79 F.3d 790 (9th Cir. 1995), 94-35534, Compassion in Dying v. State of Wash.

Docket Nº:94-35534.
Citation:79 F.3d 790
Party Name:96 Daily Journal D.A.R. 2639 COMPASSION IN DYING, a Washington nonprofit corporation; Jane Roe; John Doe; James Poe, Harold Glucksberg, M.D., Plaintiffs-Appellees, v. STATE OF WASHINGTON; Christine Gregoire, Attorney General of Washington, Defendants-Appellants.
Case Date:March 09, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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79 F.3d 790 (9th Cir. 1995)

96 Daily Journal D.A.R. 2639

COMPASSION IN DYING, a Washington nonprofit corporation;

Jane Roe; John Doe; James Poe, Harold

Glucksberg, M.D., Plaintiffs-Appellees,


STATE OF WASHINGTON; Christine Gregoire, Attorney General

of Washington, Defendants-Appellants.

No. 94-35534.

United States Court of Appeals, Ninth Circuit

March 9, 1995

Argued and Submitted Dec. 7, 1994.

Order Granting Rehearing En Banc Aug. 1, 1995.

Argued and Submitted Oct. 26, 1995.

Decided March 6, 1996.

As Amended May 28, 1996.

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[Copyrighted Material Omitted]

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

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

Wesley J. Smith, San Francisco, California, for amicus curiae Intern. Anti-Euthanasia Task Force.

Katrin E. Frank, Robert A. Free, Kathleen Wareham, MacDonald, Hoague & Bayless, Seattle, Washington, for amicus curiae Ten Surviving Family Members.

James Bopp, Jr., Thomas J. Marzen, Daniel Avila, John Altomare, Jane E.T. Brockman, National Legal Center for the Medically Dependent and Disabled, Inc., Indianapolis, Indiana, as amicus curiae.

John R. Reese, Robert A. Lewis, Page R. Barnes, Amy J. Metzler, Holly Morris, McCuthchen, Doyle, Brown & Enersen, San Francisco, California, for amicus curiae Americans for Death with Dignity.

Mary D. Clement, Junction City, Oregon, for amicus curiae Euthanasia Research & Guidance Organization.

Mark E. Chopko, Michael F. Moses, Washington, D.C., for amicus curiae United States Catholic Conference.

Paul Benjamin Linton, Clarke D. Forsythe, Americans United for Life, Chicago,

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Illinois, for amici curiae, Washington State Legislators.

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

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

Todd Maybrown, Allen, Hansen & Maybrown, Karen Boxx and Juli Farris, Keller Rohrback, Seattle, Washington, for amici curiae the American Civil Liberties Union of Washington, the Northwest Women's Law Center, Lambda Legal Defense and Education Fund, Inc., AIDS Action Council, the Northwest AIDS Foundation, the Seattle AIDS Support Group, the Gray Panthers Project Fund, the Older Women's League, the Seattle Chapter of the National Organization for Women, the American Humanist Association, the National Lawyers Guild, Local 6 of the Service Employees International Union, Temple De Hirsch Sinai, the Unitarian Universalist Association, the Seattle Chapter and the Pacific Northwest District Council of the Japanese American Citizens League.

Kirk B. Johnson, Michael L. Ile, David Orentlicher, Jack R. Bierig, Sidley & Austin, Chicago, Illinois, Paul E. Kalb, Sidley & Austin, Washington, D.C., for amicus curiae American Medical Association.

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


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

REINHARDT, Circuit Judge:


This case raises an extraordinarily important and difficult issue. It compels us to address questions to which there are no easy or simple answers, at law or otherwise. It requires us to confront the most basic of human concerns--the mortality of self and loved ones--and to balance the interest in preserving human life against the desire to die peacefully and with dignity. People of good will can and do passionately disagree about the proper result, perhaps even more intensely than they part ways over the constitutionality of restricting a woman's right to have an abortion. Heated though the debate may be, we must determine whether and how the United States Constitution applies to the controversy before us, a controversy that may touch more people more profoundly than any other issue the courts will face in the foreseeable future.

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

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Process Clause of the Fourteenth Amendment.


Preliminary Matters and History of the Case

This is the first right-to-die case that this court or any other federal court of appeals has ever decided. 1 The plaintiffs are four physicians who treat terminally ill patients, three terminally ill patients, and a Washington non-profit organization called Compassion In Dying. 2 The four physicians--Dr. Harold Glucksberg, Dr. Thomas A. Preston, Dr. Abigail Halperin, and Dr. Peter Shalit--are respected doctors whose expertise is recognized by the state. All declare that they periodically treat terminally ill, competent adults who wish to hasten their deaths with help from their physicians. The doctors state that in their professional judgment they should provide that help but are deterred from doing so by a Washington statute that makes it a felony to knowingly aid another person to commit suicide.

Under the Washington statute, aiding a person who wishes to end his life constitutes a criminal act and subjects the aider to the possibility of a lengthy term of imprisonment, even if the recipient of the aid is a terminally ill, competent adult and the aider is a licensed physician who is providing medical assistance at the request of the patient. The Washington statute provides in pertinent part: "A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide." RCW 9A.36.060 (emphasis added). A violation of the statute constitutes a felony punishable by imprisonment for a maximum of five years and a fine of up to $10,000. RCW 9A.36.060(2) and 9A.20.020(1)(c).

On appeal, the four plaintiff-doctors asserted the rights of terminally ill, competent adult patients who wished to hasten their deaths with the help of their physicians so that they might die peacefully and with dignity. That group included the three patient-plaintiffs. The district court described the patient-plaintiffs, each of whom desired to obtain prescription drugs to hasten his death, as follows:

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

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

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

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

John Doe is especially cognizant of the suffering imposed by a lingering terminal illness because he was the primary caregiver for his long-term companion who died of AIDS in June of 1991. He also observed his grandfather's death from diabetes preceded by multiple amputations as well as loss of vision and hearing. Mr. Doe is mentally competent, understands there is no cure for AIDS and wants his physician to prescribe drugs which he can use to hasten his death.

James Poe is a 69-year-old retired sales representative who suffers from emphysema, which causes him a constant sensation of suffocating. He is connected to an oxygen tank at all times, and takes morphine...

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