. Decisions about suicide
and euthanasia fall at the other end of the continuum, where the law
constrains individuals' actions for their own benefit and for the
sake of the common good. Societal limits on suicide are reflected
in laws that prohibit assisted suicide and euthanasia, regardless of
the individual's consent. Likewise, while it is no longer illegal
in New York State to commit suicide, there is no "right" to commit
suicide as a matter of constitutional or common law.
The Right to Decide About Treatment
Under New York law, competent adults have a firmly established
right to accept or reject medical treatment. This right includes
the right to refuse medical interventions necessary to prolong the
patient's life. The New York Court of Appeals, the state's highest
court, first enunciated this principle in a 1981 decision, In re
Eichner.(1) While the Court of Appeals in Eichner based its decision
on the common-law right to refuse treatment,(2) it later recognized
(1) 52 N.Y.2d 363, 438 N.Y.S.2d 266 (authorizing the withdrawal
of a respirator from an 83-year-old permanently unconscious man
who had clearly expressed his opposition to the artificial
prolongation of his life), cert. denied, 454 U.S. 858 (1981).
(2) For an early articulation of this common law principle, see
Schloendorff v. Society Of Ny Hosp., 211 N.Y. 125, 129-30,105
N.E. 92 (1914) (Cardozo, J.) ("[E]very individual of sound
mind and adult years has a right to determine what should be
done with his own body.").
page 50 WHEN DEATH IS SOUGHT
that "[t]his fundamental common-law right is coextensive with
the patient's liberty interest protected by the due process clause
of [the New York State] Constitution."(3) In Cruzan v. Director,
Missouri Department of Health,(4) the United States Supreme Court
similarly concluded that the right to refuse treatment is a
protected "liberty interest" under the due process clause of the
United States Constitution.
Courts have identified several state interests that, in
theory, could overcome a patient's right to refuse life-sustaining
treatment in a particular case. Most often, courts have mentioned
the state's interest in preserving life, preventing suicide,
protecting third persons, and maintaining the ethical integrity of
the medical profession.(5) In cases decided to date, however, the
competent patient's right to refuse life-sustaining treatment has
generally prevailed over these interests.(6) Moreover, the New York
Court of Appeals has expressly held that the right to refuse
life-sustaining interventions should prevail even when the patient
is not terminally or hopelessly ill.(7)
In New York, as in all other states, competent adults have the
right to create advance directives regarding treatment decisions,
including life-sustaining measures, to be used in the event they
lose the capacity to make medical decisions for themselves. The
most comprehensive type of advance directive is the "health care
proxy," also known as the "health care durable power of
attorney."(8) By executing a health care proxy, adults can
(3) Rivers v. Katz, 67 N.Y.2d 485, 504 N.Y.S.2d 74, 78 (1996).
(4) 497 U.S. 261, 1 10 S. Ct. 2841 (1990).
(5) See, e.g., In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987).
In Farrell, the court concluded that these state interests did
not outweigh the right of a competent, paralyzed patient to be
disconnected from the respirator that sustained her breathing.
(6) See, e.g., Fosmire v. Nicoleau, 75 N.Y.2d 218, 551 N.Y.S.2d
876 (1990) (upholding the right of a 36-year-old pregnant
patient to refuse blood transfusions following a Cesarean
section delivery despite the fact that the patient was
responsible for the care of her infant).
(7) Ibid, The New Jersey Supreme Court, when first confronted
with this issue, suggested that the patient's tight to refuse
treatment is weaker when the chance of recovery is great and
the invasiveness of the treatment is minimal. See In re
Quinlan, 70 N.J. 10, 355 A.2d 647, 664, cert. denied sub nom.
Garger v. New Jersey, 429 U.S. 922 (1976). In In re Conroy, 98
N.J. 321, 486 A.2d 1209 (1985), however, the New Jersey Supreme
Court rejected this formulation.
(8) N.Y. Public Health Law, Article 29-C (McYinncy 1993).
See generally New York State Task Force on Life and the Law,
Life-Sustaining Treatment: Making Decisions and Appointing a Health
Care Agent (New York: New York State Task Force on Life and the
Law, 1987) (providing social, ethical, and legal background to New
York's health care proxy law); see also New York State Department of
Health, The Health Care Proxy Law: A Guidebook for Health Care
Professionals (New York: New York State Department of Health,
1991)(explaining key provisions of the health care proxy law).
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 51
delegate to a trusted individual (referred to as an "agent")
the authority to make health care decisions in the event of a future
loss of capacity.
New York's health care proxy law permits adults to grant an
agent the authority to make some or all treatment decisions,
including decisions about life-sustaining measures. Under the law,
the agent must decide in accord with the patient's wishes, if they
are reasonably known, or, if they are not reasonably known, in
accord with a judgment about the patient's best interests. The only
exception applies to decisions about artificial nutrition and
hydration. If the agent does not have reasonable knowledge of the
patient's wishes about these measures, the agent cannot decide about
them. Health care professionals must honor decisions by the agent
to the same extent as if they had been made by the patient, and they
are protected from liability for doing so.(9)
In addition to appointing a health care agent, adults can also
provide specific advance instructions about treatment, commonly
known as a "living will." A living will contains treatment
instructions to be followed in the event the individual becomes
incapable of making decisions directly. Unlike health care proxies,
living wills usually apply only to life-sustaining treatment. While
New York does not have a statute governing living wills,(10) the New
York Court of Appeals has indicated that living wills can provide
the basis for withdrawing or withholding life-sustaining measures if
the instructions qualify as "clear and convincing evidence" of the
patient's wishes.(11) Advance oral instructions can also satisfy the
clear and convincing evidence standard, provided they are
(9) Under the health care proxy law, hospitals and other health
care facilities must provide patients with a health care proxy
form and information about creating a proxy. See N.Y. Public
Health Law 2991 (McKinney 1993). In addition, the federal
Patient Self-Determination Act requires health care facilities
to notify patients of their rights under state law to create
advance directives. See 42 U.S.C. 1395cc(f) (1992).
(10) Forty-seven states and the District of Columbia have
enacted living all statutes that delineate the circumstances
under which living wills are valid and set forth the rights and
obligations of patients and health care providers under the
documents. See Choice in Dying, Refusal of Treatment
Legislation (1991 & Supp.). The states without living will
legislation are Massachusetts, Michigan, and New York. Ibid.
(11) See In re Westchester County Medical Center (O'Connor), 72
N.Y.2d 517, 531, 534 N.Y.S.2d 886, 892 (1988).
page 52 WHEN DEATH IS SOUGHT
sufficiently specific and reflect "a firm and settled commitment to
the termination of life supports under the circumstances like those
presented."(12) Individuals can use both written and oral advance
instructions in conjunction with a health care proxy, to guide the
agent in making treatment decisions.
At present, New York law does not permit the withdrawal or
withholding of life-sustaining treatment from an incapacitated adult
patient who has neither created a health care proxy nor left written
or oral treatment instructions that satisfy the clear and convincing
standard. The New York Court of Appeals first reached this
conclusion in its 1981 decision, In re Storar, the companion case to
In re Eichner.(13) In Storar, the court rejected a mother's request
to terminate blood transfusions for her 52-year-old developmentally
disabled son, because he never had the capacity to make treatment
decisions for himself. In its ruling, the court explicitly held
that no one, not even a concerned family member, can refuse
life-sustaining treatment for another person without clear and
convincing evidence of the patient's own wishes.(14) The health care
(12) Ibid In O'Connor, the court denied permission to withdraw
artificial nutrition and hydration from a 77-year-old severely
incapacitated woman, despite the woman's previous statements to
her daughters suggesting that she would not wish to continue
her life by artificial means. The court reasoned that the
woman's prior statements were not clear and convincing evidence
of a desire to withdraw treatment, because her medical
condition and treatment differed from those she had confronted
and discussed with her daughters over the years. The decision
in O'Connor demonstrates the difficulty of meeting the
stringent clear and convincing standard. But cf. In re
Halperin, N.Y.L.J., August 20, 1993, p. 25, col. 5 (Sup. Ct.
Nassau Cty.) (concluding that the patient's "strong and
unwavering conviction to refuse those life-prolonging measures
to which he had been exposed through multiple contacts with
peers and family in similar, if not identical, medical
circumstances" satisfied the clear and convincing standard).
