Measuring Mercy: Protecting Patient Discretion in Terminal Care Under the Fourteenth Amendment

Kelsey Nicholas

Kelsey Nicholas will graduate from the University of Mississippi School of Law in in 2019. She would like to thank Prof. Larry J. Pittman for his guidance and encouragement throughout the writing of this Article. She would also like to thank Prof. Matthew R. Hall for his dedication and support to the Mississippi Law Journal through the Academic Legal Writing class, in which she participated.

I. Introduction

The pursuit of medical treatment is generally characterized by the hope of restored health. However, many patients must face the grave reality that the restoration of health is not always possible; patients afflicted with terminal illnesses are particularly familiar with this concept. For terminal patients, the greatest medical improvement to be achieved is pain relief through pal­liative treatment.

The World Health Organization defines palliative care as the “approach that improves the quality of life of patients and their families […] through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain.”1 In general, palliative care is medical treatment that seeks to relieve pain, rather than treat the underlying condition.2 This form of medical treatment is not designed to cure; it does not combat disease agents, such as cancer cells. Rather, it is treatment given to relieve distressing symptoms associated with an underlying illness.3 For the purposes of this Article, palliative care refers to methods of pain management for terminal patients, particularly focusing on administration of pain-relieving measures at the end of life.

In recent years, studies have shown that a substantial minority of terminal patients experience irremediable pain during the dying process and are inca­pable of receiving relief through modern medicine. In cases of irremediable pain, competent, terminally ill adults must be allowed to pursue medical improvement equally with non-terminal patients by seeking palliative care, including palliation with both palliative and life-ending effects, such as phy­sician-assisted suicide and euthanasia. To seek relief from pain is to exercise one of the most basic instincts of self-preservation. Additionally, the right of patients to determine the course of their own treatment is supported in case law by the Supreme Court’s recognition of personal privacy. This Article analyzes constitutional protections provided by the Fourteenth Amendment over terminal patients’ right to seek palliative care and discusses the implications that these protections have concerning access to life-ending palliation in cases of irremediable pain. Part I examines the Court’s evolving substantive due process standards and gives an overview of case law in which the Court denied a constitutional interest in death, thereby upholding the constitutionality of assisted suicide statutes. The Court’s metamorphic due process analysis has become more liberal with time, and now offers greater potential for recognizing of con­stitutional interests previously rejected under stricter standards of the past.

Part II addresses access to palliative treatment as a fundamental right of terminal patients with irremediable pain by applying the Court’s substantive due process standard in Obergefell. This section also considers the Court’s limitation on available palliation through the unconventional application of the double-effect principle in Vacco v. Quill. It asserts that the Court improperly used the principle to create a hairline differentiation between circumstances in Vacco and Cruzan which, ultimately, resulted in an unnecessary departure from legal precedent. Had the Court engaged in a more rigorous analysis of the double-effect principle, it would have determined that the double-effect principle has no place in legal analysis whatsoever, rendering the standard of permissible palliation unwarranted.4

Part III asserts that assisted suicide statutes are unconstitutional under the Equal Protection Clause. This section considers inconsistencies between legal causation standards and the Court’s distinction between palliative measures that cause death and those that merely hasten death. This mincing of terms has been used to uphold assisted suicide statutes as the legal mechanism by which similarly situated palliative physicians are selectively, and unfairly, subjected to state prosecution.5

a. Background

The Fifth and Fourteenth Amendments of the U.S. Constitution contain the Due Process Clauses. These clauses have two prongs: (1) a procedural prong, which requires use of procedural safeguards before denying any person “life, liberty or property,”6 and (2) a substantive prong, which protects individual liberty from government deprivation, regardless of the procedural fairness “unless the infringement is narrowly tailored to serve a compelling state interest.”7

Protected liberties of the Due Process Clauses were originally limited to those enumerated by the Fourteenth and Fifteenth Amendments, as well as rights adopted through selective incorporation, a doctrine that “incorporate[d] all of those guarantees of the Bill of Rights deemed to be fundamental.”8 However, substantive due process has since become a tool by which the Court extends the Constitution’s protections to unenumerated liberty interests found to be “so fundamental that [they] cannot be abridged absent a ‘compelling state interest.”’9 Following the Court’s recognition of a liberty interest as a fundamental right, the right is applied to the Fifth and Fourteenth Amend­ments, effectively protecting it from federal and state infringement absent a compelling state interest.10 This process has been used to recognize a myriad of unenumerated rights, including the rights to marry,11 privacy,12 to have children and direct their upbringing,13 the use of contraception,14 to bodily integrity,15 to abortion,16 and to refuse unwanted medical treatment.17

b. Glucksberg, Lawrence, and Obergefell: The Court’s Evolving Due Process Analysis

The Court’s standard for recognizing fundamental rights has evolved over time. Following allegations of governmental infringement on an asserted right, the Court must determine if the liberty interest is fundamental, provided that the asserted right is neither enumerated by the Constitution nor previously recognized as fundamental.18

In Washington v. Glucksberg, the Court clearly outlined its substantive due process analysis, stating:

Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty”, such that “neither liberty not justice would exist if they were sacrificed[…]. Second, we have required in substantive due-process cases, a “careful description” of the asserted fundamental liberty interest.19

Since Glucksberg, the Court has applied more liberal due process standards, which have resulted in the inclusion of rights previously denied under stricter ones. One such example is the Court’s consideration of the constitutionality of statutes criminalizing “homosexual sodomy.” This issue was originally addressed in Bowers v. Hardwick, where the Court upheld these statutes by analyzing the asserted right under the same due process standard later used in Glucksberg. The Court concluded that “the Constitution does not confer a fundamental right upon homosexuals to engage in sodomy” and it further held that to claim the “right to engage in [sodomy] is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”20

However, 17 years later, the Court revisited the same issue in Lawrence v. Texas and overruled its former opinion, Bowers, stating:

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward…the laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touch upon the most private human conduct, sexual behavior, and in the most private of places, the home.21

Re-examining the asserted liberty interest, the Court recognized the potential for prejudice in considering the nation’s entire history, as was required by the previous due process standard used in both Bowers and Glucksberg.22 Instead, the Court narrowed the historical consideration of due process, find­ing that the “[n]ation’s laws and traditions in the past half century are most relevant [because] they show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”23 While still utilizing the two-pronged framework of Bowers and Glucksberg, the Lawrence opinion both narrowed the scope of U.S. history considered and reframed the asserted right. As a result, rather than considering whether the Constitution protected the right to engage in “homosexual sodomy” by analyzing all United States history, the Court considered the right to privacy in intimate relationships within the 50 years immediately prior to Lawrence. In doing so, the Court determined that the right to sexual privacy and personal relationships was within “the respect the Constitution demands for the autonomy of the person in making these choices.”24

However, several years after Lawrence, the Court liberalized its due process test even further in Obergefell when addressing same-sex marriage. Rather than expanding a previous standard, as it had in Lawrence, the Court devised a new standard altogether, applying “reasoned judgment in identifying interests of the person so fundamental that the state accord them its respect.”25 While not the focus of the due process analysis in Obergefell, the Court’s prior emphasis on history was not thrown out of the proverbial window. The Court again chose to further limit its consideration of history, holding that “[h]istory and tradition guide and discipline [the due process] inquiry but do not set its outer boundaries.”26 While the Obergefell Court found that due process “has not been reduced to any formula,” indicating potential for future shifts in due process, recent and significant refinements in substantive due process have potential to enormously impact the merit of claims denied by the Court under stricter past standards.27

c. Assisted Suicide Statutes and The Right to Die

To date, the United States Supreme Court has upheld the constitutionality of assisted suicide statutes, most of which impose criminal liability for physician-assisted suicide. This was illustrated by the unanimous 9-0 vote in Washington v. Glucksberg, where the Court declined to extend substantive due process to include the right to die.28 A similar decision was reached by another 9-0 vote in Vacco v. Quill, where the Court declined to find that as­sisted suicide statutes created unequal protection of laws by denying patients the ability to end their lives through physician-assisted suicide while allowing other patients to pursue death by discontinuing life-sustaining measures, such as artificial ventilation.

One of the earliest cases sparking controversy over assisted suicide stat­utes was Cruzan v. Missouri Department of Health. Following a devastating car accident, Nancy Cruzan’s parents brought suit to facilitate the removal of Cruzan’s artificial nutrition and hydration after physicians diagnosed her vegetative state as permanent and without the possibility of recovery.29 The Court’s decision was guided heavily by reliance on the common law doctrine of informed consent and it ultimately found a “particularized and intense interest in self-determination in [the patient’s] choice of medical treatment.”30 This interest supported the ability of patients to refuse unwanted, although lifesaving, treatment.31 The Cruzans elected to end Nancy’s treatment and she passed away days later. In Glucksberg, the respondents used the Cruzan opinion to assert that “the general tradition of self-sovereignty” and “basic and intimate exercises of personal autonomy” included the ability to receive physician-assisted suicide.32 The Court rejected the right to die as a f undamental right, hold­ing that the United States history of criminalizing and condemning suicide revealed a strong tradition in preserving life.33 The Court further noted that the informed consent doctrine was limited in function to allowing refusal of treatment as a patient safeguard against medical battery; no such provision was made to allow for election of treatment.34 This function, considered in light of the prevalent societal disdain for suicide, ultimately allowed the Court to distinguish Glucksberg from Cruzan.35

In Vacco v. Quill, the constitutionality of assisted-suicide statutes was challenged again, this time under the Equal Protection Clause. The appel­lants argued that assisted suicide statutes created unequal protection of laws by imposing an undue burden on patients seeking death through physician-assisted suicide or euthanasia, while allowing others to end their lives by re­fusing life-saving treatment, as established by Cruzan. It was further asserted that treatment refusal yielded the same result as physician-assisted suicide, arguably defeating any purpose in distinguishing between treatment refusal and administration of life-ending care.36 The Court rejected this argument, drawing a causal distinction between death caused by the natural course of the patient’s disease following treatment refusal and death caused by “lethal medication prescribed by a physician.”37 The Court also considered differences between the physician’s intent to relieve pain through traditional palliative care, as opposed to the physician’s intent to end life in physician-assisted sui­cide. In its attempt to create a bright line standard, the Court subtly employed the double-effect principle as the standard for permissible palliative care, by finding that “[j]ust as a State may prohibit assisting suicide while permitting patients to refuse unwanted lifesaving treatment, it may permit palliative care related to that refusal, which may have the foreseen but unintended ‘double effect’ of hastening the patient’s death.”38

Under these landmark opinions, the Court has unambiguously held that there is no right to die and has continually upheld the constitutionality of assisted suicide statutes. However, the Court has yet to consider the role of life-ending care as purely palliative medical treatment to terminal patients with intractable pain.

