Krischer v. McIver

• Decision Date: 17 July 1997
• Docket Number: No. 89837,89837
• Citation: 697 So.2d 97
• Parties: 22 Fla. L. Weekly S443 Barry KRISCHER, Appellant, v. Cecil McIVER, M.D., et al., Appellees.
• Court: Florida Supreme Court

Page 97

697 So.2d 97

22 Fla. L. Weekly S443

Barry KRISCHER, Appellant, v. Cecil McIVER, M.D., et al., Appellees.

No. 89837.

Supreme Court of Florida.

July 17, 1997.

Robert A. Butterworth, Attorney General; Michael A. Gross, Assistant Attorney General, Tallahassee; Charles M. Fahlbusch, Assistant Attorney General, Fort Lauderdale; and Parker D. Thomson and Carol A. Licko, Special Assistant Attorneys General of Thomson, Muraro, Razook & Hart, P.A., Miami, for Appellant.

Robert Rivas of Rivas & Rivas, Boca Raton, for Appellees.

Paul X. McMenaman, Steubenville, OH, for Amicus Curiae, International Anti-Euthanasia Task Force.

Steven T. McFarland, Center for Law and Religious Freedom Christian Legal Society, Annandale, VA, for Amici Curiae, Christian Legal Society, Christian Medical & Dental Society, Christian Pharmacists Fellowship International, Fellowship of Christian Physician Assistants, and Nurses Christian Fellowship.

Gary L. Printy, Tallahassee, for Amici Curiae, Not Dead Yet and American Disabled for Attendant Programs Today (ADAPT).

James Bopp, Jr. and Barry A. Bostrom of Bopp, Coleson & Bostrom, Terre Haute, IN, for Amici Curiae, The National Right to Life Committee, Inc. and Florida Right to Life, Inc.

David J. Busch, Tallahassee, for a Bi-Partisan Group of Florida State Legislators, Amici Curiae.

Marcia Beach, Executive Director and Wayne Hampton Basford, Senior Attorney, Advocacy Center for Persons with Disabilities; and Linda G. Miklowitz, Tallahassee, for Amicus Curiae, Advocacy Center for Persons with Disabilities, Inc.

James Bopp, Jr., Thomas J. Marzen, Daniel Avila and Jane Elizabeth Therese Brockmann, Indianapolis, IN, for, Amici Curiae, The Commission on Aging with Dignity; The National Legal Center for the Medically Dependent & Disabled, Inc., on behalf of its client population, especially those in Florida; Lorraine Banks, L.P.N.; Sally Beach, R.N individually and on behalf of her patients with terminal conditions; John Connors; John Thomas "Jack" Doucette, by and through his guardian, Margaret Doucette; Kathleen Lumbra; Jose Rodriguez, R. Ph.; and Dr. David L. Vastola, D.O., individually and on behalf of his patients with terminal conditions, Amici Curiae; and The National Catholic Office for Persons with Disabilities and its Florida Network, and the Knights of Columbus and its Florida Members.

John M. Knight, Florida Medical Association, Tallahassee; Christopher L. Nuland, The Winicki & Nuland Law Firm, Jacksonville; Morton J. Morris, The Florida Osteopathic Medical Association, Tallahassee; and Casey J. Gluckman, Gluckman & Gluckman, Crawfordville, for Amici Curiae, The Florida Medical Association, The American Medical Association, Florida Society of Internal Medicine, Florida Society of Thoracic and Cardiovascular Surgeons, The Florida Osteopathic Medical Association, Florida Hospices, Inc., and The Florida Nurses Association.

Thomas A. Horkan, Jr., Victoria H. Pflug and Thomas J. Schulte, Tallahassee, for Amicus Curiae, Florida Catholic Conference.

Tamar Feder, New York City, for Amici Curiae, The Florida Coalition of Mental Health Professionals.

Andrew I. Batavia, Marina L. Fontani and Susan F. Dournaux of McDermott, Will & Emery, Miami, for Amici Curiae, a Coalition of Floridians and Other Americans With Disabilities.

David Allen Buck, Spring Hill, for Amicus Curiae, The Florida Silver Haired Legislature, Inc.

Rosemarie Richard, Advocates for Disability Rights, Inc., Palm City, for Amici Curiae, 25 Religious Organizations, Leaders and Scholars.

Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, for Amici Curiae, The American Medical Student Association and a Coalition of Florida Medical Professionals.

GRIMES, Justice.

We have on appeal a judgment of the trial court certified by the Fourth District Court of Appeal to be of great public importance and to require immediate resolution by this Court. We have jurisdiction under article V, section 3(b)(5) of the Florida Constitution.