In 1991, the New York State Department of Health established
regulations requiring facilities to assess whether proof of a
patient's wishes is sufficiently specific to satisfy the clear
and convincing standard, and to document advance oral and
written instructions about treatment. N.Y. Comp. Codes R. &
Regs. tit. 10, 400.21 & 700.5 (1991). As stated in the
regulations, health care providers need not obtain court
approval before honoring living wills or other clear advance
expressions of treatment choices. But see Grace Plaza v.
Elbaum, 82 N.Y,2d 10, 603 N.Y.S.2d 386 (1993) (holding that
nursing home could refuse to follow advance directive until
ordered to do so by a court, and awarding nursing home costs of
providing unwanted treatment while court proceeding was
(13) 52 N.Y.2d 363, 438 N.Y.S.2d 266, cert. denied, 454 U.S.
(14) 438 N.Y.S.2d at 275. In Cruzan v. Director, Missouri
Department of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990), the
United States Supreme Court held that requiring clear and
convincing evidence of an incapacitated patient's wish to forgo
life-sustaining treatment does not violate the patient's
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 53
proxy law now provides an important exception to this rule, as
does New York's statute permitting family members and others close
to the patient to refuse cardiopulmonary resuscitation in the event
of cardiac or respiratory arrest.(15) Other than these two
situations, however, the patient's clearly expressed wishes are the
sole basis for decisions to forgo life-sustaining treatment.(16)
New York and Missouri are the only two states that condition
the withdrawal or withholding of life-sustaining treatment on clear
and convincing evidence of the patient's wishes.(17) The District of
Columbia and 23 other states have statutes that explicitly grant
surrogate decision makers the right to make medical decisions for an
incapacitated patient.(18) Courts in many other states have granted
family members similar authority.(19) The Task Force has proposed a
statute that would allow family members and others close to the
patient to decide about treatment, including life-sustaining
measures, for patients who lack decision-making capacity.(20) If
enacted, the legislation would bring New York law into line with
existing laws in the vast majority of other states. The Task
Force's proposed statute is currently under consideration by the New
York State Legislature.(21)
(15) N.Y. Public Health Law 2965 (McKinney 1993) (setting
forth circumstances under which surrogates can consent to "do
not resuscitate" (DNR)orders) Recent amendments to this statute
facilitate the ability of surrogates to consent to DNR orders
for patients in hospice and home care settings.
(16) The law is less clear with respect to the withdrawal or
withholding of life-sustaining treatment from minors. On the
one hand, judicial decisions underscore that parents have broad
authority to make health care decisions for their minor
children, as long as those decisions do not violate legal
prohibitions on abuse and neglect. See Weber v. Stony Brook
Hospital, 60 N.Y.2d 208, 469 N.Y.S.2d 63 (1983); In re
Hofbauer, 47 N.Y.2d 648, 419 N.Y.S.2d 936 (1979). On the other
hand, cases like Storar cast doubt on whether this broad
parental authority extends to decisions to refuse
life-sustaining measures on a child's behalf.
(17) In Mack v. Mack, 329 Md. 188,618 A.2d 744 (1993), the
Maryland Court of Appeals held that life-sustaining treatment
could not be withdrawn or withheld from an incapacitated
patient absent clear and convincing evidence of the patient's
wishes. Almost immediately after the decision was announced,
the state legislature enacted the Health Care Decisions Act,
which authorizes family members and other interested
individuals, in a listed order of priority, to act as surrogate
decision makers for incapacitated patients who have not
executed advance directives. Md. I Health-Gen. Code Ann.
5-601 to 5-618 (1993 Supp.).
(18) See Choice in Dying, Right-to-Die Law Digest (December
(20) New York State Assembly Bill No. 7166 (1994).
(21) Public hearings held on the Task Force's proposal
indicated that the surrogate decision making law commands broad
public support. See New York State, Assembly
page 54 WHEN DEATH IS SOUGHT
Suicide and the Law
The legal treatment of suicide has ancient roots, reflecting
cultural, religious, and pragmatic beliefs about human life,
individual responsibility, and the relationship between the
individual and the state. While suicide has been illegal throughout
most of history, it is no longer considered a crime anywhere in the
United States. However, as discussed below, many states prohibit
assisting a suicide, and no state permits euthanasia, regardless of
the individual's consent.
In England, under the common law, suicide was considered
"self-murder" and was ranked "among the highest crimes."(22) Writing
in the 18th century, William Blackstone asserted that "the suicide
is guilty of a double offense; one spiritual, in invading the
perogative of the Almighty, and rushing into his immediate presence
uncalled for; the other temporal, against the king, who hath an
interest in the preservation of all his subjects."(23) The usual
punishment for committing suicide was burial in the public highway
with a stake driven through the body and forfeiture of the suicide's
property to the crown.(24) The extent of the property forfeited
depended on the motivations behind the suicidal act. If the suicide
was committed "without any cause, through anger or ill will," the
suicide lost both his lands and his chattels to the king. If,
however, the suicide was committed "from weariness of life or
impatience of pain," only the chattels were forfeited, and the land
descended to the suicide's heirs. Finally, if the individual who
committed suicide was insane at the time of his or her act, neither
land nor chattels were forfeited to the king.(25) Implicit in this
gradation of punishment was the notion that suicide, while always
wrong, was less blameworthy under certain circumstances.
(22) W. Blackstone, Commentaries, vol.4,*189.
(24) Similar penalties were imposed throughout Europe. In
France, for example, the corpse was dragged through the streets
and thrown on the public garbage heap, while at Metz, "each
suicide was put in a barrel and floated down the Moselle away
from the places he might wish to haunt". A. Alvarez, The
Savage God: A Study of Suicide (New York: Random House,
(25) See S.W.Brenner, "Undue Influence in the Criminal Law: A
Proposed Analysis of the Criminal Offense of 'causing
Suicide,'" Albany Law Review 47(1982):64.
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 55
In America, the colonies soon abolished the traditional
penalties of forfeiture, on the theory that the penalty simply
punished the suicidal individual's innocent family.(26) However,
many states, including New York, imposed punishment on persons who
unsuccessfully attempted to commit suicide, and continued to
describe suicide as a "grave public wrong." In 1919, New York State
decriminalized attempted suicide, although the description of
suicide as a "grave public wrong" remained in the statutes until
At present, neither suicide nor attempted suicide is a
criminal offense in any state. The decriminalization of suicide did
not stem from an acceptance of the practice, but rather from a more
pragmatic judgment that "there is no form of criminal punishment
that is acceptable for a completed suicide and that criminal
punishment is singularly inefficacious to deter attempts to commit
suicide."(28) Moreover, although suicide is not illegal, there is no
"right" to commit suicide under the common law or the
New York is among 32 states that make assisting a suicide a
specific statutory offense.(30) In states without statutes
prohibiting suicide assistance, persons who aid in suicides may be
subject to prosecution for murder or manslaughter.(31) Dr. Jack
Kevorkian's widely publicized acts of suicide assistance have led
several states to adopt new prohibitions on assisted suicide,
(26) See T. J. Marzen et al, "Suicide: A Constitutional
Right?" Duquesne Law Review 24 (1985): 69.
(27) Ibid., 208-09.
(28) American law Institute, Model Penal Code and Commentaries,
vol. 2 (Philadelphia: 'The American law Institute, 1980):
210.5, Comment at 94 (also noting "a certain moral extravagance
in imposing punishment on a person who has sought his own
self-destruction, who has not attempted direct injury to anyone
else and who more properly requires medical or psychiatric
attention"). Some commentators, however, have argued that the
decriminalization of suicide reflects a societal acceptance of
that practice. See, e.g., D. W. Brock, "Voluntary Active
Euthanasia," Hastings Center Report 22, no. 2 (1992): 19
("That suicide or attempted suicide is no longer a criminal
offense in virtually all states indicates an acceptance of
individual self-determination in the taking of one's own life
(29) See p. 67 et seq.
(30) For a list of the relevant state statutes, see Choice in
Dying, Right-to-Die Law Digest.
(31) See C, K. Smith, "What About Legalized Assisted Suicide?"