 

II. Substantive Due Process And Palliative Care

The ability of terminal patients to seek palliative care is a fundamental right supported by United States history, the Court’s respect for privacy in medical decision-making, and the reasoned judgment standard prescribed in Obergefell. The Supreme Court has yet to address terminal patients’ rights to access palliation, and such a claim could serve as a potentially viable vehicle by which terminal patients could receive access to life-ending pal­liative measures, such as physician-assisted suicide and euthanasia, in cases of unbearable suffering. It has been said that “[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to be in possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”39 The ability of individuals to exercise discretion in choosing their course of medically appropriate treatment goes to the very core of personal autonomy in Ameri­can jurisprudence. Patient discretion also rings in the doctrine of informed consent, which protects the belief that every person of “adult years and sound mind, has [the] right to determine what shall be done with his own body.”40 This well-established respect for bodily autonomy permeates many legal disciplines, including tort law, criminal procedure, and constitutional law.41 The Court’s expanding recognition of personal privacy, as illustrated by cases like Griswold and Roe, has lent itself to an evolving dialogue regarding ethics in the medical field and the role of patient discretion in medical treatment. Similarly, in recent years, federal and state legislatures have recognized and mirrored the Court’s respect for personal discretion and privacy in healthcare by increasing access to healthcare and implementing legislation that promotes deference to the discretion of terminal patients in choosing their final course of treatment.

a. The History and Tradition of Privacy as Support for Patient Discretion in Palliative Treatment

Palliative care is a necessary and established facet of medical treatment. Since the right to determine what occurs to one’s body is the foundation of personal privacy, patient discretion in choosing palliation methods should be regarded with the same respect as patient discretion in choosing curative treatment.

The right to privacy evolved from cases like Griswold v. Connecticut, where the Court found privacy to be “no less important than any other right carefully and particularly reserved to the people.”42 Griswold, in striking down statutes prohibiting use of contraceptives by married couples, forbids government interference with the “privacies of life,” or decisions so personal and intimate in nature that government interference amounts to an undue invasion of privacy.43

Also, in Roe v. Wade, the Court greatly expanded privacy rights, finding that personal privacy was broad enough to encompass a woman’s decision to terminate her pregnancy, thereby greatly limiting government interference with these decisions.44 American jurisprudence took an enormous step forward in its consideration of bodily autonomy when the Roe Court emphasized the importance of self-governance by weighing the personal privacy of expectant mothers against state interests with potential to infringe such privacy.45 In support of its holding, the Court stated:

This right of privacy, whether it be founded in the Fourteenth Amend­ment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amend­ment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.46

Along the same lines, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court further recognized that “urgent claims of the woman to retain the ultimate control over her destiny and her body [are] claims implicit in the meaning of liberty.”47 These cases, along with others, such as Rochin, suggest that personal privacy includes self-governance in determining what shall or shall not occur with one’s own body. Certainly, personal privacy is broad enough to encompass patient discretion in choosing medically necessary palliation.48

In addition to case law, the U.S. legislature has also emphasized the importance of medical treatment and palliative care by facilitating access to public healthcare and upholding the right of individuals to seek medical treatment, including palliative care. In 1986, Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA), which explicitly imposed a duty on public and private hospitals to provide medical care to individuals in emergency situations.49 EMTALA was created as an effort to facilitate access to emergency and post-emergency medical care for all, including the indigent and uninsured.50 Given the fact that the medical field’s “first prior­ity is to minimize the patient’s pain,” the legislature, by mandating medical treatment, also mandates pain treatment when it is present in patients.51 The fact that the legislature does not distinguish between palliative and curative treatment evidences the importance of both in patient healthcare and indicates that both aspects of medical treatment should receive equal respect in regards to patient decision-making.

Additionally, beginning in 1994, the American Medical Association began to support free clinics as an “established component of the health system” in providing non-emergency care to the public.52 These clinics operate to cure and alleviate pain occurring with non-emergency conditions. A 2010 survey conducted by the National Institutes of Health found that there were 1,007 free clinics operating in 49 states and the District of Columbia, providing approximately 1.8 million individuals with medical care.53 Of these, approxi­mately 41.7% received government funding, evidencing the importance of healthcare, both curative and palliative, to the legislature.54

And lastly, the most overt legislative support for palliative care occurred in 2001 when Congress declared that the calendar decade beginning January 1, 2001 would mark the Decade of Pain Control and Research.55 In brand­ing a decade with this title, the legislature engaged in efforts to raise public awareness of pain control and further facilitate research in the field of pal­liative medicine.

In sum, even the most cursory review of the past half century in the United States illustrates not only the importance of patient discretion as a part of personal privacy in making medical decisions, but also the important role that palliative care plays in the medical field. The legislature, by mandating medical treatment in emergency situations, funding non-emergency care, and declaring the importance of palliative research, recognizes and emphasizes the importance of palliative care in patients’ lives.

b. Palliative Care Under the Obergefell Due Process Standard

Under the Obergefell due process standard, terminal patients have a fun­damental right to access palliation, including life-ending palliative treatment such as physician-assisted suicide and euthanasia, when medically appropriate. By applying reasoned judgment, and using United States history as a guide to determine the societal worth of an interest, the Obergefell Court adopted a more comprehensive due process analysis than those used previously in Glucksberg or Lawrence.56 In light of the Court’s and legislature’s support for informed consent and personal privacy, an exercise of reasoned judgment must conclude that interests of terminal patients in palliative care require individualized respect from states, thereby rendering it a fundamental right.57

In Obergefell, the Court found that the right to marriage was fundamental regardless of the genders of the marriage participants. In reaching its con­clusion, the Court considered “individual autonomy” established from case law, like Lawrence, where choices regarding personal relationships “shape an individual’s destiny” and, as such, are exempt from government interfer­ence.58 Additionally, the right to marry was found to be the quintessential support for two-person unions unrivaled in the importance of promoting the intimate association of committed individuals.59 The right of marriage “thus dignifies couples who wish to define themselves by their commitment to each other.”60 The Obergefell Court noted that familial union greatly benefits the home environment for “related rights of childrearing, procreation, and education.”61 And finally, marriage was found to exist as the capstone of society’s structure since, through the vows provided between couples, a bilateral benefit is created whereby the union supports familial structure, and society, in turn, nourishes the union by providing marital benefits in fields such as taxation, property rights, adoption rights, births and death certifications.62

Similar to the societal benefits stemming from the institution of marriage, as discussed in Obergefell, society also receives a series of benefits from pal­liative care.63 Pain, as a first indicator of illness, facilitates both treatment to alleviate distress and an inquiry into the patient’s health, furthering detection and treatment of underlying illnesses. Pain treatment can assist in monitoring potential public health concerns and, ultimately, assist in fostering a healthier population, both of which are critical to the function and resulting prosperity of any given society. Lastly, and most importantly for the purposes of this Article, pain treatment relieves pain and suffering at the individual level for those enduring distressing conditions. Because palliative care is the only form of medical benefit available to terminal patients, an exercise of reasoned judgment should find that palliation is a fundamental right that should be af­forded to the terminally ill.64

1. Maritime Law Illustrates the Modern Legal View of Palliation as Vital Medical Treatment

In recent years, modern medicine has increasingly recognized palliative treatment as an invaluable specialty field, necessary to alleviate the suffering of many. Somewhat surprisingly, maritime law has mirrored the evolving perception of palliative care as crucial treatment through the doctrine of maintenance and cure. This doctrine imposes liability on shipowners to pay for medical care of sailors who become injured or ill in the scope of their employment with a vessel.65 Liability continues until the sailor’s maximum medical benefit, or “cure”, has been reached.66

Maintenance and cure first arose under the Laws of Oleron in 1154.67 Articles VI and VII of the Laws provide:

[If] . . . any of the ship’s company be in the service of the ship, and thereby happen to be wounded or otherwise hurt, in that case they shall be cured and provided for at the costs and charges of the said ship. If it happens that sickness seizes on any one of the mariners, while in the service of the ship, the master ought to set him ashore, to provide lodging and candlelight for him . . . hire a woman to attend him, and likewise to afford him such diet as is usual in the ship. . . 68

This doctrine was carried forward through history by maritime tradition and common law until it was formally recognized by Court in Harden v. Gordon, approximately 670 years after the doctrine’s conception.69 To date, maintenance and cure still imposes a legal duty on shipowners to care for an injured sailor “from the onset of the seaman’s illness or injury until the point at which he is cured.”70

