The "Right to Die": Constitutional and Statutory Analysis

The "Right to Die": Constitutional and Statutory Analysis

Order Code 97-244 A
CRS Report for Congress
Received through the CRS Web
The "Right to Die":
Constitutional and
Statutory Analysis
Updated September 19, 2005
-name redacted-
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

The "Right to Die": Constitutional and Statutory Analysis
Summary
In the spring of 2005, national attention was drawn to a series of court and
legislative actions regarding the withdrawal of nutrition and hydration from a Florida
patient, Theresa Schiavo, who had suffered severe brain damage. For a summary of
relevant factual and legal events surrounding this case, see
[http://www.miami.edu/ethics2/schiavo/timeline.htm] and CRS Report RL32830,
The Schiavo Case: Legal Issues. This case brought new scrutiny to the “right to die”
issue. Although the popular term “right to die” has been used as a label to describe
the current political debate over end-of-life decisions, the underlying issues include
a variety of legal concepts, including, suicide, passive euthanasia (allowing a person
to die by refusal or withdrawal of medical intervention), assisted suicide (providing
a person the means of committing suicide), active euthanasia (killing another), and
palliative care (providing comfort care which accelerates the death process).
Exercising one or another of these “rights to die” may have drastically different
legal consequences: some currently have no legal consequence, some are a violation
of common-law, some are a violation of statute, some may have contractual
consequences, some may result in an action such as civil confinement, some are
currently protected by legislation, and some may be protected by the United States
Constitution. This report examines the legal status of the five distinct issues: 1)
suicide, 2) passive euthanasia, 3) assisted suicide, 4) active euthanasia, and
5) palliative care.
The report examines the history of how each of these issues has been treated
and evaluates the constitutional right of a person to pursue these courses of action.
It addresses state law regarding living wills, advance medical directives, and how
these types of decisions are made regarding persons who have left neither. The report
addresses congressional powers and existing federal statutes that are implicated in
these issues, such as the Patient Self-Determination Act, the Assisted Suicide
Funding Restriction Act, and the Controlled Substances Act. It then addresses bills
introduced in the 109th Congress, S. 539 and H.R. 1151, both entitled the
“Incapacitated Persons Legal Protection Act of 2005;” a bill passed by the House,
H.R. 1332, “The Protection of Incapacitated Persons Act of 2005;” a bill passed by
the Senate, “For the Relief of the Parents of Theresa Marie Schiavo;” and a similar
bill passed by the House and Senate, S. 686. This last bill was signed by the
President and became P.L. 109-3.
The report notes that current state regulations prohibiting assisted suicide have
been upheld by the Supreme Court, and that similar prohibitions against active
euthanasia are likely to be upheld against constitutional challenge. The Due Process
Clause of the Fourteenth Amendment, however, appears to limit a state’s ability to
regulate passive euthanasia (termination of medical treatment). Finally, palliative
care may ultimately be found to be protected by the Fourteenth Amendment, but the
possible abuse of such care may raise policy concerns.

Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. How Broad Is the "Right to Die"? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. The Constitutional Genesis: the Right to Privacy . . . . . . . . . . . . . . . . . . 5
II. Five Types of "Right to Die" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Suicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Historical Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. State Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3. Constitutional Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. Passive Euthanasia: Refusal or Termination of Medical Treatment . . . 10
1. Historical Precedent: Common Law Battery . . . . . . . . . . . . . . . . . 10
2. State Legislation: Treatment Directives . . . . . . . . . . . . . . . . . . . . . 10
3. Constitutional Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4. Implications of Cruzan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5. The Schiavo case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
C. Assisted Suicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1. Historical Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2. State Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3. Constitutional Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
D. Active Euthanasia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
E. Palliative Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
III. Who Decides: Individuals, Guardians, and the Court . . . . . . . . . . . . . . . . . 28
A. The Subjective Intent Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
B. The Objective Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
C. The Never-Competent Patient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
IV. The Federal Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
A. Congressional Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
1. Congress’ Authority Under 14th Amendment, § 5 . . . . . . . . . . . . . . 33
2. The Commerce Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
B. Existing Federal Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
1. The Patient Self-Determination Act . . . . . . . . . . . . . . . . . . . . . . . . 46
2. Assisted Suicide Funding Restriction Act . . . . . . . . . . . . . . . . . . . 46
3. The Controlled Substances Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4. “For the Relief of the Parents of Theresa Schiavo” . . . . . . . . . . . . 49
C. Proposed Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
1. “Incapacitated Persons Legal Protection Act of 2005” . . . . . . . . . . 54
2.“Protection of Incapacitated Persons Act of 2005” . . . . . . . . . . . . . . 57
D. Congressional Subpoenas and Congressional Requests . . . . . . . . . . . . . 60

The "Right to Die": Constitutional and
Statutory Analysis
I. Introduction
A. Background
In the spring of 2005, national attention was drawn to a series of court and
legislative actions regarding the withdrawal of nutrition and hydration from a Florida
patient, Theresa Schiavo, who had suffered severe brain damage. The treatment of this
patient brought new attention to the “right to die” issue. Although the issue of “right
to die” has many common themes, the individual aspects of each case may have a
significant affect on the outcome of any proceeding. While a detailed examination of
the Schiavo case is beyond the scope of this report, the case is briefly addressed under
the topic of “passive euthanasia.”
One of the greatest scientific achievements of this century has been the
development of medical technology to cure disease and to prolong lives. Before 1900,
most deaths in this country were the result of communicable diseases, such as
influenza or pneumonia, which could kill people of all ages.1 Today, in contrast,
deaths due to these illnesses have decreased dramatically, and most people succumb
to chronic degenerative diseases related to age such as heart disease, cancer and
cerebrovascular disease.2
These advances, however, do not come without burdens. Chronic degenerative
diseases tend to be manifested years before death occurs, and because some medical
intervention often exists, persons with these conditions tend to die more slowly and
often painfully.3 The advent of AIDS has also resulted in an increase in the number
of deaths which occur after extended periods of pain and physical disability.
Consequently, patients are increasingly being confronted with decisions regarding
whether to pursue or decline aggressive medical treatment. Further, there are
indications that some patients are making decisions which affirmatively hasten their
1 G. Steven Needley, Chaos in the “Laboratory of the States”: The Mounting Urgency in
the Call for Judicial Recognition of a Constitutional Right to a Self-Directed Death, 26 U.
TOL. L. REV. 81, 85 (1994).
2 Washington v. Glucksberg, 521 U.S. 702, 716 (1997) (citation omitted).
3 One in every two Americans dies of a disease diagnosed at least 29 months in advance. G.
Steven Needley, supra note 1, at 86.

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deaths, whether through increasing levels of pain control medications or by other
means.4
The increase in the number of end-of-life decisions has coincided with the
expansion of patients’ rights and involvement in medical decision-making. Yet the
legal community has not yet come to terms with the implications resulting from this
increased patient autonomy. State legislatures have made only piecemeal attempts to
confront end-of-life decisions, federal involvement has been minimal, and the courts
which have attempted to resolve some of these legal issues are faced with little
precedent, inapplicable legislation, murky constitutional theory, and clashing legal
doctrines. Prompt resolution of these issues is frustrated by a lack of political
consensus among major societal institutions.5 For those reasons, the law in this area
may be less a reflection of a coherent legal structure than a reaction to the immediate
concerns and societal pressures surrounding specific cases.
For example, a majority of patients with terminal illnesses or their guardians will
face decisions as to whether life-sustaining medical treatment should be refused or
withdrawn, allowing the individual to die.6 By design or necessity, most such
decisions are made by agreement among interested parties, such as the patient, his or
her family, attending doctors and hospital administrators.7 On occasion, however,
because of fear of legal liability, disagreement between the institutions and individuals
involved, or because of moral objections, these decisions are made only after litigation
in state, or occasionally federal, courts.
4 It is estimated that 6,000 terminal patients a day die as a foreseeable result of pain control
medication. Compassion in Dying v. Washington, 79 F.3d 790, 811 (9th Cir. 1994)(en
banc). A survey by the American Society of Internal Medicine indicated that one in five
doctors have participated in assisting a patient’s suicide. Id.
5 While our society has a long-standing moral aversion to suicide of physically healthy
persons, attitudes toward hastening death in the cases of seriously ill patients are more
complex. Despite existing laws on the books against assisted suicide or intentional killing,
there have been few prosecutions under these statutes and many doctors privately admit
helping people to die. Richard A. Know, One in Five Doctors Say They Assisted a Patient’s
Death, Survey Finds, BOSTON GLOBE, Feb. 28, 1992, at 5. For instance, in the case of Dr.
Jack Kevorkian, who admitted responsibility in assisting over forty ill persons commit
suicide (and was eventually convicted of second-degree murder), there were no successful
prosecutions for assisted suicide. Jack Lessenberry, Kevorkian is Arrested and Charged
with Suicide, NEW YORK TIMES, Nov. 8, 1996, at A19. While some argue against societal
approvals of such activities, others argue that it is better to regulate this behavior rather than
allowing it to flourish underground. Esther B. Fein, The Right to Suicide, Some Worry,
Could Evolve Into a Duty to Die, NEW YORK TIMES, April 7, 1996, at A24.
6 Of the approximately two million people who die in the United States every year, 80% die
in hospitals, and perhaps 70% of those die after a decision to forgo life-saving measures is
made. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 302 (1990)(J. Brennan,
dissenting).
7 Decisions regarding the withdrawal of medical support are generally made, not by courts,
but by the individuals or institutions directly involved. Gasner, Right to Die Lives Locally,
Nat’l L.J., July 23, 1990, at 13, col. 1. Thousands of patients die every day upon withdrawal
of medical support; yet since 1976, the number of "right to die" cases number in the low
hundreds. Id. at 14.

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Further, one of the most influential legal doctrines in the area of “right to die” is
the constitutional right of privacy and of bodily integrity, the limits of which are
anything but clear. Under the so-called privacy cases, the Supreme Court has
established certain individual rights regarding the issues of marriage,8 contraception9
and abortion.10 The Court has also entered the "right to die" area, provisionally
approving of the termination of medical treatment, but setting limits at which the
state’s interest in viable life cannot be overridden.11 This decision, however, may be
seen as an outgrowth of a line of cases protecting bodily integrity. Other decisions by
the court regarding the breadth of the right to privacy, which are now generally called
“liberty interests” under the Fourteenth Amendment,12 bring the establishment of a
broader privacy based “right to die” into doubt.
For example, the Supreme Court rejected an argument that statutes prohibiting
assisted suicide violate either the Equal Protection Clause or a protected “liberty
interest” under the Due Process Clause of the Fourteenth Amendment. Two United
States Courts of Appeals had determined that severely ill patients have a right under
the Fourteenth Amendment to seek medical assistance to cause their own deaths.
Both of these cases, Quill v. Vacco13 and Compassion in Dying v. Washington,14 were
reversed by the Supreme Court. By resolving the issues in Quill and Compassion in
Dying, the Supreme Court effectively ended the likelihood that a significant expansion
of the “right to die” will arise through the courts. It did not, however, preclude such
expansion by legislatures.
B. How Broad Is the "Right to Die"?
Although the popular term “right to die” has been used as a label to describe the
current political debate over end-of-life decisions, the underlying issues include a
variety of legal concepts, some distinct and some overlapping. For instance, “right to
die” could include, at a minimum, suicide, passive euthanasia (allowing a person to
die by refusal or withdrawal of medical intervention), assisted suicide (providing a
person the means of committing suicide), active euthanasia (killing another), and
palliative care (providing comfort care which accelerates the death process). Recently,
a new category has been suggested — physician-assisted suicide — which appears to
8 Loving v. Virginia, 388 U.S. 1 (1967).
9 Griswold v. Connecticut, 381 U.S. 479 (1965).
10 Roe v. Wade, 410 U.S. 113 (1973).
11 Cruzan v. Missouri Dept. of Health, 497 U.S. 261 (1990).
12 See, e.g., Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973)(obscenity cannot be displayed
even to consenting adults).
13 Quill v. Vacco, 80 F.3d 716 (2nd Cir. 1996), reversed, 521 U.S. 793 (1997).
14 Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996)(en banc), reversed, 521
U.S. 702 (1997).

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be an uncertain blend of assisted suicide or active euthanasia undertaken by a licensed
physician.15
Yet, exercising one or another of these “rights to die” may have drastically
different legal consequences: some currently have no legal consequence, some are a
violation of common-law, some are a violation of statute, some may have contractual
consequences, some may result in civil action such as confinement, some are currently
protected by legislation, and some may be protected by the United States Constitution.
It should also be noted that the legal and moral status of these rights may vary
dramatically depending on the medical status of the individual patient. While early
legal discussions of the "right to die" were primarily associated with terminal illness,
more recent discussions have focused on medical situations involving high levels of
pain, futile prognosis, diminished quality of life, or even on mental suffering.16
While some advocates would find little distinction between these various
methods of terminating a person’s life,17 and would give the patient the discretion to
decide what is a sufficient basis for exercising that option, other commentators find
that maintaining distinctions between different situations is important to prevent
abuses, or to conform to professional, societal or moral concerns.18 One of the major
policy arguments made regarding the "right to die" is the concern that recognizing a
"right to die" in one circumstance will be generalized to include other circumstances
where different considerations may be relevant; in other words, there is a concern that
granting a "right to die" is the first step down a slippery slope.19
15 Compassion in Dying v. Washington, 79 F.3d at 844, 852 (J. Beezer, dissenting).
16 STAFF OF THE SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY,
Physician-Assisted Suicide and Euthanasia in the Netherlands, 104th Cong., 2d Sess. at 2
(Comm. Print 1996)(discussing the development of assisted suicide in Holland).
17 Note, Physician-Assisted Suicide and the Right to Die with Assistance, 105 Harv. L. Rev.
2021 (1992)(noting similarities between withdrawal of medical treatment and assisted
suicide).
18 As Professor Yale Kamisar has said, “how you phrase the question will determine your
answer.” Yale Kamisar, Against Assisted Suicide — Even a Very Limited Form, 72 U. Det.
Mercy L. Rev. 735 (1995). For instance, the United States Court of Appeals for the Ninth
Circuit, in reviewing an assisted suicide statute, characterized the constitutional right at
stake as the “liberty interest in determining the time and manner of death.” Compassion in
Dying v. Washington, 79 F.3d at 801. As stated by the court, however, this broader “right”
would seem to encompass any of the several ways of choosing death, from termination of
medical treatment to euthanasia.
19 For instance, while some persons would restrict the assisted suicide debate to the
terminally ill, the distinction between the terminally ill and persons with incurable
conditions was one of the first distinctions to fall when courts considered the issue of
termination of medical treatment. See Cruzan v. Missouri, 497 U.S. 261
(1990)(constitutional rights to termination of medical treatment apply to persistently
vegetative patient); Note, supra note 17, at 2026. Thus, one commentator has suggested that
if a right to assisted suicide is established for the terminally ill, no principled distinction
could be made to prevent similar acts by persons who are handicapped, in physical pain, or
even clinically depressed. Yale Kamisar, supra note 18, at 748 (1995).
(continued...)

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C. The Constitutional Genesis: the Right to Privacy
In Glucksberg v. Washington, the Supreme Court evaluated the holding of the
United States Court of Appeals for the Ninth Circuit in Compassion in Dying v.
Washington that the Fourteenth Amendment to the Constitution protects the right of
an individual to seek and obtain physician-assisted suicide.20 In doing so, the Court
revisited a controversial area of constitutional law, the so-called right to privacy. This
relatively amorphous right was first substantively addressed in the contraceptive area,
but has subsequently been expanded to include other decisions of a personal nature.
The right of privacy sought a permanent home in the Constitution for a number
of years. First proposed in an 1890 article in the Harvard Law Review by Samuel
Warren and Louis Brandeis,21 it reappeared years later in a Supreme Court dissenting
opinion regarding the Fourth Amendment.22 However, in 1965, in the landmark case
of Griswold v. Connecticut,23 the Court established the concept of a constitutional
guarantee of privacy which “emanated” from the Bill of Rights, even if it was not
specifically identified in it. In Griswold, the Court struck down a law which prevented
the use of contraceptives. The Supreme Court ruled that the right of married couples
to make decisions regarding procreation was guaranteed by the Constitution.24 This
19 (...continued)
Concerns have also been raised that once a “right to die” has been legally established,
society may begin to expect those who are old, poor or sick to take advantage of this right
as a matter of duty. In this context, it is noted that many disabled people withdraw suicide
requests when given adequate care. Id. at 744. For example, in McKay v. Bergstedt, 801
P.2d 617 (Nev. 1990), a thirty-one year old competent, non-terminal quadriplegic obtained
a court order permitting the removal of his respirator, despite clear indications that his desire
to die was based on the impending death of his primary care-taker, his father, and the
presumed attendant lowering in quality of his care.
20 518 U.S. 1057 (1996)(cert. granted sub nom. Glucksberg v. Washington).
21 Warren and Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890).
22 See Olmstead v. United States, 277 U.S. 438 (1928)(J. Brandeis, dissenting)(arguing
against the admissibility in criminal trials of secretly taped telephone conversations). In
Olmstead, Justice Brandeis noted:
The makers of our Constitution undertook to secure conditions favorable to the
pursuit of happiness . . . . They sought to protect Americans in their beliefs, their
emotions and their sensations. They conferred, as against the Government, the
right to be let alone - the most comprehensive of rights and the right most valued
by civilized men. To protect that right, every unjustifiable intrusion by the
Government upon the privacy of the individual, whatever the means employed,
must be deemed a violation of the Fourth Amendment.
277 U.S. at 473.
23 381 U.S. 479 (1965).
24 The facts of Griswold, are relatively straightforward. Griswold, the Executive Director
of Connecticut Planned Parenthood, was arrested, along with the Medical Director of the
organization, and charged as accessory to a crime. The defendants in question were accused
(continued...)

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holding was supported, however, by a variety of competing theories set forth by
different justices, which left the scope of the right to privacy in an unsettled state.25
In the case of Roe v. Wade,26 the Court expanded the theory of the Griswold case
to the issue of abortion. The opinion of the court in that case focused on the medical
and legal history of abortion, and appears to have relied to a large degree on the
medical consequence of decisions concerning pregnancy.27 The Court ultimately
concluded that the Constitution provided protection for autonomy in reproductive
decisions, and set forth a substantive structure to evaluate laws restricting abortion.28
The Court has subsequently established the Due Process Clause of the Fourteenth
Amendment as the basis for the protection of these and other “liberty interests,”
preferring to avoid the parlance of a generalized constitutional right of privacy. The
holding of Roe v. Wade was modified by the case of Casey v. Planned Parenthood of
24 (...continued)
of having aided and abetted the violation of a Connecticut law which prohibited the use of
any drug, medicinal article or instrument for the purpose of preventing conception. The
defendants challenged whether such a law could be constitutionally enforced by a state, and
the Supreme Court ruled that it could not, as the right of married couples to use
contraception was guaranteed by the Constitution.
25 Justice Douglas, in the plurality opinion, noted that the Supreme Court had previously
found that fundamental rights could be extended to establish “penumbral” rights, or rights
whose enforcement would protect the underlying right. Finding that privacy rights are
contained in the First Amendment, the Third Amendment, the Fourth Amendment, the Fifth
Amendment, and the Ninth Amendment, Justice Douglas held that the institution of
marriage was protected by these “penumbral” rights, and was thus exempt from such
regulation. 381 U.S. at 484-485. In concurrence, Justice Goldberg found the right to
privacy to be contained in the Ninth Amendment, which states that “the enumeration of
rights in the Constitution shall not be construed to deny or disparage those rights retained
by the people,” and to be applied to the states through the Fourteenth Amendment. 381 U.S.
at 499. Justice Harlan, also in concurrence, found that the contraception statute violated the
Fourteenth Amendment as it violated basic values “implicit in the concept of ordered
liberty,” 381 U.S. at 500, while Justice White also found the right in the Fourteenth
Amendment. It is these last two opinions that would eventually come to be the basis for the
modern right to privacy.
26 410 U.S. 113 (1973).
27 See 410 U.S. at 152.
28 The Court found that in the first trimester, the risks of abortion were less than the risk of
childbirth, and thus the mother was to be unrestricted in her ability to choose the less
medically risky route of abortion. During the second trimester, the risks to the mother
increase, thus allowing the state to intervene for purposes of regulating those aspects of an
abortion which may affect a mother’s health and safety. 410 U.S. at 163. Such factors
would include the particular qualifications of the physician performing the procedure, the
facility where the procedure should take place, and licensing requirements. Id. Finally, in
the third trimester, when the fetus may be capable of life outside of the mother’s womb, and
thus be “viable,” the state may ban abortion completely. Id.

