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Copyright (c) 2006 Loyola University New Orleans School of Law
Loyola Journal of Public Interest Law
Fall, 2006
8 Loy. J. Pub. Int. L. 45
LENGTH: 15851 words
COMMENT: ABORTION AND PHYSICIAN-ASSISTED SUICIDE: IS THERE
A CONSTITUTIONAL RIGHT TO BOTH?
NAME: Carrie H. Pailet*
BIO:
* J.D. Candidate. Loyola University New Orleans College of Law; M.S.W., Tulane
University School of Social Work, 2003; B.A., Psychology and Sociology,
University of Texas at Austin, 1999. Thank you to Professor Stephen Higginson
and Dr. Norton Spritz for their support and advice. Thank you to my family and
friends for their steadfast encouragement and love.
SUMMARY:
... Two areas of medical care that continuously encounter legal controversy,
possibly because of their similarities, are abortion and assisted suicide. ... Case law
that evolves the "zone of privacy' concept into the right of personal autonomy with
regard to medical decisions will be explored along with Oregon's Death with
Dignity Act, as it is the United States' sole statute permitting physician-assisted
suicide. ... a recognition of the right of the woman to choose to have an abortion
before viability and to obtain it without undue interference from the State[,] ... a
confirmation of the State's power to restrict abortions after fetal viability, ... and ...
the principle that the State has legitimate interests from the outset of the pregnancy
in protecting the health of the woman and the life of the fetus ... . ... An additional
study regarding physician-assisted suicide and euthanasia in the Netherlands was
performed in 2001 at the request of the Dutch government. ...
TEXT:
[*45]
I. INTRODUCTION
The practice of medicine has drastically changed over the centuries. With
technological advances in medical treatment, developing an illness, such as cancer,
no longer means certain death. We are living longer, but our medical and
technological developments have led our society down a path of complex questions
with no correct answers. Our society, through law, has attempted to accommodate
these complexities by placing stringent requirements on some decisions regarding
healthcare while prohibiting others.
Two areas of medical care that continuously encounter legal controversy, possibly
because of their similarities, are abortion and assisted suicide. These issues have
been explored and debated in government, newspapers, magazines, classrooms,
prime time television shows and movies. American culture has played tug-of-war
for centuries with the topic of abortion with zealous supporters flanking both sides
of the issue. While assisted suicide has been a more recent subject of cultural
fascination, the issue has already developed a following of supporters and
naysayers. Both issues have legislation banning and regulating the procedures and
both issues, abortion in particular, have helped and hindered the elections of many
politicians based on the stance these candidates have taken in public forums.
This article explores the evolution of abortion and assisted suicide, focusing on
physician-assisted suicide, for adults in the United States. n1 The [*46] discussion
of abortion will explore the history of abortion in the United States, case law that
developed the "zone of privacy' concept, and current legislation winding its way
through state legislatures. In delving into the topic of physician-assisted suicide,
this paper will briefly discuss current end-of-life treatment options of palliative and
hospice care. Case law that evolves the "zone of privacy' concept into the right of
personal autonomy with regard to medical decisions will be explored along with
Oregon's Death with Dignity Act, as it is the United States' sole statute permitting
physician-assisted suicide. This paper will also examine the Dutch's Termination of
Life on Request and Assisted Suicide Act, as the Netherlands has legalized
physician-assisted suicide nationwide. Lastly, there will be a discussion comparing
and contrasting abortion and physician-assisted suicide in the United States,
including predictions as to how the two treatments will be dealt with from a legal
perspective in the future.
II. THE EVOLUTION OF ABORTION IN THE UNITED STATES
The History of Abortion in the United States
Prior to 1860, it was estimated that one in five pregnancies ended in abortion. n2
The anti-choice movement in America gained momentum in the middle of the
nineteenth century due to an alliance between physicians attempting to gain respect
for their profession, and "anti-vice" crusaders trying to solidify "traditional" roles
for men and women - particularly women's moral role in society as that of mother
and nurturer. n3 The arguments against abortion included that it was against a
woman's pre-destined role and that the procedure was an unhealthy one because
licensed physicians were not performing it. n4 An additional argument made by
people against choice is that a fetus is a human being, and as such, it is wrong to
abort a fetus because the action is equal to killing a person. n5 The [*47]
movement gained further momentum in 1869, when Pope Pius IX declared nontherapeutic abortions a violation of Catholic Church policy. n6 By the 1890s, every
state had passed a criminal abortion statute. n7
Abortion laws and their enforcement have waxed and waned depending on the
economy and population issues. For example, enforcement of abortion laws were
lax during the Great Depression in the 1930's at a time of massive unemployment
and grave poverty; however, the 1950's was a period of intensified law
enforcement with regard to abortion due to the great loss of life during World War
II and a moral need to fight Communism that included women returning to the
"traditional" duties as wives and mothers. n8 Another factor that has fluctuated
throughout the years is the physical safety and the sanitary conditions under which
abortions have been performed. n9
The "Zone of Privacy' and The Liberty of Choice
One of the first modern steps towards confirming a constitutional right for a
woman to have a choice as to whether to obtain an abortion appears with the
introduction of the "zone of privacy' concept as it relates to reproductive issues in
Griswold v. Connecticut. n10 The defendants in this case were Mr. Griswold, who
was the Executive Director of the Planned Parenthood League of Connecticut, and
Dr. Buxton, who was the Medical Director for the Planned Parenthood League's
Center in New Haven. n11 The two men were arrested for giving "information,
instruction, and medical advice to married persons as to the means of preventing
conception." n12 The issue in this case was whether the State had the constitutional
right to interfere with the private lives of those within its borders. Specifically, the
United States Supreme Court had to determine if two Connecticut statutes
prohibiting the use of contraceptives and the counsel or assistance in obtaining
contraceptives were unconstitutional. n13
The Court discussed several United States constitutional amendments [*48]
throughout its opinion, but the majority opinion focused on the First and
Fourteenth Amendments. n14 The First Amendment states, "Congress shall make no
law... abridging the freedom of speech... ." n15 The Fourteenth Amendment states,
"nor shall any State deprive any person of life, liberty, or property, without due
process of law ... ." n16 Justice Douglas, who penned the majority opinion, wrote of
indirect guarantees provided in the Constitution, such as the right of parents to
educate their children in a manner they see fit, or the right of a person to study a
subject of choice. n17 Justice Douglas stated that the Court had granted rights not
specifically guaranteed by the Constitution because "without those peripheral
rights the specific rights would be less secure ... . The First Amendment has a
penumbra where privacy is protected from governmental intrusion." n18 Several
cases were listed that "suggest that specific guarantees in the Bill of Rights have
penumbras," and, as such, these "various guarantees create zones of privacy." n19
The Court held both Connecticut statutes unconstitutional. n20 The statute
prohibiting the use of contraceptives was deemed to be a violation of the "zone of
privacy' within the marital relationship as indirectly guaranteed in the Fourteenth
Amendment, and the aiding and abetting statute was declared too broad to
withstand a constitutional argument when applied to the First Amendment. n21
The U.S. Supreme Court continued to restrict the State's involvement with
reproductive decisions with Roe v. Wade. n22 The issue in Roe was similar to
Griswold in that the Court was again asked to determine to what extent the
Constitution allowed the State to interfere with reproductive practices. However,
Roe went further than Griswold by asking what rights [*49] the State had over the
women in the State, not with regard to preventing contraception, but rather in the
event that conception had occurred. n23 In Roe, a pregnant, single woman in Texas
brought suit against the Dallas County District Attorney challenging the
constitutionality of the Texas criminal abortion laws, which prohibited abortion
unless the procedure's purpose was to save the life of the mother. n24
In its decision, the Court pointed out that many states did not formally pass antichoice legislation until the Civil War. n25 The Court recognized that these first
formal laws appeared to be lenient with regard to abortion before fetal viability. n26
It also discussed the dangers a woman faced when having an abortion prior to
modern medical advances, as well as the legitimate concern of the State, expressed
through legislative action, to protect the general health and safety of its women. n27
While the Court stated, "we need not resolve the difficult question of when life
begins," the Court followed the example set by common law and declared that the
State had an interest in protecting potential life once a fetus was viable. n28 The
Court declared it was at this point that "the fetus then presumably has the
capability of meaningful life outside the mother's womb ... [,]" thus giving the
State justification for protecting a potential citizen. n29
The Court focused on the definition of "personhood" and determined that "person"
was used in the Constitution only when referring to a "postnatal" individual,
concluding that a fetus does not fit within the definition of a "person" as used by
the Fourteenth Amendment. n30 Since a fetus is not a person by constitutional
standards, the State had no compelling interest in protecting it through a due
process justification via the Fourteenth Amendment. n31 This determination by the
Court sends a [*50] confusing message when coupled with the Court's declaration
of State interest once fetal viability is reached. It appears as if the Court is
attempting to make supporters on both sides of the issue happy by allowing choice,
but only up to a certain point.
