Copyright (c) 2006 Loyola University New Orleans School of Law Loyola Journal of Public Interest Law

Fall, 2006

8 Loy. J. Pub. Int. L. 45

LENGTH: 15851 words

COMMENT: ABORTION AND PHYSICIAN-ASSISTED SUICIDE: IS THERE A CONSTITUTIONAL RIGHT TO BOTH?

NAME: Carrie H. Pailet*

BIO:  * J.D. Candidate. Loyola University New Orleans College of Law; M.S.W., Tulane University School of Social Work, 2003; B.A., Psychology and Sociology, University of Texas at Austin, 1999. Thank you to Professor Stephen Higginson and Dr. Norton Spritz for their support and advice. Thank you to my family and friends for their steadfast encouragement and love.

SUMMARY:... Two areas of medical care that continuously encounter legal controversy, possibly because of their similarities, are abortion and assisted suicide. ... Case law that evolves the "zone of privacy' concept into the right of personal autonomy with regard to medical decisions will be explored along with Oregon's Death with Dignity Act, as it is the United States' sole statute permitting physician-assisted suicide. ... a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State[,] ... a confirmation of the State's power to restrict abortions after fetal viability, ... and ... the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus ... . ... An additional study regarding physician-assisted suicide and euthanasia in the Netherlands was performed in 2001 at the request of the Dutch government. ...  

TEXT: [*45] 

I. INTRODUCTION The practice of medicine has drastically changed over the centuries. With technological advances in medical treatment, developing an illness, such as cancer, no longer means certain death. We are living longer, but our medical and technological developments have led our society down a path of complex questions with no correct answers. Our society, through law, has attempted to accommodate these complexities by placing stringent requirements on some decisions regarding healthcare while prohibiting others.

Two areas of medical care that continuously encounter legal controversy, possibly because of their similarities, are abortion and assisted suicide. These issues have been explored and debated in government, newspapers, magazines, classrooms, prime time television shows and movies. American culture has played tug-of-war for centuries with the topic of abortion with zealous supporters flanking both sides of the issue. While assisted suicide has been a more recent subject of cultural fascination, the issue has already developed a following of supporters and naysayers. Both issues have legislation banning and regulating the procedures and both issues, abortion in particular, have helped and hindered the elections of many politicians based on the stance these candidates have taken in public forums.

This article explores the evolution of abortion and assisted suicide, focusing on physician-assisted suicide, for adults in the United States. n1 The  [*46]  discussion of abortion will explore the history of abortion in the United States, case law that developed the "zone of privacy' concept, and current legislation winding its way through state legislatures. In delving into the topic of physician-assisted suicide, this paper will briefly discuss current end-of-life treatment options of palliative and hospice care. Case law that evolves the "zone of privacy' concept into the right of personal autonomy with regard to medical decisions will be explored along with Oregon's Death with Dignity Act, as it is the United States' sole statute permitting physician-assisted suicide. This paper will also examine the Dutch's Termination of Life on Request and Assisted Suicide Act, as the Netherlands has legalized physician-assisted suicide nationwide. Lastly, there will be a discussion comparing and contrasting abortion and physician-assisted suicide in the United States, including predictions as to how the two treatments will be dealt with from a legal perspective in the future.

II. THE EVOLUTION OF ABORTION IN THE UNITED STATES

The History of Abortion in the United States Prior to 1860, it was estimated that one in five pregnancies ended in abortion. n2 The anti-choice movement in America gained momentum in the middle of the nineteenth century due to an alliance between physicians attempting to gain respect for their profession, and "anti-vice" crusaders trying to solidify "traditional" roles for men and women - particularly women's moral role in society as that of mother and nurturer. n3 The arguments against abortion included that it was against a woman's pre-destined role and that the procedure was an unhealthy one because licensed physicians were not performing it. n4 An additional argument made by people against choice is that a fetus is a human being, and as such, it is wrong to abort a fetus because the action is equal to killing a person. n5 The  [*47]  movement gained further momentum in 1869, when Pope Pius IX declared non-therapeutic abortions a violation of Catholic Church policy. n6 By the 1890s, every state had passed a criminal abortion statute. n7