Issues in Law and Medicine 8 (1993): 505.
page 56 WHEN DEATH IS SOUGHT
including Illinois, Indiana and Tennessee.(32) In Michigan,
where Kevorkian resides, the legislature has enacted a temporary ban
on suicide assistance pending a commission study on the issue.(33)
Legislation prohibiting assisted suicide is also pending in other
Specific laws prohibiting assisted suicide are a relatively
recent phenomenon. When suicide itself was considered murder,
persons who assisted in suicides were guilty of murder as well.(35)
Early court decisions generally grounded liability on the
defendant's presence during the suicide,(36) or on the defendant's
agreement to participate with the victim in a suicide pact.(37)
According to one commentator, courts considered these factors
evidence of the defendant's causal role in the victim's decision to
take his or her own life.(38)
Current New York law classifies assisting a suicide as an
independent criminal offense. A person who assists a suicide will
be guilty of manslaughter in the second degree, unless the suicide
is caused by duress or deception, in which case a defendant could be
found guilty of second-degree murder.(39) Liability for assisting a
suicide can arise if a person acts intentionally to cause or to aid
a suicide, or engages in reckless conduct that causes a suicide.
(32) See Choice in Dying, Right-to-Die Law Digest.
(33) Mich. Comp. Laws 752.1027 (1993). The statute has
been challenged on both procedural and substantive
constitutional grounds. See P. 67 n.86.
(34) See generally Choice in Dying, Right-to-Die Law Digest.
(35) At common law, if the defendant was present during a
suicide, he was guilty as a principal to murder; if he
counseled the suicide beforehand, he was guilty as an
accessory. Under this formulation, defendants who counseled
successful suicides without being present for the suicide
itself escaped prosecution, as an accessory could not be
prosecuted until the principal was convicted first. See
(36) See, e.g., Blackburn v. State, 23 Ohio St. 146 (1872).
(37) See, e.g., Burnett v. People, 204 111. 208, 68 N.H. 505 (1903).
(38) See Brenner, 86.
(39) Under the 1881 Penal Law, it was unclear whether the
specific provisions on assisted suicide were the exclusive
penalties for such conduct, or whether persons who assisted in
suicides could also be prosecuted for murder, as they could at
common law. The confusion stemmed from the definition of
murder itself, which based liability on the defendant's role in
"causing" the victim's death. Because persons who assisted in
suicides could be said to have "caused" the death of the
victim, the act of assisting a suicide "would certainly have
been prosecutable as [murder] under the former law in the
absence of any specific [assisted] suicide provision." N.Y.
Penal Law 125.15, Denzer and McQuillan Practice Commentary,
226 McKinney 1967).
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 57
While manslaughter liability would not apply to the person who
causes or aids an unsuccessful suicide attempt, such persons could
face liability for "promoting a suicide attempt," an independent
statutory offense (40)
The scope of liability under New York's laws on assisted
suicide is comparable to that in most other states that make
assisted suicide a specific statutory offense. A few states,
however, impose liability in a wider range of situations than New
York. California, for example, criminalizes the act of
"encourag[ing]" a suicide,(41) and Oklahoma, in addition to its
general prohibition on assisted suicide, separately prohibits the
act of providing "any deadly weapon or poisonous drug" with the
knowledge that the recipient intends to take his or her own
No person has been convicted in New York State of manslaughter
for intentionally aiding or causing a suicide. Nor has anyone been
convicted of murder for causing a suicide by duress or deception.
In one prominent case, however, a man was found guilty of reckless
manslaughter when he provided a loaded gun to a drunk and despondent
individual and actively challenged the individual to commit
The paucity of cases dealing with assisted suicide probably
stems from a variety of factors: the private, consensual nature of
assisted suicide, the difficulties of proving intention in such
cases, and the reluctance of prosecutors to pursue the types of
cases that are likely to be most common -- assistance provided by
physicians or family members to terminally or severely ill
individuals.(44) The reluctance to bring such cases no doubt rests
in part on the degree of public sympathy they often arouse, and the
resulting difficulty of securing an indictment and conviction.
(40) N.Y. Penal Law 120.30 (McKinney 1987).
(41) Cal. Penal Code 401 (1988).
(42) Okla. Sta. Ann. tit. 21, 814 (1985).
(43) See People v. Duffy, 79 N.Y.2d 611, 595 N.Y.S.2d 814
(1992); see also the discussion on pp. 61-62.
(44) Indeed, according to one commentator's search of reported
decisions nationwide, no health care professional has ever been
convicted of "causing, inducing, or assisting" in the death of
his or her patient. L. 0. Gostin, "Drawing a Line Between
Killing and Letting Die: The Law and Reform, on Medically
Assisted Dying," Journal of Law, Medicine and Ethics 21 (1993):
page 58 WHEN DEATH IS SOUGHT
Assisted Suicide as Murder: Requirement of Duress or Deception
Section 125.25 of the Penal Law establishes that causing a
suicide through the use of duress or deception constitutes
second-degree murder. It does this by providing that causing a
suicide does not fall within the definition of intentional murder
unless the suicide is caused by the defendant's use of duress or
deception.(45) Causing a suicide through duress or deception is
different from other assisted suicide cases because the defendant
does not seek to effectuate the victim's own wish to commit suicide,
but instead exerts pressure to cause a suicide that would otherwise
not have taken place.(46)
As in all murder cases, proof that the defendant's acts played
a causal role in the victim's death is essential to establish the
defendant's guilt.(47) Causation in this context refers to both
causation-in-fact (i.e., proof that the defendant's actions "forged
a link in the chain of causes which actually brought about the
death") and proximate cause (i.e., proof that the defendant's
actions were a "sufficiently direct cause of the ensuing
death").(48) Under this formulation, a defendant will not be held to
have caused the victim's death based on an "obscure or merely
probable connection between an assault and death."(49) At the same
time, it is not necessary to establish that the defendant's acts
were the sole cause of death, as long as "the ultimate harm is
something which should have been foreseen as being reasonably
related to the acts of the accused."(50)
(45) This rule is designed to restrict the more sympathetic
cases to manslaughter and, at the same time, to permit the more
heinous ones to be prosecuted as murder." N.Y. Penal Law
125.15, Denzer and McQuillan Practice Commentary, 226 (McKinney
1967); cf. American "w Institute, 210.5(1) (classifying as
criminal homicide the act of causing suicide through force,
duress or deception). If the result of the defendant's duress
or deception is an unsuccessful suicide attempt, the defendant
can be prosecuted for attempted murder. See N.Y. Penal Law
120.35 (McKinney 1987).
(46) See Brenner, 87-93 (arguing that "causing" a suicide under
Section 210.5(l) of the Model Penal Code should depend on the
defendant's exertion of "undue influence" that overcomes the
victim's independent free will).
(47) See N.Y. Penal Law 125.00 (McKinney 1987) ("Homicide
means conduct which causes the death of a person ... .").
(48) People v. Stewart, 40 N.Y.2d 692, 697, 389 N.Y,S.2d 804,
(5O) People v. Kibbe, 35 N.Y.2d 407, 412, 362 N.Y.S.2d 848,
851-52 (1974). Based on this rationale, the Kibbe court
affirmed the murder convictions of defendants who had beaten
the victim and left him lying in the middle of the street,
where he was subsequently hit and killed by an oncoming truck.
The court found that the victim's death was a sufficiently
foreseeable consequence of the defendants' acts. By contrast,
in People v. Stewart, 40 N.Y.2d 692, 389 N.Y.S.2d 804 (1976),
where the victim of knife wounds died in the course of a hernia
operation, the court reversed the defendant's conviction for
manslaughter, even though the operation was performed only
because a hernia was discovered while operating on the victim
for wounds caused by the defendant's assault.
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 59
There are no reported cases in New York charging a defendant
with murder for causing or assisting a suicide by duress or
deception. The New Jersey case of State v. Lassiter,(51) however,
suggests the extreme nature of the acts that might constitute this
offense. In Lassiter, the defendant, who employed the victim as a
prostitute, beat the victim severely with a shovel. The next day,
when the victim was already badly injured, the defendant returned
and beat her again. Eventually, the victim pleaded that she could
not tolerate the beatings and that she was going to jump out the
window. When the defendant replied "go ahead and jump," the victim
leaped to her death. In affirming the defendant's murder
conviction, the appellate court held that the victim's suicide "was
provoked entirely by abuse and coercion on the part of defendant and
was unrelated to any suicidal purpose."(52) Cases like Lassiter
underscore that suicide caused by duress or deception is a
different, and more serious, crime than suicide assistance provided
at a person's request.