Maritime law has struggled to determine when the maximum medical benefit, or “cure,” occurs and shipowner liability ends, particularly when injuries result in chronic conditions. Traditionally, pain management and medical treatment were considered entirely separate under maintenance and cure, relieving shipowners from a duty to pay for palliative care since there was no curative benefit.71 However, in 2010, the Eastern District of New York abandoned the traditional standard, stating: “[i]t is time to reconsider the old rule, now out of the main stream of medical practice.”72 While noting that the “Supreme Court has not squarely addressed the issue of whether ‘cure’ encompasses palliative care,”73 the Haney court noted that “[n]ew theories on medical treatment for pain relief [create] an evolving sense of the impor­tance to doctors and patients of well-being and quality of life issues, [and] include pain management. Palliative care is now encompassed in the notion of recovery and maximum improvement.”74

Haney, while representing a minority of courts accepting palliative care as medical improvement under maintenance and cure, is congruent with chang­ing healthcare philosophy, which has abandoned its former “cure at all costs approach” to medicine.75 Rather, Haney mirrors the sentiments of today’s medical professionals, such as Dr. Peter Selwyn, M.D., a palliative expert at the Albert Einstein College of Medicine, who finds intrinsic value in the medical benefit provided to patients through palliative care.76 Furthermore, the Haney court’s analysis of the relationship between palliative care and the medical profession clearly depicts palliative care as treatment with an integral role in modern medicine. Firstly, the Haney court considered the prominence of palliative programs in hospitals. The prevalence of palliative programs in state and private hospitals evidences the necessity of the palliation in treating patients and promoting an enhanced quality of life.

Secondly, the court considered the “sense of the importance to doctors and patients of well-being and quality of life issues, includ[ing] pain manage­ment.”77 This progressive focus on palliation has compelled research and the discovery of “new theories on medical treatment for pain relief.”78 Increased “advocacy, research and training in the field” has encouraged greater special­ization of palliative medicine.79 One example of specialization can be seen by the formation of institutions that actively support and promote the palliative field, such as American Academy of Pain Medicine (AAPM), an association dedicated to representing palliative physicians.80 As previously discussed, the U.S. legislature has also passed measures with similar effects, promoting awareness and fostering research efforts in palliative care.81

Lastly, the court noted the importance of pain in diagnostics, citing the common practice of measuring patients’ pain in medical assessments, along with temperature, pulse, and blood pressure.82 The court found that measuring pain as a standard medical practice including pain recognition and manage­ment served as one of the most important considerations in administering treatment.83 Based on the court’s analysis, palliative care is a vital part of medical treatment and should be considered a medical benefit to the same extent as curative treatment.84

2. Palliative Care as a Medical Benefit

Although at one time it was considered tangential to the goals of curative treatment, in recent years, the medical field has actively brought palliative care into the fold of medical treatment.85 Increasing awareness and inclusion of palliative care as an integral part of the medical field largely stems from the medical profession’s abandonment of the “cure at all costs” approach.86 This former treatment approach fostered the idea that palliative care was exclusive of medical treatment because it did not promote a curative func­tion. Because palliation did not provide a curative benefit, it was originally stigmatized by the misconception that it was a “giving up” measure, provided as an afterthought once the physician abandoned hope of providing a medical benefit to the patient.87

However, in recent years, the medical field has adopted a more compas­sionate “‘do everything’ philosophy” towards palliation, which has fostered “focused attempts to study end-of-life care and identify appropriate policies and procedures for providing palliative care.”88 This modern philosophy has been mirrored in legislative efforts to garner support and raise awareness of palliative treatment. Such efforts have resulted in increasing recognition of palliation’s value in treating illnesses where the incurable nature of a disease causes patient distress and requires aggressive end-of-life care. For terminal patients, such treatment is a profound medical benefit because palliation “stands alone as the care for the patient who has been diagnosed with a […] terminal condition and for whom curative treatment is no longer the goal of care.”89 While previously recognized as a “component of medical treatment,” the role of palliative care as a formal and vital measure of medical treatment continues to become more pronounced.90

The inability of medicine to treat incurable diseases, such as cancer and AIDS, has particularly promoted palliative care in last half century.91 Dr. Selwyn recognizes the importance of evolving perceptions of palliative treatment in his extensive work with AIDs, stating: “[I]t took a disease we could not cure to teach us the true meaning of healing. Without knowing it, we became experts in palliative care.”92 Palliative treatment has evolved into a specialty field that touches patients receiving care in almost every medical discipline. While the ability to cure is not always possible, the ability to provide medical improvement to every patient is possible, even for the terminally ill. Terminal patients have as great an interest in receiving medical care through palliation as patients receiving curative treatment, and so terminal patients must be allowed to exercise their own discretion in determining what course of palliation they will pursue. This discretion extends to a patient’s election for life-ending palliation when intractable pain makes death medically appropriate.

3. The Right to Try: The Most Recent Demand for Patient Discretion in Terminal Care

The Right To Try movement is the most recent supporting discretion of terminal patients in choosing end-of-life treatment. This campaign was first sparked when Abigail Burroughs and her family faced off with the Food and Drug Administration (FDA) in their attempts to obtain access to Erbitux, an investigational drug that was, at the time, in the early stages of clinical testing.93 In her two-year fight with squamous cell carcinoma, Burroughs exhausted all forms of treatment and was advised by her primary physician at Johns Hopkins Hospital to petition for access to Erbitux, a drug he believed had a significant chance of saving her life.94 Her petition never came to frui­tion and, following Abigail’s death, the Abigail Alliance for Better Access to Developmental Drugs was formed to raise awareness and garner support for compassionate use of investigational drugs by the terminally ill.95

In 2006, the Alliance brought a lawsuit against the FDA, alleging government infringement on terminal patients’ constitutional right to investigational drug access.96 A 3-judge panel of the D.C. Circuit held:

[W]here there are no alternative government-approved treatment options, a terminally ill, mentally competent adult patient’s informed access to poten­tially life-saving investigational drugs determined by the FDA after Phase I to be sufficiently safe for expanded human trial warrants protection under the Due Process Clause.97

Ultimately, the panel’s decision was overturned upon rehearing, but the Right to Try movement continued to lobby its cause and eventually gained notice from a multitude of state legislatures and the Goldwater Institute, a non-profit organization that drafted a model bill for the Right To Try campaign.98 To date, 38 states have passed Right to Try legislation.99 In August 2017, the U.S. Senate unanimously passed the Right to Try Act, which Senator Johnson of Wisconsin argued to be the instrument of change requested by “thousands of patients and their families[,…]to advocate for their personal freedom [and] their personal liberty.”100

The overwhelming state and federal support for Right to Try legislation illustrates national support for patient discretion in end-of-life care. Many investigational drugs are inherently dangerous and yield devastating side effects with extremely low success rates.101 However, despite the dangerous nature and probability of horrific side effects, federal and state legislatures still support efforts to offer terminal patients greater self-determination, acknowledging the overarching right of patient discretion in evaluating treatment risks and benefits.102 While the compassionate use of experimental drugs is an effort to prolong life, the same respect given to patients who wish to continue fighting their disease should be given to patients who determine that their fight is over, particularly when these individuals exist in a state of irremediable pain. Terminal patients whose pain cannot be managed must be allowed to engage in the same self-determination afforded by the Right to Try when life-ending palliation is medically appropriate and requested by the patient as a palliative measure.

c. Assisted Suicide Statutes Violate Due Process by Infringing Terminal Patients’ Ability to Receive Palliation

The U.S. Supreme Court has only considered the constitutionality of as­sisted suicide statutes as an infringement on the right to die. While the Court has declined to find a fundamental right to receive physician-assisted suicide, two Justices have made clear that patients have a constitutionally cognizable interest in seeking pain relief. Further, the concurring opinions of Glucksberg and Vacco imply that the Fourteenth Amendment does make room for constitutional claims against statutes which compel patients to undergo physical pain by denying them appropriate treatment. To date, the Court has yet to explicitly address the constitutionality of assisted suicide statutes as a bar to the receipt of legitimate palliative treatment.

1. Life-Ending Care is Palliative when Patient Pain is Irremediable

By definition, terminal illnesses are those which are unresponsive to curative treatment.103 However, as previously discussed, terminal patients can still benefit through palliation and have a constitutionally cognizable interest in receiving such care. In Glucksberg and Vacco, Justice O’Connor’s concurring opinion recognizes the potential of future constitutional claims in palliative care. She states:

[A] patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physi­cians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death…. There is no need to address the question whether suffer­ing patients have a constitutionally cognizable interest in obtaining relief from the suffering they may experience… there is no dispute that dying patients… can obtain palliative care, even when doing so would hasten their deaths.104

Justice O’Connor’s opinion, while prematurely finding no legal barrier to patients’ receipt of palliative medicine, is congruent with the medical field in recognizing pain relief as the patient’s highest priority. She explicitly references an undisputed right of patients to seek such relief, even to the point of unconsciousness or death.105 Similarly to Justice O’Connor, Justice Stevens more overtly foreshadowed the potential for future constitutional claims by terminal patients when he noted “[t]he avoidance of severe physical pain would have to constitute an essential part of any successful claimant because … the laws before us do not force a dying person to undergo that kind of pain.”106

In both opinions, Justices O’Connor and Stevens address hypothetical circumstances where patients are barred from receiving necessary pain relief. Such circumstances were not present in Glucksberg or Vacco, where these opinions appear. In finding that assisted-suicide statutes did not require patients to endure pain, Justice Stevens and Justice O’Connor relied on the Court’s discussion of terminal sedation – the most advanced form of palliative care where the patient is kept sedated until death occurs from the underlying disease agent.107 However, recent studies have shown that a significant minority of patients continue to suffer even under terminal sedation. Because of the newly discovered insufficiencies of terminal sedation, assisted suicide statutes do, in some cases, force patients to undergo pain where terminal sedation is ineffective and life-ending care is prohibited.108 Given this new evidence, Justice Stevens’s opinion indicates that the time is ripe to reconsider the constitutional interests of terminal patients in life-ending palliation to facilitate the “avoidance of severe physical pain.”109

2. Access to Palliation is a Fundamental Right That Encompasses Life-Ending Care When Patient Pain is Irremediable

The Glucksberg and Vacco concurrences and the modern due process standard, as established by Obergefell, indicate the fundamental nature of terminal patients’ ability to determine the palliation they receive when pain is unbearable.110 If this right is fundamental, as case law suggests, then statutes prohibiting terminal patients in irremediable pain from receiving adequate palliation are unconstitutional.