Abortion laws and their enforcement have waxed and waned depending on the economy and population issues. For example, enforcement of abortion laws were lax during the Great Depression in the 1930's at a time of massive unemployment and grave poverty; however, the 1950's was a period of intensified law enforcement with regard to abortion due to the great loss of life during World War II and a moral need to fight Communism that included women returning to the "traditional" duties as wives and mothers. n8 Another factor that has fluctuated throughout the years is the physical safety and the sanitary conditions under which abortions have been performed. n9

The "Zone of Privacy' and The Liberty of Choice One of the first modern steps towards confirming a constitutional right for a woman to have a choice as to whether to obtain an abortion appears with the introduction of the "zone of privacy' concept as it relates to reproductive issues in Griswold v. Connecticut. n10 The defendants in this case were Mr. Griswold, who was the Executive Director of the Planned Parenthood League of Connecticut, and Dr. Buxton, who was the Medical Director for the Planned Parenthood League's Center in New Haven. n11 The two men were arrested for giving "information, instruction, and medical advice to married persons as to the means of preventing conception." n12 The issue in this case was whether the State had the constitutional right to interfere with the private lives of those within its borders. Specifically, the United States Supreme Court had to determine if two Connecticut statutes

prohibiting the use of contraceptives and the counsel or assistance in obtaining contraceptives were unconstitutional. n13

The Court discussed several United States constitutional amendments  [*48]  throughout its opinion, but the majority opinion focused on the First and Fourteenth Amendments. n14 The First Amendment states, "Congress shall make no law... abridging the freedom of speech... ." n15 The Fourteenth Amendment states, "nor shall any State deprive any person of life, liberty, or property, without due process of law ... ." n16 Justice Douglas, who penned the majority opinion, wrote of indirect guarantees provided in the Constitution, such as the right of parents to educate their children in a manner they see fit, or the right of a person to study a subject of choice. n17 Justice Douglas stated that the Court had granted rights not specifically guaranteed by the Constitution because "without those peripheral rights the specific rights would be less secure ... . The First Amendment has a penumbra where privacy is protected from governmental intrusion." n18 Several cases were listed that "suggest that specific guarantees in the Bill of Rights have penumbras," and, as such, these "various guarantees create zones of privacy." n19 The Court held both Connecticut statutes unconstitutional. n20 The statute prohibiting the use of contraceptives was deemed to be a violation of the "zone of privacy' within the marital relationship as indirectly guaranteed in the Fourteenth Amendment, and the aiding and abetting statute was declared too broad to withstand a constitutional argument when applied to the First Amendment. n21

The U.S. Supreme Court continued to restrict the State's involvement with reproductive decisions with Roe v. Wade. n22 The issue in Roe was similar to Griswold in that the Court was again asked to determine to what extent the Constitution allowed the State to interfere with reproductive practices. However, Roe went further than Griswold by asking what rights  [*49]  the State had over the women in the State, not with regard to preventing contraception, but rather in the event that conception had occurred. n23 In Roe, a pregnant, single woman in Texas brought suit against the Dallas County District Attorney challenging the constitutionality of the Texas criminal abortion laws, which prohibited abortion unless the procedure's purpose was to save the life of the mother. n24

In its decision, the Court pointed out that many states did not formally pass anti-choice legislation until the Civil War. n25 The Court recognized that these first formal laws appeared to be lenient with regard to abortion before fetal viability. n26 It also discussed the dangers a woman faced when having an abortion prior to modern medical advances, as well as the legitimate concern of the State, expressed through legislative action, to protect the general health and safety of its women. n27