Roe discussed the "zone of privacy' right brought up in Griswold. n32 The Court
stated that the right to privacy was found in the Ninth and Fourteenth Amendments
of the Constitution and concluded that the "concept of personal liberty and
restrictions upon state action" in the Fourteenth Amendment and the "reservation
of rights" found in the Ninth Amendment were sufficient to grant women the right
of choice regarding the abortion procedure, while at the same time, the Court
clarified that this right of privacy did not mean that people could do whatever they
wanted with their bodies. n33 With regard to pregnancy, the Court stated, "at some
point the state interests as to protection of health, medical standards, and prenatal
life, become dominant." n34 The Court continued,
the State does have an important and legitimate interest in preserving and
protecting the health of the pregnant woman, ... and that it has still another
important and legitimate interest in protecting the potentiality of human life. These
interests are separate and distinct. Each grows in substantiality as the woman
approaches term and, at a point during pregnancy, each becomes "compelling.' n35
The Roe Court ultimately adopted a trimester system for determining the degree of
interference the State could have with a woman's right to an abortion. n36 The Court
held that there could be no restrictions placed on the abortion procedure during the
first trimester. n37 However, the State could provide regulations to ensure the
procedure's safety during the second trimester, and the State could regulate and
restrict abortions, except when necessary to protect the life of the mother, during
the third trimester. n38 In other words, a woman may choose to have an abortion for
therapeutic or non-therapeutic reasons until viability. However, once the fetus is
viable, only therapeutic abortions must be allowed by the State. The ability to
obtain a non-therapeutic abortion once a fetus is deemed liable was left to the
State's discretion.
[*51] At the same time Roe was considered by the Court, Doe v. Bolton was also
argued. n39 The issue in Doe was the validity of Georgia statutes that required an
abortion procedure be approved by a hospital staff abortion committee. n40 The
statutes also required the procedure only be performed on a Georgia resident by a
physician at an accredited hospital only after that physician's judgment to abort
was confirmed by two other physicians who had performed independent
examinations on the patient. n41 Doe argued that the Georgia abortion statutes were
invalid due to its "undue restriction of a right to personal and marital privacy;
vagueness; deprivation of substantive and procedural due process; improper
restriction to Georgia residents; and denial of equal protection." n42 The United
States Supreme Court held that those portions of the Georgia statutes that restricted
the location where an abortion could be performed were unconstitutional because
the location was not reasonably related to the purpose of the statutes. n43 The
committee and physician approval requirements prior to the procedure being
carried out were "unduly restrictive of the patient's rights and needs." n44
Furthermore, the residency requirement was in violation of the Privileges and
Immunities Clause of the Constitution. n45
The liberty concept that guaranteed privacy was again discussed in Planned
Parenthood v. Casey. n46 The issue in Casey was how restrictive the State could be
with its regulation of abortion. n47 Specifically at issue were five provisions of the
Pennsylvania Abortion Control Act of 1982, yet to go into effect when this case
was brought before the Court, which would have required a woman seeking an
abortion to give her informed consent after receiving information about the
procedure. n48 Furthermore, this information had to be provided to the woman at
least twenty-four hours prior to her obtaining an abortion. n49 The Pennsylvania Act
also required parental consent if the woman seeking an abortion was a minor. n50 If
the woman [*52] were married, she would have been required to sign a statement
confirming that her husband was aware she was having the abortion procedure. n51
Additionally, the facilities providing abortions would have to adhere to certain
reporting requirements. n52
The Court used Casey as an opportunity to reaffirm the essential holding of Roe;
n53
however, the majority opinion suggested the trimester guidelines of Roe be
replaced with a less rigid "undue burden' standard. n54 An "undue burden' was
defined as a provision of law whose "purpose or effect is to place substantial
obstacles in the path of a woman seeking an abortion before the fetus attains
viability." n55 The Court listed the rights of a woman and of the State granted in
Roe as,
a recognition of the right of the woman to choose to have an abortion before
viability and to obtain it without undue interference from the State[,] ... a
confirmation of the State's power to restrict abortions after fetal viability, ... and ...
the principle that the State has legitimate interests from the outset of the pregnancy
in protecting the health of the woman and the life of the fetus ... . n56
The Court determined that the waiting period, informed consent, parental consent
for a minor, and reporting requirements were constitutional. n57 The requirement of
a married woman to sign a statement that her husband was aware she was having
an abortion was held unconstitutional. n58 Spousal notification met the "undue
burden' standard employed by the Court in that this requirement would be a
substantial obstacle for married women choosing to obtain abortions. n59 "The
husband's interest in the life of the child his wife is carrying does not permit the
State to empower him with this troubling degree of authority over his wife ... . A
husband has no enforceable right to require a wife to [*53] advise him before she
exercises her personal choices." n60 While the imperative holding of Roe, that a
woman had the right of choice regarding abortion, was upheld, the Court granted
the states the ability to place numerous obstacles in a woman's way. The Court
essentially declared that a State could make the process of obtaining an abortion
more time-consuming, more costly, more traumatic, more discouraging, and more
burdensome, so long as the woman could, in the end, have the procedure done.
Current Legislative and Legal Action
Utah has recently followed Pennsylvania's example by taking affirmative steps
towards making abortion more difficult for minors. On March 16, 2006, Utah's
governor signed H.B. 85 into law, which went into effect on May 6, 2006. n61 H.B.
85 requires physicians to obtain parental/guardian consent twenty-four hours prior
to performing an abortion on a minor. n62 As with other restrictive abortion laws,
there are exceptions to when an abortion performed on a minor absent parental
consent is permissible, such as medical emergencies that threaten the life of the
minor, incest, and rape. n63 In these situations, the law provides for expedited court
proceedings to determine if the minor is capable of making the decision to obtain
an abortion on her own. n64 This expedited judicial process is also available to
minors when they are the victims of rape, incest or other forms of abuse. n65
However, if there is a parent/guardian who was not involved in the abuse of the
minor, the law requires that the "innocent" parent/guardian be notified. n66 The bill
does not seem to take into account the fact that a court proceeding is a highly
stressful situation that has the potential to further traumatize a woman who is
already in the midst of a personal crisis.
On March 21, 2006, South Dakota's governor signed H.B. 1215 into law. n67
Known as the Women's Health and Human Life Protection Act, and scheduled to
go into effect on June 20, 2006, this bill proclaimed that life begins at conception
and that:
[*54]
abortions in South Dakota should be prohibited ... . No person may knowingly
administer to, prescribe for, or procure for, or sell to any pregnant woman any
medicine, drug, or other substance with the specific intent of causing or abetting
the termination of the life of an unborn human being. No person may knowingly
use or employ any instrument or procedure upon a pregnant woman with the
specific intent of causing or abetting the termination of the life of an unborn human
being. n68
Opponents of H.B. 1215 obtained enough signatures to put the bill on the
November 2006 ballot to enable voters to decide for themselves whether they
approve of the strict nature of the bill. The vote will determine whether the bill will
go into effect as planned or be scrapped. n69
This bill is a frontal assault on Roe and Casey, as it strips a woman of her right of
choice, privacy, and personal autonomy in virtually all situations involving
pregnancy. Supporters of the bill hope that the expected court challenge to the bill
will reach a more conservative Supreme Court. n70 It is their hope that the Court
takes this opportunity to reverse the right of privacy currently guaranteed by Roe
and Casey. n71
In February 2006, the Supreme Court announced that it will rule on whether a 2003
federal law banning a form of late-term abortions known as "partial birth
abortions" is constitutional. n72 The case will be heard during the term beginning in
October 2006. n73 Many states have created their own laws consistent with this ban.