Assisted Suicide as Manslaughter:"Intentionally"
Causing or Aiding Death
Section 125.15(3) of the Penal Law provides that a person who
"intentionally causes or aids another person to commit suicide,"
without the use of duress or deception, is guilty of second-degree
manslaughter.(53) There are no reported convictions in New York
State for this offense, and the scope of liability under this
provision is therefore not entirely clear. The reach of the statute
will depend largely on how courts and juries interpret the
requirement that the defendant act with an "intentional" state of
(51) 197 N.J. Super. 2,484 A.2d 13 (1984).
(52) Ibid. at 13, 484 A.2d at 19. For a discussion of similar
cases, see C. D. Shaffer, Note, "Criminal Liability for
Assisting Suicide," Columbia Law Review 86 (1986): 364-66
(noting that these cases manifest "a classic murder motive -
anger, jealousy, hatred, greed, or desire to end marriage," and
involve defendants who "seem truly evil, or heartlessly
(53) Intentionally causing or aiding another person to attempt
suicide constitutes the separate offense of "promoting a
suicide attempt." See N.Y. Penal Law 120.30 (McKinney
page 60 WHEN DEATH IS SOUGHT
Under the Penal Law, a person is considered to act
intentionally with respect to a result or to conduct "when his
conscious objective is to cause such result or to engage in such
conduct."(54) The word "intentionally," when used in a criminal
statute, "is presumed to apply to every element of the offense
unless an intent to limit its application clearly appears."(55)
Accordingly, liability under Section 125.15(3) would require proof
that the defendant's "conscious objective" extended to each of the
elements set forth in the statute -- engaging in the conduct of
causing or aiding another person's suicide, and bringing about the
result of achieving the other person's death.(56)
It is often hard to prove intention in criminal cases. Such
proof is particularly difficult in cases of assisted suicide, where
the assistance is usually rendered in the context of a private
relationship. Proving that a physician intentionally aided a
suicide is especially complicated because many medications used to
commit suicide also have legitimate medical purposes, particularly
for patients in severe pain. For example, if a physician prescribes
morphine with the conscious objective of relieving pain, not of
bringing about the patient's death, and the patient uses the
morphine to commit suicide, the physician would not be guilty of
aiding or causing a suicide under Section 125.15(3).(57) In this
case, the physician would lack both the intent to aid the patient's
suicidal plan and the intent to bring about the patient's death.(58)
(54) N.Y, Penal Law 15.05(l) (McKinney 1987).
(55) N.Y. Penal Law 15.15 (McKinney 1987); see also People
v. Ryan, 82 N.Y.2d 497, 605 N.Y.S.2d 235 (1993) ("[I]f a single
mens rea element is set forth, ... it presumptively applies to
all elements of the offense unless a contrary legislative
intent is plain.").
(56) Achieving the result of the principal's death is an
essential element of Section 125.15(3). If the result of the
defendant's assistance is a suicide attempt, rather than a
completed suicide, Section 125.15(3) would not apply; rather,
the defendant would be subject to prosecution for "promoting a
suicide attempt" under Section 120.30 of the Penal Law.
(57) According to one commentator, however, if the physician,
at the time of prescribing the morphine, is "substantially
certain" that the patient %ill use the medication to commit
suicide, a finding of intent would be appropriate. See J. A.
Alesandro, Comment, "Physician-Assisted Suicide and New York
Law," Albany Law Review 57 (1994): 847.
(58) Cf. W. R. LaFave and A. W. Scott, Jr., Substantive
Criminal Law, vol, 2 (St. Paul: West Publishing Co., 1986),
6.7, p. 143 ("[I]t is not sufficient that [an accomplice]
intentionally engaged in acts which, as it turned out, did give
assistance or encouragement to the principal. Rather, the
accomplice must intend that his acts have the effect of
assisting or encouraging another."). In New York, knowingly
providing assistance to a crime, without the specific intent of
assisting the principal, constitutes the independent offense of
"criminal facilitation." See N.Y. Penal Law 115. Persons
who knowingly assist in suicides could not, however, be charged
with criminal facilitation, as suicide itself is not a crime.
However, if the physician violates accepted medical standards
in providing the medication or prescription, he or she could
face civil or criminal liability for reckless or negligent
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 61
Nonetheless, proof of intent need not be based on direct
evidence of the physician's state of mind. Rather, in some cases,
juries might infer the physician's intent to assist a patient's
suicide from the circumstances surrounding the particular case. For
example, juries might make such an inference if the physician
provides an amount or type of medication that has no legitimate
medical purpose for the particular patient in light of identified
treatment goals. In the most obvious case, this would be true of
the various machines devised by Dr. Kevorkian to provide lethal
medication, none of which has any legitimate medical use. Proof of
intent could also be inferred from other surrounding circumstances,
including the physician's knowledge of the patient's suicidal
tendencies.(59) In this regard, it is significant that intent does
not mean motive, and does not imply an evil state of mind. The fact
that the physician acts benevolently, out of compassion for the
patient, would not be a defense to liability under Section
Assisted Suicide as Manslaughter:Recklessly
Causing The Victim's Death
Under New York law, reckless conduct leading to suicide can
also be the basis for a charge of manslaughter, even if the
defendant did not intentionally cause or aid the suicide within the
meaning of Section 125.15(3). The New York Court of Appeals reached
this conclusion in a 1992 decision, People v. Duffy.(60) Duffy
involved a 17-year-old, Jason Schuhle, who was extremely distraught
over a recent breakup with his girlfriend. The defendant talked
with Schuhle at length about Schuhle's suicidal thoughts and Schuhle
asked the defendant to shoot him. When the defendant became "tired"
of hearing Schuhle complain about wanting to die, he handed Schuhle
(59) Cf. American law institute, 2.06, Comment at 316
("[O]ften, if not usually, aid rendered with guilty knowledge
implies purpose since it has no other motivation."). While
juries would not be required to make such an inference in any
particular case, see Sandstrom v. Montana, 442 U.S. 510, 99 S.
Ct. 2450 (1979) (finding it error to instruct the jury to
presume conclusively that a defendant intends the natural
consequences of his voluntary acts), they would be permitted to
rely on evidence of the patient's known suicidal tendencies to
support such a finding if they so chose. See, e.g., People v.
Johnson, 101 A.D.2d 684, 475 N.Y.S.2d 942 (3d Dep't 1984)
(circumstantial evidence is admissible to prove intent).
(60) 79 N.Y.2d 611,595 N.Y.S.2d 814 (1992).
page 62 WHEN DEATH IS SOUGHT
a gun and urged him to "blow his head off." Shortly
thereafter, Schuhle shot himself. At trial, the defendant was
acquitted of intentionally causing or aiding Schuhle's suicide, but
convicted of recklessly causing Schuhle's death. On appeal, the
Court of Appeals held that the defendant's liability for causing a
suicide was properly based on grounds of recklessness, under the
general reckless manslaughter statute. The Court of Appeals'
decision in Duffy established that intentionally assisting a
suicide, as defined in Section 125.15(3), is not the exclusive basis
for manslaughter liability for conduct that causes another person to
take his or her life.(61)
New York law defines recklessness as the conscious disregard
of "a substantial and unjustifiable risk."(62) This definition
necessarily excludes situations where the benefit of taking action
outweighs the likelihood that the action will cause harm.(63)
Accordingly, in the medical context, if a physician's actions are
useful in achieving a beneficial result (e.g., providing medication
to relieve pain) and are an acceptable medical means of realizing
that goal, the fact that they create a risk of causing a suicide
would not, in itself, make the physician's actions reckless within
the meaning of Section 125.15(1).(64) Indeed, where a patient is
(61) While no New York case has considered whether a person can
be charged with negligently causing a suicide under the general
negligent homicide statute, the logic of Duffy would suggest
that such a charge would be possible. Cf. State v. Bier, 181
Mont. 27, 591 P.2d 1115 (1979) (affirming negligent homicide
conviction of defendant who provided his intoxicated wife with
a loaded gun, which the wife immediately used to kill herself).