While the Court stated, "we need not resolve the difficult question of when life begins," the Court followed the example set by common law and declared that the State had an interest in protecting potential life once a fetus was viable. n28 The Court declared it was at this point that "the fetus then presumably has the capability of meaningful life outside the mother's womb ... [,]" thus giving the State justification for protecting a potential citizen. n29

The Court focused on the definition of "personhood" and determined that "person" was used in the Constitution only when referring to a "postnatal" individual, concluding that a fetus does not fit within the definition of a "person" as used by the Fourteenth Amendment. n30 Since a fetus is not a person by constitutional standards, the State had no compelling interest in protecting it through a due process justification via the Fourteenth Amendment. n31 This determination by the Court sends a  [*50]  confusing message when coupled with the Court's declaration of State interest once fetal viability is reached. It appears as if the Court is attempting to make supporters on both sides of the issue happy by allowing choice, but only up to a certain point.

Roe discussed the "zone of privacy' right brought up in Griswold. n32 The Court stated that the right to privacy was found in the Ninth and Fourteenth Amendments of the Constitution and concluded that the "concept of personal liberty and restrictions upon state action" in the Fourteenth Amendment and the "reservation of rights" found in the Ninth Amendment were sufficient to grant women the right of choice regarding the abortion procedure, while at the same time, the Court clarified that this right of privacy did not mean that people could do whatever they wanted with their bodies. n33 With regard to pregnancy, the Court stated, "at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant." n34 The Court continued,

 the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, ... and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling.' n35

 The Roe Court ultimately adopted a trimester system for determining the degree of interference the State could have with a woman's right to an abortion. n36 The Court held that there could be no restrictions placed on the abortion procedure during the

first trimester. n37 However, the State could provide regulations to ensure the procedure's safety during the second trimester, and the State could regulate and restrict abortions, except when necessary to protect the life of the mother, during the third trimester. n38 In other words, a woman may choose to have an abortion for therapeutic or non-therapeutic reasons until viability. However, once the fetus is viable, only therapeutic abortions must be allowed by the State. The ability to obtain a non-therapeutic abortion once a fetus is deemed liable was left to the State's discretion.

 [*51]  At the same time Roe was considered by the Court, Doe v. Bolton was also argued. n39 The issue in Doe was the validity of Georgia statutes that required an abortion procedure be approved by a hospital staff abortion committee. n40 The statutes also required the procedure only be performed on a Georgia resident by a physician at an accredited hospital only after that physician's judgment to abort was confirmed by two other physicians who had performed independent examinations on the patient. n41 Doe argued that the Georgia abortion statutes were invalid due to its "undue restriction of a right to personal and marital privacy; vagueness; deprivation of substantive and procedural due process; improper restriction to Georgia residents; and denial of equal protection." n42 The United States Supreme Court held that those portions of the Georgia statutes that restricted the location where an abortion could be performed were unconstitutional because the location was not reasonably related to the purpose of the statutes. n43 The committee and physician approval requirements prior to the procedure being carried out were "unduly restrictive of the patient's rights and needs." n44 Furthermore, the residency requirement was in violation of the Privileges and Immunities Clause of the Constitution. n45

The liberty concept that guaranteed privacy was again discussed in Planned Parenthood v. Casey. n46 The issue in Casey was how restrictive the State could be with its regulation of abortion. n47 Specifically at issue were five provisions of the Pennsylvania Abortion Control Act of 1982, yet to go into effect when this case was brought before the Court, which would have required a woman seeking an abortion to give her informed consent after receiving information about the procedure. n48 Furthermore, this information had to be provided to the woman at least twenty-four hours prior to her obtaining an abortion. n49 The Pennsylvania Act also required parental consent if the woman seeking an abortion was a minor. n50 If the woman  [*52]  were married, she would have been required to sign a statement confirming that her husband was aware she was having the abortion procedure. n51 Additionally, the facilities providing abortions would have to adhere to certain reporting requirements. n52