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Southeastern Pennsylvania,29 but the central holding regarding the existence of a
liberty interest in choosing whether or not to terminate a pregnancy is unchanged.30
It is not always clear when the right to privacy is likely to be extended to
activities not previously addressed by Supreme Court decisions. If a general test can
be discerned as to when a “right of privacy” or “liberty interest” can act as a shield
against governmental action, it would appear to require that two basic questions be
considered. First, is the activity to be regulated one which is deeply rooted in the
history of the nation,31 or second, is it so central to personal autonomy that neither
liberty nor justice would exist without constitutional protection.32 In the abortion
context, however, this protection appears to be subject to an exception if there is a
“viable” life being threatened by the activity.33 When life is at risk because of a
protected activity, such as when an abortion is sought in the third trimester, concerns
about a “right of privacy” may be outweighed by the need to protect that viable life.
29 505 U.S. 833 (1992).
30 The Court in Casey upheld the provision of information to women seeking abortions, the
twenty-four hour waiting period, and the requirement that a minor obtain the consent of a
parent or judge. The Court, however, struck down the section of the law which dictates that
a woman must notify her husband of her intent to have an abortion. The Court also upheld
the medical reporting requirements on clinics and doctors performing abortions, although
a requirement that a women report why she did not notify her husband of the abortion was
struck down. The core of the plurality opinion is section IV, which upheld the right of a
woman to have an abortion, but rejected the trimester structure established by Roe v. Wade.
Under Roe, states were prevented from imposing any restrictions designed to protect
“potential life” on abortions performed in the first and second trimesters of pregnancy; only
in the third trimester could the state impose restrictions to protect “potential life.” Under
Casey, however, the Court held that laws restricting abortions to protect “potential life”
could be imposed at anytime prior to viability, if such laws did not pose an “undue burden”
on the women’s ability to have an abortion. Consequently, the Court found that certain of
the above-noted restrictions, which applied during the first and second trimesters of
pregnancy and would have been unconstitutional under Roe v. Wade and subsequent
Supreme Court cases, see City of Akron v. Akron Center for Reproductive Health, 462 U.S.
416 (1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S.
747 (1986), were now constitutional on their face.
31 Bowers v. Hardwick, 478 U.S. 186, 192 (1986) overturned by Lawrence v. Texas, 123 S.
Ct. 2472 (2003)(finding that homosexual activity, historically forbidden by legislation, is
not a fundamental liberty implicit in the concept of ordered liberty, and is therefore not
protected by the 14th Amendment). In the case of abortion, for example, the interest of
individuals in making their own medical decisions and in making their own decisions
regarding their family are cited as strong historical reasons for leaving to the individual the
decision whether to have an early abortion. Thus, an affirmative answer to this first
question will generally serve to inhibit governmental intervention.
32 Id.
33 See supra note 28.

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II. Five Types of "Right to Die"
This section will examine the legal status of five distinct issues concerning the
“right to die:” 1) suicide, 2) passive euthanasia, 3) assisted suicide, 4) active
euthanasia, and 5) palliative care. The historical tradition surrounding these will be
examined with an eye to the Supreme Court’s preference that constitutionally
protected liberty interests be “rooted in the nation’s history and tradition.” This
section will also examine present statutory and constitutional implications of each of
these areas. It should be noted that some legal doctrines in this area are settled, while
others are still evolving.
A. Suicide
1. Historical Precedent.
From the sparse record of ancient times, we can discern that the attitudes of the
Greeks and Romans toward suicide were ambiguous.34 By the Middle Ages, however,
the influence of the Catholic Church was dominant, and the practice was condemned
as a violation of religious and civil law.35 English common law inherited this aversion
to suicide and would sometimes impose posthumous deprivation of religious
ceremony, and significant penalties were generally directed against the estate of the
person committing suicide.36 There are indications, however, that suicide in the face
of suffering was treated less harshly.37 The founding fathers of this country, on the
other hand, were uninterested in imposing punishment upon the innocent heirs to the
estates of persons committing suicide,38 and the legal tradition of punishing suicide
was generally abandoned soon after the adoption of the Constitution.39 Consequently,
in the American legal tradition, there has been little or no punishment imposed for
suicide or attempted suicide.40
34 In ancient times, as today, suicide was generally disfavored. Roman law generally forbade
suicide and imposed a penalty of forfeiture of property upon the estate of the decedent.
Thomas J. Marzan, Mary K. O’Dowd, Daniel Crone & Thomas Balch, Suicide: A
Constitutional Right?, 24 Duquesne Law Review 26 (1985). However, it appears that
suicide in particular circumstance was seen as either acceptable or even commendable.
Compassion in Dying v. Washington, 79 F.3d at 806-08. In particular, it appears that suicide
that was prompted by pain or sickness was generally not punishable under Roman law.
Marzan, supra, at 22-23.
35 Compassion in Dying v. Washington, 79 F.3d at 808.
36 79 F.3d at 846 (J. Beezer, dissenting).
37 Catherine D. Shaffer, Criminal Liability for Assisting Suicide, 86 Colum. L. Rev. 348, 349
(1986); Compassion in Dying v. Washington, 79 F.3d at 808-809.
38 Compassion in Dying v. Washington, 79 F.3d at 844 (J. Beezer, dissenting).
39 Thomas J. Marzan, supra note 34, at 64-69.
40 Catherine D. Shaffer, supra note 37, at 349 (1986); Compassion in Dying v. Washington,
79 F.3d at 809.

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2. State Legislation.
Although there are currently no criminal punishments associated with suicide or
attempted suicide, this does not mean that these acts are without legal consequence.
The trend of modern American law has generally been that a person who is suicidal
should not be treated as a criminal, but as mentally ill.41 Further, a person who assists
such a suicide may be prosecuted under the laws of many states.42 Thus, while suicide
is not punished per se, it is not free of significant legal consequence.43
In practice, however, the way in which a person engaged in a suicidal attempt is
treated may vary based on context. Where a suicidal attempt appears to be the result
of depression or mental problems, the state will generally intervene, and the person
will be confined until such time as their suicidal urges have subsided. On the other
hand, certain public, political acts, such as fasting, have sometimes been engaged in
without government intervention. Nor is it clear that a court is likely to intervene in
the cases of terminally ill patients who take their own lives.44
3. Constitutional Status.
Although there are no criminal penalties associated with suicide, the threat of
confinement might be seen as an infringement on one’s personal autonomy as a
consequence of making an important and fundamental life decision. Thus, it could be
argued that the right to commit suicide should be found to be a liberty interest
protected under the Fourteen Amendment. There has been little litigation of this issue
in the courts, however, and Supreme Court dicta seems to favor the notion that the
state has a constitutionally defensible interest in preserving the lives of healthy
citizens.45 However, the issue of the constitutional status of suicide of the seriously ill
has not been squarely faced.
One of the strongest conceptual problems with a constitutional right to suicide
for the seriously ill is how such a right would be limited. Suicide is often associated
with depression, and certain life events, such as a terminal illness, may trigger
depression in some individuals and not in others.46 On its face, it is not clear how a
constitutional right to act on suicidal impulses related to depression would vary among
the terminally ill, the chronically-ill, the disabled, the temporarily-impaired, or the
41 Compassion in Dying v. Washington, 79 F.3d at 847 (J. Beezer, dissenting).
42 See infra notes 86-89 and accompanying text.
43 For instance, many life insurance contracts include exclusions for suicide. Compassion
in Dying v. Washington, 79 F.3d at 852 (J. Beezer, dissenting).
44 See Campbell v. Supreme Conclave Improved Order Heptasophs, 49 A. 550 (1901)
(“sometimes self-destruction, humanly speaking, is excusable, as where a man curtails by
weeks or months the agony of an incurable disease.”).
45 Cruzan v. Missouri Dept. of Health, 497 U.S. 261, 280 (1990)(“We do not think that a
State is required to remain neutral in the face of an informed and voluntary decision by a
physically able adult to starve to death”).
46 Catherine D. Shaffer, supra note 37, at 356-357. For instance, whether or not a person
attempts suicide is often affected by the quality of relationships with others. Id. at 357.

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physically robust. Further, if the right were only extended to those individuals who
were not depressed but who were making a “rational decision” regarding an untenable
circumstance, a court would be required to engage in an evaluation of social and
psychological factors that are generally alien to the establishment of constitutional
rights.47
B. Passive Euthanasia: Refusal or Termination of Medical
Treatment
1. Historical Precedent: Common Law Battery.
Passive euthanasia, or the refusal or termination of medical treatment by a
patient, has historical roots in criminal law. Under common law doctrine, an
unauthorized touching was the basis for a charge of battery. In the medical field, this
has been applied to prevent and punish the application of medical treatment without
the full and informed consent of the individual involved or a suitable representative.48
Even when the government seeks to impose unauthorized medical treatment, the
courts have generally required that the government show compelling needs to impose
such treatment.49
2. State Legislation: Treatment Directives.
As the right to refuse medical treatment existed at common law and has, with a
few notable exceptions,50 generally been honored by the courts, decisions by
competent patients to terminate treatment do not appear to have attracted the attention
of state legislatures. However, the situation often arises that a patient with a serious
medical condition will become so ill that he cannot communicate or he is not
competent to make a medical care decision. This situation is prevalent enough that
a Model Code entitled Uniform Rights of the Terminally Ill Act was developed, and
most states have adopted some procedure by which medical treatment decisions can
be made by individuals in advance.
a. The Living Will Option.
Most states have statutes based on the Uniform Rights of the Terminally Ill51
which authorize an individual to execute a Treatment Directive directing the
47 Thomas J. Marzan, supra note 34, at 107.
48 Note, supra note 17, at 2026. See, e.g., Hershley v. Brown, 655 S.W.2d 671, 676 (Mo.
App. 1983).
49 See Washington v. Harper, 494 U.S. 210 (1990)(state interest in maintaining order
overrides a prisoner’s liberty interest in avoiding the forced application of anti-psychotic
drugs).
50 See infra note 71.
51 Unif. Rights of the Terminally Ill, 9B U.L.A. 609 (1989).

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withholding or withdrawal of life-sustaining procedures.52 These Treatment
Directives, referred to as “Living Wills”, are generally only applicable when the
individual, sometimes referred to as the “declarant” or “principal,” is terminally ill and
death is imminent. The required form of a “Living Will” may vary from state to state,
but a properly executed “Living Will” should be easily enforceable in the state in
which it was drafted. These “Living Will” statutes also offer significant legal
protections. For instance, those involved in termination of medical treatment are
generally immunized by statute from liability for allowing a patient to die. Further,
life insurance benefits which might be jeopardized by termination of medical
treatment are generally protected. Finally, the application of penal laws which might
prohibit suicide are generally voided by the operation of these statutes.
b. Appointment Directives.
All states provide that an individual can delegate legally binding authority to
another individual. This delegation of authority is sometimes referred to as the
delegation of the “power of attorney.” A “durable” power of attorney, which is also
provided by state statute, is drafted so as to be effective when a person is incompetent
to make decisions for himself. Some states have specifically provided that these
durable powers of attorney may be used to delegate the authority to make medical
decisions, even where such decisions may lead to the death of the individual. Thus,
using a durable power of attorney, a person can appoint another individual to make
medical decisions for him if he becomes incapacitated.53
A durable power of attorney, often set forth in an “Appointment Directive,”
offers a number of advantages over a Living Will. A person who delegates health-
making decisions using this procedure does not have to anticipate every possible
medical situation which may arise. By utilizing a power of attorney, the medical
treatment decision can be deferred until such time as the medical situation has
occurred; in this way, the appointed decision-maker can evaluate the specific details
of the medical situation before making a decision. An Appointment Directive can also
contain directions to the appointed decision-maker describing what medical treatment
should or should not be used, as with a Living Will. The appointed decision-maker
need not be a professional attorney; rather, the appointment can be given to any
competent adult, with some exceptions, whether they be family, friend or other.
A health proxy is similar to a durable power of attorney, but is generally
contained within a Treatment Directive. As with the durable power of attorney, the
health proxy may be given specific instructions by the declarant regarding what
medical treatment should be provided, or the proxy may be given the discretion to
make these decisions. Generally, the only significant difference between a health
52 See Marguerite A. Chapman, The Uniform Right of the Terminally Ill Act: Too Little, Too
Late?, 42 Arkansas Law Review 319 (1989). Although many states have authorized “Living
Wills” and “durable powers of attorney,” these documents are apparently still relatively
uncommon, and the problematic court cases appear to arise most often because patients have
not prepared such wills. Id.
53 Gregory Gelfand, Living Will Statutes: The First Decade, 1987 Wis. L. Rev. 737, 794
(1987).

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proxy and a durable power of attorney is that a health proxy, like most Treatment
Directives, can only be exercised when a patient is terminally ill; a durable power of
attorney is usually not so limited.
3. Constitutional Status.
As noted above, the right to refuse medical treatment has been addressed by
legislation at the state level. However, even in those cases where no medical directive
has been completed, or where the state law does not cover a particular medical
circumstance, individuals or their guardians have still sought to make a medical
decision which will ultimately cause the death of the patient. In this type of situation,
implementation of a patient’s wishes might be sought under the Fourteenth
Amendment of the Constitution. This was the litigation posture which lead to the case
of Cruzan v. Missouri Department of Health.54
At the time of the litigation in Cruzan, Nancy Cruzan lay in a hospital bed55 in
what is called a persistent vegetative state.56 In Nancy’s case, there was sufficient
brain-stem activity to control unconscious activities, such as breathing and heart
functioning, and sometimes she would respond to pain or noise. Nancy apparently
went through sleep and wake cycles, but when her eyes were open they moved
randomly, and she did not seem aware of her environment. Her body was stiff, she
lay in a fetal position, and her arms and legs were permanently contracted. Medical
opinion was that she would never interact significantly with the world around her
again.57
Although Nancy was able to take nutrition through spoon-feeding following the
accident, it was determined that artificial nutrition and hydration were medically
indicated. Thus, approximately three weeks after the accident, with the permission
of both her parents and her husband, a feeding tube was surgically implanted in her
stomach. It is this medical decision which Nancy’s parents sought to reverse. With
this feeding tube in place, Nancy Cruzan could have lived up to another thirty years.
Without it, she would die, most likely through dehydration. At the time of the
litigation, Nancy Cruzan had been in a persistent vegetative state for over six years.
54 497 U.S. 261 (1990).
55 In 1983, Nancy Cruzan, 25 years old, was involved in a car accident on a deserted country
road. 497 U.S. at 266. She was found face down on a frozen ground with no signs of life.
Although an emergency team was able to restore breathing and heartbeat, Nancy Cruzan’s
brain had been oxygen-starved for too long, and she suffered severe brain damage. Id.
56 According to the Academy of Neurology, persistent vegetative state patients are
permanently unconscious and devoid of thought, emotion and sensation. The state is
described as a form of eyes-open permanent unconsciousness in which the patient has
periods of wakefulness and physiological sleep/wake cycles. Amicus Brief for Academy of
Neurology at 3, Cruzan v. Director, Missouri Department of Health, 497 U.S. 261
(1989)(No. 88-1503). It was estimated that 10,000 patients were being maintained in a
persistent vegetative state in the United States. Id.
57 497 U.S. at 267.

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Although the State of Missouri has a “Living Will” statute,58 it was not in effect
at the time of Nancy’s accident, nor did Nancy write out such a will. The statute was
relevant, however, because it specifically excluded the possibility that a patient’s
Living Will could provide for the withdrawal of nutrition or hydration tubes. Thus,
the Missouri legislature appeared to have made a decision that the withdrawal of
nutrition and hydration was not within the realm of acceptable conduct even with the
written consent of the patient.59 Based on this finding, the Missouri Supreme Court
held that the state’s interest in protecting life would require a clear and convincing
showing of Nancy’s wishes prior to withdrawal of medical treatment.60
The Cruzan case, because of its facts, presented two legal issues to the Supreme
Court: first, whether Nancy Cruzan had the constitutional right, even absent legislative
approval, to consent to the withdrawal of nutrition and hydration; second, whether this
right could be exercised by a guardian, and what standard of proof would be required
to show that such a course of action was the intent of the patient. The Supreme Court
ultimately decided that the state may require clear and convincing evidence of her
wishes, and as her guardians did not have sufficient proof, the nutrition and hydration
could not be withdrawn.61 The Supreme Court did not technically decide the issue
whether the Missouri court could have acted contrary to a clear and convincing
expression of Nancy Cruzan to withdraw medical procedures, although, as discussed
later, the implication of the case is that it could not.
58 Mo. Rev. Stat, § 459.010 et seq. (1986).
59 The Supreme Court of Missouri graphically pointed out in its opinion how this case
differed from many previous medical decision cases. Nancy was not dead, nor was she
terminally ill, and she could have lived up to thirty years in her condition. Essentially, the
decision, as stated by the court, was whether the hospital should be allowed to cause Nancy
Cruzan to die by starvation or dehydration. The Supreme Court of Missouri considered the
case as one of first impression for Missouri, and declined to allow the hospital to withdraw
nutrition and hydration. Cruzan v. Harmon, 760 S.W.2d 408, 427 (Mo. 1989)(en banc).
60 Cruzan v. Harmon, 760 S.W.2d 408, 426 (1988)(en banc).
61 The Court found that it was not constitutionally required that guardians or family be
allowed to effectuate such a decision. Cruzan, 497 U.S. at 284. Rather, the Court
determined that not only could a state require that a patient’s own personal wishes be
examined, but that absent clear and convincing evidence of such wishes, a state could
decline to allow withdrawal of treatment. To bolster this argument, the Court cited other
instances in which a state may require certain formalities prior to implementing the wishes
of an individual, such as the requirement that a will be in writing. Id. However, it does not
appear that the Missouri Supreme Court requirement of “clear and convincing” evidence
was based on the assumption that most individuals would prefer life to death; rather, the
requirement would appear to have been based on a non-individualized state interest in “life”
irrelevant of the wishes of the individual. Id. at 280-281. As the Court concurred that there
was no “clear and convincing” evidence of Nancy Cruzan’s wishes, the Supreme Court held
that Missouri’s generalized interest in the preservation of life allowed the State to refuse the
guardian’s wishes to terminate treatment. Id. at 286-87.