However, the federal law was never enacted because there were no exceptions to
protect the health of the mother. n74 If the Court rules in favor of imposing the law,
it will mark the first federal [*55] ban on an abortion procedure. n75
III. PHYSICIAN-ASSISTED SUICIDE
The Evolution of Palliative Care and Hospice Care in the United States
Palliative care is a component of hospice care that "focuses on the comprehensive
management of the physical, emotional, cultural and spiritual needs of patients and
their family members dealing with the progression of advanced disease." n76 The
service "seeks to relieve suffering, control symptoms, and restore functional
capacity" of the patient in an effort to enhance the quality of life. n77 Though
palliative care is included in hospice care, patients can take advantage of what
palliative care has to offer prior to a need or desire for hospice. n78
Hospice is a program that provides specialized care for the dying. n79 Hospice, part
of the "death with dignity" movement, officially began in London, England in 1967
by Dr. Cicely Saunders, when she founded St. Christopher's Hospice. n80 Dr.
Saunders imported her hospice idea to the United States in 1963 when she spoke at
the Yale School of Nursing. n81 Hospice programs in the United States were
cultivated by the influences of Dr. Saunders, Florence Wald, and Dr. Elisabeth
Kubler-Ross. n82 The first legislation regarding federal funding for hospice care
failed in 1974; however, Congress took the idea more seriously in the late 1970's
and early 1980's when the U.S. Department of Health, Education and Welfare
reported that providing hospice to terminally ill patients may reduce overall
healthcare costs. n83 Between 1982 and 1984, hospice programs started to [*56]
become a valid healthcare option in the United States when Congress approved
hospice as a Medicare benefit and the Joint Commission on Accreditation of
Healthcare Organizations (hereinafter "JCAHO") initiated hospice accreditation
criteria. n84
The main criteria for qualifying for hospice care are that (1) the patient must be
terminally ill with (2) a physician certifying that death will probably occur in less
than six months. n85 Once in a hospice program, the patient is eligible to receive
care by a physician, nursing care, medical equipment and supplies, prescription
medication for symptom control and pain relief related to the hospice diagnosis,
respite care in an inpatient facility, home health aide, physical, occupational, and
speech therapy, dietary counseling, social work services, pastoral care, and
volunteer services. n86 With hospice, a patient's family is eligible for counseling
while the patient is alive and grief counseling for up to one year after the patient's
death. n87
"Zone of Privacy' and the Right of Personal Autonomy
There are four distinct categories of assisted-suicide and euthanasia - (1) assisted
suicide; which is carried out with assistance, but without physician assistance; (2)
physician-assisted suicide; (3) voluntary euthanasia, which is carried out by a
physician through a lethal injection, but with patient consent; and (4) involuntary
euthanasia, which is carried out by a physician without patient consent or, in some
cases, prior discussion of end-of-life issues. n88 Assisted-suicide, voluntary
euthanasia and involuntary euthanasia are illegal throughout the United States. n89
Physician-assisted suicide is only legal in the State of Oregon. n90
The right to terminate medical treatment is an issue that can arise [*57] under the
classification of death as part of the disease process. The right to terminate medical
treatment can be a hotly contested issue. This right was questioned in the State of
New Jersey through In re Quinlan. n91 The New Jersey Supreme Court referred to
the right of privacy, which has slowly morphed into the right of personal
autonomy, when holding that there was a constitutional right to terminate medical
treatment. n92 In Quinlan, Joseph Quinlan had a daughter, Karen, who was
allegedly incompetent. n93 Mr. Quinlan wished to gain guardianship of his daughter
so that he could cease all medical intervention, as it was believed Karen had no
hope of recovery, her "vital processes" being sustained solely through machinery.
n94
The Court granted Mr. Quinlan's request and concluded that "the individual's
right to privacy grows as the degree of bodily invasion increases and the prognosis
dims. Ultimately there comes a point at which the individual's rights overcome the
State interest." n95 While Quinlan provided an avenue to terminate medical
treatment once it had begun, the right to refuse medical intervention, including the
withdrawal of nutrition and fluids, has been permitted in the United States. n96
In Cruzan, the U.S. Supreme Court determined to what extent the State could
intervene with the withdrawal of life-sustaining treatment. The parents/guardians
of Nancy Beth Cruzan wanted to remove their daughter's life-sustaining treatment,
but were legally unable to do so, as there was no written evidence of Ms. Cruzan's
wishes prior to her entering a persistent vegetative state as a result of injuries
sustained in an automobile accident. n97 While the Court conceded that the State
would have been required to accommodate Ms. Cruzan if she had explicitly
expressed a desire that life-sustaining treatment be withheld prior to her becoming
incompetent, it held that the State had the right to put what it deemed appropriate
safeguards in place in furtherance of a legitimate State interest to protect and
preserve the lives of its vulnerable citizens. n98 Missouri successfully sought to
protect its vulnerable population by applying a clear and convincing standard, the
most rigid standard that could be applied to end-of-life medical decisions. n99 The
Court held the clear and convincing standard employed by Missouri for [*58]
end-of-life medical decisions was permitted under the Constitution. n100 The Court
based its decision in part on In re Quinlan and in part on Superintendent of
Belchertown State Sch. v. Saikewicz, a Supreme Judicial Court of Massachusetts
case which declared that an incompetent person retains the same rights as a
competent individual. n101
The right to refuse intervention need not be an expressed decision by the patient so
long as the patient or a court has empowered a proxy (a person) to make medical
decisions on his behalf. n102 A proxy has a duty to follow the explicit instructions of
the patient regarding healthcare decisions. n103 In the absence of explicit
instructions, the proxy should use "substituted judgment" in making healthcare
decisions, taking into account the patient's values and goals and attempting to make
the decision it is believed the patient would make were he capable. n104 If the
patient's values and goals are unknown, then the proxy is to follow the "best
interest" standard, under which decisions are made in the best interest of the patient
given the patient's medical situation and prognosis. n105 Some states, such as
Missouri, rely on a clear and convincing standard, while other states, such as
Minnesota, might rely on a less restrictive legal standard, taking into account the
"best interest" of a person. n106
In the United States, the right to refuse medical intervention extends to the
utilization of a living will, including a request for a physician to execute a "Do Not
Resuscitate" (hereinafter "DNR") order which would prevent further medical
treatment from being administered should the patient experience a fatal episode;
n107
however, the physician is unable to intentionally end a patient's life. In most
states, a DNR order is the closest a physician can legally come to assisting suicide
or euthanasia. The key distinction is that a DNR allows a physician to intentionally
allow a patient's life to end through inaction, while assisted suicide or euthanasia
would require the intentional action by the physician through writing a [*59]
lethal prescription or administering a lethal injection. Despite the legal restrictions,
there is some evidence that physicians in the United States do perform euthanasia
or participate in physician-assisted suicide. n108 The data is scarce, but in a sample
of U.S. oncologists, fourteen percent of physicians that had received a request for
euthanasia or physician-assisted suicide fulfilled their patients' wishes. n109 This
could indicate that an informed decision to end one's life or to receive assistance
with such an act, under certain circumstances, is not as morally repugnant as
history describes.