However, the standard of criminal negligence is appreciably
greater than that required for ordinary civil negligence by
virtue of the "substantial and unjustifiable" character of the
risk involved and the factor of "gross deviation" from the
ordinary standard of care."' People v. Haney, 30 N.Y.2d 328,
333, 333 N.Y.S.2d 403, 407 (1972) (citations omitted). In the
medical context, criminal charges of negligent homicide are
extremely rare, and generally involve conduct that falls well
outside the bounds of accepted medical practice. See, e.g.,
People v. Ketchum, 35 N.Y.2d 740, 361 N.Y.S.2d 911 (1974)
(affirming doctor's conviction for negligent homicide based on
use of dangerous procedure for performing abortion, combined
with failure to provide medical care after abortion was
performed), cert. denied, 420 U.S. 928 (1975). Such a degree
of negligence would also subject physicians to charges of
professional misconduct by the New York State Department of
Health. See pp. 64-67.
(62) N.Y. Penal Law 15.05(3) (McKinney 1997) (emphasis
(63) See LaFave and Scott, vol. 1, 3.7, p. 327 ("The test for
reasonableness in creating risk is ... said to be determined by
weighing the magnitude of the risk of harm against the utility
of the actor's conduct.").
(64) Cf. President's Commission for the Study of Ethical
Problems in Medicine and Biomedical and Behavioral Research,
Deciding to Forgo Life-Sustaining Treatment (Washington, D.C.:
U.S. Government Printing Office, 1983),82 ("[T]he moral issue
is whether or not the decision makers have considered the full
range of foreseeable effects, have knowingly accepted whatever
risk of death is entailed, and have found the risk to be
justified in light of the paucity and undesirability of other
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 63
experiencing pain, physicians are not only permitted but are
ethically obligated to prescribe appropriate pain relief, even
though the pain medication may itself create some risk of death.(65)
Although it is frequently argued that suicide assistance and
active euthanasia are morally equivalent,(66) the law in all states
draws a clear distinction between these two types of acts. In New
York, assisting a suicide, except in certain limited circumstances,
is a form of second-degree manslaughter. Euthanasia, however, falls
under the definition of second-degree murder, as the defendant
intentionally causes the death of the victim through his or her
direct acts.(67) Because the consent of the victim is not a defense
to murder,(68) euthanasia is therefore prosecutable as murder in the
While there are no reported cases in New York dealing with
murder-by-consent, courts in other states have routinely rejected
defendants' requests to instruct the jury on the lesser crime of
assisted suicide, rather than murder, where the victim has consented
to the defendant's acts.(69) However, in determining the punishment
that will be imposed, judges and juries are likely to give
substantial weight to both the consent of the victim and the
defendant's motive.(70) In addition, although the victim's consent
(65) See chapter 7. However, physicians who violate accepted
medical standards in determining the appropriate dose or type
of drug might be considered to have acted recklessly,
particularly if their conduct leads to the patient's death.
(66) See chapter 5, pp. 82-85.
(67) See N.Y. Penal law 125.25(l) (McKinney 1987).
(68) See Shaffer, 351 ("No jurisdiction in the United States
recognizes consent to homicide."); State v. Fuller, 203 Neb.
233, 241, 278 N.W.2d 756, 761 (1979) ( Murder is no less murder
because the homicide is committed at the desire of the
victim."') (quoting Turner v. State, 119 Tenn. 663, 671,108
S.W. 1139,1141 (1908)).
(69) See, e.g., State v. Cobb, 229 Kan. 522, 525-26, 625 P.2d
1133, 1136 (1981) (rejecting defendant's claim that the court
should have instructed the jury on suicide assistance, rather
than murder, where the defendant "was a direct participant in
the overt act of shooting [the victim], which caused his
death"). But cf. Shaffer, 374 ("There is too little
difference between handing a lethal dosage to another person
and placing it in that person's mouth to justify completely
different criminal charges - especially when those persons who
actively participate in suicide, like those who provide the
means, generally do not have a murder motive.").
(70) See American Law Institute, 210.5, Commentary at 106.
page 64 WHEN DEATH IS SOUGHT
is irrelevant to the defendant's underlying guilt, if the
defendant acted in a state of extreme emotional distress --- as
occurs in some cases of "mercy killing" -- the charge may be reduced
from murder to manslaughter.(71)
As with the crime of suicide assistance, proof of the
defendant's intent is essential to a prosecution for second-degree
murder.(72) A physician who administers medication for pain relief
would lack the intent to kill, provided that the physician does not
intend to relieve pain by killing the patient. In these
circumstances, even if pain medication hastens the patient's death,
a physician would not be guilty of second-degree murder.
Professional Misconduct Proceedings
In addition to standards set forth in the civil and criminal
law, physicians must practice medicine within the standards
established by the medical profession itself. These standards are
set in a variety of ways, including policies set by the legislature,
statements of professional bodies such as the American Medical
Association, and the actual practice of physicians, commonly
referred to in legal terms as "accepted medical practice."
Through quality assurance programs, hospitals and other health
care providers review patient care to determine if physicians are
practicing in accord with accepted medical standards. Professional
medical standards are also enforced in each state through an
administrative disciplinary process. In New York, that process is
governed by the State Board for Professional Medical Conduct.(73)
Operating within the New York State Department of Health, the board
is comprised of 230 members, three quarters of whom are physicians.
The board has a duty to investigate complaints of misconduct, to
bring appropriate charges, and to sanction physicians found to
violate accepted medical standards.
(71) See N.Y. Penal Law 125.20(2); 125.25(l)(a) (McKinney 1987).
(72) New York law also provides that reckless conduct
"evinc[ing] a depraved indifference to human life" can support
a charge of second-degree murder. See N.Y. Penal law
125.25(2) (McKinney 1987). However, "depraved-mind" murder is
almost never applied in the medical context. See R. Sullivan,
"Doctor Faces Murder Count in Abortion," New York Times, August
13, 1993, P. Bl, col. 5 (noting that no physician has ever been
convicted of depraved-mind murder in New York). It is highly
unlikely that this kind of charge would arise in the context of
physician- assisted suicide.
(73) See generally N.Y. Public Health Law 230 el seq.
(McKinney Supp. 1994) (setting forth procedures governing the
Board for Professional Medical Conduct); P. J. Millock, "Legal
Aspects of Physician-Assisted Suicide, New York Law and
Professional Standards," paper delivered to the New York State
Task Force on Life and the law, Arden House, New York, October
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 65
Disciplinary proceedings before the board can arise from
complaints by patients, other physicians, hospitals, or the
Department of Health itself. The board investigates complaints
referred to it and decides whether or not to recommend that formal
charges be brought. In many cases, the board chooses not to
proceed; of more than 4,000 complaints filed annually, only 5
percent result in formal charges.
If the board does proceed, the Department of Health formally
serves charges against the physician, which trigger an
administrative adjudicatory hearing before a three-person committee.
The decision of that committee may be appealed to a five-person
administrative review board, and that decision may be challenged in
court. If disciplinary charges are ultimately sustained, penalties
can include censure and reprimand, license suspension or revocation,
retraining, fines, and public service.
Disciplinary proceedings differ from criminal prosecutions in
several important respects. First, unlike criminal prosecutions,
which are investigated by the police and decided by juries drawn
from the community at large, disciplinary complaints are
investigated and decided by panels of the State Board for
Professional Medical Conduct. Each panel has three members, two of
whom must be physicians. As such, while criminal liability for
assisted suicide and euthanasia depends on moral and legal judgments
by members of the general public, disciplinary proceedings reflect
the views and standards of the medical community itself.(74)
In addition, unlike criminal prosecutions for assisted suicide
or euthanasia, which focus on the defendant's state of mind and the
degree to which the defendant caused or assisted the suicidal act,
disciplinary proceedings are concerned with the physician's conduct
in an objective sense. Thus, rather than examining the physician's
"conscious objective" or whether the physician was the proximate
cause of the patient's death, the board applies a general negligence
standard, with the accepted standards of the medical profession as
its overall guide.(75)
(74) 0pinion within the medical community about the
acceptability of assisted suicide and euthanasia is discussed
in chapter 5, pp. 108-09.
(75) No New York statute or court decision has explicitly
addressed the definition of negligence in the context of
disciplinary proceedings. As a result, the definitions of
negligence in civil case law are usually employed in the
page 66 WHEN DEATH IS SOUGHT
Ordinary negligence on one occasion is not sufficient to
subject a physician to professional discipline. Rather, the
physician must act with "gross negligence" (i.e., negligence of
egregious proportions or conspicuously bad behavior) or with
ordinary negligence on more than one occasion.(76) The New York
Court of Appeals has held that "occasion" in this context refers to
an "event of some duration, occurring at a particular time and
place, and not simply to a discrete act of negligence which can
occur in an instant."(77) Charges will be sustained only if the
board concludes that the physician owed a duty to the patient and
that he or she deviated from the generally accepted professional
standard of care in performing that duty in the overall
circumstances of the particular case.