CRS-14
The Court, in deciding the Cruzan case, first examined the case of In re
Quinlan,62 one of the first state court cases to examine these issues. Karen Quinlan,
similarly to Nancy Cruzan, had suffered severe brain damage as a result of oxygen
starvation, and medical opinion agreed that she would not regain cognitive function.
Karen Quinlan, unlike Nancy Cruzan, was both attached to a respirator and provided
nourishment by a feeding tube, and her guardians sought only removal of the
respirator. In Quinlan, the New Jersey Supreme Court found that Karen Quinlan had
a right of privacy to terminate her life in its vegetative state. This right, however, was
not found to be absolute, but was to be balanced against the rights of the state. The
Quinlan court found that the state’s interest in preserving life diminishes as the degree
of bodily invasion increases, and as the prognosis dims. Ultimately, there comes a
point at which the individual’s rights overcome the state’s interest. The court further
found that the only practical way to give effect to this right would be to let the
guardian and the family use their best judgment in making a decision.63
The majority opinion of the Cruzan Court, authored by Chief Justice Rehnquist
and joined by Justices White, O’Connor, Scalia and Kennedy, appears to have
implicitly accepted the primary holding of the Quinlan and related state cases, which
was that a patient has a constitutional right to refuse medical treatment that sustains
life.64 However, the language of the opinion did leave some ambiguity as to the
general application of this right.65 Justice O’Connor, in her concurring opinion, leaves
62 355 A.2d 647 (N.J. 1976), cert denied, 429 U.S. 922 (1976).
63 The Cruzan Court noted that since the case of Quinlan, many other courts have found
legal grounds to allow termination of medical treatment. It would appear, however, that
these cases have been based on two distinct lines of legal reasoning. The first, consistent
with In Re Quinlan, is the finding that there is a constitutional right of privacy which
protects decisions made concerning life-sustaining treatment. The second line of reasoning
is based on the common law right to refuse medical treatment, expressed as the requirement
of informed consent. Under common-law, a physician who performs a medical procedure
without valid consent is performing a battery, and the law will act to prevent and punish
such treatment. Hershley v. Brown, 655 S.W.2d 671, 676 (Mo. App. 1983). Thus, the
argument is made, individuals who wish to decline medical treatment, even if such will
result in their death, have the right to do so.
64 497 U.S. at 280.
65 The majority opinion states the following:
Petitioners insist that under the general holdings of our cases, the
forced administration of life-sustaining medical treatment, and even
of artificially-delivered food and water essential to life, would
implicate a competent person’s liberty interest. Although we think
the logic of the cases discussed would embrace such a liberty interest,
the dramatic consequences involved in refusal of such treatment
would inform the inquiry as to whether the deprivation of that interest
is constitutionally permissible. But for purposes of this case, we
assume that the United States Constitution would grant a competent
person a constitutionally protected right to refuse lifesaving hydration
and nutrition.
(continued...)

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no such ambiguity, and sets forth an extensive opinion of the basis and scope of this
right. Further, Justices Brennan, Marshall, Blackmun and Stevens, in dissent, also
recognize the existence of this right. Only Justice Scalia, in a concurrence, signals
that he would have resisted the Court’s acceptance of this constitutional doctrine.
Thus, despite the ambiguous language contained in the majority opinion, five justices
— O’Connor, Brennan, Marshall, Blackmun and Stevens — appear to support the
establishment of a right to termination of medical treatment.
4. Implications of Cruzan.
The statutes of the various states do not generally provide for the implementation
of any form of Directive other than Living Wills and durable powers of attorney. Yet,
there may be other instructions which a person desires to leave regarding his medical
treatment,66 and Cruzan appears to have upheld a person’s constitutional right to
refuse any medical treatment even if the result will be death. Thus, under Cruzan, an
individual’s right to refuse medical treatment may be broader than the rights which are
granted by most state statutes.
For instance, as noted earlier, many states’ “Living Will” laws deal only with
terminal illness, and thus do not apply where the patient is in a persistent vegetative
state, but in no immediate danger of death.67 Theoretically, an advance medical
directive could be drafted which set forth the procedure to be followed if a patient
became persistently vegetative, but it might not qualify under a state’s Living Will
statute. The holding in Cruzan, however, implies that a state may not prohibit a clear
advance medical directive, at least regarding life-sustaining technology.68 Thus, to be
65 (...continued)
The second sentence of this quote appears to hedge the question as to whether refusal
of medical treatment by a patient should always be respected, at least when the
consequences may be “dramatic”. Arguably, this may be because another case could occur
where a state interest would outweigh the patient’s liberty interest. In fact, in the Supreme
Court cases cited in Cruzan, medical treatment was imposed over objection of a competent
patient based on an overriding state interest. See Washington v. Harper, 494 U.S. 210
(1990)(state interest in maintaining order overrides a prisoner’s liberty interest in avoiding
the forced application of anti-psychotic drugs); Parham v. J.R., 442 U.S. 584, 604-08
(1979)(a state’s interest in certain administrative procedures used in confining a child to
mental institution overrides the child’s liberty interest).
66 An advance medical directive is a statement by a competent person indicating his wishes
regarding medical treatment in the event of future incompetence. LAZAROFF & ORR, LIVING
WILLS AND OTHER ADVANCE DIRECTIVES, ETHICAL ISSUES IN THE CARE OF THE ELDERLY
523 (1986). Generic advance directives have firmly established legal precedents, but their
use in medical contexts has generally not been addressed by statute. Unlike most “Living
Will” statutes, advance directives may be used to address medical questions during any
period of incompetence, not just those periods association with terminal illness.
67 See Unif. Rights of the Terminally Ill Act § 3, 9B U.L.A. 615 (1980).
68 Generally, states may not act so as to unreasonably burden the exercise of constitutional
rights. Thus, a state may not erect procedural barriers for a patient to express his intent to
exercise his constitutional right to refuse medical treatment. Cruzan, 497 U.S. at 305 (J.
Brennan, dissenting). While the Supreme Court was willing to accept a requirement of clear
(continued...)

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consistent with Cruzan, a state may be required to fully implement an advance
medical directive despite its own statute.69
A question left unresolved by Cruzan, however, is what type of medical
treatment may be refused under the Fourteenth Amendment.70 While refusing to be
attached to a respirator or a heart-lung machine is clearly within a patient’s right to
refuse treatment, it is not clear that the same can be said for a diabetic who refuses to
take insulin, an individual who declines the provision of antibiotics, or an accident
victim who refuses attempts to stem arterial bleeding. Of even greater concern is the
possibility that an individual can attempt a suicide and leave a suicide note invoking
a constitutional right to resist medical treatment.
68 (...continued)
and convincing evidence, it did so only after significant analysis. Consequently, the
implication of the Cruzan case would appear to be that a state may only act to facilitate a
patient’s desires, and not to restrict or arbitrarily nullify them. For this reason, any state
statutes or court opinions which restrict the use of advanced medical directives and durable
powers of attorney might be held to overly burden a patient’s intent and desire to refuse
medical treatment.
69 An issue not explicitly addressed by the Court was the type of limitations that may be
placed upon an individual appointed by the patient to make medical decisions. Such an
appointment, called a durable power of attorney because the appointment remains applicable
even after an individual has become incompetent, generally leaves considerable discretion
to the appointed individual to make a decision for the principal. Such an appointment may
be preferable to a living will, as the appointed surrogate can make a detailed evaluation of
the medical situation, and make a determination as to the patient’s treatment. What is
unclear is whether such a surrogate could be held to a “best interest” of the patient standard,
or whether the fact of the appointment of the individual by the patient to exercise his or her
constitutional rights would preclude any challenge to the decision made by that individual.
The Cruzan court stated that “[w]e are not faced with the question of whether a State might
be required to defer to the decision of a surrogate if competent and probative evidence
established that the patient herself had expressed a desire that the decision to terminate life-
sustaining treatment be made for her by that individual”. Cruzan, 497 U.S. at 287, n.12.
Concerns were raised, prior to Cruzan, that a living will or other advance directive
executed in one state might not be honored in another state. The Cruzan case would appear
to dispel most of these concerns. Assuming that an individual had clearly set out his wishes
with sufficient detail to cover a particular medical situation, it would appear that any state
court would be required to acknowledge the document, and give effect to it. Absent some
indication of fraud or changed circumstance, the imposition of specific technical
requirements such as to the form or number of witnesses would appear to be inconsistent
with an individual’s constitutional right to refuse medical treatment as established under
Cruzan.

It is not yet clear what type of evidence a state can require before it will implement a
Directive which is not authorized by its statute. It would appear, however, that a written
directive which complied with the procedural requirements of a state’s living will or durable
power of attorney statutes would be strong evidence of a patient’s medical intent, and would
ultimately be enforced by a court.
70 The Supreme Court opinion in Cruzan contained almost no discussion concerning why
this particular type of medical technology, provision of nutrition and hydration, could be
withdrawn, even though the distinction between nutrition/hydration support and other forms
of medical support engendered considerable discussion in the court below. Cruzan v.
Harmon, 706 S.W.2d at 423-24.

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This question may be especially crucial to the lower courts in disposing of cases,
such as have arisen in the past, where otherwise healthy individuals have rejected
medical treatment for religious or other reasons.71 There is little indication that the
Court considered whether these distinctions would still be valid after Cruzan.
However, a close scrutiny of the language of the opinion reveals a notion that there
is a difference between providing “life-sustaining treatment” to a dying patient, and
“life-saving treatment” to a healthy patient.
Life-sustaining treatment does not appear to be a term of art, but is used
differently in different contexts.72 For purposes of this discussion, however, we will
define life-sustaining technologies as those drugs, medical devices, or procedures that
by continuous application can keep an individual alive who would otherwise die
within the near future.73 Life-saving technology, on the other hand, could be defined
to include those treatments which will keep an individual alive, but need not be
maintained on a continuous basis because the underlying condition is arrested,
reversed or cured. These definitions represent points on a continuum, and some
treatments may appear to fall in between depending on the context in which they are
provided.74
Under common law, the right to refuse medication represents one of the longest
standing individual “rights,” bolstering the argument for a constitutional right to
refuse life-sustaining intervention. Where a technology is life-saving, however, courts
have been less reluctant to override a patient’s wishes, especially when the underlying
71 Much of the case law in the area of refusal or termination of medical treatment to
competent patients involves the refusal of patients to accept medical treatment because of
religious beliefs. These often involve Jehovah’s Witnesses who are prohibited by their
religion from accepting blood transfusions. Although a court will often weigh religious
belief in making its decisions, many of these cases resulted in an order being issued
requiring medical treatment. See United State v. George, 239 F. Supp. 752 (D. Conn.
1965)(39-year-old father of four children); Powel v. Columbia Presbyterian Medical Center,
49 Misc. 2d 215, 267 N.Y.S.2d 450 (1965)(blood required for post-operative caesarian
care); John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 279 A.2d 670
(1971)(transfusions ordered for 22-year-old woman based on state interest in conservation
of life, and need to permit hospital to function according to professional standards).
72 See, e.g., Uniform Rights of the Terminally Ill Act § 1, 9B U.L.A. 161 (1989)(1996 Supp.)
(defining “life-sustaining treatment” as a medical procedure which serves only to prolong
the process of dying).
73 See Office of Technology Assessment (OTA), Life-Sustaining Technologies and the
Elderly 4 (1987).
74 For example, the application of antibiotics in an otherwise healthy individual which cures
a dangerous infection, and returns that individual to sustained health, would appear to be a
life-saving technology. On the other hand, continual doses of antibiotics to fight off
recurring infection in an elderly nursing home patient may be seen an life-sustaining
technology. Id.

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condition is medically treatable.75 Thus the question arises, what did the Court
approve of, and what lines implicitly were drawn.
Let us speculate for the moment that the Court assumed that the administration
of artificial nutrition and hydration was found to be a form of life-sustaining
technology. As the withdrawal of all nutrition would ultimately kill any patient, and
there was no indication that the nutrition and hydration could be successfully
withdrawn without threatening the life of Nancy Cruzan, the Court, by inference,
appears to be sanctioning refusal of a life-sustaining technology. However, during a
general discussion of a state’s interest in preserving life and preventing suicide, the
Court makes the following statement: “[w]e do not think a State is required to remain
neutral in the face of an informed and voluntary decision by a physically-able adult
to starve to death” (emphasis added). This dicta appears to represent some concern
that in a different fact situation, such as where a healthy individual attempted suicide
by fasting, states may intervene. Such intervention, which might include the use of
medical technology, thus appears to be distinguishable from the Cruzan case. Thus,
the court does appear to recognize that some life-saving, as opposed to life-sustaining,
medical technology might be imposed on an individual despite his or her
constitutional rights under the Fourteenth Amendment.
5. The Schiavo case.
Theresa Schiavo, at the age of 27, suffered a cardiac arrest as a result of a
potassium imbalance, and never regained consciousness.76 Since 1990, she had lived
in nursing homes and a hospice with constant care, where she was fed and hydrated
by tubes. Although she had numerous health problems, none were life threatening. A
number of courts found that Theresa, whose husband was acting was as her guardian,
was in a permanent or persistent vegetative state.77 Further, Theresa’s brain damage
was apparently incurable, as much of the cerebral cortex had been replaced by cerebral
spinal fluid.

In 2001, the Florida Court of Appeals considered whether to allow the
termination of life-prolonging procedures under chapter 765 of the Florida Statutes78
and under the constitutional guidelines enunciated by the Florida Supreme Court in
75 See supra note 71. It should also be noted that there appears to be no common law
precedent for “suicide” in our legal system. See Thomas P. Marzan, supra note 34 at 1
(1985). Arguably, the refusal of life-saving medical technology may in some cases represent
a form of suicide, for instance where a protest fast becomes life-threatening. Thus,
arguably, the constitutional right that can be inferred from Cruzan would not extend as far
as refusal of all life-saving medical technology.
76 In Re Guardianship of Theresa Marie Schiavo, 780 So. 2d 176 (Fla. App. Ct. 2001).
77 Unlike a coma, a person in a persistent vegetative state is not unconscious, but is
characterized by cycles of wakefulness and sleep without cognition or awareness. See
supra note 56 and accompanying text.
78 Chapter 765 deals with Health Care Advance Directives.

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the case of In re Guardianship of Browning.79 In the case of Browning, the Florida
Supreme Court held that, under the Florida Constitution, the guardian of a patient who
is incompetent but not in a permanent vegetative state and who suffers from an
incurable, but not terminal condition, may exercise the patient’s right of
self-determination to forego sustenance provided artificially by a nasogastric tube. The
case, however, did require that the guardian have clear and convincing proof that the
patient would not have wanted food and water provided to them in their present
medical circumstance.
In the Schiavo case, the trial court had found that, despite conflicting testimony,
there was sufficient evidence to support such a finding. Although the testimony only
involved a few oral statements to her friends and family about the dying process, the
appeals court also found that there was a sufficient basis for the trial court’s
conclusion. The appeals court finding was apparently influenced by the nature of
Theresa Schiavo’s medical condition, and whether she would have wanted continued
medical care after being in a persistent vegetative state for over ten years.
This court decision, however, was followed by a series of legal proceedings
initiated by the parents of Theresa Schiavo80 and others,81 intended to overturn or
delay implementation of the appeals court decision. Then, in October of 2003, the
Florida Legislature passed a bill granting the Governor the authority to “stay” the
withholding of nutrition and hydration in a situation such as existed in the Schiavo
case,82 a power which the Governor promptly exercised.83 This legislative “stay,”
however, was challenged as a violation of the doctrine of separation of powers and of
Theresa Schiavo’s due process rights, and the law was subsequently overturned by the
Florida Supreme Court.84 The trial judge in the case set the date of March 18 for the
withdrawal of nutrition and hydration, and the withdrawal occurred on that date.85
Theresa Schiavo died on March 31, 2005. For a discussion of congressional and legal
actions which occurred on and around that date, see “The Federal Role,” infra.
79 568 So. 2d 4 (Fla. 1990).
80 See e.g., In Re Guardianship of Theresa Marie Schiavo, 792 So. 2d 551 (Fla. Ct. App.
2001); In Re Guardianship of Theresa Marie Schiavo, 800 So. 2d 640 (Fla. Ct. App. 2001);
In Re Guardianship of Theresa Marie Schiavo, 851 So. 2d 182 (Fla. Ct. App. 2003).
81 See, e.g., Advocacy Center for Persons with Disabilities v. Schiavo, 2003 U.S. Dist.
LEXIS 19949 (M.D. Fla. October 21, 2003).
82 See Fla. Stat. § 765.404 note.
83 See Laurie Cunningham, Legal Experts Say New Law Allowing Governor to Overrule
Court Violates Separation of Powers, Miami Daily Business Review 1 (October 23, 2003).
84 Bush v. Schiavo, 885 So. 2d 321 (2004).
85 For a summary of relevant factual and legal events surrounding this case, see
[http://www.miami.edu/ethics2/schiavo/timeline.htm] and CRS Report RL32830 (pdf), "The
Schiavo Case: Legal Issues."

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C. Assisted Suicide
Although suicide is not a crime in this country, assisting another person to
commit suicide may, in many states, result in criminal penalties being imposed.86
Legal scholars have argued that it is logically inconsistent to punish a person who is
“aiding and abetting” the principal actor, here the person committing suicide, when
the latter is not punished.87 Such laws, however, roughly parallel laws which protect
minors and incompetent persons from exploitation, such as laws against statutory
rape.88 Thus, while a state may decide that treatment would be more effective than
punishment for a suicidal person, the state might also reason that punishment would
be a more effective deterrent to prevent persons from assisting a suicide. Further,
such law can serve as a protection against a person attempting to encourage or coerce
a vulnerable person to commit suicide.89
1. Historical Precedent.
Assisted suicide, as with suicide generally, has a long history of disfavor.90
Unlike legal prohibitions regarding suicide, however, which were not adopted by the
American legal system, laws against assisted suicide have been on the books for many
years.91 Thirty-five states currently have statutes with penalties for assisted suicide92
and nine more have penalties based on case law.93 It is not clear, however, whether
these statutes have ever been vigorously enforced, and for many years the prosecution
of such cases appears to have been almost nonexistent.94 There are a few examples,
however, of convictions for assisted suicide where long sentences have been
imposed.95
86 It is important to distinguish assisting suicide from euthanasia. While assisting a person
to commit suicide by providing them the means to commit suicide is a specific crime with
mild to moderate criminal penalties, affirmatively killing a person, even with that person’s
consent, is murder, and can expose a person to significant jail sentences. Catherine D.
Shaffer, supra note 37, at 348.
87 Id.
88 An adult who engages in sexual conduct with a minor may be charged with statutory rape,
although the minor engaged in the sexual act willingly.
89 Catherine Shaffer, supra note 37, at 364-65.
90 Thomas J. Marzan, supra note 34, at 15, 20, 24.
91 For instance, the two statutes at issue in the cases of Vacco and Glucksberg before the
Supreme Court date from the 19th century. Id. at 73.
92 Michael Peltier, U.S. Man Wants Doctors to Help Him Kill Himself, Reuters World
Service (May 8, 1997).
93 Id.
94 From 1930 through 1985, not one state court decision on assisting suicide appears.
Catherine D. Shaffer, supra note 37, at 358.
95 Thomas J. Marzan, supra note 34, at 77.

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One of the reasons that few cases have been brought in this area is that where a
person is suicidal because of pain or disability, juries appear reluctant to convict
persons who assist them in committing suicide. For example, starting in 1990, Jack
Kevorkian, a retired pathologist, assisted scores of patients to commit suicide.
Various attempts to convict him of assisted suicide, however, were stymied by juries
refusing to convict. There are indications that the juries that acquitted Dr. Kevorkian
engaged in jury nullification, i.e. the jury found that all the elements of the crime had
been established, but failed to convict anyway.96 Because jury nullification establishes
no precedent and provides no guidelines, however, Dr. Kevorkian’s actions remain of
dubious legality.97
2. State Legislation.
Although there is currently a movement to legalize assisted suicide and active
euthanasia legislatively, this movement has little or no precedent in this country98 or
in others.99 The only example of domestic legislation approving of physician-assisted
suicide is an initiative passed by Oregon. This initiative allows persons who are
terminally ill to seek assistance in committing suicide if they meet certain criteria.100
A federal district court held that because the referendum failed to distinguish between
competent and mentally incompetent persons, depriving the mentally incompetent of
the protections of law afforded to the non-terminally ill, the law was a violation of the
Fourteenth Amendment.101 This decision, however, was vacated on other grounds.102
Of more significance, Attorney General Ashcroft has threatened the withdrawal of the
controlled substances licenses of doctors who use such substances for the purpose of
assisting suicide. This directive, however, was enjoined by the United States Court of
Appeals for the Ninth Circuit Court, and is currently before the Supreme Court.103
96 Jack Lessenberry, supra note 5 at A14.
97 Dr. Kevorkian was ultimately convicted of second degree murder for directly
administering lethal drugs to a terminally ill patient, and was sentenced to 10 to 25 years in
prison.
98 The cases of Quill and Compassion in Dying concerned laws which forbid assisted
suicide; the case holdings, which approved of assisted suicide, were based on constitutional
grounds.
99 Holland, the only country which has ventured into this area, has not passed legislation
authorizing assisted suicide, but has authorized suicide through a series of court cases.
STAFF OF THE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ON THE
JUDICIARY, supra note 16, at 5. In 1995, the Northern Territory of Australia passed a law
authorizing physician-assisted suicide, which has been implemented and utilized. Associated
Press, Suicide Law Divisive in Australia, Fresno Bee, January 7, 1997, at A9.
100 Oregon Rev. Stat. 127.800. § 1.01, et. seq.
101 See Lee v. Oregon, 891 F. Supp. 1429, 1437 (D. Or. 1995), vacated on other grounds,
107 F.3d 1382 (9th Cir. 1997).
102 107 F.3d. 1382 (9th Cir. 1997).
103 See Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. Or., 2004), cert. granted, Gonzales v.
Oregon, 2005 U.S. LEXIS 1453 (2005). The Attorney General’s directive was successfully
(continued...)