In Washington v. Glucksberg, the U.S. Supreme Court faced the question of
whether the right to commit suicide, including the right to have assistance to
commit suicide, was a fundamental right guaranteed by the Constitution. n110 The
plaintiffs in Glucksberg included four physicians who wanted to help terminally ill
patients commit suicide if requested, as well as three terminally ill patients who
wanted physician-assistance to commit suicide. n111 The plaintiffs sought the legal
right to assist in or commit suicide by arguing that Washington's statute banning
assisted suicide was a violation of the Fourteenth Amendment right to liberty and
privacy. n112 Relying on cases such as Planned Parenthood and Cruzan, they argued
that there was a fundamental liberty asserted by the Fourteenth Amendment that
extended to mentally competent, terminally ill patients to have the autonomy to
choose to commit physician-assisted suicide without State interference. n113
The Washington State Court of Appeals declared that the Washington Statute was
in violation of the Fourteenth Amendment, n114 but the U.S. Supreme Court
disagreed. n115 The Court discussed the history of suicide and physician-assisted
suicide in the United States and highlighted the fact that in almost every State in
the Union, "it is a crime to assist a suicide." n116 In exploring the history of suicide
in the United States, the Court stated that Anglo-American common-law had, for
over 700 years, placed harsh penalties on the estates of those who committed or
assisted with a suicide, including the criminal-forfeiture of personal property upon
committing [*60] suicide. n117 Moreover, the Court stated that "the prohibitions
against assisting suicide never contained exceptions for those who were near
death." n118 Furthermore, the Court found it improper to assert a constitutional right
to physician-assisted suicide to such a specific group of people (terminally ill,
competent individuals) under the analysis that if suicide were a constitutional right,
it would have to extend to all citizens equally. n119 Moreover, the Court states that
declaring a constitutional right to physician-assisted suicide would go against
history and states' interests, as each State had the duty to protect its citizens as it
saw fit. n120
Oregon's Death With Dignity Act
Oregon's Death with Dignity Act (hereinafter, "The Act"), the only law in the
United States to permit physician-assisted suicide, was implemented in 1997. n121
While the Death with Dignity Act provides terminally ill Oregon residents an
option of treatment that is not available anywhere else in the country, the right
granted by Oregon is specific and very limited. This limited action may provide a
glimpse of what the future holds, from a legal perspective, with regard to
physician-assisted suicide and euthanasia.
The Act provides the option of physician-assisted suicide to terminally ill residents
of Oregon. n122 The Oregon resident who personally requests this medical option
must be at least eighteen years of age, diagnosed by his attending physician as
having six months left to live due to a terminal illness, capable of making personal
medical decisions, and the decision to receive the lethal prescription must be an
informed decision that is confirmed by a consulting physician. n123 In addition, the
patient must make two oral requests, one written request, and must satisfy a
waiting period of two weeks prior to his physician having the legal ability to
provide the patient with a lethal prescription for medication. n124 The Act further
mandates that requests of physician-assisted suicide that are granted must [*61]
be reported to Oregon's Department of Human Services, who in turn are required
to make annual statistical reports available to the public that analyzes the data
received. n125
The Act is careful to distinguish between physician-assisted suicide, which the
State has declared legally acceptable, and other forms of suicide. It reads:
Nothing in [the Death with Dignity Act] shall be construed to authorize a physician
or any other person to end a patient's life by lethal injection, mercy killing or active
euthanasia. Actions taken in accordance with [the Death with Dignity Act] shall
not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide,
under the law. n126
The U.S. Supreme Court recently upheld Oregon's Death with Dignity Act in
Gonzales v. Oregon. n127 In Gonzales, the U.S. Attorney General attempted to
strike down the Act, citing his authority through the Controlled Substances Act
(hereinafter "CSA"). n128 The Court disagreed. n129 The purpose of the CSA,
enacted in 1970, is for the federal government to have statutory authority to
combat drug abuse and to control the legitimate and illegitimate traffic of
controlled substances. n130 Under the CSA, substances can be placed into one of
five schedules. n131 The most addictive drugs are placed into Schedule I and the
least addictive drugs are placed into Schedule V. n132 The more addictive the drug,
the more severe the restrictions placed on its access and use. n133
The CSA provides the U.S. Attorney General with power to regulate the control of
drugs scheduled in the CSA, as well as the regulation of the registration of
physicians. n134 "Control" means the Attorney General has the authority to add,
remove, or reschedule a drug; however, he must take his [*62] cues from the
Secretary of Health and Human Services. n135 "Registration" means the Attorney
General may deny, suspend, or revoke a physician's registration to prescribe drugs
falling within the five schedules after considering five factors, including "such
other conduct which may threaten the public health and safety." n136 The Attorney
General used this factor to claim his authority to abolish the Act through an
Interpretive Rule, stating that physician assisted suicide was not a legitimate
medical purpose. n137 The Court rejected this argument, stating that the CSA
provides the Attorney General with limited authority, which did not encompass
defining standards of medical practice. n138 The Court went on to hold that the
Attorney General's intention to halt physician-assisted suicide does not fall within
the purpose of the CSA. n139
Physician-Assisted Suicide in The Netherlands
While the Netherlands did not implement the legalization of physician-assisted
suicide until 2002, the country has been tolerant of the practice for over a decade,
performing nationwide studies as early as 1990. n140 The Dutch law, the
Termination of Life on Request and Assisted Suicide Act, n141 has a broader
definition of physician-assisted suicide than Oregon. The Act classifies what is
traditionally thought of in the United States as euthanasia as physician-assisted
suicide, permitting the physician to personally administer a lethal injection to a
patient as opposed to solely providing the means for suicide, which is the only
form of physician-assisted suicide permitted under Oregon law. n142 The Dutch Act
applies to people ages twelve and older. n143 An incompetent individual can be
legally subjected to euthanasia through a lethal injection administered by a
physician provided that the patient indicated his preferences in a written
declaration prior to becoming incompetent. n144
Studies were conducted in the Netherlands regarding physician- [*63] assisted
suicide in 1990 and 1995. n145 Though physician-assisted suicide and euthanasia
were not legal at the time of either study, standards had been adopted by the
medical community that condoned the illegal practice. n146 The studies indicated
that, of those patients requesting physician assistance for suicide between 1990 and
1995, the majority had cancer. n147 What was alarming about this study was that
23% - 27% of physicians interviewed for the study indicated that they had
euthanized a patient without prior discussion or patient consent (involuntary
euthanasia), in some instances with the estimate that the patient had longer than a
month left of life prior to receiving the lethal injection. n148 The study further
indicated that in a country where sixteen percent of all deaths occur in nursing
homes, eighty-six percent of those deaths that involved opiods were carried out on
incompetent patients without any information regarding the patients' end-of-life
wishes. n149 While figures in this study suggested that the rate of involuntary
euthanasia in the Netherlands had decreased roughly five percent between 1990
and 1995, there was no definitive information to conclude that the Netherlands had
not begun down a slippery slope feared by assisted-suicide/euthanasia opponents
concerned with the possible social acceptance of euthanasia for "morally
unacceptable reasons." n150
An additional study regarding physician-assisted suicide and euthanasia in the
Netherlands was performed in 2001 at the request of the Dutch government. n151
The findings of this study were not published until after the Termination of Life on
Request and Assisted Suicide Act went into effect. The study indicated that "active
euthanasia" was preferred over assisted in the Netherlands. n152 "The argument that
assisted suicide is [an act] more respectful of patient autonomy and responsibility,
often weighs less with doctors, and presumably also the patients, than the better
control achieved when the doctor injects a lethal drug." n153 Furthermore, the study
concluded that, ""termination of life without request of the patient' is still practiced
on an undiminished scale, in defiance of the official rules of careful conduct." n154
The study also indicated that Dutch physicians did not follow protocols such as
mandatory consultation that were put in place to [*64] protect vulnerable
populations. n155 Many cases indicate that the mandatory consultation consisted of
general conversations between two physicians on the telephone, with no thorough
exploration of the specific patient's case and no discussion between the consulting
physician and the patient. n156
In response to U.S. concerns that vulnerable groups in society might be singled out
to receive euthanasia, the report declared that there was no difference discovered
between the rate of euthanasia among different social and economic groups. n157
However, critics quickly point out that this finding does not adequately address the
U.S. concern, as the Netherlands is a welfare state that provides healthcare for all
of its citizens, and therefore, there are no socially or economically vulnerable
groups. n158 Furthermore, critics of the studies performed between 1990 and 2001
suggested that reports on studies after 1990 indicate that there were efforts at
damage control in order to thwart international opinion that Dutch euthanasia was
a social experiment gone awry. n159
IV. DISCUSSION AND CONCLUSION
There is a legal link between abortion and physician-assisted suicide. Both
procedures have relied on the same legal argument, that to prohibit either choice is
a violation of an unspecified, constitutionally protected, liberty interest that one
may make decisions affecting one's own body free from legal interference. n160 The
argument expounding a right to privacy gradually became focused as a right to
autonomy - the right to make decisions regarding one's body and healthcare
without interference from the State. n161 While the same argument is applied to
both issues, the U.S. Supreme Court only agrees with this reasoning regarding
abortion, leaving physician-assisted suicide wholly under State discretion. n162
Abortion is promoted as a choice to be enjoyed by all women, whereas supporters
of the right to assisted suicide promote this right to be made constitutionally
available only to mentally competent, terminally ill individuals. n163 The Court
declared the latter inappropriate. n164
[*65] Roe has set forth complications regarding abortion rights that are mirrored
in the controversy of assisted suicide. The Court stated that there are deep and
absolute convictions on both sides of the abortion argument that are influenced by
one's philosophy, experiences, religion, attitudes toward life and family, along with
the personal values and moral standards strived for throughout one's life. n165 "In
addition, population growth, pollution, poverty, and racial overtones tend to
complicate and not to simplify the problem." n166
However, physician assisted suicide presents issues unique from abortion. While
cases such as Cruzan and In re Quinlan affirm a federal right to autonomy in
deciding how people might proceed with their healthcare decisions, these cases do
not recognize a right to end life through deliberate action(s) on the part of the
physician, the patient, or a proxy acting on a patient's behalf. n167 However, if all
terminally ill patients are deemed to have the right to an autonomy that includes
the right to physician-assisted suicide, is that not extending a right to all citizens
equally?