Few precedents relevant to assisted suicide and euthanasia
exist, as the overwhelming majority of cases before the board
involve issues of incompetence, as opposed to professional ethics.
One notable exception was the case of Dr. Timothy Quill, who
published an article in the New England Journal of Medicine about a
patient who committed suicide with medication that Quill had
prescribed for insomnia. In his article, Quill wrote that he
discussed the possibility of suicide with his patient on several
occasions, and "made sure that she knew ... the amount [of
medication] needed to commit suicide."(78) After reviewing the case,
the board decided not to bring charges for professional misconduct.
The board's decision emphasized that Quill could not "know with
certainty" that his patient would use the drugs he prescribed to
take her own life.(79)
The final difference between disciplinary proceedings and
criminal prosecutions is the burden of proof the state must meet.
While a conviction in a criminal prosecution requires proof of guilt
"beyond a reasonable doubt," disciplinary proceedings are governed
by the less stringent "preponderance of the evidence" standard,
which requires the state to prove only that it is more likely than
not that the prohibited conduct occurred.(80) As a result of this
distinction, physicians who are acquitted under the criminal law may
still face disciplinary charges. If a physician is convicted of a
(76) See N.Y. Education Law 6530(3) (McKinney Supp. 1994).
(77) Yong-Myu Rho v. Commissioner of Education, 74 N.Y.2d 318,
546 N.Y.S.2d 1005 (1989).
(78) T . E. Quill, "A Case of individualized Decision Making,"
New England Journal of Medicine 324 (1991): 693.
(79) "Dr. Timothy Quill," Determination of the New York State
Board for Professional Medical Conduct, August 16, 1991, P. 2.
In a subsequent article published in the New England Journal of
Medicine after the investigation into his activities had been
concluded, Quill examined his motivations in more detail,
asking at one point, "if I did not ... intend to ensure that
Diane had the option of death should she find her suffering
unbearable, why the prescription for barbiturates?" T. E.
Quill, "The Ambiguity of Clinical Intentions,"New England
Journal of Medicine 329 (1993):1039.
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 67
crime, the conviction itself is an act of professional
misconduct and can provide the basis for disciplinary sanctions
without a full administrative hearing.(81)
The Constitutional Issues
The common law has long protected the individual's right to
decide about medical treatment, including the right to refuse
treatment necessary to sustain an individual's life.(82) In Cruzan
v. Director, Missouri Department of Health,(83) the United States
Supreme Court held that the right to refuse treatment is also a
protected "liberty interest" under the due process clause of the
federal Constitution.(84) Likewise, in Rivers v. Katz,(85) the New
York Court of Appeals concluded that the right to refuse medical
treatment is protected under the due process clause of the New York
In contrast, many states, including New York, prohibit
assisted suicide and euthanasia. Recently, Michigan passed a law
against assisted suicide designed to halt Kevorkian's activities
while a state commission develops recommendations for policies on
assisted suicide and euthanasia. Both Kevorkian and the Michigan
chapter of the American Civil Liberties Union have challenged the
law as unconstitutional, on the ground that it violates the rights
of terminally ill individuals who wish to die.(86) Some commentators
have also argued that the constitutional right to refuse unwanted
medical treatment necessarily includes the right to suicide
assistance or euthanasia.(87)
(80) See N.Y. Public Health Law 230(10)(f).
(81) See N.Y. Education Law 6530(9)(a) (McKinney Supp.
1994); N.Y. Public Health Law 230(10)(p) (McKinney Supp.
(82) See pp. 49-50,
(83) 497 U.S. 261, 110 S. Ct. 2841 (1990).
(84) Prior to Cruzan, many courts had held that the right to
refuse treatment is part of the general constitutional right of
privacy. In Cruzan, however, the Supreme Court found that
"this issue is more properly analyzed in terms of a Fourteenth
Amendment liberty interest." 110 S. Ct. at 2851 n.7.
(85) 67 N.Y.2d 485,504 N.Y.S.2d 74 (1986).
(86) See People v. Jack Kevorkian, No. 93-11482 (Mich. Cir.
Ct. Wayne County); Hobbins v. Attorney General, No. 93-306-178
CZ (Mich. Cir. Ct. Wayne County). See generally R. A.
Sedler, The Constitution and Hastening Inevitable Death,"
Hastings Center Report 23, no. 5 (1993): 20 (outlining and
defending the ACLU's position in Hobbins). A similar challenge
is pending in federal district court in Washington State. See
Compassion in Dying et aL v. State of Washington, No. C94-119
page 68 WHEN DEATH IS SOUGHT
After examining state and federal law, the Task Force
concluded that neither the United States nor the New York State
Constitution grants individuals a "right" to commit suicide. In
cases affirming the right to forgo life-sustaining treatment, courts
have consistently distinguished the right to refuse treatment from a
right to commit suicide, and have acknowledged the state's interest
in preventing individuals from taking their own lives. Rather than
establishing a broad constitutional right to determine the timing
and manner of death, these cases stand for the more limited
proposition that individuals have a right to resist bodily
intrusions, and to preserve the possibility of dying a natural
death. However, even if suicide implicated a constitutionally-
protected right or liberty interest, prohibitions
on assisted suicide or euthanasia would still be justified by the
state's interest in preventing the error and abuse that would
inevitably occur if physicians or others were authorized to cause or
aid another person's death.
The "Right" To Commit Suicide
The Supreme Court has classified certain individual rights as
"fundamental," and subjects laws infringing those rights to "strict
scrutiny." A law will survive strict scrutiny only if it is
justified by "compelling governmental interest[s]" and if it is
"narrowly tailored" to achieve those interests.(88) The Supreme
Court has also recognized that certain other rights, while not
rising to the status of fundamental rights, implicate
constitutionally protected "liberty interests." Laws that infringe
on these liberty interests are subjected to a balancing test, under
which the court must weigh the "individual's interest in liberty
against the State's asserted reason for restraining individual
liberty."(89) Laws that do not infringe on either
(87) Compare, e.g., Note, "Physician-Assisted Suicide and the
Right to Die 'With Assistance," Harvard Law Review 105 (1992):
2021 (arguing for recognition of constitutional right to
suicide); S. J. Wolhandler, Note, "Voluntary Active Euthanasia
for the Terminally III and the Constitutional Right to
Privacy," Cornell Law Review 69 (1984): 363 (same); A.
Sullivan, "A Constitutional Right to Suicide," in Suicide: The
Philosophical Issues, ed. M. P. Battin and D. J. Mayo (New
York: St. Martin's Press, 1980): 229 (same) with Y. Kamisar,
"Are Laws Against Assisted Suicide Unconstitutional?" Hastings
Center Report 23, no. 3 (1993): 32 (arguing against
recognition of constitutional right to suicide); Marzen et al.
(88) See, e.g., Austin v. Michigan State Chamber of Commerce,
494 U.S. 652, 666, 110 S. Ct. 1391,1401 (1990).
(89) Youngberg v. Romeo, 457 U.S.307, 320, 102 S. Ct. 2452,
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 69
fundamental rights or constitutionally protected liberty
interests receive only minimal judicial scrutiny, and will be upheld
as long as they are "rationally related" to a legitimate
Advocates of a constitutional right to assisted suicide
contend that the individual's right to self-determination
encompasses all decisions concerning the timing and manner of death.
In their view, a right to assisted suicide is implicit in the right
to refuse life-sustaining treatment, as both practices seek to give
individuals "control over when they die, where they die, and their
physical and mental state at the time of their death."(91) According
to this position, distinctions between the refusal of treatment and
suicide are artificial, because both practices stem from the
individual's intent to end his or her life,(92) and require acts or
omissions that directly cause the individual's death.(93) Rejecting
the distinction between "actively" causing death through assisted
suicide or euthanasia and "passively" allowing a patient to die by
terminating treatment, advocates of a right to suicide emphasize
that the law often equates omissions with deliberate acts.(94)
An examination of existing law, however, strongly undermines
the contention that the Constitution guarantees individuals the
right to take their own lives.(95) In Cruzan v. Director, Missouri
(90) See, e.g., Concrete Pipe & Products of California, Inc. v.