Currently, many states have assisted suicide statutes which prohibit terminal patients from receiving physician-assisted suicide or euthanasia, even when requested as palliative measures by mentally competent adults awaiting certain death. However, when specific patient criteria are met, death can be consid­ered the “only [medical] intervention that can accomplish the stated goals of treatment.”111 In such cases, and when requested by patients, the administra­tion of life-ending palliation becomes a medically appropriate mechanism for ending intractable suffering.112 A ssisted s uicide s tatutes c reate a l egal barrier, or undue burden, to palliation that is necessary to prevent unbearable suffering in a significant minority of patients. By creating an undue burden on the ability of these individuals to receive palliative care, assisted suicide statutes infringe on dying patients’ constitutional guarantees of due process.

3. The Supreme Court Incorrectly Limited Availability of Palliation by Asserting the Double-Effect Principle in Vacco v. Quill

In Vacco, the Supreme Court upheld the constitutionality of assisted sui­cide statutes by applying the double-effect principle, a philosophical concept utilized by the Court only once in the history of American jurisprudence.113 The double-effect principle pardons acts committed when a negative conse­quence is foreseeable, but unintended.114 With respect to palliative care, the double-effect principle only permits palliation where death is a foreseeable, but unintended, consequence. This requirement entirely prohibits administra­tion of life-ending care, such as physician-assisted suicide and euthanasia. By using this principle as a mechanism to bar life-ending care, the Court also barred use of these measures as palliation in cases where pain is untreatable. To justify this unconventional application of non-legal doctrine, the Court stated, “just as a State may prohibit assisting suicide while permitting patients to refuse unwanted lifesaving treatment, it may permit palliative care related to that refusal, which may have the foreseen but unintended ‘double effect’ of hastening the patient’s death.”115

The Court’s discussion of the double-effect principle is a minute portion of the Vacco opinion; however, since Vacco, this principle has echoed throughout state and federal courts in subsequent challenges of assisted-suicide statutes. Lower courts have interpreted the principle as a concrete standard set by the Court and now apply it as such.116 The Court’s unprecedented use of the double-effect in Vacco is inappropriate because legal principles, such as justification and proximate cause, are the mechanisms used to impose and limit defendant liability in law. Because well-established legal principles exist to address the same issue, use of the double-effect principle constitutes a divergence from legal precedent into philosophical doctrine, a maneuver which changed the outcome of the case.

Application of the double-effect principle materially affected the Court’s analysis in Vacco. The double-effect principle has been described as an “ob­scure, ambiguous, and controversial artifact of medieval Catholic theology” that offers “little direct effect on legal analysis.”117 Discrepancies between double-effect and legal causation principles are best seen when illustrated in a self-defense hypothetical. In self-defense, the double-effect principle states that, while harm to an assailant is foreseeable, the victim’s acts only intend self-preservation, not harm to his attacker.118 However, when applying a legal approach, the analysis of self-defense is very different. A legal analysis as­sumes that the victim intentionally harms his assailant in order to impede the initial attack because “the law presumes that a person intends the necessary and natural consequences of his acts.”119

Self-defense is a widely-accepted affirmative defense, meaning the victim’s acts in harming the assailant are still a violation of the law, but the acts are justified by the circumstances.120 Put another way, if a victim kills an assail­ant in self-defense, the victim’s acts establish liability for crimes of murder or manslaughter, but the victim’s conduct is considered justified when there is an “adequate triggering condition that prompted [the victim] to violate the letter of the law,” such as the assailant’s initial attack.121

Unlike the double-effect principle, which separates foreseeability and intent, the law examines intent in light of the foreseeability of consequences, and presumes that a person’s conduct becomes intentional once the individual becomes aware of likely consequences and acts anyway.122 A fter a ll, i f a consequence is foreseeable, the person who foresees the likely effect and acts in a manner that brings about the effect does so “knowingly with respect to a material offense.”123 The following hypothetical situation further illustrates the relationship of legal foreseeability and intent:

Person A is throwing rocks that land approximately 20 feet away from him. Person B, is 30 feet away from A and begins walking towards A. As B draws closer to A, the risk of hitting B with a rock increases and, when B is 20 feet away, A knows that if he throws another rock, it will almost certainly hit B. If A chooses to throw another rock, his conduct in hitting B with a rock is inten­tional because A foresaw the almost certain consequence and acted anyway.

The double-effect principle does not comport with legal culpability stan­dards. Under the double-effect, terminal patients with intractable pain are incapable of receiving pain alleviation through treatment where death is foreseen and considered a treatment goal.

By using the double-effect principle to prohibit palliation where death is both foreseeable and intended, the Court assumes that pain relief and death are mutually exclusive objectives. However, they are not; where all other measures fail, the end of life is a palliative mechanism which brings a definite end to intolerable suffering. In some cases, terminal patients experience immense and unmanageable suffering in the dying process, even when receiving the most aggressive forms of palliative care available. Terminal sedation is largely considered the most advanced form of palliative care and was asserted by the Glucksberg Court as a solution to irremediable pain.124 However, since 1997, several investigations have yielded data indicating that a “large minor­ity” of patients continue to feel pain during their final days under terminal sedation.125 The degree of unreliability associated with this procedure, with evidence suggesting that up to 10% of patients continue experiencing pain, causes many patients to reject terminal sedation as a treatment option to unmanageable pain.126 Put plainly, despite excellent and aggressive palliative care, “some patients suffer tremendously during the dying process.”127 When all other measures fail, the medical field views life-ending palliation as medically and ethically appropriate.128 Specifically, four criteria must be met before life-ending palliation may be considered a potential treatment option. These include:

(1) The patient and provider determine that relief of suffering is the most appropriate primary goal of treatment; (2) the patient is suffering unbearably; (3) optimal palliative treatment has been employed and has failed to reduce the patient’s suffering to a level that is bearable; and (4) the patient’s suffering will end upon her death.129

The Court’s assertion of the double-effect principle eliminates the possibility of life-ending palliation regardless of the suffering of the patient, even where the medical field determines life-ending care to be medically appropriate. In blindly invoking this principle, the Court disregards humanistic frailty and necessity of mercy in the dying process. By enforcing a standard that requires the absolute preservation of life without considering the devastating effect such a standard has on suffering patients, the Court discounts the entire purpose of palliative care-to relieve suffering through medically appropriate methods that reflect the patient’s wishes. Denying this treatment denies dying patients pain relief and robs them of basic human dignity in their final days.

III. Equal Protection And Palliative Care

To date, the Court has considered the right of terminal patients to seek life-ending palliation through physician-assisted suicide under both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.130

In both Glucksberg and Vacco, the Court briefly distinguished physician conduct that causes death and establishes homicide liability, from conduct which merely hastens death and is exempt from liability.131 However, admin­istration of almost every form of palliative care to terminal patients hastens death, given the weakened state of the body and high potency of the medication. Based on legal causation, palliation that hastens death, even through measures as commonplace as a morphine drip, is sufficient to establish homicide liability. Because all forms of palliative care hasten death to some extent in terminal patients, palliative physicians of terminal patients are similarly situated. Consequently, use of assisted suicide statutes for targeted prosecu­tion of only physicians administering life-ending palliation is a violation of the Equal Protection Clause.

Finally, where the Court declines to find statutes unconstitutional per se, statutes may still violate the Constitution if used in an unconstitutional manner. Using assisted suicide statutes to prohibit terminal patients from receiving life-ending palliation, when medically appropriate, is an unconstitutional application of assisted suicide statutes.

a. Assisted Suicide Statutes Violate the Equal Protection Clause by Facilitating Discriminatory Prosecution of Similarly Situated Physicians

The Equal Protection Clause of the Fourteenth Amendment requires state governments to treat similarly situated persons in a like manner.132 Nearly every form of palliation in terminal patients satisfies causal standards of homicide liability by hastening death to some extent. Accordingly, assisted suicide statutes should treat all palliative physicians in the same manner, rather than facilitating selective prosecution of physicians administering physician-assisted suicide or euthanasia. Such discriminatory treatment of palliative physicians is not rationally related to a legitimate state interest. Previously asserted state interests, such as concern for medical integrity, are neither concrete nor particularized concerns sufficient to allow assisted suicide statutes to prosecute physicians in a discriminatory manner. Rather, these interests are speculative and, as such, are not of greater importance than interests of physicians in receiving the equal protection of laws.