"Assisted suicide and voluntary active euthanasia, unlike abortion, involve the
extinction of what all involved agree is a human life." n168 Unlike the history of
abortion in the United States, the history of suicide and assisted suicide never
contained periods of tolerance or exceptions that deemed the procedure
permissible. n169 This makes it less likely that the U.S. Supreme Court would ever
conclude that suicide, assisted or otherwise, was a fundamental liberty protected by
the Constitution. n170 It should be noted that the Court in Gonzales did not grant
constitutional protection to commit physician-assisted suicide, but rather based
their decision on the conclusion that the Attorney General erroneously interpreted a
federal statute. n171
Additional concerns that contrast abortion with physician assisted suicide are that
people could be heavily influenced by their physicians and family members to
utilize assisted suicide due to the high cost of healthcare. n172 Undue influence by a
physician encouraging abortion might [*66] not prove true, as women do not
always receive pre-natal care, depriving physicians of the opportunity to steer an
expectant mother's decision in the same manner as might be applied to the
terminally ill. Furthermore, there is a concern that vulnerable populations, such as
disabled individuals and the elderly, would be targets of involuntary euthanasia
disguised as physician-assisted suicide. n173
The saying "it is better to let ten innocent men go free rather than to wrongly
convict one innocent one" seems to be the essence behind prohibiting physicianassisted suicide, with the fear being that if physician-assisted suicide were legal, a
multitude of vulnerable people would fall victim to the syringe. n174 While concern
for vulnerable populations is valid, as demonstrated by the studies conducted in the
Netherlands, proper legislation of physician-assisted suicide could potentially
safeguard these populations. n175 For example, under Oregon's Death with Dignity
Act, a disabled citizen of Oregon who is able to make and communicate his
healthcare decisions, but unable to personally administer the medication that would
lead to his death, cannot take advantage of the physician-assisted suicide provision.
n176
This safeguard has been put in place in an effort to prevent involuntary
euthanasia of a vulnerable population and to distinguish physician-assisted suicide
from euthanasia, which is illegal in Oregon and the rest of the Union. n177 It is
safeguards such as these, as well as distinct differences between what is currently
legally and morally permissible in the United States and the Netherlands, that make
it appear unlikely that the U.S. will progress in the same manner as the Dutch with
regard to physician-assisted suicide. In the U.S., the only law permitting physicianassisted suicide employs a rigid standard of what a physician may do to assist a
suicide, which is in direct contrast to the Dutch legislation which embraces more
lenient guidelines. n178 Furthermore, many states have had recent legislative
proposals on their ballots that would have permitted physician-assisted suicide, but
the citizens of those states demonstrated their unwillingness to condone any form
of suicide through the failure to pass the proposed legislation. n179
An argument opposing physician-assisted suicide as a readily available legal
option is that managed care would push for this option due [*67] to the decreased
cost endured when paying for additional medical treatment. n180 This presumably
would put patients in the awkward position of having to justify why they should
receive treatment and a possible opportunity to live beyond their prognosis. n181
This argument seems all the more reasonable when coupled with the U.S. managed
health care system; however, patients already have to justify why they should live.
If a patient's health insurance policy will not pay for a test or procedure, then the
patient, in most instances, is not able to utilize those medical options for lack of
finances. If the patient or his physician feels strongly enough about the treatment
or test, there can be heated discussions with insurance representatives and
conferences with medical directors of insurance companies. However, if the health
insurance company still refuses to cover what is being requested, the patient is sent
home empty-handed unless the patient has the private funds to obtain the treatment
he seeks.
Another argument against legalizing physician-assisted suicide is that research on
pain management will cease because ending life will be viewed as the "better"
option, as the patient could die peacefully without becoming a burden to his
family. n182 The fear is that physicians will force most people into "choosing"
physician-assisted suicide, rather than pain management, so that they do not have
to form an intimate relationship with their patients who are experiencing pain. n183
This argument has less merit. Hospice was developed to help patients and their
families cope with the dying process. The option of hospice treatment has not
caused research to cease on terminal diseases, such as cancer and AIDS. Physicianassisted suicide, similar to hospice, would provide patients with an option of how
to navigate their care. This would be an option utilized by some, not all, patients.
Roe and Casey have upheld State interference with the abortion procedure through
the viability test; however, it is not possible to draw as clear a line with regard to
suicide. n184 While viability of a fetus is speculated to be around twenty-four
weeks, we cannot predict with any certainty when a person will die. A physician
can make an estimate that a person has six months to live which would enable the
person to receive hospice services. However, there is no "death date" that can
provide a rough estimate as to when death will occur the same way a "due date"
estimates when a fetus will become a person. n185
[*68] Outcome prediction models may become available for utilization in the
future. n186 These models could help a patient determine if physician-assisted
suicide was the right choice for him. The implementation of these models may
persuade those who oppose physician-assisted suicide, due to the uncertainty of
death, to embrace this concept as a potential treatment option. n187
A concern regarding abortion and physician-assisted suicide are that both are
deemed "liberal" issues. While many might see Gonzales as a positive indicator as
to how the Court will rule on future cases, it again should be noted that the issue in
Gonzales was statutory, not constitutional, interpretation. n188 Furthermore,
Gonzales was heard prior to Justice Samuel Alito replacing Justice Sandra Day
O'Connor. The make-up of the U.S. Supreme Court is potentially much different
than it was a year ago in that the Court is now considered to be more conservative.
n189
The replacement of Chief Justice William Rehnquist with Chief Justice John
Roberts was not thought to shift the Court, as both are viewed as "Conservatives."
n190
However, replacing Justice O'Connor with Justice Alito has been met with a
collective gasp from "moderates" and "liberals," as Justice O'Connor has often
been referred to as the "swing vote." n191 Justice Alito has been judged decisively
conservative, n192 which may pose a problem for issues thought to be in
constitutionally gray areas such as abortion and "the right to die."
Cases addressing controversial issues, such as late term abortion, will provide
better insight as to how the nation can expect the Court to rule on future issues.