Construction Laborers Pension Trust, 113 S. Ct. 2264 (1993).
(91) Note, "Physician-Assisted Suicide," 2026. 921bid., 2030.
(93) Ibid., 2029 ("[T]he physician's act - turning off the
respirator - is a cause-in-fact of the death: but for turning
off the machine, the patient would be alive today."); see also
J. Fletcher, The Courts and Euthanasia," Law, Medicine and
Health Care 15 (1987/88): 225 ("[T]he primary causative act is
the moral one of removing the supports.").
(94) See Note, "Physician-Assisted Suicide," 2028-29; cf.
Brock, 12 (agreeing that terminating treatment and assisting a
suicide are both "killing," but arguing that the label of
killing does not determine a practice's moral acceptability).
In his concurring opinion in Cruzan, Justice Scalia also argued
that suicide and the refusal of treatment could not be
distinguished, but concluded that neither practice was
constitutionally protected, not that both must be allowed. See
Cruzan, 110 S. Ct. at 2860-63 (Scalia, J., concurring). No
other justice in Cruzan agreed with Justice Scalia's analysis.
(95) Although two lower courts in Michigan have held that the
right to commit suicide is constitutionally guaranteed, see
People v. Kevorkian, No. 93-11482 (Mich. Cir. Ct. Wayne Cry.
1993), Hobbins v. Attorney General, No. 93- 306-178 CZ (Mich.
Cir. Ct. Wayne Cry. 1993), these decisions contained sparse
constitutional analysis and are likely to carry little weight
as precedent, especially outside the state of Michigan.
Appellate courts generally defer only to the factual findings
made in the court of first instance, not to the lower court's
legal reasoning. In cases involving sensitive issues at the
forefront of legal change, lower court opinions often bear
little resemblance to the ultimate resolution of the case at
the appellate level. For example, while a New Jersey trial
court judge made headlines by upholding the surrogate parenting
contract in the Baby M case, see Matter of Baby M, 217 N.J,
Super. 313, 525 A.2d 1128 (Ch. Div., Fam. Pt. 1987), the New
Jersey Supreme Court paid little attention to the lower court's
legal reasoning in the final decision in the case. See Matter
of Baby M, 537 A.2d 1227 (N.J. 1988). The reasoning of a lower
court in one state carries even less weight as precedent
outside that state.
page 70 WHEN DEATH IS SOUGHT
Department of Health,(96) the United States Supreme Court
specifically noted the prevalence of laws against assisted suicide,
and suggested that a state need not "remain neutral in the face of
an informed and voluntary decision by a physically-able adult to
starve to death."(97) Other courts that have recognized the right to
refuse medical treatment have explicitly distinguished that right
from a right to commit suicide,(98) and have consistently affirmed
the state's interest in preventing individuals from taking their own
lives.(99) These courts have generally held that suicide and the
refusal of treatment are different, because individuals who refuse
medical treatment do not intend to cause death, but only to avoid
unwanted medical interventions.(100) They have also affirmed that,
when treatment is refused, the ultimate cause of death is the
underlying disease, not the patient's own decision or act.(101)
(96) 497 U.S. 261, 110 S. Ct. 2941 (1990).
(97) 110 S. Ct. at 2852. While the New York Court of Appeals
has never directly addressed the constitutionality of laws
prohibiting suicide assistance or euthanasia, the Appellate
Division, New York's intermediate appellate court, considers it
"self-evident that the right to privacy does not include the
right to commit suicide." Von Holden v. Chapman, 87 A.D.2d
66,450 N.Y.S.2d 623 (4th Dep't 1982). Moreover, the Court of
Appeals' conclusion that the liberty interest protected by the
due process clause of the New York State Constitution "is
coextensive with" the individual's common-law right to refuse
unwanted medical treatment, Rivers v. Katz, 67 N.Y.2d 485, 504
N.Y.S.2d 74, 78 (1986), strongly suggests that suicide - which
was illegal at common law - does not rise to the level of a
(98) See, e.g., Fosmire v. Nicoleau, 75 N.Y.2d 218, 551
N.Y.S.2d 876, 881 (1990) ("[M]erely declining medical care,
even essential treatment, is not considered a suicidal act or
indication of incompetence.").
(99) See, e.g., In re Eichner (In re Storar), 52 N.Y.2d 363,
438 N.Y.S.2d 266 (noting the legitimacy of the state's interest
in "prevention of suicide"), cert. denied, 454 U,S, 859 (1981).
100) See, e.g., In re Coyler, 99 Wash.2d 114, 660 P.2d 738,
743 (1983) ("A death which occurs after the removal of life
sustaining systems is from natural causes, neither set in
motion nor intended by the patient.").
(101) See, e.g. In re Conroy, 98 N.J. 321, 486 A.2d 1209, 1224
(1985) (arguing that, although death might result from the
refusal of treatment, "it would be the result, primarily, of
the underlying disease, and not the result of a self-inflicted
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 71
As these courts have recognized, the fact that the refusal of
treatment and suicide may both lead to death does not mean that they
implicate identical constitutional concerns. The imposition of
life-sustaining medical treatment against a patient's will requires
a direct invasion of bodily integrity and, in some cases, the use of
physical restraints, both of which are flatly inconsistent with
society's basic conception of personal dignity.(102) As one
commentator has argued, compelled treatment results in "a life
almost totally occupied. The person's body is ... so far
expropriated from his own will, supposing that he seeks to die, that
the most elemental acts of existence --- such as breathing,
digesting, and circulating blood --- are forced upon him by an
external agency."(103) It is this right against intrusion --- not a
general right to control the timing and manner of death --- that
forms the basis of the constitutional right to refuse
life-sustaining treatment.(104) Restrictions on suicide, by
contrast, entail no such intrusions, but simply prevent individuals
from intervening in the natural process of dying.
While restrictions on suicide do limit individual autonomy,
the bare fact that individual options are constrained does not
render such limits unconstitutional. Individuals may not
irrevocably waive their right against involuntary servitude, for
example, regardless of whether the waiver is knowingly and
intelligently made.(105) Indeed, in recent years the Supreme Court
(102) Cf. Rochin v. California, 342 U.S. 165, 72 S. Ct. 205
(1952) (concluding that the forcible extraction of evidence
from an individual's stomach "shocks the conscience").
(103) J. Rubenfeld, "'The Right of Privacy," Harvard Law Review
102 (1989): 795; see also D. Orentlicher, "Physician
Participation in Assisted Suicide," Journal of the American
Medical Association 262 (1989): 1845 ("Would a patient dying
of cancer have to accept a regimen of chemotherapy that might
prolong life for several months but would be painful,
nauseating, and debilitating?").
(104) Sec Cruzan, 110 S. Ct. at 2851 (basing right to refuse
treatment on cases dealing with intrusions on the person); see
also ibid., 110 S. Ct. at 2856 (O'Connor, J., concurring) ("A
seriously ill or dying patient whose wishes are not honored may
feel a captive of the machinery required for life-sustaining
measures or other medical interventions. Such forced treatment
may burden that individual's liberty interests as much as any
(105) See Pollack v. Williams, 322 U.S. 4, 64 S. Ct. 792
(1944). According to one commentator, while autonomy "has long
been the dominant rhetorical value in American medical law and
medical ethics," legal protection of autonomy "does not seem to
be as dominant a value as rhetoric would suggest." For
example, "[l]icensure and the control of allegedly beneficial
medicines and devices are designed to ... paternalistically
prevent individuals from autonomously making bad choices,"
while laws that prohibit abortions to protect the health of the
mother "can only be understood as reflecting a paternalistic
concern for maternal well-being." R. B. Dworkin, "Medical Law
and Ethics in a Post-Autonomy Age," Indiana Law Journal 68
page 72 WHEN DEATH IS SOUGHT
has afforded constitutional protection only to those
individual practices "deeply rooted in this Nation's history and
tradition."(106) While the merits of this constitutional doctrine
are subject to debate, its effect on the constitutional distinction
between the refusal of treatment and suicide is clear. On the one
hand, the right to refuse treatment has a well-established history
in the laws of informed consent and battery.(107) On the other hand,
individuals have never been granted a right to control the timing
and manner of their death; indeed, suicide was illegal in many
states for most of this nation's history, and, even after
decriminalization, society continues to discourage suicide and seek
to prevent individuals from taking their own lives. The historical
opposition to suicide, while neither necessary nor sufficient to the
Task Force's own constitutional analysis, makes it virtually
inconceivable that the United States Supreme Court would recognize a
constitutional right to commit suicide.