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3. Constitutional Status.
In Glucksberg v. Washington, the Supreme Court held that the right to assisted
suicide is not a fundamental liberty interest protected under the Due Process Clause
of the Fourteenth Amendment.104 In Quill v. Vacco, decided the same day, the Court
held that enforcement of assisted suicide laws does not unreasonably discriminate, in
violation of the Equal Protection component of the Fourteenth Amendment, against
persons who are suffering or terminally ill.105 The ultimate impact of this decision is
that the “right to die” is unlikely to be expanded significantly by the courts.
a. Substantive Due Process.
Under the Fourteenth Amendment a “liberty interest” may only be infringed if
there is a sufficient state interest to justify such. If a “liberty interest” is deemed to be
fundamental, then it may not be infringed except by a narrowly tailored regulation
which furthers a compelling state interest.106 Where a liberty interest is not
fundamental, a court will subject an infringement to a much less restrictive analysis.
In Glucksberg, the United States Court of Appeals for the Ninth Circuit, struck
down an assisted suicide statute, drawing heavily from Supreme Court cases
concerning abortion. In particular, the court noted the emphasis on protecting personal
autonomy in Casey v. Planned Parenthood of Pennsylvania,107 which reaffirmed that
the Fourteenth Amendment protected a woman’s decision to have an abortion.
Characterizing laws against assisted suicide as essentially forcing suffering patients
to endure torture at the end of life,108 the court found a generalized right in hastening
one’s own death, and consequently struck down the assisted suicide statute as a
restriction on a fundamental liberty interest.109
The Supreme Court rejected this interpretation of the Fourteenth Amendment,
noting that the Court moves with “utmost care” before breaking new ground in this
area of liberty interests.110 Generally, the Court, which distinguishes between heavily
protected “fundamental rights” and less protected “substantive rights,” has indicated
an unwillingness to expand the number of “fundamental rights” protected under the
Fourteenth Amendment. The Court requires either that such rights must be deeply
103 (...continued)
challenged as being outside of the scope of his statutory authority. Id. An appeal of this
order is pending before the United States Supreme Court. See discussion notes 239-249 in
“The Controlled Substance Act,” infra.
104 521 U.S. 702 (1997).
105 521 U.S. 793 (1997).
106 Collins v. City of Harker Heights, 503 U.S. 115, 123 (1992).
107 505 U.S. 833 (1992).
108 79 F.3d at 814.
109 Id. at 839.
110 Glucksberg, 521 U.S. at 720.

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rooted in history111 or so central to personal autonomy that neither liberty nor justice
would exist without them.112 An analysis of these two criteria led the Court to reject
the broad interpretation of fundamental rights suggested by the circuit court in
Glucksberg.
I. Whether Assisted Suicide Is a Fundamental Right.
First, the Supreme Court rejected the argument that suicide or assisted suicide is
rooted in the nation’s history and tradition. As noted above, suicide and assisted
suicide have long been disfavored by our judicial system, and even the absence of
criminal sanction for suicide has not prevented the legal system from using the civil
commitment system as a route to prevent suicide. Further, there is a deep societal
resistance to suicide that includes many major religions and many groups associated
with health care.113
The Court easily dismissed the historical approach, noting an almost universal
rejection of the practice in the Nation’s history.114 As to the second element - whether
the right at issue is “so central to personal autonomy that neither liberty nor justice
would exist without them” - the Court rejected the application of this broad language,
and distinguished cases regarding personal autonomy such as Casey v. Planned
Parenthood of Pennsylvania and Cruzan v. Missouri Department of Health.
The District Court in Glucksberg, which struck down the assisted suicide statute,
felt that the "right to die" was similar to the right to abortion. That court found many
similarities between the two situations, including the intimacy of the decision, and the
susceptibility to untoward influence by other persons.115 But, unlike abortion, which
involves the competing interests of the mother and the fetus, the court emphasized that
assisted suicide involves only the individual and his or her own interests.116 The en
banc Court of Appeals, which upheld the district court, also relied heavily on language
in Casey which affirmed the right to abortion as one of the “most intimate and
personal choices a person may make in their life-time, choices central to personal
dignity and autonomy.”117
The Supreme Court rejected this use of Casey, noting that while many of the
interests protected by the Due Process Clause involved personal autonomy, this did
111 See Bowers v. Hardwick, 478 U.S. 186, 192, overturned by Lawrence v. Texas, 123 S.
Ct. 2472 (2003).
112 Id.
113 See Amicus Curiae Brief for the American Medical Association, Vacco v. Quill, No. 95-
1858, at 2 (U.S. 1996)(the American Medical Association, the American Nurses
Association, the American Psychiatry Association, and 43 other medical societies oppose
a constitutional right to assisted suicide).
114 Glucksberg, 521 U.S. at 728.
115 Compassion in Dying v. Washington, 850 F. Supp. at 1460-1461.
116 Id. at 1460.
117 79 F.3d at 801, quoting Casey v. Planned Parenthood, 505 U.S. at 851 (1992).

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not mean that all important, intimate, and personal decisions are so protected.118 The
Court, again noting the Nation’s historical rejection of assisted suicide, declined to
extend the reasoning of Casey to cover this practice. This was consistent with the
Court’s previously expressed reluctance to extend the reasoning of Roe v. Wade into
other areas of “personal autonomy.”119
The Court had even less trouble distinguishing the instant case from Cruzan v.
Missouri Department of Health,120 which addresses the right to terminate medical
treatment.121 In Cruzan, the Supreme Court was developing that line of cases which
derived from the right to bodily integrity. The Cruzan case was important because it
dealt with the small but significant subcategory of informed consent cases that involve
the refusal of medical treatment when it is apparent that withdrawal of the treatment
would result in death. That is a separate issue from whether a person can affirmatively
request that another person cause his death. All cases which have dealt with the "right
to die" have recognized and maintained the distinction between “active” and “passive”
medical intervention,122 and the Supreme Court declined to eliminate this distinction.
ii. State Interests in Preventing Assisted Suicide.
If the Court had determined that a fundamental liberty interest exists in assisted
suicide, then it would have examined whether there was a compelling governmental
interest which was narrowly tailored to justify an infringement on this right.
However, as the Court found that there was no fundamental right to assisted suicide,
the state needed only to show that its interests were rationally related to any
infringement. The Court found numerous state interests, including 1) a general
interest in the preservation of life, and a specific interest in maintaining barriers
against suicide; 2) an interest in avoiding situations where it would be to the
advantage of a third party to influence a person to commit suicide; 3) an interest in
maintaining the integrity of the medical profession; and 4) an interest in preventing
acts such as voluntary or involuntary euthanasia.
Historically, the state has been found to have a legitimate interest in discouraging
physically healthy individuals from committing suicide.123 The district court in
Glucksberg argued that interest was insufficient when applied to terminally ill
persons, and suggested that a legislature could define the appropriate circumstance
118 521 U.S. at 724.
119 The Court speaking in Roe in 1973 made it clear that, despite the importance of its
decision, the protection of personal autonomy was limited to a relatively narrow range of
behavior, including activities relating to marriage, procreation, contraception, family
relationships, and child rearing and education. 419 U.S. at 152.
120 497 U.S. 261 (1990).
121 521 U.S. at 725-26.
122 Traditionally, the law distinguishes between acts of “omission” and acts of
“commission.” Thomas J. Marzan, supra note 34, at 10.
123 Compassion in Dying v. Washington, 850 F. Supp. at 1461.

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where assisted suicide could be banned.124 The Supreme Court held, however, that a
state is not compelled to make such distinctions regarding quality of life.125
Unlike termination of medical treatment, which by its nature involves terminal
or incurable persons, assisted suicide can be extended to a larger population.126 Thus,
the argument has been made that societal pressure against devoting resources to the
poor, elderly, infirm or disabled would result in subtle or unsubtle pressure for those
persons to seek assisted suicide rather than face an uncertain medical or economic
future.127 Here, the Court held that a state could rationally consider as too high the risk
that an assisted suicide statute would be manipulated to encourage a person to commit
suicide.128
The Court also held that a state may assert an interest in allowing its medical
profession to set standards to protect both its integrity and the trust of the populace.129
Many medical organizations consider doctor-assisted suicide to be incompatible with
a doctor’s Hippocratic oath, and would be concerned that such a role for doctors
would lead to a conflict with their roles as healers.130 There is also a concern that if
assisted suicide were considered a treatment option, the progress in the ability of
physicians to combat serious disease would be undermined.131
Finally, the Court held that permitting assisted suicide could start society down
the path to active euthanasia, both voluntary and involuntary.132 As noted earlier,
advocates for physician-assisted suicide often do not distinguish between assisted
suicide and euthanasia, despite the potential for abuse where the patient does not
control the final administration of the lethal treatment. The Court noted that allowing
assisted suicide would create the potential for this line to be crossed without detection,
and that it would be extremely difficult to police or contain this distinction.133
124 Id. at 1455.
125 521 U.S. at 729.
126 Yale Kamisar, supra note 18, at 755.
127 Compassion in Dying v. Washington, 49 F.3d at 592. It has also been noted that it may
be in the financial interest of a person related to or caring for an ill patient for that patient
to die. Id. at 592-93.
128 521 U.S. at 732. It should be noted, however, that others have argued that such dire
predictions, made with regard to the assertion of other rights, have failed to come true.
Compassion in Dying v. Washington, 79 F.3d at 825-26 (noting arguments that women
would be pressured into abortions if the procedure were legalized).
129 521 U.S. at 731.
130 Compassion in Dying v. Washington, 49 F.3d at 592.
131 Id. It has been argued, however, that since doctors are already engaged in the unregulated
practice of assisted suicide, that the integrity of the profession would be better served by
regulation of the practice. Compassion in Dying v. Washington, 79 F.3d at 828.
132 521 U.S. at 732.
133 Id.

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b. Equal Protection.
In Quill v. Vacco, a separate argument was made that enforcing a statute banning
assisted suicide would discriminate against individuals who are terminally-ill but are
not on life support. This argument relies on the fact that individuals with terminal
diseases have a constitutional right, and often a statutory right, to request termination
of medical treatment, which will ultimately cause their deaths. If terminally-ill
patients not on life support are found to be similarly situated, then the denial of the
right to assisted suicide is arguably a violation of equal protection.
As with due process fundamental rights analysis, equal protection analysis uses
different standards by which to evaluate a law, depending on the class of people being
discriminated against. While a high level of scrutiny is reserved for certain “suspect
classifications” such as race or religion,134 and an intermediate level of scrutiny is
applied to certain others such as “gender classifications,”135 distinctions based on other
characteristics, such as medical condition, would generally be evaluated under a
rational basis test. Thus, if a court can ascertain any rational governmental interest in
making such a distinction, the law will be upheld.136
The Court in Vacco noted that the class of individuals being discriminated
against here, terminally ill patients not on life support, would not constitute a
traditional “suspect classification.”137 Consequently, a court would need to look only
at whether there was a rational basis to distinguish between the treatment of persons
who are on life support and those who are not. The Court noted that the distinction
between assisting suicide and withdrawing life-sustaining treatment was widely
recognized both legally and medically, and comported with fundamental legal
principles of causation and intent.138 Thus, the Court held that maintaining a
distinction between letting a person die by natural means and causing their death was
certainly a sufficient rational basis to preclude a successful equal protection challenge.
D. Active Euthanasia
Active euthanasia, or administering a lethal treatment to a person, could arguably
be treated in the same way as assisted suicide. Certainly the line between assisted
suicide and active euthanasia has been blurred by commentators and the media in their
discussions of the right to die.139 For instance, the phrase “physician assisted” suicide
has often been used without distinguishing whether a doctor was prescribing a lethal
treatment or administering it.140 Further, the argument can be made that if a person has
134 Quill v. Vacco, 80 F.3d at 726.
135 Id.
136 Id. at 725.
137 Vacco, 521 U.S. at 799.
138 Id. at 801.
139 80 F.3d at 747.
140 Id.

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the right to self-administer a lethal treatment, then he should have the right to seek
such treatment from others.141
The distinction between assisted suicide and active euthanasia is, however, both
legally and practically significant, and is maintained in almost all legal jurisdictions.
In the case of assisted suicide, the actual fatal procedure is completed by the patient,
thus shielding the person assisting from direct legal responsibility for the death.
Although, many states have specific statutes that ban assisting in a suicide, the act is
not treated as homicide, is rarely prosecuted and has relatively low criminal
penalties.142 The situation is different if another person actually implements the fatal
procedure. Since a person cannot generally consent to a crime, killing a patient, even
if he asks to be killed, is considered murder, a serious crime in all fifty states.143 Even
prominent proponents of the right to assisted suicide have been uncomfortable with
advocating active euthanasia,144 although others argue that maintaining a distinction
between the two would be difficult.145
Ultimately, the most significant distinction between assisted suicide and active
euthanasia may be the susceptibility of active euthanasia to abuse. While a person
who provides a patient the means of committing suicide may be in a position to bring
pressure on that person to do so, the decision would ultimately lie with the patient, and
thus there is no issue of consent. Where another party commits the act, however, the
issue of consent must be addressed, and it may be difficult to establish such consent
when the patient is dead. Because active euthanasia appears to be more susceptible
to abuse than does assisted suicide, a state could reasonably distinguish between these
two practices as a matter of public policy. Enforcement prohibitions on active
euthanasia may be difficult, however, as the practice appears to most often occur
under the guise of palliative care.146
E. Palliative Care
Another form of medical treatment which can result in a hastened death is
palliative care. Palliative care is medical treatment to relieve pain, but in terminal
cases, the escalating levels of pain medication can ultimately reach toxic levels, killing
the patient.147 This type of treatment is less controversial than the other categories, and
141 Id.
142 Catherine D. Shaffer, supra note 37 at 352.
143 Id. at 351.
144 Yale Kamisar, supra note 18, at 747 (noting that Dr. Quill, the named plaintiff in the
Quill v. Vacco case, initially resisted arguing for euthanasia because of the risk involved).
145 Id. at 749-750.
146 Susan Okie, AIDS Doctors Report Prescribing Lethal Drugs, WASHINGTON POST,
February 11, 1997, Health Section at 5.
147 Compassion in Dying v. Washington, 79 F.3d at 839 (J. Beezer, dissenting).

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generally has few legal repercussions.148 In fact, Justice O’Connor, in a concurring
opinion in Glucksberg, has indicated that a patient may have a constitutional right to
palliative care.149
Because palliative care can ultimately result in a shortened life-span, however,
it would appear to raise policy concerns similar to the other “right to die” issues.150
Further, the line between palliative care and active euthanasia is extremely difficult
to monitor, and it appears that to the extent that unsanctioned euthanasia is being
practiced by doctors, much of it may occur under the guise of palliative care. While
palliative care by itself may raise few policy issues, its susceptibility to abuse may
make it the most likely area where evasion of the law might occur.
III. Who Decides: Individuals, Guardians,
and the Court
Medical decision-making regarding terminally or chronically ill persons has the
additional complication that many such patients are comatose or so disabled that they
are not legally competent to make health care decisions. Consequently, the issue
arises as to whether the various “rights to die” can be exercised by others on behalf
of the legally incompetent individual, and what standards should apply. While
virtually all the law in this area relates to the termination of medical treatment, such
situations could also arise if active euthanasia became a legal option.151
Differing standards have been adopted by various courts to address the problem
of discerning an unresponsive patient’s desires for medical treatment. Some courts
attempt to discern the “subjective intent” of the patient, either through (1) written
documents such as a Living Will, advance medical directives, or a durable power of
attorney; (2) specific oral statements; (3) generalized inquiries regarding a patient’s
prior attitudes and past statements; or (4) attempts to discern what a patient would
decide, if cognizant and given the relevant facts regarding her prognosis.152 There is
also another line of cases which focuses less on the subjective intent of the patient,
and more on the objective condition of the patient. Under this “objective test,” the
issue becomes whether the burdens of a patient’s condition are such as to justify a
148 At least one judge has distinguished palliative care as without legal consequence, because
the intent of the act is pain relief, and not to kill. 79 F.2d at 857 (J. Kleinfield, dissenting).
149 Glucksberg, 521 U.S. at 797-98 (O’Connor, J., concurring).
150 STAFF OF THE SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY,
104TH CONG., supra note 16, at 5.
151 As legally incompetent patients would most likely be incapable of committing suicide,
surrogate decision-making would appear to either involve termination of medical treatment
or active euthanasia.
152 See Developments in the Law of Medical Technology and the Law, 103 Harv. L. Rev.
1519, 1647-49 (1990); Kaenezis, Patient’s Right to Refuse Treatment Allegedly Necessary
to Sustain Life, 93 A.L.R.3d 67 (1979).

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withdrawal; the opportunity for oppression and abuse, however, generally leads a
court to take a hard look at the facts of such a case.
Using the above standards, many courts have found ways to approve the
withdrawal of medical treatment from terminally ill or persistently vegetative patients.
Some courts, however, have resisted these efforts, especially in the more difficult
cases where there is no clear indication of the intent of the individual. This, for
example, was the case when the Missouri Supreme Court refused to allow the parents
of Nancy Cruzan to authorize the withdrawal of nutrition and hydration. In Cruzan,
however, the United States Supreme Court did little more than decide that requiring
proof of Nancy’s intent by clear and convincing evidence was acceptable. What is
unclear is whether there are any alternative tests which may be overly burdensome to
this newly identified constitutional right.
A. The Subjective Intent Test
Prior to the Supreme Court’s decision in Cruzan, many courts had determined
that an incompetent patient who did not wish to have life-sustaining medical
technology used indefinitely, as evidenced by previous statements made by that patient
when competent, should have those wishes given effect.153 For instance, in the Cruzan
case, in order to fulfill this “subjective intent test,” the trial court had attempted to
discern what Nancy Cruzan’s attitude was toward sustained medical intervention. The
court found that Nancy Cruzan was a vivacious, active, outgoing and independent
person who preferred to do everything for herself. About a year prior to her accident,
Nancy apparently had discussions in which she expressed the feeling that she would
not wish to continue to live if she couldn’t be at least “half-way normal”. Based on
these two factors, the trial court found that Nancy Cruzan would have rejected her
existing medical treatment.154
As has been discussed previously,155 the Missouri Supreme Court reversed this
decision, holding that Nancy’s intent had not been shown by clear and convincing
evidence. This standard, which had been utilized previously in other jurisdictions, was
ultimately upheld by the Supreme Court, but in doing so, the Court did not indicate
whether a more burdensome requirement than clear and convincing evidence could
153 See, e.g., In Re Storar, 52 N.Y. 2d 363, 420 N.E. 2d 64, cert denied, 454 U.S. 858 (1981).
154 Relying solely on these two factors, the trial court appeared to expand what would
normally be considered proof of “consent” under a common-law right to refuse treatment.
Generally, for there to be true informed consent to refuse medication, a patient would need
to be specifically aware of the possible circumstance of his or her physical condition, and
would need to indicate specifically what could or could not be done. Apparently, the trial
court, faced with conflicting social mores, was attempting to balance the benefits of
continued treatment against the burdens of continued treatment. This attempt at balancing
sometimes becomes even more overt under the objective test.
155 See supra notes 58-61 and accompanying text.

