Chapter 4 - Decisions at Life's End: Existing Law

				 PART I



			       CHAPTER 4


	  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).


    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.

	  858 (1981).

    (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

	  constitutional rights.


    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

	    1993 Supp.).

      (19) Ibid.

      (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.

    (23)  Ibid.

    (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.


	  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


Assisted Suicide

	  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

	  Brenner, 66-67.

    (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).


    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,

	  807-08 (1976).

    (49)  Ibid.

    (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.


	  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



	  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



    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

    second degree.

	  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



	  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

	  disciplinary setting.

    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.


    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

    State Constitution.

	  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

	  (W.D.  Wash.).

    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,

	  2460 (1982).


    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

    governmental goal.(90)

	  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

	  constitutional right.

    (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



	  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

	    state coercion.").

     (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

	    (1993):  727-30.

    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.


    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).


    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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