The State's Interest in Preventing Error and Abuse
In light of the distinctions set forth above, laws prohibiting
assisted suicide and euthanasia would be subjected to only minimal
judicial scrutiny, which considers whether a law is "rationally
related" to a legitimate governmental goal.(108) Even if individuals
had a right to commit suicide, however, that right would not
translate into a right to obtain the assistance of others in
bringing about one's own death. Rather, any burden on individual
liberties that prohibitions on assisted suicide or euthanasia might
entail would be outweighed by the state's interest in preventing
error and abuse.
First, to the extent that laws prohibiting assisted suicide
and euthanasia impose a burden, they do so only for individuals who
make an informed, competent choice to have their lives artificially
shortened, and who cannot do so without another person's aid. As
studies have confirmed, very few individuals fall into this group,
particularly if appropriate pain relief and supportive care are
(106) See Michael H. v. Gerald D., 491 U.S. 110, 123, 109 S.
Ct. 2333, 2343 (1989) (plurality opinion).
(107) As the Supreme Court recognized in Cruzan, "[a]t common
law, even the touching of one person by another without consent
and without legal justification was a battery." Cruzan v
Director, Missouri Department of Health, 110 S. Ct. 2841, 2846
(1990); see also Eichner, 52 N.Y.2d at 377, 438 N.Y.S.2d at 273
(noting the prevalence of statutes that impose civil liability
on persons who perform medical treatment without consent).
(108) See pp. 68-69.
(109) See chapter 1.
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 73
At the same time, laws barring suicide assistance and
euthanasia serve valuable societal goals: they protect vulnerable
individuals who might otherwise seek suicide assistance or
euthanasia in response to treatable depression, coercion, or pain;
they encourage the active care and treatment of the terminally ill;
and they guard against the killing of patients who are incapable of
providing knowing consent. In this regard, prohibitions on assisted
suicide and euthanasia are distinct from earlier statutes that
barred suicide committed without another person's aid. While
unassisted suicide is essentially a private, independent act,
assisted suicide and euthanasia possess a uniquely social dimension,
as they involve one individual participating directly in another
person's decision to die. Such participation carries far-reaching
risks of mistake and abuse.(110) While proponents of legalized
assisted suicide and euthanasia suggest that safeguards could be
established to minimize these dangers, the essential prerequisites
for such safeguards --- an attentive and caring physician-patient
relationship, skilled pain management and comfort care, and
universal access to effective psychiatric services --- represent an
idealized version of medical care that society has thus far failed
to achieve. Given this reality, any effort to carve out exceptions
to the prohibitions on assisted suicide or euthanasia would
seriously undermine the state's interest in preventing suicide in
the vast majority of cases in which patients seek this option
because of pressure, undiagnosed or untreated depression, or
improperly managed pain.(111) The state's interest in protecting
these patients outweighs any burden on individual autonomy that
prohibitions on assisted suicide and euthanasia might entail.(112)
(110) See chapter 6, pp. 121-34.
(111) As the Supreme Court of Canada recently observed in
rejecting a constitutional challenge to that nation's ban on
assisted suicide, "[t]here is no halfway measure that could be
relied upon with assurance to fully achieve the legislation's
purpose." Rodriguez v. Attorney General, [19931 3 S.C.R. 519.
In this country, the Supreme Court has clearly affirmed that
statutes are not unconstitutional simply because they apply to
some cases where the state's interest is not directly
implicated. Rather, as long as the legislation does not
interfere with a fundamental constitutional right, the fact
that it is overbroad is generally not a basis for
constitutional attack. See, e.g., New York Transit Auth. v.
Beazer, 440 U.S. 568, 99 S. Ct. 1355 (1979) (upholding an
absolute ban on employment of users of narcotic drugs,
including methadone users, despite the fact that the reasons
supporting the ban did not apply to patients in methadone
treatment programs, because "any special rule short of total
exclusion ... is likely to be less precise."). Moreover, even
when fundamental rights are at stake, the Court has held that
states need not make exceptions for individual cases if such
exceptions would "unduly interfere with fulfillment of the
governmental interest." United States v. Lee, 455 U.S. 252,
259,102 S. Ct. 1051 (1982).
page 74 WHEN DEATH IS SOUGHT
This constitutional balancing of individual and state
interests yields an entirely different result for decisions to forgo
life-sustaining treatment. To be sure, allowing individuals to
refuse life-sustaining treatment also presents some risk of abuse or
error. However, that risk is minimized by the fact that the refusal
of treatment causes death only for individuals whose continued
existence requires extensive medical support. By contrast, if a
right to suicide were recognized, it would apply to a far broader,
more elastic class of "suffering" individuals, thus greatly
expanding the number of people at risk.(113) Even more
significantly, a ban on the refusal of life-sustaining treatment
would impose a burden on individual liberty far more severe than any
burden entailed by prohibiting assisted suicide or euthanasia.
Unlike assisted suicide and euthanasia, the refusal of
life-sustaining treatment is an integral dimension of medical
practice; it is estimated that approximately 70 percent of all
hospital and nursing home deaths follow the refusal of some form of
medical intervention.(114) A prohibition on the
(112) See Kamisar (arguing that the state's interest in
prohibiting suicide assistance and euthanasia outweighs any
burden such prohibitions might impose on individual autonomy).
Advocates of legalized assisted suicide or euthanasia often
fail to engage in this crucial balancing process. For example,
Ronald Dworkin suggests that, because "[t]here are dangers both
in legalizing and refusing to legalize" euthanasia, society has
an obligation to carve out a middle ground. See R. Dworkin,
Life's Dominion (New York: Knopf, 1993): 198 ("[O]nce we
understand that legalizing no euthanasia is itself harmful to
many people ... we realize that doing our best to draw and
maintain a defensible line ... is better than abandoning those
people altogether."), Dworkin's argument loses much of its
force once it is recognized that the number of people genuinely
harmed by laws prohibiting euthanasia or assisted suicide is
extremely small, and that legalizing euthanasia or assisted
suicide for the sake of these few - whatever safeguards are
written into the law - would endanger the lives of a far larger
group of individuals, who might avail themselves of these
options as a result of depression, coercion, or untreated pain.
(113) See Marzen et al., 105 ("[A] jurisprudential scheme that
acknowledged a constitutional right to suicide but carefully
confined its exercise to a narrow class of persons or set of
circumstances would be perverse."). Few of the advocates of a
right to assisted suicide have argued that the right should be
limited to the terminally ill or to other similarly narrow
classes of individuals, and cases in the area of
life-sustaining treatment suggest that such a distinction could
not be made. See Fosmire v Nicoleau, 75 N.Y.2d 218,551
N.Y.S.2d 876 (1990) (rejecting the argument that the right to
refuse life-sustaining treatment should be limited to the
terminally ill). Indeed, Professor Tribe has suggested that the
difficulty of limiting a right "to determine when and how to
die" is the principal @son that courts have been reluctant to
recognize such a right as a matter of constitutional law. L.
Tribe, American Constitutional Law, 2d ed. (New York:'The
Foundation Press, 1988): 15-1 1, p. 1370.
(114) See Cruzan v. Director Missouri Department of Health, 497
U.S. 261, 110 S. Ct. 2841, 2864 (Brennan, J., dissenting).
CHAPTER 4 DECISIONS AT LIFE'S END:EXISTING LAW page 75
refusal of treatment would therefore require the widespread
restraint of patients unwilling to submit to invasive procedures at
the end of their lives. Such a policy would be an abuse of
medicine, placing patients at the mercy of every technological
advance. In addition, such prohibitions might deter individuals
from seeking medical treatment in the first place, thereby
undermining society's interest in caring for the seriously ill. New
York, like other states in the nation, has already recognized that
its interests are best served by permitting the refusal of treatment
in accord with appropriate guidelines, and that individual decision
making about treatment will ultimately promote the public good.(115)
(115) See Eichner, 52 N.Y.2d at 377,438 N.Y.S.2d at 273 ("to
the extent that existing statutory and decisional law manifests
the State's interest on this subject, they consistently support
the right of the competent adult to make his own decision by
imposing civil liability on those who perform medical treatment
without consent, although the treatment may be beneficial or
even necessary to preserve the patient's life.").
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