1. Selective Prosecution of Similarly Situated Palliative Physicians

The unfortunate reality of palliation in terminal patients is that, regardless of a physician’s intent, the introduction of high-potency pain medication into a dying body hastens death, whether the administration is through a morphine drip or euthanasia. At common law, acts that hasten death are sufficient to establish homicide liability. Because the causal effects of most forms of palliation are the same, the Equal Protective Clause requires like treatment of all forms of medically appropriate palliative care for the terminally ill. The Equal Protection Clause prohibits states from prosecuting physicians for life-ending palliation while excusing other forms of palliation that support the same liability.

i) “Hastening” v. “Causing” Death

In Vacco, the Court engaged in a causation analysis and ultimately held that permissible care extended only to treatments that alleviated pain while hastening, but not causing, death.133 The Court’s rationale directly contradicts common law causation principles, which have held that acts that hasten or cause death are sufficient to establish homicide liability. Therefore, the Court’s distinction in Vacco is a legal fiction.

As early as 1856, courts have held that “acts which hasten the death…may be laid…as the sole cause of [death].”134 Put another way, individuals who cause harm that hastens another’s death, without solely causing it, are liable for the death. In reaching this holding, one court candidly noted that murder itself does nothing more than hasten death, “bring[ing] it about sooner than the laws of nature would themselves have brought about if there had been no interference by criminal agency.”135 Where forces act concurrently to cause death, any conduct that hastens or contributes, even slightly, to the death is considered a cause of death.136 In 2002, the Supreme Court of New Mexico, during a felony-murder case, held:

In cases where death results from multiple causes, an individual may be a legal cause of death even though other significant causes significantly contributed to the cause of death. Thus, even if the victim is at “death’s door,” a defendant is liable for the victim’s death if his act hastens the victim’s death.137

By hastening death, a person can be a legal cause of death, even when other causes contribute far more significantly to the death.138 Causation in criminal law does not require a defendant’s conduct to be the sole cause of the outcome to support conviction, nor does law excuse conduct which only hastens the damage.139

ii) Based on Legal Causation, All Palliative Physicians Are Similarly Situated Under the Equal Protection Clause

Causation sufficient to support homicide liability is established in almost every aspect of palliation for the terminally ill. In these circumstances, two forces actively work towards ending the patient’s life: (1) the patient’s disease; and (2) the high dosage of pain medication administered, usually in increasing strength as the patient’s condition worsens. Where unbearable pain requires a terminal patient to receive morphine in doses “to the point of causing unconsciousness or hastening death,” the physician’s administration of medicine bears a relationship to the patient’s death sufficient enough to attribute the patient’s demise to the physician’s acts.140 The physician’s acts are sufficient to support homicide liability because the acts hasten the patient’s death; however, the physician’s acts are also considered justifiable to society as humane and necessary medical treatment.

Life-ending palliation is also humane medical treatment when requested by the dying whose suffering cannot be eased. However, under assisted sui­cide statutes, physicians undertaking the administration of these treatments are subjected to criminal liability that other palliative physicians, who also hasten death in terminal patients, are not. This is a blatant violation of the Equal Protection Clause. The equal protection of laws prohibits discrimina­tory prosecution of physicians administering life-ending care. In the same way that the law does not prosecute the doctor who starts a morphine drip, those who alleviate unmanageable suffering through life-ending palliation requested by a patient should not be subjected to criminal liability when their acts are medically appropriate.

2. State Interests in Upholding Assisted Suicide Statutes

i) The “Slippery Slope”

In the absence of a suspect class, the Court applies a rational basis test to determine the presence of unconstitutional discrimination under the Equal Protection Clause. Under the rational basis test, a state overcomes allegations of discrimination by illustrating that the alleged discrimination bears “a ra­tional relationship to a legitimate governmental purpose.”141

The most frequently asserted state interest has been the fear that a “slip­pery slope” will lead to undue pressure on terminal patients to end their lives through physician-assisted suicide and euthanasia.142 However, this concern is unfounded and entirely speculative. In all systems that rely in part on human discretion, there is always potential for abuse. One such example is organ donation. Studies have shown that a significant percentage of Americans feel that organ donation creates potential for abuse of discretion by medical profes­sionals in forfeiting the lives of organ donors sooner than non-donors.143 While abuse of discretion could just as easily occur in organ donation as it could in palliation, the medical field hinges upon physician discretion and guidance.

Physicians exercise discretion in every aspect of medicine from discharging patients to forming prognoses, and there will always be potential for abuse and error in these decisions. No discretionary system can guarantee perfect results, but concrete interests in alleviating patient pain should command greater regard than unfounded fears of abuse. Mere possibilities cannot paralyze the judiciary into ignoring the fundamental rights of the suffering.

Furthermore, many scholars feel the theoretical, slippery slope argument is overplayed and abstract.144 When engaging in rational decision-making, all patients weigh many factors and consider the appropriate value of each factor. In weighing these factors, a patient attaches an appropriate normative value to the factor based on their own life experiences and ideals.145 Although different patients decide on different courses of action, logic suggests that all patients, even when from a variety of backgrounds and economic classifications, make healthcare decisions by using similar reasoning.146

Finally, states that have passed legislation allowing life-ending palliation have not seen abuse-indicative correlations between the passage of these laws and the death rates of underprivileged groups.147 In Oregon, data showed that the abuse of discretion predictions were “unfounded and that the option of aid in dying [had] not been unwillingly forced upon those who are poor, un­educated, uninsured, or otherwise disadvantaged.”148 It should be presumed that physicians will continue to uphold their patient-physician duty even when treating unmanageable pain in new ways. The fact that abuse is always possible does not require the judiciary to adopt the bleakest possible view of humanity by assuming that every person capable of working evil will inevitably work such evil. The notion that a statute is the only measure preventing palliative doctors from becoming angels of death, ending lives without ethical guidelines or criteria, is absurd.

ii) Maintaining Integrity of the Medical Profession

Concern for the integrity of the medical profession was also asserted in Vacco and the Court agreed that New York had a state interest in maintain­ing physicians in their role as “patients’ healers.”149 Once again, the Court did not recognize the unfortunate reality that not all patients can be healed. However, all patients are capable of receiving the diligent attention of their physician, regardless of whether the physician is administering a medical benefit through curative or palliative treatment.

Fear of degradation of the medical profession’s integrity is entirely specula­tive and nothing more than a re-packaging of the slippery slope argument, which has been disproven in states allowing physician-assisted suicide and eu­thanasia.150 This assertion suggests that availability of new medical procedures capable of limiting excessive suffering will somehow relieve physicians of the duty they feel in ensuring that their patients receive treatment both proper and congruent with the patient’s wishes. Terminal patients with intractable pain exist in a painful, desiccated state until death, a process which, argu­ably, offends a physician’s duty to the patient more than the end of life. By prohibiting life-ending care, the Court blindly imposes a duty on physicians to engage in the absolute preservation of life without giving adequate regard to terminal patients’ ability to receive medical benefit through palliation or determine for themselves the treatment course they wish to pursue.

Additionally, the integrity of the medical field could potentially benefit from increased honesty and clarity that comes with allowing physicians to openly discuss a patient’s expressed desire to receive life-ending palliation, rather than treating the subject as taboo.151 The preservation of life does not support the medical field’s integrity where it denies a terminal patient’s wishes as they slowly and painfully drift towards death. These practices do not promote medical integrity; rather, this is the systematic siphoning of mercy out of medicine.

B. Preventing Life-Ending Palliation is an Unconstitutional Application of Assisted Suicide Statutes

Currently, assisted suicide statutes are used to prevent the administration of life-ending measures to terminal patients. In his concurring Glucksberg opinion, Justice Stevens used the “morality, legality and practicality of capital punishment” to draw similarities between the constitutionality of physician-assisted suicide and capital punishment statutes.152 He notes that, while capital punishment statutes are not inherently unconstitutional, the Court has found some applications of these statutes to be so. 153 Justice Stevens further states:

Today the Court decides that Washington’s statute prohibiting assisted suicide is not invalid on its face, that is to say, in all or most cases in which it might be applied. That holding, however, does not foreclose the possibility that some applications of the statute might well be invalid.154

Therefore, even if assisted suicide statutes are not unconstitutional per se as infringements on the Due Process or Equal Protection Clauses, using these statutes almost exclusively to bar terminal patients with intractable pain from receiving palliation is an unconstitutional application of assisted suicide statutes.

Assisted suicide statutes are not frequently used to address non-medical assisted suicides because such crimes are often prosecuted under manslaugh­ter and murder statutes. In State v. Melchert-Dinkel, the Supreme Court of Minnesota addressed a case where a man encouraged two teenagers to com­mit suicide through an online chatroom.155 Melchert-Dinkel was convicted under Minnesota’s assisted suicide statute for advising and encouraging the suicidal acts.156 On appeal, the Supreme Court of Minnesota found that the statute, insofar as it prohibited “advis[ing]” and “encourag[ing]” suicide, was unconstitutional as an infringement on free speech.157 Given that statutory prosecution for encouragement of suicidal acts will likely be met with free speech objections, the prosecution for such conduct is more productively pursued under manslaughter statutes as a “wanton or reckless” act causing another’s death.158 However, if a physical act is taken by a person to assist the suicide of another, as opposed to verbal encouragement, these acts are frequently pursued under murder or manslaughter statutes.159

The Supreme Court of California considered the overlap of murder, man­slaughter, and assisted suicide in In re Joseph G., where a minor was charged with murder after he entered into a suicide pact with another individual and survived. In distinguishing murder from assisted suicide, the court held:

[W]here a person actually performs, or actively assists in performing, the overt act resulting in death, such as shooting or stabbing the victim, […] his act constitutes murder, and it is wholly immaterial whether this act is committed pursuant to an agreement with the victim, such as a mutual suicide pact.160

The court also distinguished manslaughter from assisted suicide, finding:

[Manslaughter] contemplates some participation in the events leading up to the commission of the final overt act, such as furnishing the means for bringing about death—the gun, the knife, the poison, or providing the water, for the use of the person who himself commits the act of self-murder.161

Given the distinctions made by the In re Joseph G. court, it is unclear what benefit assisted suicide statutes actually offer to state legal systems, except to facilitate selective prosecution of palliative physicians or potentially provide less severe punishment to physicians for administering medically necessary palliation to terminal patients in intractable pain. This author finds neither purpose particularly persuasive.