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be required, and thus did not explicitly address the degree to which a state could
hinder this newly recognized right.156
B. The Objective Test
A more difficult question arises if a patient has left no prior written or oral
indications as to his or her medical wishes in the case of a serious illness. A number
of lower courts, when confronted with a patient who has left little or no indication as
to his intent, have developed rationales to objectively establish what the patient would
want, if he were aware of his circumstance. These “objective tests,” or the related
“best interest standards,” attempt to move beyond the subjective intent of the patient,
and focus instead on the details of the present situation. In the In the Matter of
Conroy case,157 the New Jersey Supreme Court, refusing to terminate life-support for
an incompetent but conscious patient,158 established two alternative standards to the
subjective test to be used when the patient in question had not made his wishes clear
concerning the withdrawal of medical treatment - the limited objective and the purely
156 In contrast to Missouri’s “clear and convincing” standard, a majority of the states that
have considered the issue allowed a form of “substituted judgment,” so that a family
member or guardian can make a decision for an incompetent patient. Gasner, supra note 7
at 14.
157 86 A.2d 1209 (N.J. 1985).
158 In In the Matter of Conroy, 486 A.2d 1209 (N.J. 1985), Claire Conroy was an eighty-two
year old resident of a nursing home, and her only surviving relative, a nephew, was
appointed as her guardian. Ms. Conroy, because of an organic brain syndrome, had become
increasingly confused, disoriented, and physically dependent. As with Nancy Cruzan, a
feeding tube had been implanted to provide nutrition and hydration. When her nephew
brought suit seeking termination of medical treatment, Ms. Conroy was confined to bed in
a semi-fetal position. She suffered from heart disease, hypertension, diabetes, gangrene, and
a variety of other infections. On the other hand, she could move her head, neck and arms,
could scratch herself, and would attempt to pull at her bandages. Medical doctors testified
that Ms. Conroy was not comatose or in a chronic vegetative state, although her mental
condition was severely deteriorated. 486 A.2d at 1221.
To resolve the case, the New Jersey Supreme Court tried to balance the interests of the
State against the burdens of treatment. The court identified four state interests in such
circumstances - preserving life, preventing suicide, safeguarding the integrity of the medical
profession, and protecting innocent third parties. See Satz v. Perlmutter, 362 So.2d 359, 360
(Fla. 1980). The court indicated that the burden of being maintained on a life-support
system could, in some instances, outweigh the interests of the State.
In refusing to allow the withdrawal of Ms. Conroy’s feeding and nutrition, the
Supreme Court of New Jersey noted the vulnerability of nursing home populations, and the
sometimes grossly inadequate care and concern that they receive. The court further noted
that Ms. Conroy, although resistant to medical intervention throughout her life, had not
specifically addressed or provided for the contingency of being incapacitated and in need
of medical intervention. Ultimately, the court found that there was insufficient evidence to
support a finding either that Ms. Conroy’s wishes would be to terminate treatment, or that
the burdens imposed by continued treatment outweighed the state interest in life.
Consequently, the court declined to condone the removal of the feeding tube, even while
contemplating the possibility that absent an expression by the patient as to the withholding
of health care, a court might allow the withdrawal of medical care by a guardian.

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objective tests.159 Under the limited objective test, life-sustaining treatment may be
withheld when there is trustworthy evidence that the patient would have refused
treatment, and where the decision-maker is satisfied that the burdens of continued life
outweigh the benefits for the patient.160 Under a purely objective test, where there is
no evidence of subjective intent, not only must the burdens of treatment outweigh the
benefits, but the medical treatment must cause such recurring, severe and unavoidable
pain that administering the life-sustaining treatment would be inhumane.161 Under
these tests, the Conroy court found that there was insufficient evidence to allow the
withdrawal of Ms. Conroy’s feeding tube.162
The fate of the “objective intent” tests after Cruzan is uncertain. The tests are
clearly not overly burdensome to the right of the patient to refuse treatment, as they
are only invoked when there is little or no indication of subjective intent. Whether the
test is sufficiently attentive to the actual wishes of the patient, or whether the
“objective test” instead bypasses the need for an expressed desire by a patient, and
merely applies the desires of the guardian, the care-provider, or the court, however,
remain valid questions. As the Court pointed out in Cruzan, there is as much a Due
Process right to “life” as there is to death,163 and there may be situations where
guardians are not acting to protect the patient. Thus, although unstated, the Court’s
Cruzan decision, by relying almost entirely on individual autonomy, may signal that
“objective” decisions, which rely on third party choices, do not have the same
constitutional protections. Based on Cruzan, therefore, a state might ban its courts
from considering any factors except the expressed desires of the individual.164
159 486 A.2d at 1233.
160 Id.
161 Under the limited or purely “objective test”, courts appear to be introducing the concept
of balancing the benefits of life against the “benefits” of death, albeit still within the context
of individual rights. For instance, the Conroy court restricted its balancing to the physical
pain being felt by the patient because of continuing treatment. Arguably, this would limit
the application of the test to the conscious patient, as the value of life in a vegetative state
or in a coma is outside of our daily evaluation of “benefits and burdens.” Privacy, bodily
integrity, pain and suffering would not appear to be of particular relevance to a
determination of what was in the best interests of a vegetative or comatose patient.
162 486 A.2d at 1243.
163 Cruzan, 497 U.S. at 281.
164 Because the Missouri Supreme Court focused on the subjective intent of Nancy Cruzan,
the Cruzan Court did not have the opportunity to evaluate any “objective” consideration
which a court might ultimately weigh in this area. Because these fundamental life decisions
regarding dying have been debated primarily in the courts, and not legislatures, the focus has
been on individual rights versus the state’s interest. The ultimate balancing decisions which
society as a whole might make on these issues have been avoided by many states.
Ultimately, society may need to reconcile individual wishes, the interests of the immediate
family, and the interests of society at large on the use of medical resources, and this would
appear to be a role for the legislatures.

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C. The Never-Competent Patient
An unaddressed implication of the Cruzan opinion is that a state may provide
that only “competent” expressions of the desire to resist medical treatment need be
honored.165 Thus, arguably, a minor child or an individual permanently incompetent
because of disease or mental disability could be effectively prohibited from exercising
his right to have medical treatment withdrawn. Some state courts have allowed such
individuals to have medical treatment withheld based on variations of the objective
tests.166 If, however, an incompetent patient were sufficiently lucid to make his or her
wishes known, an argument could be made that to deny the right to have treatment
withheld would be an Equal Protection violation.167
IV. The Federal Role
A. Congressional Authority
As discussed above, the vast majority of regulation of the “right to die” has been
done at the state level. This regulation is an outgrowth of the states’ authority to
legislate generally on all matters within their territorial jurisdiction.168 The powers of
the federal government, on the other hand, are limited to those enumerated in the
Constitution.169 These powers have been interpreted broadly, however, so as to create
a large potential overlap with state authority.
For instance, § 5 of the Fourteenth Amendment gives the Congress the power to
enforce the guarantees of the Fourteenth Amendment, including the right to due
165 The Cruzan opinion upheld the Missouri Supreme Court, stating that “Missouri . . . has
established a procedural safeguard to assure that the action of a surrogate conforms as best
it may to the wishes expressed by the patient while competent.” Cruzan, 497 U.S. at 280.
166 See, e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370
N.E. 2d 417 (1977). The reasoning of this court was that the patient, a 67 year old
profoundly retarded man, would have refused treatment if he had been competent and aware
of his circumstance. This holding has, however, been criticized as circular.
167 The Cruzan court summarily dismissed an equal protection argument that its holding
would unjustly discriminate between the rights of competent patients and the rights of
incompetent patients. Cruzan, 497 U.S. at 261. The Court held this argument inapplicable
because the issue being discussed was the choices made by a competent person versus the
choice made for an incompetent person. If a lucid, but incompetent person could make his
wishes known, however, the reasoning of the Court in Cruzan might be distinguished.
168 This "police power" does not arise from the Constitution, but is an inherent attribute of
the states' territorial sovereignty.
169 Article I, §1, of the Constitution provides that "All legislative powers herein granted
shall be vested in a Congress of the United States." Unlike a typical grant of power to states
Article I, §1, does not grant to Congress "all legislative power," but rather grants to
Congress only those specific powers enumerated in §8 and elsewhere in the Constitution.

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process and equal protection.170 An argument can be made that since the due process
clause applies to cases litigated at the state court level, that Congress can regulate the
manner in which courts consider cases involving the termination of medical treatment.
As discussed below, however the Supreme Court has imposed significant limitations
on Congress’ authority under this provision.
The Congress also has broad authority over the commercial interests of the
nation, including the power to regulate commerce.171 The Commerce Clause,
discussed below, is one of the most far-reaching grants of power to Congress, and
would appear to allow the regulation of most commercial enterprises, including
hospitals and hospices. However, as discussed below, limits imposed on the
commerce clause may prevent the application of such power to all cases of
termination of medical treatment.
A final authority that Congress has often relied upon is the spending clause.172
The purposes for which Congress may tax and spend are very broad, and are not
generally limited by the scope of other enumerated powers under which Congress may
regulate.173 In addition, the courts have found that Congress has broad authority to
condition the conferral of federal benefits. While there may be limits to this authority,
the conditioning of the spending power is one of the more powerful means by which
the Congress can regulate certain beneficiaries of federal dollars.
1. Congress’ Authority Under 14th Amendment, § 5.
The 14th Amendment provides that a state may not deprive a person of their right
to life, liberty, or property without due process of law.174 Section 5 of the 14th
Amendment provides that Congress has the authority to enforce the provisions of the
14th Amendment.175 The Supreme Court, however, requires that legislation enacted
under § 5 of the Fourteenth Amendment be congruent and proportionate to a pattern
and history of constitutional violations.176 For instance, since only states are limited
by restrictions of the 14th Amendment, constitutional violations generally only occur
170 "No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const., Amend. XIV, §1. The Congress shall have power to
enforce, by appropriate legislation, the provisions of this article. Id. at §5.
171 "To regulate commerce with foreign Nations, and among the several States, and with the
Indian Tribes." U.S. Const., Article I,§ 8, cl. 3.
172 "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,
to pay the Debts and provide for the common Defence and general Welfare of the United
States; but all Duties, Imposts and Excises shall be uniform throughout the United States."
U.S. Const., Art. I, §8, cl. 1.
173 United States v. Butler, 297 U.S. 1 (1936).
174 U.S. Const. Amend. XIV, § 1.
175 U.S. Const. Amend. XIV, § 5.
176 See Flores v. City of Boerne, 521 U.S. 507, 520 (1997).

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when the actions are undertaken by state actors. Behavior or activities of private
parties acting in their individual capacities are not generally found to violate of the
Due Process Clause of the 14th Amendment, and are not generally vulnerable to
congressional regulation under § 5.177
Thus, identifying state actors in the context of the termination of medical
treatment becomes important in determining whether particular legislation is
congruent and proportionate, as the legislation must be in response to a history and
pattern of constitutional violations by such actors. For instance, in United States v.
Morrison,178 the Court evaluated 42 U.S.C.§ 13981, which provides a federal private
right of action for victims of gender-motivated violence against their attackers. The
Court considered whether the statute was within the power of the Congress to enact
under § 5 of the Fourteenth Amendment, considering that the suit was brought against
a private person, not against the state.
The plaintiff attempted to avoid the problem of state action by arguing that there
is pervasive bias in various state justice systems against victims of gender-motivated
violence, and that providing a federal private right of action was an appropriate means
to remedy this "state action." Although the Court found that this bias was supported
by a voluminous congressional record,179 the Court nonetheless rejected this argument,
finding that the remedy did not meet the City of Boerne test of "congruence and
proportionality to the injury to be prevented or remedied and the means adopted to that
end."180 Since the federal private right of action was not aimed at the allegedly
discriminatory actions by state officials, but was instead directed against the individual
engaging in the violence itself, the Court found that the action could not be supported
by reference to the Fourteenth Amendment.181
Thus the power of Congress as regards the termination of medical treatment
would appear to be limited based on the nature of the proposal. For instance, consider
a proposal that is intended to limit or restricts courts’ power to direct that a patient’s
medical treatment be terminated, such as requiring prove of “clear and convincing
evidence” that a patient would want treatment withdrawn. At first glance, such a
proposal might seem narrowly focused to address just “state action,” as it is limited
to disputed cases that are tried before judges, who, as will be discussed later, are state
actors. However, a relatively small number of disputed cases involving termination
of medical treatment are resolved in court, so it may be difficult to establish a pattern
and history of constitutional violations based only on disputed cases. Thus, it may be
important for purposes of identifying a pattern and history of constitutional violations
to determine if constitutional violations of patient’s rights sometimes occur outside
177 The Court has long held that the Fourteenth Amendment provides that Congress has the
authority to regulate states, but not individuals. See Shelley v. Kraemer, 334 U.S. 1, 13
(1948).
178 United States v. Morrison, 529 U.S. 598 (2000).
179 529 U.S. at 619-620.
180 521 U.S. at 526.
181 529 U.S. at 626.

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of the courtroom.182 The first, step to this process would be identifying likely scenarios
outside the courtroom where state actors would be involved in these decisions.183
It may also be important, for purposes of congruence and proportionality, to
identify any state actors who are involved in these disputed cases apart from the
judges, since it can be argued that under Morrison, directing a legislative fix against
non-state actors is not congruent and proportionate if these actors are not the source
of constitutional violations. Arguably, in the hypothetical proposal, the burden of
proving a case by clear and convincing evidence will fall upon a patient, health proxy,
of guardian. If none of these parties are state actors, however, then it might be argued
that they are inappropriate targets for such legislation.
a. State Action.
In Morrison, the Court found a voluminous congressional record of bias based
on state actions regarding the investigation and prosecution of criminal sex offenses,
suggesting the state activities may have been in violation of the 14th Amendment.
However, unlike the criminal cases that were at issue in Morrison, most termination
of medical treatment decisions are not initiated by the state, nor are they generally
resolved in a courtroom. Thus, the question arises as to whether the Congress can rely
on possible abuses in the termination of medical treatment outside the courtroom to
justify the exercise of its 14th Amendment authority, despite the fact that the medical
treatment or the termination of such treatment is generally initiated by designated
proxies or appointed guardians.
One typical scenario that can be analyzed is where a health proxy or guardian
seeks to have treatment withheld from a patient who is being treated in a private
hospital or hospice.184 Private parties can sometimes be state actors if: 1) their actions
rely on governmental assistance and benefits, 2) if the actor is performing a traditional
governmental function, and 3) if the injury caused is aggravated in a unique way by
182 Where the right at issue is a fundamental right, the court has allowed the introduction of
evidence related to discrimination involving that right in different contexts. Tennessee v.
Lane, 541 U.S. 509, 528-529 (2004)(considering evidence of unconstitutional discrimination
against persons with disabilities in the provision of public services in evaluating
discrimination in access to the courts). Although it is unclear that the right to direct medical
treatment is a fundamental right, an argument might be made that procedural due process
rights, which are implicated by the instant proposal, fall more closely into that category.
183 When the rights of a “suspect ”class are at issue, which are protected by a higher
standard of scrutiny than rational basis, then the Court appears to have been willing to
consider a broader array of examples of unconstitutional discrimination, even if they did not
involve state action. Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 730-35 (2003)
(allowing consideration of the practices of private-sector employers and the federal
government). However, it does not appear that any court has found that incapacitated
patients are considered a “suspect” class.
184 Of course, in some instances, state actors can be involved in these decisions. For instance,
if a state hospital sought to remove nutrition and hydration from a patient over whom it had
guardianship, there would clearly be state action.

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the incidents of governmental authority.185 It does not appear, however, that this
standard would be met by any of the typical parties in a decision to withhold medical
treatment. Consider, for instance, a health proxy authorized by a patient to make
medical decisions. While the parameters of this relationship are certainly amenable
to regulation by state law, the decision to appoint a guardian with certain powers
would be the act of the patient, and not of the state. Further, the proxy can generally
direct the withdrawal of medical treatment without going to court, and it does not
appear that the proxy would be performing a traditional governmental function in
doing so. Finally, whatever “injury” might be at issue, it does not appear to be
aggravated by the incidents of governmental authority. Since no indicia of
governmental interest would appear to be present here, a health proxy would not
appear to qualify as a state actor.
A closer question is the constitutional status of a guardian who was appointed,
not by the patient, but by a court. For instance, courts have held that the appointment
of a guardian is state action, and must comply with the dictates of procedural due
process.186 Thus, the parameters of the appointment process by a state would appear
amenable to constitutional challenges, or legislative oversight by the Congress.
However, once a guardian has been appointed, most courts have held that since a
guardian’s legal obligation is to represent the interests of their ward, that the guardian
is not a state actor, and thus is only bound by statutory, not constitutional
constraints.187
The next question is whether state action arises if a health proxy, guardian or
other party initiates a legal proceeding regarding the termination of medical treatment.
It is certainly the case that the behavior of a judge in a case is state action for purposes
of due process.188 Or, a suit brought by a private party in a court room may give rise
to state action, if judicial enforcement of the ruling is seen to be in violation of the
constitutional rights of another.189 However, in a typical proceeding to terminate
medical treatment for an incompetent patient, it is unlikely that state action would be
185 Edmonson v. Leesville Concrete Co., 500 U.S. 614, 622-32 (1991).
186 In re Guardianship of L.W., 167 Wis. 2d 53 (1992) (“Due process . . . is accorded
through the guardianship appointment procedures.”).
187 Polk County v. Dodson, 454 U.S. 312 (1981) (dismissing 42 U.S.C. § 1983 suit by a
convict for lack of state action because a public defender acted in an adversarial manner to
the state); Taylor v. First Wyoming Bank, 707 F2d 388 ( 9th Cir. 1983 )(court-appointed
guardian for person declared judicially incompetent did not act under color of state law for
purposes of 42 U.S.C.§ 1983 for placing ward in convalescent home); Meeker v. Kercher,
782 F2d 153 (10th Cir. 1986) (guardian ad litem representing minor in state proceeding on
petition alleging abuse or neglect did not act under color of state law for purposes of 42
U.S.C. § 1983); Clay v. Friedman, 541 F. Supp. 500, 503 (N.D. Ill. 1982) (“In all critical
respects, the role of the guardian ad litem is almost identical to that of a public defender. He
or she is a fiduciary who must act in the minor's best interest.”).
188 For instance, it is a violation of due process for a biased or partial judge to preside over
a trial. Mayberry v. Pennsylvania, 400 U.S. 455 (1971); Tumey v. Ohio, 273 U.S. 510
(1927).
189 Shelley v. Kraemer, 334 U.S. 1 (1948) (judicial enforcement of racially restrictive
covenant found to be violation of 14th Amendment).