However, based on the Court's treatment of late-term abortions in the past with
Roe and Casey, it seems likely that the Court would rule in favor of imposing a
federal ban on late-term abortions, provided there was an exception granted for the
physical health of the mother. Furthermore, should the recently passed South
Dakota statute awaiting affirmation by the State's voters regarding abortion be
heard [*69] before the Court, it is possible that the Court would declare the statute
invalid. The statute presumes to have evidence as to when life begins, which it
states was "evidence" gathered post Roe, n193 but Roe specifically declined to
answer the question of when life begins. n194 Stare decisis could be used to avoid
revisiting pre-viable abortions. However, in the event that the right to privacy is
nullified with regard to a woman's ability to receive an abortion, there is always an
argument based on a women's right to equality. n195
It also appears unlikely that the Court would conclude there was a constitutional
right to physician-assisted suicide, as there is no historical basis to fuel such an
argument. n196 While arguments using personal autonomy have been successful
with determining whether to pursue a particular path of medical treatment, the
cultural arguments that lend support to the autonomy argument have not yet been
solidified due to the rejection of suicide in any form throughout most of our
history. However, while the Glucksberg Court stated that it was improper to assert
a constitutional right to physician-assisted suicide to such a specific group of
people (terminally ill, competent individuals), n197 would that not be extending the
choice of suicide to all citizens equally? Women have the right to choose whether
or not to have an abortion; however, they cannot exercise this right until such time
as they become pregnant. n198 Can this same logic not be applied to terminally ill
patients? In other words, could not everyone have the right to choose physicianassisted suicide, but not have access to this right until statutory requirements are
met?
Autonomy, control, self-determination - these are the essential issues in all cases
regarding abortion and end-of-life medical decisions. Both types of cases
determine whether man has control over his own destiny or if mother-nature
through State interference maintains that power. As a nation, we have stated that in
both situations, self-determination is permissible to a point.
Abortion recognized a woman's liberty over her person by giving her legal control
over her body in order for her, not society, to decide what she [*70] could do
when faced with pregnancy. n199 However, the liberty granted by the U.S. Supreme
Court has its limits, as do end-of-life medical decisions. Refusing medical
intervention, choosing a health care proxy, executing a living will, or utilizing
services to ease pain and increase comfort level, such as palliative care and hospice
care, are the liberties that an adult has over his person regarding end-of-life
medical decisions. n200
Like abortion, end-of-life medical decisions have limits as well. Many states will
probably observe the progression of Oregon's Death with Dignity Act to determine
if a similar or identical statute may become realized in their State in the future.
While there are many moral, legal and medical complexities yet to be resolved, the
current statutes and case law will continue to be relied on and changed in an effort
to resolve new complexities as they are introduced to our society.
[*71] APPENDIX A
REQUEST FOR MEDICATION TO END MY LIFE IN A HUMANE AND
DIGNIFIED MANNER
I, , am an adult of sound mind.
I am suffering from, which my attending physician has determined is a terminal
disease and which has been medically confirmed by a consulting physician.
I have been fully informed of my diagnosis, prognosis, the nature of medication to
be prescribed and potential associated risks, the expected result, and the feasible
alternatives, including comfort care, hospice care and pain control.
I request that my attending physician prescribe medication that will end my life in
a humane and dignified manner.
INITIAL ONE:
I have informed my family of my decision and taken their opinions into
consideration.
I have decided not to inform my family of my decision. I have no family to inform
of my decision.
I understand that I have the right to rescind this request at any time.
I understand the full import of this request and I expect to die when I take the
medication to be prescribed. I further understand that although most deaths occur
within three hours, my death may take longer and my physician has counseled me
about this possibility.
I make this request voluntarily and without reservation, and I accept full moral
responsibility for my actions.
Signed:
Dated:
[*72] DECLARATION OF WITNESSES
We declare that the person signing this request:
(a) Is personally known to us or has provided proof of identity;
(b) Signed this request in our presence;
(c) Appears to be of sound mind and not under duress, fraud or undue influence;
(d) Is not a patient for whom either of us is attending physician.
Witness1/Date
Witness2/Date
NOTE: One witness shall not be a relative (by blood, marriage or adoption) of the
person signing this request, shall not be entitled to any portion of the person's
estate upon death and shall not own, operate or be employed at a health care
facility where the person is a patient or resident. If the patient is an inpatient at a
health care facility, one of the witnesses shall be an individual designated by the
facility.
Or. Rev. Stat. §127,897 §6.01 (2003).
Legal Topics:
For related research and practice materials, see the following legal topics:
Constitutional LawSubstantive Due ProcessPrivacyPersonal DecisionsHealthcare
LawTreatmentEnd-of-Life DecisionsAbortionRight to PrivacyHealthcare
LawTreatmentEnd-of-Life DecisionsAssisted Suicide
FOOTNOTES:
n1. This paper does not contain an in depth discussion of voluntary or involuntary
euthanasia, topics of heightened interest in the wake of Hurrican Katrina. For
readings on this subject, see generally, Kevorkian v. Thompson, 947 F. Supp. 1152
(1997); People v. Kevorkian, 527 N.W.2d 714 (1994); John-Henry Westen, Court
Documents: Hospital Gave Lethal Injections to Patients During Hurricane Katrina,
http://www.lifesite.net/ldn/2006/feb/06022201.html (last visited Sept. 19, 2006);
Liz Townsend, Officials Investigate Possible Euthanasia Cases During Hurricane
Katrina, available at
http://www.nrlc.org/news/2005/NRL11/KatrinaEuthanasia.html (last visited Sept.
19, 2006), and Three Arrested For Euthanasia Deaths After Katrina, available at
http://www.northcountrygazette.org/articles/071806Euthanas iaDeaths.html (last
visited Sept. 19, 2006).
n2. Lucinda M. Finley, The Story of Roe v. Wade: From a Garage Sale for
Women's Lib, to the Supreme Court, to Political Turmoil, in Constitutional Law
Stories 359, 361-62 (Michael C. Dorf ed., Foundation Press 2004).
n3. Id. at 362.
n4. Id.
n5. Patrick Lee, The Pro-life Argument: From Substantial Identity: A Defense,
18(3) BIOETHICS, 2004, 249, 250; Human Life in the Womb, American Life
League, available at http://www.all.org/article.php?id=10120 (last visited Nov. 4,
2006).
n6. See Lucinda M. Finley, The Story of Roe v. Wade: From a Garage Sale for
Women's Lib, to the Supreme Court, to Political Turmoil, in Constitutional Law
Stories, supra note 2, at 362-68.
n7. Finley, supra note 2, at 362-63.
n8. Finley, supra note 2, at 362-65.
n9. Finley, supra note 2, at 362-65.
n10. Griswold v. Connecticut, 381 U.S. 479 (1965).
n11. Id. at 480.
n12. Id.
n13. Id.
n14. Id. at 481-86.
n15. U.S. Const. amend. I.
n16. U.S. Const. amend. XIV, §1.
n17. Griswold, 381 U.S. at 482.
n18. Id. at 482-83.
n19. Id. at 483-84. The Court mentioned cases such as NAACP v. Alabama, 357
U.S. 449 (1958) (order requiring production of records containing personal
information of association members was a violation of due process that could
hinder members' rights to freedom of association); Schware v. Bd. of Bar Exam'rs,
353 U.S. 232 (1957) (refusal of the right to qualify for the practice of law based on
applicant's prior affiliation with the Communist Party was a denial of due process);
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (requiring students to
salute the American flag was a violation of freedom of speech and freedom of
worship); De Jonge v. Oregon, 299 U.S. 353 (1937) (conviction based on a man's
association with the Communist Party was a violation of due process).
n20. Id. at 485-86.
n21. Id. at 485-86. The Court upheld the same right to control contraceptive
decisions for unmarried couples in Eisenstadt v. Baird, 405 U.S. 438 (1972), and
for minors in Carey v. Population Servs. Intl., 431 U.S. 678 (1977).
n22. Roe v. Wade, 410 U.S. 113 (1973).
n23. Id. at 120. The Court specifically declined to determine the role of men with
regard to the abortion issue. Id. at 165 n.67.