Because the full spectrum of homicidal conduct is adequately addressed by manslaughter and murder statutes, a logical inference suggests that assisted suicide statutes are maintained almost exclusively to prohibit physician-assisted suicide and euthanasia. To use these statutes to deter physicians from administering palliation is to deny terminal patients, in some cases, medically appropriate treatment and force them to undergo “severe physical pain.”162 This is an unconstitutional application of assisted suicide statutes because it is specifically and solely used to hinder the ability of terminal patients to receive palliative treatment.

Conclusion

Individuals standing at the precipice of death have a particularly poignant interest in the availability of palliative care. To date, the Court has never addressed physician-assisted suicide or euthanasia as a purely palliative measure. Palliative care is the sole medical benefit that can be provided to terminal patients and is, therefore, fundamental to these individuals. Given the reality that a large minority of terminal patients suffer enormously in the dying process and do not benefit from even the most aggressive palliative means, the end of life can provide a palliative effect in dire circumstances.

Under such circumstances, inducing death is medically-appropriate, justifiable conduct, and statutes prohibiting administration of these measures violate the Due Process and Equal Protection Clauses by (1) denying terminal patients with intractable pain the ability to seek palliative care, thereby compelling them to endure severe physical pain and (2) facilitating targeted prosecution against similarly situated palliative physicians who administer life-ending care to terminal patients.

 

NOTES

1. WHO Definition of Palliative Care, WORLD HEALTH ORG., http://www.who.int/ cancer/palliative/definition/en/ (last visited on Oct. 30, 2017) [hereinafter Palliative Care]; see Katherine Ledden, A Nudge in the Right Direction with a Stick the Size Of CMS: Physician-Patient Communication at the End of Life, 6 ST. LOUIS U. J. HEALTH L. & POL’Y 389, 392 (2013).
2. See Palliative Care, supra note 1.
3. See Ledden, supra note 1, at 395. More than 80% of large hospitals have multidisciplinary palliative programs which exist specifically to design effective palliative strategies for patients both receiving curative treatments and for those with terminal illness. Amy Kelley & Diane Meier, Palliative Care–a Shifting Paradigm, 363 NEW ENG. J. MED. 781 (2010).
4. See Vacco v. Quill, 521 U.S. 793, 798 (1997).
5. Id.
6. U.S. Const. amend. V; U.S. Const. amend. XIV, § 1.
7. Chavez v. Martinez, 538 U.S. 760, 775 (2003); see also Daniels v. Williams, 474 U.S. 327, 332 (1986).
8. Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 253, 253 (1982).
9. Chavez, 538 U.S. at 776; see also Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997); Joseph Kadlec, Employing the Ninth Amendment to Supplement Substantive Due Process: Recognizing the History of the Ninth Amendment and the Existence of Nonfundamental Unenumerated Rights, 48 B.C. L. REV. 387 (2007) (“Courts use the Fifth and Fourteenth Amendments of the Constitution to prevent federal and state governments from depriving people of their liberty interests in unenumerated rights without due process of law.”).
10. See Chavez, 538 U.S. at 776; Kadlec, supra note 9, at 387.
11. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967).
12. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965).
13. See, e.g. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); Meyer v. Ne­braska, 262 U.S. 390 (1923).
14. See, e.g., Griswold, 381 U.S. at 479, Eisenstadt v. Baird, 405 U.S. 438 (1972).
15. See, e.g., Rochin v. California, 342 U.S. 165 (1952).
16. See, e.g., Roe v. Wade, 410 U.S. 113, 114 (1973), holding modified by Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833 (1992).
17. See, e.g., Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 287-79 (1990).
18. See Kadlec, supra note 9, at 389.
19. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).
20. Bowers v. Hardwick, 478 U.S. 186, 194 (1986).
21. Lawrence v. Texas, 539 U.S. 558, 567 (2003).
22. See Glucksberg, 521 U.S. at 721; Bowers, 478 U.S. at 192 (quoting Moore v. East Cleve­land, 431 U.S. 503 (1938)); Mills v. Rogers, 457 U.S. 291, 294 (1982).
23. Lawrence, 539 U.S. at 559.
24. Id. at 573.
25. Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
26. Id.; see also Richard S. Myers, Obergefell and the Future of Substantive Due Process, 14 AVE MARIA L. REV. 54, 61 (2016).
27. Obergefell, 135 S. Ct. at 2598.
28. See Washington v. Glucksberg, 521 U.S. 702, 722 (1997).
29. See Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 261 (1990).
30. Id. at 314.
31. See id.
32. Glucksberg, 521 U.S. at 724.
33. See id. at 703.
34. Id. at 725.
35. See id. at 724.
36. See Vacco v. Quill, 521 U.S. 793, 798 (1997).
37. Id. at 801.
38. Id. at 808.
39. Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 259 (1891). But see In re E.G., 549 N.E.2d 322 (1990) (holding that bodily autonomy yields to a State’s interests in (1) thepreservation of life; (2) protecting the interests of third parties; (3) prevention of suicide; and (4) maintaining the ethical integrity of the medical profession).