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ascribed to a health proxy seeking to terminate treatment, since it is the patient’s
decision to have that person speak for them. Nor, as noted earlier, would the behavior
of even an appointed guardian in a court room typically be found to be state action,
unless it was determined that the guardian was acting in collusion with the
government.190 Generally, only actions by private parties opposing the exercise of a
patient’s right to pursue termination of medical treatment would be amenable to such
an analysis.191
Thus, it would appear that the only state actor in the court room in these cases
would be the judge (although, as noted, certain opposing parties may also take on this
character based on judicial enforcement of their legal positions). As noted, § 5 of the
14th Amendment can only be exercised if Congress can establish a pattern and history
of constitutional violations. Since only state actors can violate the constitution, this
determination would seem to be limited to instances in which the rights of
incapacitated patients are being violated in the courtroom by a judge or opposing
parties.
The next step in evaluating where there is a history and pattern of constitutional
violations would be determining which constitutional rights these state actors are most
likely to have violated. In termination of medical treatment cases, the principal
constitutional right at issue is the right to direct one’s medical treatment. Thus, under
this constitutional theory, establishing a basis for exercise of Congress’ power under
the 14th Amendment would appear to require establishing a record of state judges
disregarding an individual’s expressed wishes regarding medical treatment, whether
based on the petition of the patient or in response to the request of opposing parties.192
In the alternative, one might consider the patient’s right to procedural due process in
proceeding regarding termination of medical treatment, and whether such due process
rights have been respected by courts.
b. Substantive Due Process Rights of Incapacitated Patients.
The number of reported court decisions regarding the termination of medical
treatment, appears to number in the low hundreds.193 And, despite the existence of
190 Thomas S. v. Morrow, 781 F2d 367 (4th Cir. 1986), cert. denied, 476 U.S. 1124 (1986)
and 476 US 1124 (1986) (guardian appointed by state for incompetent adult acted under
color of state law where he acted together with and obtained significant aid from state
officials). “[I]n most civil cases, the initial decision whether to sue at all, the selection of
counsel, and any number of ensuing tactical choices in the course of discovery and trial may
be without the requisite governmental character to be deemed state action.” Edmonson v.
Leesville Concrete Co., 500 U.S. 614, 627-28.
191 Thus, for instance, if state law authorized a parent to countermand a decision to terminate
medical treatment of an adult patient, an argument might be made that the parent was
imbued with the authority of a state actor. See Shelley v. Kramer, 334 U.S. 1 (1948).
192 Since the legal position of opposing parties only becomes state action upon enforcement
by the courts, the following analysis will focus on the court as a state actor.
193 See John D. Hodson, Judicial Power to Order Discontinuance of Life-sustaining
Treatment, 48 A.L.R.4th 67 (2005); Kristine Cordier Karnezis, Patient's Right to Refuse
(continued...)

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some high profile cases where the subjective intent of patient was disputed, such as
the Theresa Schiavo case,194 it is not clear that a significant number of these cases
involved seriously disputed testimony or other evidence. Thus, for Congress to
establish a record of constitutional violations by judges in these cases, it would need
to be shown that the courts disregarded the expressed intent of the patient in some
significant number of cases.
It may, however, be difficult, at least based on reported decisions, to establish
numerous examples of past constitutional violations arising from court orders
directing medical treatment be terminated. For instance, a review of these cases does
not reveal instances where a court rejected clearly expressed intentions, such as
written living wills or advance directives. Instead, the cases principally concern
situations where there was some oral or other evidence regarding “subjective intent,”
or where the decision was made based on an “objective intent”standard, evaluating the
best interests of the patient.195
There is no case law indicating that application of either a “subjective intent”
standard or an “objective intent” standard is, on its face, a violation of the 14th
Amendment. Thus, it would appear that, in order for Congress to establish that a
significant number of patients’ rights to direct their medical treatment under the 14th
Amendment were being violated, it would need to establish that the factual decisions
in some portion of these cases were disputed, and that various courts’ evidentiary
conclusions were incorrect. It may be difficult, however, for Congress to establish that
a significant number of persons’ wishes were disregarded where no written directives
were left, since even the courts sitting in these cases generally have a difficult time
discerning a person’s intent.
Even if Congress could establish that there is a pattern and history of courts
disregarding the wishes of patients, then a court would need to determine whether the
hypothetical proposal would be a congruent and proportionate to the problem.
Limiting or restricting the ability of a court to order termination of medical treatment
would appear to have the effect of increasing the chance that a person’s desire to have
medical treatment continued would be honored. However, the legislation would also
appear to have the negative effect of burdening the right to direct that medical
treatment be discontinued. In order to justify this disparity, Congress might need to
establish a record that the courts evaluating such cases are more inclined to incorrectly
ascertain the intent of incompetent patients who wish for the continuation of such
treatment than they are of patients who wish for termination. Further, the fact that this
burden falls on a private party (the patient as represented by the health proxy or
guardian) rather than on a state actor may, under Morrison, also detract from the
193 (...continued)
Treatment Allegedly Necessary to Sustain Life, 93 A.L.R.3d 67 (2005).
194 See (name redacted),
The Schiavo Case: Legal Issues, CRS Report RL32830.
195 See text accompanying notes 153-164, supra.

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argument that the legislation is congruent and proportional to constitutional
violations.196
c. Procedural Due Process Rights Not to be Deprived of Life, Liberty
or Property.
As noted above, an alternative argument has been made that cases involving the
termination of medical treatment should not be decided based solely on a patient’s
substantive due process right to direct their medical treatment, but should also be
characterized as involving a right not to be deprived of life by the state without due
process of law.197 Under this argument, to the extent that a guardian is seeking a
particular course of medical treatment, and to the extent that the case is being
entertained in the court system, such a course of action must be done in accord with
due process. Further, the argument can be made that Congress, using its § 5 authority,
can act to ensure that due process rights are protected.
Although the Supreme Court has often addressed the requirements of due process
as regards deprivation of “liberty or property,” there is little case law relating to the
requirements of due process as it relates to the deprivation of “life” in the civil
context.198 For instance, the argument might be made that the hypothetical proposal
is consistent with due process requirements, since it requires a more careful analysis
of a course of action which may lead to death. In other circumstances, the Court has
mandated higher levels of standard of proof based on the importance of the underlying
right at issue.199 For instance, the Court has mandated an evidentiary burden of “clear
and convincing” be met where individual interests at stake in a state proceeding are
196 Thus, while federal court review of state termination of medical treatment cases under
prevailing state standards might be seen as directed at states not adequately protecting a
patient’s constitutional rights to direct medical treatment, changing the standard to burden
a patient’s right to withdrawal of medical treatment might not be seen as directed at states.
197 Cruzan, 497 U.S. at 281. See James Bopp, Jr. and Daniel Avila, The Due Process "Right
to Life" in Cruzan and its Impact on "Right-to-die" Law, 53 U. Pitt. L. Rev. 193 (1991). But
see In re Guardianship of L.W., 167 Wis. 2d 53 (1992) “[W]e do not view the withdrawal
of life-sustaining treatment as depriving the patient of life; rather, it ‘allows the disease to
take its natural course’ [cite omitted]. No one can dispute that the withdrawal of treatment,
especially artificial feeding, will result in the death of the patient. However, it is equally
indisputable that the result is the natural death of the body, as contrasted to the unnatural
prolongation of, in this case, a vegetative state. The state does not deprive an individual of
life by failing to ensure that every possible technological medical procedure will be used to
maintain that life.” Id. at 83.
198 Johnny Killian, (name redacted), Kenneth Thomas, THE UNITED STATES CONSTITUTION:
ANALYSIS AND INTERPRETATION 1800 (2002). In criminal cases, procedural due process
rights regarding the deprivation of life are generally restricted to the context of capital
punishment. Id.
199 "The function of a standard of proof, as that concept is embodied in the Due Process
Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree
of confidence our society thinks he should have in the correctness of factual conclusions for
a particular type of adjudication." Addington v. Texas, 441 U.S. 418 (1979) (quoting In re
Winship, 397 U.S. 358, 370, (1970) (Harlan, J., concurring)).

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both “particularly important”and “more substantial than mere loss of money."200
Examples of cases where a clear and convincing standard is required include
deportation proceedings,201 denaturalization proceedings,202 civil commitment
proceedings,203 and proceedings for the termination of parental rights.204
It should be noted, however, that the cases in which the Court has held that clear
and convincing evidence is required are generally where governments seek to take
unusual coercive action against an individual.205 The instant proposal, by contrast,
would appear to involve the federal government seeking to protect the due process
interests of an individual against the petition of their guardian or other private party.
The Supreme Court held in Cruzan that a state’s interest in protecting an incapacitated
patient could be the basis for the state to raise the level of evidence of the patient’s
intent. However, it does not appear that any court has held that states are
constitutionally required to raise the standard for withdrawal of medical treatment.
Thus, the question arises as to whether Congress could establish that there is a
pattern and history of incapacitated patients being denied procedural due process
rights so that Congress can legislate a clear and convincing standard under § 5. As
noted previously, state courts currently use a variety of standards in evaluating cases
involving withdrawal of medical treatment, including both subjective intent (decided
by either preponderance of or clear and convincing evidence) and the objective test206
(often associated with a best interest standard). It does not appear, however, that any
court has held that using these standards violates the incompetent patient’s
constitutional rights. Thus, it would appear that Congress would have to establish that
courts have unconstitutionally ignored the procedural due process rights of individuals
in specific cases, thus violating their due process rights. As noted above, it may,
however, be difficult to establish that a significant number of patients’ wishes were
disregarded by a court in cases where no written directives were left.
Finally, courts would need to determine whether the proposal is congruent and
proportional to solving the problem presented by any constitutional violations that are
identified. This may be easier to establish for procedural due process than it would be
for substantive due process, as the tendency of the hypothetical proposal to favor
200 Santosky v. Kramer, 455 U.S. 745, 756, (1982) (quoting Addington, 441 U.S. at 424).
201 Woodby v. INS, 385 U.S. 276, (1966).
202 Schneiderman v. United States, 320 U.S. 118 (1943).
203 Addington v. Texas, 441 U.S. 418 (1979).
204 Santosky v. Kramer, 455 U.S. 745 (1982).
205 Price Waterhouse v. Hopkins, 490 U.S. 228, 253 (1989) (plurality opinion). But see Gertz
v. Robert Welch, Inc., 418 U.S. 323, 342 (1974) (requiring clear and convincing evidence
standard in defamation suits).
206 The fate of the “objective intent” tests after passage of the instant proposal is unclear.
Since the proposal appears to rely exclusively on the subjective intent of the patient,
“objective” decisions, which rely on third party choices, do not appear to fit into this
decision-making scheme. Therefore, the proposal might prohibit courts from considering
any tests except ones based on the expressed desires of the individual.

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continued medical treatment is consistent with the fact that deprivation of life without
due process would only occur where the treatment is withdrawn.
Certainly, to the extent that constitutional violations were shown to exist in the
application of the current standards to particular situations, the raising of the standard
of evidence would make such deprivations more unlikely. On the other hand, a court,
in evaluating the congruence and proportionality of the proposal might also note that
raising the evidentiary standard could lead to more situations where patients’ wishes
to terminate medical treatment were not implemented. In essence, a proposal such as
requiring clear and convincing evidence in order to withdraw treatment would appear
to raise the protection for one constitutional right, while limiting the other. This might
undercut an argument that the constitutional rights of the incapacitated patients were
being protected by the instant proposal.
2. The Commerce Clause.
An alternative constitutional basis for the proposed Act might be the power of
the United States Congress to regulate commerce. As noted above, the United States
Constitution provides that the Congress shall have the power to regulate commerce
with foreign nations and among the various states.207 This power has been cited as the
constitutional basis for a significant portion of the laws passed by the Congress over
the last fifty years, and it currently represents one of the broadest bases for the exercise
of congressional powers.
Starting in 1937, with the decision in NLRB v. Jones & Laughlin Steel
Corporation,208 the Supreme Court held that the Congress has the ability to protect
interstate commerce from burdens and obstructions which “affect” commerce
transactions. In the NLRB case, the court upheld the National Labor Relations Act,
finding that by controlling industrial labor strife, the Congress was preventing burdens
from being placed on interstate commerce.209 Thus, the Court rejected previous
distinctions between the economic activities (such as manufacturing) which led up to
interstate economic transactions, and the interstate transactions themselves. By
allowing Congress to regulate activities which were in the “stream” of commerce, the
Court also set the stage for the regulation of a variety of other activities which “affect”
commerce.
Subsequent Court decisions found that Congress had considerable discretion in
determining which activities “affect” interstate commerce, as long as the legislation
was “reasonably” related to achieving its goals of regulating interstate commerce.210
Thus the Court found that in some cases, events of purely local commerce (such as
local working conditions) might, because of market forces, negatively affect the
207 U.S. Const., Art. I, §8, cl. 3.
208 301 U.S. 1 (1937).
209 301 U.S. at 41.
210 United States v. Darby, 312 U.S. 100 (1941)(approving legislation relating to working
conditions).

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regulation of interstate commerce, and thus would be susceptible to regulation.211 The
Court has also held that an activity which in itself does not affect interstate commerce
could be regulated if all such activities taken together in the aggregate did affect
interstate commerce.212 Under the reasoning of these cases, the Court has upheld
many diverse laws, including laws regulating production of wheat on farms,213 racial
discrimination by businesses,214 and loan-sharking.215
More recent cases have found some limits to these powers. In the 1995 case of
United States v. Lopez,216 the Supreme Court struck down the Gun-Free School Zone
Act of 1990, in which Congress had made it a federal offense for "any individual
knowingly to possess a firearm at a place that the individual knows, or has reasonable
cause to believe, is a school zone."217 The Lopez case was significant in that it was the
first time since 1937 that the Supreme Court struck down a federal statute purely
based on a finding that the Congress had exceeded it powers under the Commerce
Clause.218 In doing so, the Court revisited its prior cases, sorted the commerce power
into three categories, and asserted that Congress could not go beyond these three
categories: 1) regulation of channels of commerce; 2) regulation of instrumentalities
of commerce; and 3) regulation of economic activities which "affect" commerce.219
Within the third category of activities which "affect commerce," the Court
determined that the power to regulate commerce applies to intrastate activities only
when they "substantially" affect commerce.220 Still, the Court in Lopez spoke
approvingly of earlier cases upholding laws which regulated intrastate credit
transactions, restaurants utilizing interstate supplies, and hotels catering to interstate
211 312 U.S. at 121.
212 Wickard v. Filburn, 317 U.S. 111 (1942).
213 Id.
214 See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v.
McClung, 379 U.S. 294 (1964).
215 Perez v. United States, 402 U.S. 146 (1971).
216 514 U.S. 549 (1995).
217 18 U.S.C. §922(q)(1)A).
218 Herman Schwartz, Court Tries to Patrol a Political Line, Legal Times 25 (May 8, 1995).
219 The Court failed to note that to some extent, the three categories are intertwined. For
instance, the first category, the regulation of "streams" or "channels" of commerce, allows
regulation of the creation, movement, sale and consumption of merchandise or services. But
the initial extension of the "streams" of commerce analysis by the Court to intrastate trade
was justified by the "effect" of these other activities on commerce. See NLRB v. Jones &
Laughlin, 301 U.S. 1, 31 (1936). Similarly, the second category, which allows the
regulation of such instrumentalities of commerce as planes, trains or trucks, is also based
on the theory that a threat to these instrumentalities "affects" commerce, even if the effect
is local in nature. Southern Railway Company v. United States, 222 U.S. 21, 26-27
(1911)(regulation of intrastate rail traffic has a substantial effect on interstate rail traffic).
Thus, the final category identified by the Court appears to be a catch-all for all other
activities which "substantially affect" commerce.
220 514 U.S. at 559.

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guests. The Court also recognized that while some intrastate activities may by
themselves have a trivial effect on commerce, regulation of these activities may be
constitutional if their regulation is an essential part of a larger economic regulatory
scheme. Thus, the Court even approved what has been perceived as one of its most
expansive rulings, Wickard v. Filburn, which allowed the regulation of the production
of wheat for home consumption, since the aggregate of the home grown wheat which
was regulated, would have a substantial impact on the market for wheat.221 The Court
has since noted that the aggregation principal has only been applied to regulation of
economic activities.222
Regulation of how hospitals and hospices care for incapacitated patients,
however, would appear to fall easily into the power of Congress to regulate
commerce. The activity, regulation of the care of patients by hospitals, who are
providing such care as a commercial service, would clearly be commercial in nature.223
The care of patients in a hospital involves the use of a significant amount of goods that
travel in interstate commerce224 and most hospitals treat out-of-state patients.225 Since
the activity of running hospitals and hospices are economic in nature, the substantial
effects test can be met by aggregation of these activities by all regulated hospitals.
The argument could be made that Congress has a rational basis to find that regulating
the termination of medical treatment would preserve the integrity of the medical
industry, and consequently the market for such services. Consequently, it would
appear that Congress has significant authority to regulate hospitals and hospices.226
221 Wickard v. Filburn, 317 U.S. 111 (1942).
222 United States v. Morrison, 529 U.S. 598, 613 (2000). The Supreme Court confirmed the
dictates of Lopez in the case of United States v. Morrison. 529 U.S. 598 (2000). In
Morrison, the Court invalidated a portion of the Violence Against Women Act, which
specifically created a private right of action against anyone who committed such a crime,
allowing an injured party to obtain damages and other compensatory relief. 42 U.S.C. §
13981 (2000). Applying its holding in Lopez, the Court concluded that the activity
regulated by the act could not be classified as "economic activity," and therefore the
aggregation principle established by Wickard did not apply.
223 Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991) (exclusion of a single physician from
a single hospital affects interstate commerce); Russell v. United States, 471 U.S. 858 (1985)
(arson of a two-unit apartment building affects interstate commerce); Wickard v. Filburn,
317 U.S. 111, (1942) (farmer's consumption of bread baked from own wheat affects
interstate commerce).
224 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
225 Katzenbach v. McClung, 379 U.S. 294 (1964).
226 The Congress has relied on the commerce clause as the basis for significant regulation
of the health care industry. See, e.g. , Health Insurance Portability and Accountability Act
of 1996, 104 Pub. L. 191 (1996), § 195, which finds that
(1) provisions in group health plans and health insurance coverage that impose
certain preexisting condition exclusions impact the ability of employees to seek
employment in interstate commerce, thereby impeding such commerce; (2) health
insurance coverage is commercial in nature and is in and affects interstate
commerce; (3) it is a necessary and proper exercise of Congressional authority
(continued...)

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Thus, for instance, it would appear that Congress would be within its authority
to require that hospitals and hospices, in providing services to incompetent patients,
follow certain standards regarding how such patients are treated. While such power
would still be limited by other constitutional constraints, such as the right to direct
one’s own medical treatment, it would appear that Congress could still regulate within
those constitutional parameters. So, for instance, Congress might have the authority
to require that hospitals or hospices, prior to terminating medical treatment for a
patient, seek a court order showing by clear and convincing evidence that this was this
wish of the patient.
If Congress were to impose such a requirement on hospitals and hospices,
however, the guardians of patients might seek to have those people discharged from
a hospital, and brought home to avoid these restrictions. Thus, the question arises as
to whether such regulation could be extended beyond hospitals and hospices to reach
the actions of private individuals. At first impression, regulation of the health care of
private individuals who are not being cared for in a commercial setting would not be
amenable to federal regulation. Since the activity was not economic, the effects could
not be aggregated, and it would be difficult to show that the economic impact of such
activity had a substantial impact on commerce.
The question could be asked, however, whether regulation of individuals who
sought to terminate medical treatment outside of a hospital or hospice setting could
be reached as a “necessary and proper” part of a larger regulatory scheme. In the case
of Gonzales v. Raich,227 the Court evaluated an “as applied” challenge to the
Controlled Substances Act as regards obtaining, manufacturing or possessing
marijuana for medical purposes. The case was brought by two seriously-ill residents
of California who used marijuana in compliance with the California Compassionate
Use Act of 1996.228 The challenge was based on the argument that the narrow class of
activity being engaged in — the intrastate, noncommercial cultivation and possession
of cannabis for personal medical purposes as recommended by a patient’s physician
pursuant to valid California state law — did not have a substantial impact on
commerce, and thus could not be regulated under the Commerce Clause.229
In upholding the application of the Controlled Substances Act in the Raich case,
the Court relied on its decision in Wickard v. Filburn,230 which held that “even if
appellee’s activity be local and though it may not be regarded as commerce, it may
still, whatever its nature, be reached by Congress if it exerts a substantial economic
226 (...continued)
to impose requirements under this title on group health plans and health
insurance coverage (including coverage offered to individuals previously covered
under group health plans) in order to promote commerce among the States.
227 125 S. Ct. 2195 (2005).
228 Cal. Health & Safety Code Ann §11362.5 (West Supp. 2005) (providing for the legal
possession of medical marijuana by a patient or primary care-giver, upon the written or oral
recommendation of a physician).
229 125 S. Ct. at 2211.
230 317 U.S. 111 (1942).