n24. Roe, 410 U.S. at 120.
n25. Roe 410 U.S. at 138-39.
n26. Id.
n27. Id. at 148.
n28. Id. at 159. Viability was placed as early as 24 weeks. Id. at 160.
n29. Id. at 163.
n30. Id. at 156-59.
n31. Id. At the time of Roe, there were no statutes in Texas or the rest of the United
States that protected a fetus. Lucinda M. Finley, The Story of Roe v. Wade: From a
Garage Sale for Women's Lib, to the Supreme Court, to Political Turmoil, in
Constitutional Law Stories, supra note 2, at 360-63. However, states now have
civil and criminal laws that protect a fetus. See Ala Code §6-5-391 (2005) (allows
civil suit for wrongful death action against a viable fetus), Cal Penal Code §187
(West 2006) (defines "murder" as "the unlawful killing of a human being, or a
fetus, with malice aforethought" but excludes instances, such as abortion, when
"the act was solicited, aided, abetted, or consented to by the mother of the fetus").
n32. Roe, 410 U.S. at 153.
n33. Id. at 153-54. See also Jacobson v. Massachusetts, 197 U.S. 11 (1905)
(Upholding a mandatory smallpox vaccination program).
n34. Id. at 155.
n35. Id. at 162-63.
n36. Id. at 164-65.
n37. Id. at 164.
n38. Id. at 164-65.
n39. Doe v. Bolton, 410 U.S. 179 (1973).
n40. Id. at 184-85.
n41. Id at 184.
n42. Id. at 189.
n43. Id. at 194-99. Doe has been credited with the rise of freestanding abortion
clinics that provide less costly, accessible alternatives in women-centered
environments. Lucinda M. Finley, The Story of Roe v. Wade: From a Garage Sale
for Women's Lib, to the Supreme Court, to Political Turmoil, in Constitutional
Law Stories , supra note 2, at 398..
n44. Doe, 410 U.S. at 198.
n45. Id. at 200. See also U. S. Const. art. IV, §2, cl. 1.
n46. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
n47. Id. at 844.
n48. Id.
n49. Id.
n50. Planned Parenthood, 505 U.S. at 844.
n51. Id.
n52. Id. The current reporting requirements in Pennsylvania include reporting the
name and address of the facility providing abortions and identifying information
regarding organizations affiliated with the facility. 18 Pa. Cons. Stat. §3207
(2005). In addition, the facility is required to report the name of the physician
providing the abortion, the patient's age, county of residence, gestational age of the
fetus, weight of the fetus, the manner in which the abortion was performed and the
patient's pre-existing medical conditions. 18 Pa. Cons. Stat. §3214 (2005).
n53. Planned Parenthood, 505 U.S. at 846.
n54. Id. at 877-878.
n55. Id. at 878.
n56. Id. at 846.
n57. Id. at 883, 885-87, 899, 900.
n58. Planned Parenthood, 505 U.S. at 898.
n59. Id. at 895.
n60. Id. at 898.
n61. Glen Warchol & Dan Harrie, Abortion: Girls Must Get Parent OK, Salt Lake
Trib., Mar. 17, 2006, available at http://www.sltrib.com/utahpolitics/ci 3611263.
n62. H.B. 85, 2006 Gen. Sess. (Utah 2006), available at
http://www.le.state.ut.us/2006/bills/hbillenr/hb0085.pdf.
n63. Id.
n64. Id.
n65. Id.
n66. Id.
n67. H.B. 1215, 2006 Leg. Assemb., 81st Sess., (S.D. 2006) available at
http://legis.state.sd.us/sessions/2006/1215.htm (last visited Sept 20, 2006).
n68. Id. available at http://legis.state.sd.us/sessions/2006/bills/HB1215enr.pdf (last
visited Sept. 19, 2006).
n69. South Dakota To Vote on Abortion Law, CBS News, June 19, 2006,
http://www.cbsnews.com/stories/2006/06/19/politics/main1728218. shtml (last
visited Sept. 19, 2006).
n70. Id.
n71. Id. A current bill in Missouri proposes an outright bans on abortion unless the
life of the mother is in danger. S.B. 1248, 93d Gen. Assemb, 2d Reg. Sess. (Mo.
2006), available at http://www.senate.mo.gov/06info/pdf-bill/intro/SB1248.pdf
(last visited Sept. 20, 2006). A proposed Louisiana bill proposes a complete ban
unless the pregnancy was the result of rape or incest, or the life of the mother is in
danger. H.B. 132, 2006 Reg. Sess. (La. 2006), available at
http://www.legis.state.la.us/billdata/streamdocument.asp?did=36 6011 (last visited
Sept. 20, 2006).
n72. Supreme Court to Rule on Abortion, BBC News, Feb. 21, 2006,
http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk
/2/hi/americas/4737082.stm (last visited Apr. 16, 2006).
n73. Id.
n74. Id.
n75. Id.
n76. EJGH - Palliative Care,
http://www.ejgh.org/membership/palliativecare/palliative.html (last visited Sept.
20, 2006).
n77. Id.
n78. What is Hospice and Palliative Care?,
http://www.nhpco.org/i4a/pages/index.cfm?pageid=4648&openpa ge=4648 (last
visited Apr. 16, 2006).
n79. History of Hospice Care,
http://www.nhpco.org/i4a/pages/index.cfm?pageid=3285&openpa ge=3285 (last
visited Apr. 16, 2006); Lane Nelson, Still Growing, The Angolite, Sept.-Oct. 2002,
Vol. 27, No. 5, 16-19.
n80. History of Hospice Care, supra note 79.
n81. Id.
n82. Id. Florence Wald was the Dean of the Yale School of Nursing at the time.
Dr. Elisabeth Kubler-Ross wrote, On Death and Dying, which identified the five
stages of dying for the terminally ill. Id. The five stages a dying person goes
through as identified by Dr. Kubler-Ross are (1)denial, (2)anger, (3)bargaining,
(4)depression, and (5)acceptance. Stages of Grief,
http://www.cancersurvivors.org/Coping/end%20term/stages.htm (last visited on
Apr. 16, 2006).
n83. History of Hospice Care, supra note 79.
n84. Id. While JCAHO is not an official governmental regulatory agency, the
organization is instrumental in developing and maintaining standards of quality in
medical facilities and healthcare programs in the United States, as JCAHO
accreditation is an indication to the public that the medical facility has strived to
maintain standards of care. What is JCAHO?,
http://www.msdistributors.com/biomed/meh/JCAHO.htm (last visited Apr. 16,
2006).
n85. Id.
n86. Id.
n87. Frequently Asked Questions About Hospice,
http://www.hospicenet.org/html/faq.html (last visited Sept. 20, 2006).
n88. Paul J. van der Maas et al, Euthanasia, Physician-Assisted Suicide, and Other
Medical Practices Involving the End of Life in the Netherlands, 1990-1995, 335
New Eng. J. Med., 1699, 1699-1705 (1996).
n89. See Washington v. Glucksberg, 521 U.S. 702, 706-707, 711-718 (1997); See,
e.g. N.Y. Penal Law §125.25(b) (McKinney 2006).
n90. FAQ's About Physician-Assisted Suicide,
http://egov.oregon.gov/DHS/ph/pas/faqs.shtml#whatis (last visited Apr. 16, 2006).
n91. In re Quinlan, 355 A.2d 647 (1976).
n92. Id. at 664.
n93. Id. at 651.
n94. Id.
n95. Id. at 664.
n96. Cruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261 (1989).
n97. Id. at 265.
n98. Id. at 267, 281-87.
n99. Id. at 265, 284.
n100. Id. at 284.
n101. Id. at 270-271; Superintendent of Belchertown State Sch. v. Saikewicz, 370
N.E.2d 417 (1977).
n102. C. Christopher Hook & Paul S. Mueller, The Terri Schiavo Saga: The
Making of a Tragedy and Lessons Learned, 80 Mayo Clinic Proc. 1449, 1454-1455
(Nov. 2005). In the Terri Schiavo situation, the question of whether to continue or
halt medical treatment was cased within the issue of who was the best person to
serve as her court-appointed proxy. Id. at 1449-1459.