40. Canterbury v. Spence, 464 F.2d 772 (1972) (quoting Schloendorff v. Society of New York Hospital, 105 N.E. 92 (1914)); see also Restatement of Torts § 49 (1934).
41. Lack of informed consent is a tort cause of action stemming from a physician’s breach of the duty to inform the patient of medical alternatives and associated risks before the patient determines the course of treatment he or she wish to undertake. See Canterbury, 464 F.2d at 782 (“[I]t is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie. To enable patient[s] to chart [their] course understandably, some familiarity with therapeutic alternatives and their hazards becomes essential.”); Rochin, 342 U.S. at 210-11 (holding that an officer’s invasion of a suspect’s body shocked the conscience of the court and offended human dignity and the Due Process Clauses). Over the past half century, there has been a clear expansion in the ability of individuals to determine their own course of action regarding medical treatment as an extension of personal privacy and autonomy. See Roe v. Wade, 410 U.S. 113, 152 (1973), holding modified by Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833 (1992); Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 287-79 (1990).
42. Griswold v. Connecticut, 381 U.S. 479, 485 (1965).
43. Id.
44. See Roe, 410 U.S. at 154.
45. See Roe, 410 U.S. at 153-54.
46. Id. at 153.
47. Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833, 869 (1992).
48. See, e.g., id. at 869; Rochin, 342 U.S. at 210-11 (holding that an officer’s invasion of a sus­pect’s body shocked the conscience of the court and offended the Due Process Clauses).
49. See 42 U.S.C.A. § 1395dd (2011).
50. See Joseph Zibulewsky, The Emergency Medical Treatment and Active Labor Act (EM­TALA): What It Is and What It Means For Physicians, 14 Proc (Bayl Uni Med Cent) 339 (2001), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1305897/; see also Matter of Baby K, 16 F.3d 590 (4th Cir. 1994) (“Congress enacted EMTALA in response to its ‘concern’ that hospitals were ‘dumping’ patients [who were] unable to pay, by either refusing to provide emergency medical treatment or transferring patients before their emergency conditions were stabilized.”).
51. James Blaufuss, A Painful Catch-22: Why Tort Liability for Inadequate Pain Manage­ment Will Make for Bad Medicine, 31 WMMitchell L. Rev. 1093, 1097 (2005). See also Jacob Vigil, Negligence in the Emergency Room, 37 TR. 29, 30 (2001).
52. Julie Darnell, Free Clinics in the United States, 170 ARCH INTERN MED. 946 (2010), available at https://www.ncbi.nlm.nih.gov/pubmed/20548006.
53. Id.
54. See id.
55. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106–386, § 1603, 114 Stat. 1464, 1539 (2001) (declaring the calendar decade beginning in January 1, 2001 the Decade of Pain Control and Research).
56. The Court found that marriage was vital to creating permanence and stability in the family structure, which is of immense importance to society. See Obergefell v. Hodges, 135 S. Ct. 2584, 2600 (2015).
57. See id.
58. Id. at 2599.
59. See id.
60. Id. at 2600.
61. Id.
62. Obergefell, 135 S. Ct. at 2600.
63. See id. at 2598.
64. See Linda Farber Post & Nancy Neveloff Dubler, Palliative Care: A Bioethical Defini­tion, Principles, and Clinical Guidelines, 13 Bioethics Forum 17, 18 (1997) (“[Palliative care] stands alone as the care for the patient who has been diagnosed with a […] terminal condition and for whom curative treatment is no longer the goal of care.”).
65. See Fox v. Texaco, Inc., 722 So. 2d 1064, 1066 (1998) (“Maintenance and cure” is an ancient duty imposed upon the owner of a ship to provide food, lodging and necessary medical services to seamen who become ill or injured during service to the ship.”).
66. See Vaughan v. Atkinson, 369 U.S. 527, 531 (1962) (“[Maintenance and cure] extends during the period when he is incapacitated to do a seaman’s work and continues until he reaches maximum medical recovery.”).
67. See Arthur Crais, Maintenance and Cure – A Trifecta for Seamen? Atlantic Sounding Co. v. Townsend, Messier v. Bouchard Transportation and Boudreaux v. Transocean Deepwater, Inc., 14 Loy. Mar. L.J. 13, 16 (2014).
68. Rod Sullivan, Enforcing A Seaman’s Right to Medical Care After Atlantic Sounding v. Townsend, Tul. Mar. L.J. 1, 4 (2009).
69. See Harden v. Gordon, 11 F. Cas. 480, 2000 AMC 893 (1823) (holding that a statute requiring the presence of a medical chest on ships did not preempt the general maritime duty of a shipowner to provide maintenance and cure to seaman aboard the vessel); see also Shipowners’ Liability Convention, art. 2, 54 Stat. 1693, 40 U.N.T.S. 169 (1939).
70. Jason Minkin, When Should Seaman Maintenance and Cure Benefits Terminate?, 1 Depaul Health Care L. 323, 323 (1996); see also Vella v. Ford Motor Co., 421 U.S. 1, 5 (1975).
71. See, e.g., Johnson v. Marlin Drilling Co., 893 F.2d 77, 78 (5th Cir. 1990); Guidry v. The Offshore Drilling Co., 2007 WL 519761, at *3 (W.D. La. Feb. 15, 2007).
72. Haney v. Miller’s Launch, Inc., 773 F. Supp. 2d 280, 293 (2010).
73. at 291.
74. (emphasis added).
75. See Rima J. Oken, Curing Healthcare Providers’ Failure to Administer Opioids in the Treatment of Severe Pain, 23 Cardozo Rev. 1917, 1920 (2002).
76. Id.
77. Haney, 773 F. Supp. 2d at 292.
78. Id.
79. Id.
80. See id.
81. See supra Section II(A)(1).
82. See, e.g., Sepulveda et. al., Palliative Care: The World Health Organization’s Global Perspective, J. Painand Symptom mgmt. 91 (2002) (discussing WHO efforts and devel­opments in palliative care systems to improve the quality of life of the sick); Dep’t of VeteranAffairs Veterans Health Admin. , Directive 2009–053: PainManagement (2009), available at https://www.va.gov/painmanagement/docs/vha09paindirective.pdf (discussing “Pain as a Fifth Vital Sign” initiative).
83. See Haney v. Miller’s Launch, Inc., 773 F. Supp. 2d 280, 293 (2010).
84. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106–386, § 1603, 114 Stat. 1464, 1539 (2001) (declaring the calendar decade beginning in January 1, 2001 the Decade of Pain Control and Research).
85. See Oken, supra note 75, at 1920.
86. Id.
87. at 1936. See also Gary Walco et al., Pain, Hurt, and Harm: The Ethics of Pain Control in Infants and Children, 331 New Eng. J. Med. 541 (1994); Post & Dubler, supra note 64, at 17 (1997) (“[C]omfort came to be seen as what was left when there was ‘nothing more to do.’ In the process, death was perceived as a failure of skill and dying was unseemly for professionals to attend.”)
88. Post & Dubler, supra note 64, at 17.
89. at 18.
90. See Oken, supra note 75, at 1928; Post & Dubler, supra note 64, at 17.
91. See Oken, supra note 75, at 1928.
92. Peter Selwyn, Lessons from the AIDS Epidemic: Knowing Our Patients, Knowing Ourselves, 3 J. Palliative Med. 263, 263 (2000).
93. Sam Adriance, Fighting For the Right to Try Unapproved Drugs: Law as Persuasion, 124 Yale L.j. Forum 138 (2014).
94. Id.
95. Sue Kovach, The Abigail Alliance: Motivated by Traffic Circumstances, Families Battle an Uncaring Bureaucracy, Life Extension(2017), http://www.abigail-alliance.org/ LEMSEP07pAbigailLR.pdf.
96. See Abigail All. For Better Access to Developmental Drugs and Washington Leg. Found. v. Von Eschenbach, 445 F.3d 470 (D.C. Cir. 2006), on reh’g en banc sub nom. Abigail All. for Better Access to Developmental Drugs v. Von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007).
97. at 486.
98. See Rebecca Dresser, The “Right To Try” Investigational Drugs: Science And Stores In The Access Debate, 93 Tex. LRev. 1631, 1640 (2015) (“In 2014, the Goldwater Institute, a nonprofit organization whose mission is to protect freedom and prosperity, developed a model bill ‘to protect the fundamental right of people to try to save their own lives’.”).
99. See Jacqueline Howard, What You Need to Know about Right-to-Try Legislation , CNN (May 29, 2018). See, e.g., Ala. Code 22-5D-3 (2018); Ariz. Rev. Stat. § 36-1312 (West 2014); Ark. Code Ann. § 20-15-2102 (2015); Cal. Health & Safety Code § 111548.2 (West 2017); Colo. Rev. Stat. Ann. § 25-45-101 (West 2014); Conn. Gen. Stat. Ann. § 21a-70g (West 2016); Fla. Stat. Ann. § 499.0295 (West 2017); Ga. Code Ann. § 31- 52-6 (2016); Idaho Code Ann. § 39-9402 (West 2017); Ill. Comp. Stat. Ann. 649.10 (West 2017); Iowa Code Ann. § 144E.3 (West 2017); Ky. Rev. Stat. Ann. § 217.5407 (West 2018); Minn. Stat. Ann. §151.375 (West 2015); Mo. Rev. Stat. § 191.480 (2014); Nev. Rev. Stat. Ann. § 454.690 (West 2015); N.C. Gen. Stat. Ann. § 90-325.2 (West 2015); N.D. Cent. Code Ann. § 23-48-02 (West 2015); Ohio Rev. Code Ann. § 4729.89 (West 2017); Okla. Stat. Ann. tit. 63, § 3091.3 (West 2018); S.C. Code Ann. § 44-137- 20 (2016); S.D. Codified Laws § 34-51-4 (2018); Tenn. Code Ann. § 63-6-303 (2015); Tex. Health & Safety Code Ann. § 489.051 (West 2015); Utah Code Ann. § 58-85- 103 (West 2018); Va. Code Ann. §8.01-179 (2018); W. Va. Code Ann. § 16-51-6 (West 2016); Wyo. Stat. Ann. §35-7-1802 (2015).
100. 163 Cong. Rec. S4788-01 (daily ed. Aug. 3, 2017) (statement of Sen. Ron Johnson); see also Dresser, supra note 98, at 1640; Randy Tong, AB 159: Can it Really Hurt “To Try?”, 47 U. Pac. L. Rev. 551, 562 (2016); Andrew Siddon, ‘Right To Try’ Senate Bill Could Face Slower Action in House, CQ Roll Call, 2017 WL 3445741 (2017).
101. See Michael Malinowski, Throwing Dirt on Doctor Frankenstein’s Grave: Access to Experimental Treatments at the End of Life, 65 Hastings J. 615, 618 (2014) (“The drugs worsened [the patient’s] health immediately; the side effects were horrific…[This] story illustrates common human reaction when death becomes defined, tangible, and must be confronted.”).
102. “Claims that patients need FDA protection because they are desperate and vulner­able demean individuals who are fully capable of making treatment decisions. To the contrary, terminally ill patients are rational and realistic people dealing with difficult circumstances.” Dresser, supra note 98, at 1642.
103. See Post & Dubler, supra note 64, at 17.
104. Washington v. Glucksberg, 521 U.S. 702, 736-38 (1997) (emphasis added).
105. Id.
106. at 791.
107. Terminal sedation is the practice of placing the patient in a drug-included coma to prevent severe pain until death; patients generally do not continue receiving nutrition or hydration, which is often the actual cause of death. K.C. Chambaere et. al, Continuous Deep Sedation Until Death in Belgium: A Nationwide Survey, 170 Arch InternMed. 490 (2010) (“The continued administration of artificial nutrition or hydration is not encouraged unless the benefits outweigh the harm.”).