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effect on interstate commerce.”231 Based on Wickard, the Court in Raich held that
Congress could consider the aggregate effect that allowing the production and
consumption of marijuana for medical purposes would have on the illegal market for
marijuana.232 Of even greater concern was that diversion of marijuana grown for
medicinal purposes for other uses would frustrate the federal interest in eliminating
commercial transactions in the interstate market.233 In both cases, the Court found, the
regulation was within Congress’ commerce power because the Congress had a rational
basis to determine that production of a commodity meant for home consumption, be
it wheat or marijuana, could have a substantial effect on supply and demand. In
addition, since exempting the use of medical marijuana could undercut enforcement
of the Controlled Substances Act, the Court found that the application in this case was
within Congress’ authority to “make all Laws which shall be necessary and proper”234
to effectuate its powers.
The use of the Commerce Clause to regulate an individual or their guardian
seeking to terminate medical care outside of a hospital or hospice setting, however,
is not as clear as it was under Wickard and Raich. Unlike these cases, it is not apparent
that the treatment of patients outside of a medical setting has any significant impact
on the market for medical services. In general, for Congress to regulate an entire
“class of activities,” it must find that the “total incidence” of such practice poses a
threat to a national market.235 Here, Congress could arguably exclude patients outside
of hospital or hospice settings without undercutting the goal of preserving the integrity
of the medical community.
What might be more relevant question is one alluded to by the majority but
directly addressed by Justice Scalia in his concurrence in Raich – to what extent is the
challenged regulation of non-economic activity “necessary and proper” to the larger
economic scheme. In Raich, the fungibility of marijuana served to make regulation of
locally grown marijuana vital to the larger regulatory scheme. In the instant case,
however, if a patient is not in a hospital, it does not appear that the regulation would
have any effect on enforcement of the larger economic scheme. Although Raich held
that Congress need only have a rational basis to discern an economic impact from
non-economic activities, regulation of this activity may even exceed that lenient
231 Id. at 125. The Wickard case upheld the application of the Agricultural Adjustment Act
of 1938, 52 Stat. 31. which was designed to control prices by regulating the volume of wheat
moving in interstate commerce. The Court in Wickard held that the Congress could regulate
not only the wheat sold into commerce, but also wheat retained for consumption on a farm.
Id. at 128-29. The Court did so on the theory that the while the impact of wheat consumed
on the farm on interstate commerce might be trivial, it was significant when combined with
wheat from other farmers similarly situated. Id. at 127.
232 125 S.Ct.. at 2207.
233 Id.
234 U.S. Const., Art. I, § 8.
235 See Perez, 402 U.S. at 154-155 (quoting Westfall v. United States, 274 U.S. 256, 259)
(1927)("[W]hen it is necessary in order to prevent an evil to make the law embrace more
than the precise thing to be prevented it may do so").
.

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standard. Consequently, it would appear that incompetent patients not in a medical
setting might not be amenable to federal regulation.
B. Existing Federal Legislation
1. The Patient Self-Determination Act.
In 1990, Congress passed the Patient Self-Determination Act,236 which requires
that providers of health care service237 under Medicare and Medicaid maintain written
policies and procedures related to Living Wills and other advance directives. The
providers are required to provide written information to all adult patients of their
rights under State law to make decisions about their medical care, including the right
to refuse care and to formulate an advance medical directive. The providers must also
inquire whether a person has executed an advance directive, and ensure compliance
with State law regarding such directives.
2. Assisted Suicide Funding Restriction Act.
In the 105th Congress, the Congress passed the “Assisted Suicide Funding
Restriction Act of 1997,”238 which prohibits the use of federal funds to pay for assisted
suicide. Reminiscent of the Hyde Amendments, which prohibit the use of federal
funds to pay for abortions, this legislation prevents federal monies from being paid for
any goods or services related to assisted suicide, euthanasia or mercy killing. The law
also prevents use of federal funding to support legal advocacy. Although there is no
indication that any federal monies were being used for such purposes, the legislation
appears to be a constitutional exercise of Congress’ spending power to regulate in the
area of the “right to die.”
3. The Controlled Substances Act.
As noted, the state of Oregon allows persons who are terminally ill to seek
assistance in committing suicide if they meet certain criteria.239 In November of 1997,
a Drug Enforcement Agency staff report concluded that prescribing a controlled
substance with the intent of assisting a suicide would not be a legitimate medical
purpose and therefore would violate the Controlled Substances Act (CSA).
Consequently, the Drug Enforcement Agency issued a warning that under the
Controlled Substances Act, doctors could lose their licenses to prescribe drugs if they
helped someone commit suicide. On June 5, 1998, however, the Department of Justice
(DOJ) issued a press release rejecting this conclusion.
The DOJ press release reads, in part, as follows:
236 42 U.S.C. § 1395cc(f).
237 This includes hospitals, nursing homes, home health agencies, hospices, HMOs and other
prepaid organizations.
238 Pub. L. 105-12 (1997).
239 Oregon Rev. Stat. 127.800. § 1.01, et. seq.

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Physicians . . . are authorized to prescribe and distribute scheduled drugs only
pursuant to their registration with the DEA, and the unauthorized distribution of
drugs is generally subject to criminal and administrative action. The relevant
provisions of the CSA provide criminal penalties for physicians who dispense
controlled substances beyond “the course of professional practice,” and provide
for revocation of the DEA drug registrations of physicians who have engaged
either in such criminal conduct or in other “conduct which may threaten the public
health and safety.” Because these terms are not further defined by the statute, we
must look to the purpose of the CSA to understand their scope.
The CSA was intended to keep legally available controlled substances within
lawful channels of distribution and use. It sought to prevent both the trafficking
in these substances for unauthorized purposes and drug abuse. . . . There is no
evidence that Congress, in the CSA, intended to displace the states as the primary
regulators of the medical profession, or to override a state’s determination as to
what constitutes legitimate medical practice in the absence of a federal law
prohibiting that practice. Indeed, the CSA is essentially silent with regard to
regulating the practice of medicine that involves legally available drugs except for
certain specific regulations dealing with the treatment of addicts.
The state of Oregon has reached the considered judgment that physician-assisted
suicide should be authorized under narrow conditions and in compliance with
certain detailed procedures. Under these circumstances, we have concluded that
the CSA does not authorize DEA to prosecute, or to revoke the DEA registration
of, a physician who has assisted in a suicide in compliance with Oregon law. . .
.
The DOJ press release noted that physicians who dispense controlled substances
beyond “the course of professional practice” may be subject to criminal penalties, and
that those who engage in “conduct which may threaten the public health and safety”
may have their authority to prescribe controlled substances revoked. Although the
press release did not provide citations for these standards, the phrase “the course of
professional practice” may be found in 21 C.F.R. § 1306.04, which provides that:
A prescription for a controlled substance to be effective must be issued for a
legitimate medical purpose by an individual practitioner acting in the usual course
of his professional practice. . . . An order purporting to be a prescription issued
not in the usual course of professional treatment . . . is not a prescription within
the meaning and intent of section 309 of the Act (21 U.S.C. 829) and the person
. . . issuing it shall be subject to the penalties provided for violations of the
provisions of law relating to controlled substances.
Some variation of the other phrase used in the DOJ press release, “conduct which
may threaten public health and safety,” was relevant to two different sections of the
code: 21 U.S.C. §§ 823 and 824. Under § 823, the Attorney General shall “register”
or authorize a physician to prescribe or dispense controlled substances if it is
consistent with the “public interest.” In determining the public interest, a variety of
factors may be considered, including whether such registration is “consistent with the
public health and safety.” Under 21 U.S.C. § 824, a registration “may” be revoked for

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a number of reasons,240 including whether the physician has committed such acts as
would render his registration inconsistent with the “public interest” as evaluated under
factors as defined in § 823(f).241
On November 9, 2001, newly appointed Attorney General John Ashcroft
reversed the DOJ position and issued a Directive indicating that physician assisted
suicide serves no “legitimate medical purpose” under 21 C.F.R. § 1306.04 and that
specific conduct authorized by Oregon’s Death With Dignity Act may “render [a
practitioner’s] registration . . . inconsistent with the public interest” and therefore
subject to possible suspension or revocation.”242 The Directive specifically focused
on health care practitioners in Oregon and instructed the DEA to enforce this
determination “regardless of whether state law authorizes or permits such conduct by
practitioners.”
A doctor, a pharmacist, several terminally ill patients, and the State of Oregon
challenged this Directive as a violation of the CSA.243 The United States Court of
Appeals for the Ninth Circuit, in the case of Oregon v. Ashcroft, held that the
Directive violates the plain language of the CSA, contravenes Congress’ express
legislative intent, and oversteps the bounds of the Attorney General’s statutory
authority.244 This case is currently on appeal to the Supreme Court.245
The Ninth Circuit, citing a number of federalism cases,246 first noted that
“unmistakably clear” statutory authorization is needed for the Attorney General to
exercise control over an area of law traditionally reserved for state authority, such as
regulation of medical care. According to the court, the CSA expressly limits federal
240 Factors to be considered are whether a registrant (1) has materially falsified an
application required by the act; (2) has been convicted of a felony relating to controlled
substances; (3) has lost his State license or registration relating to controlled substances;
(4) has committed an act inconsistent with the public interest; or (5) has been excluded from
participation in a Medicare or state health program pursuant to 42 U.S.C. § 1320a-7(a).
241 The five factors specified under 21 U.S.C. § 823(f) are (1) the recommendation of the
appropriate State licensing board or professional disciplinary authority; (2) the applicant’s
experience in dispensing, or conducting research with respect to controlled substances; (3)
the applicant’s conviction record under Federal or State laws relating to the manufacture,
distribution, or dispensing of controlled substances; (4) compliance with applicable State,
Federal, or local laws relating to controlled substances; (5) such other conduct which may
threaten the public health and safety.
242 66 Fed. Reg. at 56,608.
243 21 U.S.C. §§ 801-904.
244 Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. Or., 2004), cert. granted, Gonzales v.
Oregon, 2005 U.S. LEXIS 1453 (2005).
245 Gonzales v. Oregon, 2005 U.S. LEXIS 1453 (2005).
246 See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 461 (14th Amendment); Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 242 (11th Amendment).

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authority under the act to the field of “drug abuse,”247 which does not include
physician-assisted suicide. Thus, the court suggested, the lack of an “unmistakably
clear” indication that Congress intended to authorize the Attorney General to regulate
the practice of physician assisted suicide precluded regulation of this practice.
The court further found that the Attorney General’s authorization to revoke
prescription privileges from physicians for conduct deemed “inconsistent with the
public interest” could not be invoked based solely on a physician participating in a
physician-assisted suicide under the Oregon regime. The court noted that when
determining what conduct is inconsistent with the public interest under 21 U.S.C. §
823(f), the Attorney General must consider five factors.248 These factors include the
recommendation of the appropriate State licensing board; the applicant’s experience
with controlled substances; the applicant’s conviction record regarding controlled
substances; compliance with applicable State, Federal, or local laws relating to
controlled substances; and such other conduct which may threaten the public health
and safety. Here, the court found that the Attorney General had only considered
whether the conduct was such as would “threaten public health and safety.”249
Consequently, the court struck down the promulgation of the Directive as being
outside of the Attorney General’s authority under 21 U.S.C. § 823(f).
4. “For the Relief of the Parents of Theresa Schiavo”.
On March 17, 2005, the Senate passed S. 653, a bill “For the relief of the parents
of Theresa Marie Schiavo.” On March 20, the Senate passed S. 686, an almost
identical bill with the same name, which the House then passed and the president
signed on March 21.250 The law provided that either parent of Theresa Marie Schiavo
247 21 U.S.C. § 801(2)-(6) (congressional findings and declarations).
248 See 21 U.S.C. § 823(f).
249 Oregon v. Ashcroft, 368 F.3d. at 1127.
250 Public Law 109-3, 119 Stat. 15 (2005). The only difference between S. 653 and S. 686
appears to be the addition of the following language:
It is the Sense of Congress that the 109th Congress should consider the status and
legal rights of incapacitated individuals who are incapable of making decisions
concerning the provision, withholding, or withdrawal of foods, fluid, or medical
care.

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would have standing251 to bring a suit in federal court.252 Under the law, the federal
courts would determine de novo253 any claim of a violation of any right of Theresa
Marie Schiavo under either the Constitution or laws of the United States, as related
to the withholding or withdrawal of food, fluids, or medical treatment necessary to
sustain her life.254 The suit was to be filed within 30 days of the enactment of the
proposed bill. Despite passage of this law, the federal courts declined to order that the
feeding tube of Theresa Schiavo be reinserted.255
A number of issues appeared to be raised by the law. First, as discussed
previously, there was a question as to under what circumstance a federal court would
find sufficient state action to invoke constitutional concerns. Secondly, it is not clear
what laws of the United States would be implicated by this issue. In general, the
federal courts have jurisdiction over violations of federal constitutional provisions and
statutes under federal question provisions. Thus, it was unclear how this law would
change existing law.256
251 P.L. 109-3, § 2 provides that:
Any parent of Theresa Marie Schiavo shall have standing to bring a suit under
this Act. The suit may be brought against any other person who was a party to
State court proceedings relating to the withholding or withdrawal of food, fluids,
or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or
who may act pursuant to a State court order authorizing or directing the
withholding or withdrawal of food, fluids, or medical treatment necessary to
sustain her life.
252 P.L. 109-3, § 1 provides that
The United States District Court for the Middle District of Florida shall have
jurisdiction to hear, determine, and render judgment on a suit or claim by or on
behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa
Marie Schiavo under the Constitution or laws of the United States relating to the
withholding or withdrawal of food, fluids, or medical treatment necessary to
sustain her life.
253 A de novo trial is a hearing on a case as if it had not been heard before and no previous
decision had been rendered. Blacks Law Dictionary 435 (2004).
254 P.L. 109-3, § 2 provides that:
In such a suit, the District Court shall determine de novo any claim of a violation
of any right of Theresa Marie Schiavo within the scope of this Act,
notwithstanding any prior State court determination and regardless of whether
such a claim has previously been raised, considered, or decided in State court
proceedings.
255 For a summary of relevant factual and legal events surrounding this case, see
[http://www.miami.edu/ethics2/schiavo/timeline.htm] and CRS Report RL32830 (pdf), "The
Schiavo Case: Legal Issues."
256 28 U.S.C. § 1331.

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a. Bill of Attainder.
There was also a concern that the specificity of this law might raise constitutional
concerns. Article I of the Constitution prohibits passage of Bills of Attainder.257
Under this provision, Congress is prohibited from passing legislation which “appl[ies]
either to a named individual or to easily ascertainable members of a group in such a
way as to inflict punishment on them without a judicial trial.”258 Generally, the
prohibition on Bills of Attainder is intended to prevent the Congress from assuming
judicial functions and conducting trials.259 The two main criteria which the courts will
look to in order to determine whether legislation is a Bill of Attainder are 1) whether
specific individuals are affected by the statute, and 2) whether the legislation inflicts
a punishment on those individuals.260
An argument might be made that the Schiavo law was a bill of attainder, but the
precedent for this is very limited. Although the bill itself specifically addressed
providing a benefit to the parents of Theresa Schiavo, it could have theoretically
affected the reputation of Michael Schiavo, and could be seen as interfering with his
role as legal guardian of his wife. Although Michael Schiavo was not named in the
law, the Supreme Court has held that legislation meets the criteria of specificity if it
applies to a person or group of people who are described by past conduct.261
By specifying Theresa Schiavo’s parents, limiting the law to facts which related
to a pending case, and providing that the suit must be filed within 30 days, the law
seemed to establish criteria which only applied to the case regarding Theresa Schiavo.
However, the Supreme Court has found that a piece of legislation which is narrowly
focused is not a Bill of Attainder merely because the statute might have been set at a
higher level of generality.262 In order to find that legislation is a Bill of Attainder, a
court would have to establish that the legislation was intended to inflict punishment
on this individual or individuals.
While it is true that the law had the potential to disrupt the proceedings in the
particular state court case, the mere fact that focused legislation imposes burdensome
consequences does not require that a court find such legislation to be an
unconstitutional of Bill of Attainder. Rather, the Court has identified three types of
257 U.S. Const. Art. 1, Sec. 9, cl. 3 provides that “No Bill of Attainder or ex post facto Law
shall be passed.”
258 United States v. Brown, 381 U.S. 437, 447 (1965).
259 Id.
260 Nixon v. Administrator of General Services, 433 U.S. 425, 472-484 (1977).
261 Selective Service System v. Minnesota Public Interest Group, 468 U.S. 841, 847 (1984).
262 433 U.S. at 470. In fact the Court has upheld a law which specifically affected only one
named individual. In Nixon v. Administrator of General Services, the Congress passed the
Presidential Recordings and Materials Preservation Act, which directed that the General
Services Administration take custody of the presidential papers of a named individual,
Richard M. Nixon. The Court held that if there is a rational basis for a legislative
classification and no punitive intent, then the Congress may go so far as to legislate against
one named individual. 433 U.S. at 472.

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“punitive” legislation which are barred by the ban on Bills of Attainder: 1) where the
burden is such as has traditionally been found to be punitive; 2) where the type and
severity of burdens imposed cannot reasonably be said to further non-punitive
legislative purposes; and 3) where the legislative record evinces a congressional intent
to punish. Thus, questions could have arisen as to whether the potential burdens on
Michael Schiavo’s right to act as her guardian fit into one of these three categories.
The Supreme Court has identified various types of punishments which have
historically been associated with Bills of Attainder. These traditionally have included
capital punishment, imprisonment, fines, banishment, confiscation of property, and
more recently, the barring of individuals or groups from participation in specified
employment or vocations.263 There are no indications by the Court that harming a
person’s reputation or intervening in guardianship rights is a type of “punishment”
traditionally engaged in by legislatures as a means of punishing individuals for
wrongdoing.
The Supreme Court has also indicated that some legislative burdens not
traditionally associated with Bills of Attainder might nevertheless “functionally” serve
as punishment.264 The Court has stated, however, that the type and severity of a
legislatively imposed burden should be examined to see whether it could reasonably
be said to further a non-punitive legislation purpose.265 Intervening in guardianship
rights does not appear to have been addressed, but there has been legislation regarding
affecting a person’s position of responsibility.
Various Supreme Court decisions have invalidated as Bills of Attainder
legislation barring specified persons or groups from pursuing various professions,
where the employment bans were imposed as a brand of disloyalty.266 For instance, in
Cummings v. Missouri,267 the Supreme Court noted that “disqualification from the
pursuits of a lawful avocation, or from positions of trust, or from the privilege of
appearing in the courts, or acting as an executor, administrator, or guardian, may also,
and often has been, imposed as punishment.”
An opinion by the United States Court of Appeals for the District of Columbia
has specifically addressed the issue of whether a congressional bill limiting custodial
rights was a Bill of Attainder. In Foretich v. United States,268 the court considered a
legislative rider to the 1997 Department of Transportation Appropriations Act entitled
“The Elizabeth Morgan Act.” This act provided for specific procedures to be followed
in resolving child custody cases in the District of Columbia Superior Court, but was
263 433 U.S. at 474-75.
264 433 U.S. at 475.
265 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963); Nixon v. Administrator of
General Services, 433 U.S. at 476.
266 Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 474-75 (1977).
267 Cummings v. State of Missouri, 71 U.S. 277, 320 (1867).
268 351 F.3d 1198 (2003).