Charles E. Hall and his physician, Cecil McIver, M.D., filed suit for a declaratory judgment that section 782.08, Florida Statutes (1995), which prohibits assisted suicide, violated the Privacy Clause of the Florida Constitution and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. ¹ They sought an injunction against the state attorney from prosecuting the physician for giving deliberate assistance to Mr. Hall in committing suicide. After a six-day bench trial, the trial court issued a final declaratory judgment and injunctive decree responding to the "question of whether a competent adult, who is terminally ill, immediately dying and acting under no undue influence, has a constitutional right to hasten his own death by seeking and obtaining from his physician a fatal dose of prescription drugs and then subsequently administering such drugs to himself." The court concluded that section 782.08 could not be constitutionally enforced against the appellees and enjoined the state attorney from enforcing it against Dr. McIver should he assist Mr. Hall in committing suicide. The court based its conclusion on Florida's privacy provision and the federal Equal Protection Clause but held that there was no federal liberty interest in assisted suicide guaranteed by the federal Due Process Clause.

Mr. Hall is thirty-five years old and suffers from acquired immune deficiency syndrome (AIDS) which he contracted from a blood transfusion. The court found that Mr. Hall was mentally competent and that he was in obviously deteriorating health, clearly suffering, and terminally ill. The court also found that it was Dr. McIver's professional judgment that it was medically appropriate and ethical to provide Mr. Hall with the assistance he requests at some time in the future.

Dr. McIver had testified that he would assist Mr. Hall in committing suicide by intravenous means. In granting the relief sought by the respondents, the court held that "the lethal medication must be self administered only after consultation and determination by both physician and patient that Mr. Hall is (1) competent, (2) imminently dying, and (3) prepared to die." The court explained that Mr. Hall must state that he subjectively believes that his time to die has come because he has no hope for further life of satisfactory quality and would die soon in any event "and that at that time, Dr. McIver must conclude that Mr. Hall's belief--and his chosen option--is objectively reasonable at the time."

The state attorney appealed. The trial court then set aside the automatic stay imposed by Florida Rule of Appellate Procedure 9.310(b)(2). When this Court assumed jurisdiction of the case, we reinstated the stay and provided for expedited review.

At the outset, we note that the United States Supreme Court recently issued two decisions on the subject of whether there is a right to assisted suicide under the United States Constitution. In Washington v. Glucksberg, --- U.S. ----, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), the Court reversed a decision of the Ninth Circuit Court of Appeals which had held that the State of Washington's prohibition against assisted suicide violated the Due Process Clause. Like the trial court's decision in the instant case, the Court reasoned that the asserted "right" to assistance in committing suicide was not a fundamental liberty interest protected by the Due Process Clause.

In the second decision, the Court upheld New York's prohibition on assisted suicide against the claim that it violated the Equal Protection Clause. Vacco v. Quill, --- U.S. ----, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997). In reversing the Second Circuit Court of Appeals, the Court held that there was a logical and recognized distinction between the right to refuse medical treatment and assisted suicide and concluded that there were valid and important public interests which easily satisfied the requirement that a legislative classification bear a rational relation to some legitimate end. Thus, the Court's decision in Vacco rejected one of the two bases for the trial court's ruling in the instant case.

The remaining issue is whether Mr. Hall has the right to have Dr. McIver assist him in committing suicide under Florida's guarantee of privacy contained in our constitution's declaration of rights. Art. I, § 23, Fla. Const. Florida has no law against committing suicide. ² However, Florida imposes criminal responsibility on those who assist others in committing suicide. Section 782.08, Florida Statutes (1995), which was first enacted in 1868, provides in pertinent part that "every person deliberately assisting another in the commission of self murder shall be guilty of manslaughter." See also §§ 765.309, 458.326(4), Fla. Stat. (1995) (disapproving mercy killing and euthanasia). Thus, it is clear that the public policy of this state as expressed by the legislature is opposed to assisted suicide.

Florida's position is not unique. Forty-five states that recognize the right to refuse treatment or unwanted life support have expressed disapproval of assisted suicide. Edward R. Grant & Paul Benjamin Linton, Relief or Reproach?: Euthanasia Rights in the Wake of Measure 16, 74 Or. L.Rev. 449, 462-63 (1995). As of 1994, thirty-four jurisdictions had statutes which criminalized such conduct. People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714 (1994). ³ Since that date, at least seventeen state legislatures have rejected proposals to legalize assisted suicide. Washington.

The only case in the nation in which a court has considered whether assisted suicide is a protected right under the privacy provision of its state's constitution is Donaldson v. Lungren, 2 Cal.App.4th 1614, 4 Cal.Rptr.2d 59, 63 (1992), which held: "We cannot expand the nature of Donaldson's right of privacy to provide a protective shield for third persons who end his life." The court reasoned:

In such a case, the state has a...