108. See, e.g., Alexander Kon, Palliative Sedation: It’s Not a Panacea, 11 Am. J. Bioethics 41 (2011); Michael T. Wolf, Palliative Sedation in Nursing Anesthesia, 81 AANA J. 113 (2003) (“A comprehensive review of the research literature […] demonstrated […] efficacy rates ranging from 71% to 92%.”).
109. Glucksberg, 521 U.S. at 791.
110. See supra Section I(A).
111. Kon, supra note 108, at 41-42; see also Post & Dubler, supra note 64, at 18 (“[Palliative care] stands alone as the care for the patient who has been diagnosed with a […] terminal condition and for whom curative treatment is no longer the goal of care.”).
112. Kon, supra note 108, at 41-42.
113. Edward C. Lyons, In Incognito-the Principle of Double Effect in American Constitutional Law, Fla. L. Rev. 469, 471 (2005) (“Under certain circumstances, it is permissible unintentionally to cause foreseen ‘evil’ effects that would not be permissible to cause intentionally.”).
114. See David Price, Euthanasia, Pain Relief, and Double Effect, 17 Legal Stud. 323 (1997).
115. Vacco v. Quill, 521 U.S. 793, 808 (1997).
116. See, e.g., Cooley v. Granholm, 291 F.3d 880, 882 (6th Cir. 2002) (“Michigan law would distinguish between (1) withdrawal of life support and ‘double effect’ euthanasia through pain medication for patients suffering ‘irremediable pain’—which are permitted—and (2) euthanasia for such patients through illegal physician-assisted suicide.”); Myers v. Schneiderman, 85 N.E.3d 57, 79 (2017), reargument denied, 30 N.Y.3d 1009 (2017) (“The law has long used actors’ intent or purpose to distinguish between two acts that may have the same result. Put differently, the law distinguishes actions taken ‘because of’ a given end from actions taken ‘in spite of’ their unintended but foreseen consequences.”); Woods v. Com., 142 S.W.3d 24, 47 (2004); State v. Weitzel, No. 991700983, 2001 WL 34048225, at *3 (Utah Dist. 2001) (finding that the court must consider the defendant’s conduct under the double effect principle); State v. Naramore, 965 P.2d 211, 214 (1998) (“Palliative care refers to medical intervention in which the primary purpose is to allevi­ate pain and suffering. It is sometimes referred to as having a double effect.”); Hobbins v. Atty. Gen., 518 N.W.2d 487, 495 (1994), aff’d in part, rev’d in part sub nom, People v. Kevorkian, 527 N.W. 2d 714 (1994).
117. Lyons, supra note 113, at 471, 563.
118. See Price, supra note 114, at 323.
119. Sandstrom v. Montana, 442 U.S. 510, 522 (1979).
120. See e.g., State v. Juarez, 794 S.E.2d 293, 397 (2016) (“Perfect self-defense, however, may be a defense to the underlying felony, which would thereby defeat the felony mur­der charge.”); Dykes v. State, 571 A.2d 1251, 1254 (1990) (“Homicide committed in perfect self-defense is either justifiable or excusable. When the defense is established, the killer is not culpable.”); Faulkner v. State, 458 A.2d 81, 82 (1983), aff’d, 483 A.2d 759 (1984); State v. Bush, 297 S.E.2d 563, 568 (1982) (“Perfect self-defense excuses a killing altogether.”); Com. v. Fox, 73 Mass. 585, 585 (1856). “Justifiable self-defense is where a person is feloniously assaulted, being without fault himself, and necessarily kills his assailant to save himself from death or great bodily harm, or from other felony attempted by force or surprise. Excusable self-defense is where a person becomes engaged in a sudden affray or combat, and in the course of the affray or combat, necessarily, or under reasonably apparent necessity, kills his adversary to save himself from death or great bodily harm after retreating as far as he can with safety.” Whitehead v. State, 262 A.2d 316, 319 (1970).
121. Eugene R. Milhizer, Justification and Excuse: What They Were, What They Are, and What They Ought to Be, 78 St. John’s L. Rev. 725, 813 (2004).
122. See People v. Brigham, 216 C.A.3d 1039, 1054 (1989) (“If the principal’s criminal act charged to the aider and abettor is a reasonably foreseeable consequence of any criminal act of that principal, knowingly aided and abetted, the aider and abettor of such criminal conduct is derivatively liable for the act charged.”).
123. Model Penal Code 2 .02 (2017). I n c riminal l aw, i ntentional crimes account for conduct at is done purposely and knowingly. See State v. Pierce, 651 P.2d 62, 66 (Mon. 1982) (“Under the new Code, the concepts of ‘knowingly’ and ‘purposely,’ replace the old term ‘intentionally.’”).
124. “Terminal sedation is offered to dying patients who are suffering greatly and for whom conventional treatments are inadequate to relieve their suffering. With terminal seda­tion, patients are sedated […] so that they are no longer aware of their suffering.” David Orentlicher, The Supreme Court and Terminal Sedation: Rejecting Assisted Suicide, Embracing Euthanasia, 24 Hastings Const. L. Quarterly 947, 968 (1997). See Wash­ington v. Glucksberg, 521 U.S. 702, 780 (1997).
125. Kon, supra note 108, at 41; see also Wolf, supra note 108, at 113 (“A comprehensive review of the research literature […] demonstrated […] efficacy rates ranging from 71% to 92%.”); Stephanie Graboyes-Russo, Too Costly to Live: The Moral Hazards of a Decision in Washington v. Glucksberg and Vacco v. Quill, 51 U. Miami L. Rev. 907, 934 (1997).
126. Kathryn Tucker, The Death with Dignity Movement: Protecting Rights and Expanding Options After Glucksberg and Quill, 82 L. Rev. 923, 938 nn. 15 & 17 (1998).
127. Kon, supra note 108, at 41.
128. See id.
129. at 41-42.
130. See Washington v. Glucksberg, 521 U.S. 702, 724 (1997); Vacco v. Quill, 521 U.S. 793, 808 (1997).
131. See Glucksberg, 521 U.S. at 780.
132. City of Cleburne, Tex. v. Cleburne Living Ctr. 473 U.S. 432, 439 (1985).
133. Vacco, 521 U.S. at 808 n.11.
134. See, e.g., State v. Montoya, 61 P.3d 793, 799 (N.M. 2002) (“Thus, even if the victim is at ‘death’s door,’ a defendant is liable for the victim’s death if his act hastens the victim’s death.”); Oxendine v. State, 528 A.2d 870, 872 -73 (1987) (explaining that one causes another’s death when his acts hasten or accelerate that death); Adcock v. Com. of Kentucky, 702 S.W.2d 440, 444 (Ken. 1986) (“If one unlawfully wounds another, and thereby hastens or accelerates his death by reason of some disease with which he is afflicted, the wrongdoer is guilty of the crime”); Nelson v. State, 198 S.E. 305, 309 (Ga. 1938) (“So too, where one inflicts upon another a wound, not mortal, but which through other natural causes, operate to cause death, such as blood poisoning resulting from a cut, the person so inflicting the wound will be accountable for his death.”).
135. Nelson, 198 S.E. at 309.
136. See, e.g., Russey v. Norris, 2 Fed. Appx. 648 (8th Cir. 2001); Jefferson v. State, 276 S.W.3d 214,
137. (Ark. 2008) (“One whose wrongdoing is a concurrent proximate cause of an injury is criminall liable therefore the same as if his wrongdoing were the sole proximate cause of the harm done.”); State v. Meekins, 105 P.3d 420, 425 (Wash. App. 2005), State v. Montoya, 61 P.2d 763 (N.M. 2002).
138. Montoya, 61 P.3d at 799.
139. See id.; State v. Torres, No. 34-473, 2017 WL 626670, at *4 (N.M. App. 2017).
140. See Torres, 2017 WL 626670, at *4.
141. Washington v. Glucksberg, 521 U.S. 702, 736 (1997).
142. Romer v. Evans, 517 U.S. 620, 635 (1996).
143. See Vacco v. Quill, 521 U.S. 793, 808-09 (1997); Glucksberg, 521 U.S. at 785.
144. See Orly Hazony, Increasing the Supply of Cadaver Organs for Transplantation: Rec­ognizing that the Real Problem is Psychological Not Legal, 3 Health Matrix 219, 240 (1993); Christy M. Watkins, A Deadly Dilemma: The Failure of Nations’ Organ Procurement Systems and Potential Reform Alternatives, 5 Chi.-Kent Int’l & Comp. L. 1, 1 (2005) (“Another long-standing myth is that the medical profession may terminate an organ donor’s life early or not try as hard to save the donor’s life so that doctors may harvest the donor’s organs.”).
145. Sahil Godiwala, Killing the Scapegoat: How the Poor are Manipulated in the Right to Die Debate, 9 Geo. J. onPoverty L. & Pol’y 453, 462 (2002).
146. Id.
147. Id.
148. M. Battin et. al., Legal Physician-Assisted Dying in Oregon and the Netherlands: Evi­dence Concerning the Impact on Patients in “Vulnerable” Groups, 10 J. Med. Ethics 591-97 (2007).
149. Kathryn L. Tucker, Building Bridges Between the Civil Rights Movements of People with Disabilities and Those with Terminal Illness, 78 U. Pitt. L. Rev. 329, 344 (2017); see also Battin et. al., supra note 147, at 591-97; Dep’t for HumanRes. or. Health Div. Center For Disease Preventionand Epidemiology, Oregon’s Death With Dignity Act: The First Year’s Experience 7 (1999) [hereinafter Dignity Act].
150. Vacco v. Quill, 521 U.S. 793, 808 (1997).
151. See Dignity Act, supra note 148 (“Patients who chose physician-assisted suicide were not disproportionately poor (as measured by Medicaid status), less educated, lacking in insurance coverage, or lacking in access to hospice care.”).
152. In some cases, a physician may believe that she is being asked to end a suffering patient’s life by administering additional pain medication when pain is uncontrollable; but, due to criminal liability, there is lack of clarity in communication between the physician and patient regarding life-ending palliation. Having life-ending measures as a viable treatment option removes the chances of misunderstanding between the parties. See State v. Naramore, 965 P.2d 211, 213 (Kan. App. 1998).
153. Washington v. Glucksberg, 521 U.S. 702, 738 (1997).
154. Id.
155. Id. at 739.
156. See State v. Melchert-Dinkel, 844 N.W.2d 13, 16 (Minn. 2014).
157. See id.; see also Minn. Stat. § 609.215 (1998).
158. Minn. Stat. § 609.215 (1998).
159. Model Penal Code § 210.3 (Am. Law Inst. 1985) ( “Criminal h omicide c onstitutes manslaughter when: (a) it is committed recklessly; or (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.”). See Sean Sweeney, Deadly Speech: Encouraging Suicide and Problematic Prosecutions, 67 Case W. Res. L. Rev. 941, 953 (2017).
160. See, e.g., People v. Minor, 111 A.D. 198 (N.Y. 2013) (finding that an assisted suicide affirmative defense warranted prosecution for the manslaughter crime of assisted suicide); State v. Goulding, 799 N.W.2d 412 (S.D. 2011) (holding that the defendant, in fatally shooting victim at the victim’s request, committed murder, not assisted suicide); Williams v. State, 53 So. 3d 734, 746 (Miss. 2010); State v. Forrest, 362 S.E.2d 252, 256 (N.C. 1987) (holding that where a defendant kills a loved one in order to comply with the deceased’s wishes, he acts with malice sufficient to support murder liability); In re Joseph G., 667 P.2d 1176, 1180 (Cal. 1983).
161. In re Joseph G., 667 P.2d at 1180.
162. Id.
163. Washington v. Glucksberg, 521 U.S. 702, 791 (1997).