n103. Id. at 1455.
n104. Id.
n105. Id.
n106. Cruzan , 497 U.S. at 275-276, 282 (1989).
n107. East Jefferson General Hospital: The Foundation, Five Wishes, 6, on file
with author.
n108. van der Maas et al, supra note 88.
n109. Id. An oncologist is a medical specialist who treats cancer. Nat'l Cancer
Institute found at http://www.cancer.gov/templates/db alpha.aspx?CdrID=46260.
n110. Glucksberg, 521 U.S. 702.
n111. Id. at 707.
n112. Id. at 708.
n113. Id.
n114. Id. at 709.
n115. Id. at 705-06, 735-36.
n116. Id. at 710, 717.
n117. Id. at 711-13.
n118. Id. at 714.
n119. Id. at 732-33.
n120. Id. at 723, 728-33.
n121. FAQ's About Physician-Assisted Suicide, supra note 90.
n122. Or. Rev. Stat. §127.805 §2.01 (2003).
n123. Id. at §127.800 §1.01; Id. at §127.820 §3.02. Oregon's criteria of terminal
illness with a prognosis of six months left of life is identical to criteria for hospice
admission. Ctr. for Medicare & MEdicaid Serv., Medicare Hospice Benefits: A
Special Way of Caring for People Who Have a Terminal Illness, CMS Pub. No.
02154 (2005), available at
http://www.medicare.gov/publications/pubs/pdf/02154.pdf.
n124. Or. Rev. Stat. §127.840 §3.06 (2003). The written request form provided by
the Death with Dignity Act can be found in Appendix A.
n125. Or. Rev. Stat. §127.865 §3.11 (2003).
n126. Or. Rev. Stat. §127.880 §3.14 (2003).
n127. Gonzales v. Oregon, 126 S. Ct. 904 (2006).
n128. Id. at 911.
n129. Id. at 921-922.
n130. Id. at 911.
n131. Id.
n132. Id. Examples include: Schedule I - heroin; Schedule II - morphine; Schedule
III - anabolic steroids; Schedule IV - valium; Schedule V - cough medicine with
codeine. The Controlled Substances Act, Ch. 1 available at
http://www.dea.gov/pubs/abuse/1-csa.htm#Schedule%20I (last visited Apr. 16,
2006). Prescriptions filled under Oregon's Death with Dignity Act are schedule II
substances. Gonzales, 126 S.Ct. at 914.
n133. Gonzales, 126 S.Ct. at 911.
n134. Id. at 917.
n135. Id. at 912.
n136. Id.
n137. Id. at 913.
n138. Id. at 917.
n139. Id. at 923-926.
n140. Dutch Ponder "Mercy Killing' Rules,
http://edition.cnn.com/2004/HEALTH/12/01/netherlands.mercykill (last visited
Sept. 20, 2006); van der Maas et al, supra note 88.
n141. Termination of Life on Request & Assisted Suicide Act (2002), available at
http://nvve.nl/nvve/pagina.asp?pagkey=44855 (last visited Nov. 4, 2006).
n142. Id.; Or. Rev. Stat. §127.815 §3.01(7) (2003).
n143. Termination of Life on Request & Assisted Suicide Act, Ch. II, §2 (2002),
available at http://nvve.nl/nvve/pagina.asp?pagkey=44855 (last visited Nov. 4,
2006).
n144. Id.
n145. van der Maas et al, supra note 88.
n146. van der Maas et al, supra note 88.
n147. van der Maas et al, supra note 88.
n148. van der Maas et al, supra note 88.
n149. van der Maas et al, supra note 88.
n150. van der Maas et al, supra note 88.
n151. Richard Fenigsen, Dutch Euthanasia: The New Government Ordered Study,
20 Issues L. & Med. 73 (2004).
n152. Id. at 75.
n153. Id.
n154. Id. at 77.
n155. Id. at 78-79.
n156. Id. at 79.
n157. Id. at 78.
n158. Id.
n159. Id.
n160. See Glucksberg, 521 U.S. 702; Planned Parenthood, 505 U.S. 833; Roe, 410
U.S. 113.
n161. See Glucksberg, 521 U.S. 702; Planned Parenthood, 505 U.S. 833; Roe, 410
U.S. 113.
n162. See Glucksberg, 521 U.S. 702; Planned Parenthood, 505 U.S. 833; Roe, 410
U.S. 113.
n163. See Glucksberg, 521 U.S. 702; Planned Parenthood, 505 U.S. 833; Roe, 410
U.S. 113.
n164. Glucksberg, 521 U.S. at 702.
n165. Roe, 410 U.S. at 116.
n166. Id.
n167. Cruzan, 497 U.S. 261; In re Quinlan, 355 A.2d 647.
n168. Seth F. Kreimer, Does Pro-Choice Mean Pro-Kevorkian? An Essay on Roe,
Casey, and The Right to Die, 44 Am. U. L. Rev. 803, 810 (1995).
n169. Glucksberg, 521 U.S. at 714-718; Roe, 410 U.S. at 130-148.
n170. See Glucksberg, 521 U.S. 702; Roe, 410 U.S. 113 . In both cases, the Court
relied on thorough examination of the history of suicide and abortion in order to
conclude whether a fundamental right was constitutionally present.
n171. Gonzales, 126 S.Ct. at 921-926.
n172. Kreimer, supra note 168, at 826-827, 841.
n173. Id. at 827-829.
n174. Id.
n175. Fenigsen, supra note 151.
n176. FAQ's About Physician-Assisted Suicide, supra note 90.
n177. FAQ's About Physician-Assisted Suicide, supra note 90.
n178. FAQ's About Physician-Assisted Suicide, supra note 90.
n179. Glucksberg, 521 U.S. at 717.
n180. Kreimer, supra note 168, at 826 - 829.
n181. Id.
n182. Id.
n183. Id.
n184. Planned Parenthood, 505 U.S. 833; Roe, 410 U.S. 113.
n185. Ctr. for Medicare & MEdicaid Serv., Medicare Hospice Benefits: A Special
Way of Caring for People Who Have a Terminal Illness, supra note 123.
n186. See Pedro A. Mendez-Tellez & Todd Dorman, Predicting Patient Outcomes,
Futility, and Resource Utilization in the Intensive Care Unit: The Role of Severity
Scoring Systems and General Outcome Prediction Models, 80 Mayo Clin. Proc.
161 (2005). These models can predict with more accuracy than a physician's
experiences if a person will die as a result of his illness. Id.
n187. Id.
n188. Gonzales, 126 S. Ct. 904.
n189. See Supreme Court to Rule on Abortion, BBC News, (Feb. 21, 2006),
available at http://news.bbc.co.uk/2/hi/americas/4737082.stm (last visited Apr. 16,
2006).
n190. Id. Chief Justice Roberts and Justice Alito are viewed as being "squarely on
the far right" after the end of the first term with both justices sitting on the Court.
Jonathan Turley, The Roberts Court: Seeing is Believing, USA Today at 11A,
(July 6, 2006), available at
http://www.usatoday.com/news/opinion/editorials/2006-07-05-turley-edit-x.htm.
n191. Id.
n192. Id.
n193. South Dakota H.B. 1215, 2006 Leg. Sess. (SD 2006) available at
http://legis.state.sd.us/sessions/2006/bills/HB1215enr.pdf (last visited Apr. 16,
2006).
n194. Roe, 410 U.S. at 159.
n195. Lucinda M. Finley, The Story of Roe v. Wade: From a Garage Sale for
Women's Lib, to the Supreme Court, to Political Turmoil in Constitutional Law
Stories, supra note 2 at 392.
n196. See Glucksberg, 521 U.S. 702.
n197. Glucksberg, 521 U.S. at 732-33.
n198. See Roe, 410 U.S. at 128-29.
n199. Planned Parenthood, 505 U.S. 833; Roe, 410 U.S. 113.
n200. Hook and Mueller, supra note 102.