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written so narrowly as to apply to just one case.269 This case involved a protracted
custody battle, where allegations of sexual abuse by the husband had been made.
Because the child in the case was no longer a minor, the issue of removal of
custodianship was declared by the court to be moot. However, the court found that
act imposed “punishment” under the functional test because it harmed the father’s
reputation, and because it could not be said to further a non-punitive purpose. To the
extent that the proposed law would harm Michael Schiavo’s reputation, these
arguments could have been found applicable.
b. Due Process.
Although it was not considered by the courts reviewing this statute, a Due
Process argument could have been made that the bill required that Theresa Schiavo
comply with an additional set of procedural requirements in order to effectuate
constitutional rights. The bill would appear to require a named individual to comply
with a set of procedural rules that are not required of any other individuals. This may
raise issues of whether a substantive due process right, the right to terminate medical
treatment, can be specifically burdened. Further, it could have raised the issue of
Equal Protection, as seen in the context of the substantive due process right to
terminate medical treatment.
For instance, in News America Publishing, Inc. v. FCC,270 the United States
Court of Appeals for the District of Columbia applied heightened scrutiny to an act
of Congress that singled out “with the precision of a laser beam,” a corporation
controlled by Rupert Murdoch. Murdoch’s corporation had applied for, and received,
temporary waivers from the FCC’s cross-ownership rules, so that the corporation
269 The act provided:
(a) In any pending case involving custody over a minor child or the visitation rights of a
parent of a minor child in the Superior Court which is described in subsection (b)
(1) at anytime after the child attains 13 years of age, the party to the case who is
described in subsection (b)(1) may not have custody over, or visitation rights with, the child
without the child’s consent; and
(2) if any person had actual or legal custody over the child or offered safe refuge to the
child while the case (or other actions relating to the case) was pending, the court may not
deprive the person of custody or visitation rights over the child or otherwise impose
sanctions on the person on the grounds that the person had such custody or offered such
refuge.
(b) A case described in this subsection is a case in which -
(1) the child asserts that a party to the case has been sexually abusive with the child;
(2) the child has resided outside of the United States for not less than 24 consecutive
months;
(3) any of the parties to the case has denied custody or visitation to another party in
violation of an order of the court for not less than 24 consecutive months; and
(4) any of the parties to the case has lived outside of the District of Columbia during
such period of denial of custody or visitation.
270 844 F.2d 800, 814 (D.C. Cir. 1988).

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could acquire two TV licenses, one in Boston, and the other in New York.271
Subsequently, Congress passed a law that prevented the FCC from extending any
existing temporary waivers; at the time, Murdoch’s corporation was the only current
beneficiary of any such temporary waivers. The corporation sued, arguing a violation
of Equal Protection in the context of the First Amendment. Based on this argument,
the court evaluated the law under a heightened scrutiny standard, and struck it
down.272
C. Proposed Legislation
1. “Incapacitated Persons Legal Protection Act of 2005”.
The proposed “Incapacitated Persons Legal Protection Act of 2005”273
(hereinafter proposed Act) amends existing federal habeas corpus procedures to deem
that an incapacitated person is in the “custody” of any court if such court “authorizes
or directs the withholding or withdrawal of food, fluids, or medical treatment
necessary to sustain the person’s life.” Further, that person shall also be deemed to be
in the custody of those parties “authorized or directed by the court order to withdraw
or withhold food, fluids, or medical treatment.” The apparent intent of this language
is that an incapacitated person who fits in the described category would be given the
opportunity to challenge such withdrawal of nutrition, hydration, or medical treatment
in a federal court.
The ultimate impact of this legislation is not clear. The existing federal habeas
corpus procedure is a federal remedy available to persons in the custody of a state or
the federal government.274 It is “available to effect discharge from any confinement
contrary to the Constitution or fundamental law, even though imposed pursuant to
conviction by a court of competent jurisdiction.”275 For instance, 28 U.S.C. § 2254,
provides for habeas corpus review of persons who are in the custody of state
government. This provision, however, has not generally been applied to medically
incapacitated persons.
The courts have construed “custody” liberally to include not only actual physical
custody but restraints on personal liberty as well, such as parole conditions.276 It
appears, however, that 28 U.S.C. § 2254 is limited to situations where the person
bringing the petition is in custody pursuant to legal processes initiated by the state,
271 Id. at 804.
272 Id. at 815.
273 S. 539, 109th Cong., 1st Sess.; H.R. 1151, 109th Cong., 1st Sess.
274 See David P. Saybolt, Habeas Relief for State Prisoners, 85 Geo. L.J. 1507 (1997).
275 Preiser v. Rodriguez, 411 U.S. 475, 485 (1973). Generally, habeas corpus proceedings
are limited to a review of allegations that an individual has been deprived of a constitutional
or fundamental right as a result of state action. See Hickock v. Crouse, 334 F.2d 95, 100
(10th Cir. 1964), cert. denied, 379 U.S. 982, 13 L. Ed. 2d 572, 85 S. Ct. 689 (1965).
276 Jones v. Cunningham, 371 U.S. 236 (1963).

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such as criminal prosecutions, immigration detentions, or juvenile hearings.277 It does
not appear that 28 U.S.C. § 2254 has generally been construed to apply to restraints
on personal liberty pursuant to court proceedings where a person is solely in the
custody of private parties.278
For example, although certain state laws dealing with child custody are called
“habeas” statutes, the Supreme Court has found that the federal habeas statute has no
general application to child custody cases. In Lehman v. Lycoming County Children’s
Services Agency,279 a mother voluntarily placed three boys in the legal custody of a
county agency, which placed the children in foster homes. Subsequently, a state court
terminated the mother’s parental rights over the children, and the Pennsylvania
Supreme Court affirmed. The mother then sought a writ of habeas corpus under 28
U. S. C. § 2254, arguing that the sons were “in custody” pursuant to a state-court
judgment in alleged violation of the Federal Constitution.
The mother argued that habeas corpus should be available to her in this case
because habeas is a procedure used in child-custody cases in various states and in
England. The Court, however, noted that “Federal habeas when applied to persons
under state control is a procedure of unique potency within the federal-state
framework, having far different and more far-reaching consequences than a state’s
utilization of habeas within its own system. State utilization of habeas to test the legal
custody of a child is part of the fabric of its reserved jurisdiction over child custody
matters. If a habeas remedy were not provided, some other procedure would be
needed to effectuate the state’s substantive interest in these relationships. It is purely
a matter of procedural detail whether the remedy is called ‘habeas’ or something else.
The federal government, however, has no parallel substantive interest in child custody
matters that federal habeas would serve.”280
It should be noted that in the above case, the custody of the children had at least
briefly passed through the state’s legal control. This would not appear to be the case
with most incapacitated persons in a hospital setting. In order for “custody” to arise
in such a situation, it would appear that the state would either have to have physical
custody and control over the patient’s settings, or that a state would need to act to
limit the legal rights of that individual. As discussed in a previous section, most
relevant state statutes and state case law regarding the "right to die" are directed to the
277 Andrea G. Nadel, When Is a Person in Custody of Governmental Authorities for Purpose
of Exercise of State Remedy of Habeas Corpus — Modern Cases, 26 A.L.R.4th 455 (2004).
278 S.U. v. Youth Care of Utah, Inc., 345 F. Supp. 2d 1269, 1271 (2004); See William H.
Danne, Jr., Modern Status of “In Custody” and Live-controversy Requirements for
Asserting Federal Habeas Corpus Challenge to Custody Pursuant to State Court Judgment,
176 A.L.R. Fed. 189 (2004).
279 458 U.S. 502 (1982). “It is true that habeas has been used in child-custody cases in
England and in many of the States. . . .” Id. at 514.
280 458 U.S. at 515, citing Sylvander v. New England Home for Little Wanderers, 584 F.2d
1103, 1111 (1st Cir., 1978).

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implementation of individual rights, not to their limitation.281 Thus, it would appear
even less likely that an incapacitated person would generally be considered to be in
custody of a state, even if a court order had been issued regarding their medical
treatment.
The proposed Act would appear to avoid these issues by providing that for
purposes of the habeas corpus statute, a court that authorizes or directs the
withholding of nutrition or hydration is deemed to be the custodian of the patient.
Thus, the act would appear to bring such a patient within the ambit of the habeas
corpus provision. However, even if an incapacitated person was found to be in
custody of a state, the questions would arise as to what constitutional authority would
exist to review the state court’s holding.
The findings of the proposed Act suggest that the constitutional basis for the bill
is section 5 of the Fourteenth Amendment. As was noted previously, in Flores v. City
of Boerne, the Supreme Court held that section 5 of the Fourteenth Amendment is
available as a basis for a statute when such law is a “congruent and proportional
response” to a pattern and history or constitutional violations.282 This raises two
issues: 1) can Congress establish a pattern or history violations of the constitutional
rights of incapacitated persons who are subject to a court order withdrawing nutrition
or hydration; and 2) is the proposed Act a “congruent and proportional” response?
In order to address the first issue, one must postulate what constitutional
violation the proposed Act is intended to remedy. As was noted above, it would
appear that the constitutional right at issue is either the right of a patient to direct one’s
own medical treatment (as was at issue in the case of Cruzan v. Missouri Dept. of
Health),283 or a concern about procedural due process. There is no indication that state
legislation and case law which is currently on the books regarding advance directives
or guardianship significantly limits the exercise of either the right to direct medical
treatment or denies incompetent patient’s procedural due process rights.284 Thus, it
would appear that Congress would need to establish that there is a pattern of courts
using neutral laws to disguise an effort to deny the constitutional rights of
incapacitated person to direct their own medical treatment.
As discussed above, under United States v. Morrison, Congress would also need
to establish that such violation of constitutional rights occurred as a result of actions
attributable to the state, not as a result of private activity.285 The Court has long held
that the Fourteenth Amendment provides the Congress the authority to regulate states,
281 See text accompanying notes 50-53, supra.
282 Flores v. City of Boerne, 521 U.S. 507 (1997). Section 5 provides that “The Congress
shall have power to enforce, by appropriate legislation, the provisions of this article.”
283 497 U.S. 261, 302 (1990).
284 See United States v. Raines, 362 U.S. 17, 25 (1960)(state action is found when a
legislature passes a bill which violates the constitution).
285 See discussion supra.

CRS-57
but not individuals.286 Thus, evidence regarding the treatment of patients who had
nutrition and hydration withheld outside of the court context might not be deemed
relevant. Rather, the Congress would need to establish that there was a pattern and
history of court cases directing either the application or withdrawal of medical
treatment in contravention to the incompetent patients’ desires.
Also, as discussed above, an alternative constitutional basis for the proposed Act
might be the power of the United States Congress to regulate commerce. This power
has been cited as the constitutional basis for a significant portion of the laws passed
by the Congress over the last fifty years, and it currently represents one of the broadest
bases for the exercise of congressional powers. The proposed Act, however, does not
address channels or instrumentalities of commerce: it contains no requirement that
interstate commerce be affected; it is not part of a larger regulatory scheme to regulate
commerce; nor does it regulate an economic activity. Rather, it is a law designed to
regulate the activity of state courts in evaluating incapacitated patients regarding
medical decisions. Consequently, in order for the Commerce Clause to be established
as a basis for the proposed Act, the Congress may need to take additional steps to
establish a relationship between the activity to be regulated and interstate commerce.
2.“Protection of Incapacitated Persons Act of 2005”.
On March 16, 2005, the House of Representatives passed H.R. 1332,287 the
“Protection of Incapacitated Persons Act of 2005” (hereinafter “Protection Act”). This
bill would amend the removal provisions of Title 28 to provide for the removal to
federal court of state cases involving the withdrawal of nutrition or hydration from an
incapacitated person, where that person did not leave a written advance directive
regarding their treatment.288 These claims can only be brought after all state remedies
have been exhausted, and the case may be brought by the incapacitated person or a
286 See Shelley v. Kraemer, 334 U.S. 1, 13 (1948).
287 109th Cong., 1st Sess.
288 H.R. 1332(b) provides for removal of cases where a:
state court authorizes or directs the withholding or withdrawal of food or fluids or
medical treatment necessary to sustain the incapacitated person’s life, but does not
include a claim or cause of action in which no party disputes, and the court finds, that
the incapacitated person, while having capacity, had executed a written advance
directive valid under applicable law that clearly authorized the withholding or
withdrawal of food or fluids or medical treatment in the applicable circumstances.

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“next friend.”289 A “next friend”includes anyone who has a significant relationship
with the incapacitated person, including his or her parents.290
The proposed Protection Act provides that a federal court may hear a claim or
cause of action regarding a directive to withhold food, fluids or medical treatment
necessary to sustain the incapacitated person’s life. Such a review may only extend
to whether there is a deprivation of a constitutional right or federal statutory right.291
Such a determination will be made de novo, and the litigation of previous issues at the
state level will not bar relitigation of these issues.292
These provisions appear to differ significantly from other federal removal
provisions. Generally, removal is a doctrine which is reserved for defendants who
have been sued,293 while this bill would allow removal of cases involving
incapacitated persons, who are likely to be in court under guardianship proceedings.
Second, the bill requires that all state proceedings be exhausted, while removal
provisions must be made within 30 days of the filing of the case.294 In addition,
removal to federal court would not generally eliminate issues of abstention and issue
preclusion, as is done by the present bill.
There appear to be no apparent constitutional issues raised on the face of the bill.
For instance, an incapacitated person could be in the care of a Veteran’s
Administration Hospital, and a decision made by the administration of that hospital
289 H.R. 1332(b) provides that removal is available:
not later than 30 days after available State remedies have been exhausted, an
incapacitated person, or the next friend of an incapacitated person, may remove
any claim or cause of action described in subsection (b) to the United States
district court for the district in which the claim or cause of action arose, or was
heard.
290 H.R. 1332(e)(2) provides that a “next friend” is:
an individual who has some significant relationship with the real party in interest,
and includes a parent.
291 H.R. 1332(b) provides:
hearing and determining a claim or cause of action removed under this section,
the court shall only consider whether authorizing or directing the withholding or
withdrawal of food or fluids or medical treatment necessary to sustain the
incapacitated person’s life constitutes a deprivation of any right, privilege, or
immunity secured by the Constitution or laws of the United States.
292 H.R. 1332 (d) provides that the:

United States district court shall determine de novo any claim or cause of action
considered under subsection (c), and no bar or limitation based on abstention, res
judicata, collateral estoppel, procedural default, or any other doctrine of issue or
claim preclusion shall apply.
293 Charles Alan Wright, Mary Kay Kane, LAW OF THE FEDERAL COURT 225 (2002).
294 Id. at 243.

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to withhold medical treatment despite an advance medical directive directing
otherwise. In that case, an argument could be made that an agency of the United
States was acting so as to violate the constitutional rights of that individual to direct
their own medical treatment. Or, if a state passed a law which had the effect of
requiring termination of medical treatment against the direction of an individual, this
may also be a violation of constitutional rights.
There also appears to be no constitutional problem on the face of the bill
regarding the provision of “next friend” status for purposes of litigation. The practice
of allowing a “next friend” to bring such a suit is well-established,295 and a person
with a significant enough relationship with the patient, such as a parent,296 would
appear to be able to take advantage of its provisions despite issues of standing.297
A question does arise, however, whether this bill would have practical
application to situations where an individual is not in a government facility and is not
challenging a state law. In such a context, the question arises as to what constitutional
rights are at issue. In general, actions by private individuals or entities are not of
constitutional significance; only actions by a government lead to the violation of
constitutional rights.298 So, if a hospital or facility caring for an incapacitated
individual moved to terminate medical treatment of an individual patient, no
constitutional rights appear to be implicated.
As noted previously, a more complicated issue arises when a court has become
involved in such a situation, and has directed or authorized the withdrawal of medical
treatment. In the case of Shelley v. Kraemer,299 the Supreme Court found that state
action could arise based on the contractual and property rights of a private individual,
if the court, in the act of enforcing those rights, violated the Equal Protection Clause.
Specifically, the Court held that a state court could not enforce restrictive covenants
in deeds of residential property by which the owners would agree that the property
should not be used or occupied by any person except a Caucasian.
It is not apparent, however, that a guardian automatically becomes a state actor,
since, where appropriate, a legal guardian is expected to stand in the place of the
295 Caroline Nasrallah Belk, Next Friend Standing and the War on Terror, 53 Duke L.J.
1747 (2004). “The doctrine of next friend standing permits persons unable to prosecute
their own actions to have third persons litigate in their stead. In U.S. courts, next friend
standing is authorized by common law and, in the context of habeas corpus proceedings, by
statute.”
296 The existence of a relationship generally creates a presumption of standing that may be
rebutted by other information. Although having a family relationship, or being hired or
appointed as counsel, may be strong evidence of the “best interests” prong, in practice most
courts are willing to look at other evidence. Id. at 1775.
297 Next friend standing constitutes an exception to traditional standing rules, which
generally require that litigants bring suit only for their own injuries and prohibit suits on
behalf of third parties. Id. at 1750.
298 See Shelley v. Kraemer, 334 U.S. 1, 13 (1948).
299 Id.

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patient, not in opposition to her. In Kraemer, the Court noted, “these are cases in
which the States have made available to such individuals the full coercive power of
government to deny to petitioners, on the grounds of race or color, the enjoyment of
property rights in premises which petitioners are willing and financially able to
acquire and which the grantors are willing to sell.”300 Thus, it is not clear that the
doctrine of Shelley v. Kraemer would be extended without a showing that the guardian
was seeking the approval of the court to act against the interests of his or her charge.
D. Congressional Subpoenas and Congressional Requests
On March 17, 2005, Senator Mike Enzi (R-WY), Chairman of the Senate Health,
Education, Labor and Pensions Committee sent a letter to Terri Schiavo and her
husband requesting their presence at a hearing before his Committee on Monday,
March 28. According to a committee press release, the purpose of the hearing, “Health
Care Provided to Non-ambulatory Persons,” was to review health care policies and
practices relevant to the care of non-ambulatory persons such as Mrs. Schiavo. It was
further noted that federal criminal law protects witnesses called before official
congressional committee proceedings from anyone who may obstruct or impede a
witness’ attendance or testimony. More specifically, the law protects a witness from
anyone who — by threats, force, or by any threatening letter or communication —
influences, obstructs, or impedes an inquiry or investigation by Congress.
On March 18, the House Committee on Government Reform issued subpoenas
to Michael Schiavo, Victor Gambone, Stanton Tripodis, Annie Santamaria and
Theresa Schiavo. The subpoenas required the recipients to testify at a Committee
field hearing and to produce “all medical and other equipment that provides nutrition
and hydration to Theresa Schiavo — in its current and continuing state of operations
— and all data, information, and records relating to the functioning of such medical
and other equipment, subject only to such routine and necessary maintenance as is
necessary to ensure its continued proper functioning to provide such nutrition and
hydration to Theresa Schiavo.” The field hearing at which the subpoena recipients
were required to testify and produce the listed items was scheduled for March 25,
2005 at the Hospice of the Florida Suncoast, where Theresa Schiavo was located.
On March 18, the House Office of General Counsel filed a motion in the Circuit
Court for Pinellas County, Florida, Probate Division to modify the court’s order
directing Michael Schiavo to remove nutrition and hydration from Theresa Schiavo
on March 18,301 so that such removal would occur on March 29. This motion was
made in order to allow the recipients of the House subpoenas to comply with the
Committee subpoena, and to give the Committee the opportunity to fulfill its
investigative function at its field hearing on March 25. Although a brief stay was
issued, the presiding judge in this case denied the motion, and subsequently the
nutrition and feeding tubes were removed.
300 Id. at 19.
301 See Order, Schiavo v. Schindler at 3, Case No. 90-2908-GD-003 (Feb. 25,
2005)(“Ordered and Adjudged that absent a stay from the appellate court, the guardian,
Michael Schiavo, shall cause the removal of nutrition and hydration from the ward, Theresa
Schiavo, at 1:00 p.m. on Friday, March 18, 2005”).

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