The Court used Casey as an opportunity to reaffirm the essential holding of Roe; n53

however, the majority opinion suggested the trimester guidelines of Roe be replaced with a less rigid "undue burden' standard. n54 An "undue burden' was defined as a provision of law whose "purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability." n55 The Court listed the rights of a woman and of the State granted in Roe as,

 a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State[,] ... a confirmation of the State's power to restrict abortions after fetal viability, ... and ... the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus ... . n56

 The Court determined that the waiting period, informed consent, parental consent for a minor, and reporting requirements were constitutional. n57 The requirement of a married woman to sign a statement that her husband was aware she was having an abortion was held unconstitutional. n58 Spousal notification met the "undue burden' standard employed by the Court in that this requirement would be a substantial obstacle for married women choosing to obtain abortions. n59 "The husband's interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife ... . A husband has no enforceable right to require a wife to  [*53]  advise him before she exercises her personal choices." n60 While the imperative holding of Roe, that a woman had the right of choice regarding abortion, was upheld, the Court granted the states the ability to place numerous obstacles in a woman's way. The Court essentially declared that a State could make the process of obtaining an abortion more time-consuming, more costly, more traumatic, more discouraging, and more burdensome, so long as the woman could, in the end, have the procedure done.

Current Legislative and Legal Action Utah has recently followed Pennsylvania's example by taking affirmative steps towards making abortion more difficult for minors. On March 16, 2006, Utah's governor signed H.B. 85 into law, which went into effect on May 6, 2006. n61 H.B. 85 requires physicians to obtain parental/guardian consent twenty-four hours prior to performing an abortion on a minor. n62 As with other restrictive abortion laws, there are exceptions to when an abortion performed on a minor absent parental

consent is permissible, such as medical emergencies that threaten the life of the minor, incest, and rape. n63 In these situations, the law provides for expedited court proceedings to determine if the minor is capable of making the decision to obtain an abortion on her own. n64 This expedited judicial process is also available to minors when they are the victims of rape, incest or other forms of abuse. n65 However, if there is a parent/guardian who was not involved in the abuse of the minor, the law requires that the "innocent" parent/guardian be notified. n66 The bill does not seem to take into account the fact that a court proceeding is a highly stressful situation that has the potential to further traumatize a woman who is already in the midst of a personal crisis.

On March 21, 2006, South Dakota's governor signed H.B. 1215 into law. n67 Known as the Women's Health and Human Life Protection Act, and scheduled to go into effect on June 20, 2006, this bill proclaimed that life begins at conception and that:

 [*54]  abortions in South Dakota should be prohibited ... . No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being. n68

 Opponents of H.B. 1215 obtained enough signatures to put the bill on the November 2006 ballot to enable voters to decide for themselves whether they approve of the strict nature of the bill. The vote will determine whether the bill will go into effect as planned or be scrapped. n69

This bill is a frontal assault on Roe and Casey, as it strips a woman of her right of choice, privacy, and personal autonomy in virtually all situations involving pregnancy. Supporters of the bill hope that the expected court challenge to the bill will reach a more conservative Supreme Court. n70 It is their hope that the Court takes this opportunity to reverse the right of privacy currently guaranteed by Roe and Casey. n71

In February 2006, the Supreme Court announced that it will rule on whether a 2003 federal law banning a form of late-term abortions known as "partial birth

abortions" is constitutional. n72 The case will be heard during the term beginning in October 2006. n73 Many states have created their own laws consistent with this ban. However, the federal law was never enacted because there were no exceptions to protect the health of the mother. n74 If the Court rules in favor of imposing the law, it will mark the first federal  [*55]  ban on an abortion procedure. n75

III. PHYSICIAN-ASSISTED SUICIDE

The Evolution of Palliative Care and Hospice Care in the United States Palliative care is a component of hospice care that "focuses on the comprehensive management of the physical, emotional, cultural and spiritual needs of patients and their family members dealing with the progression of advanced disease." n76 The service "seeks to relieve suffering, control symptoms, and restore functional capacity" of the patient in an effort to enhance the quality of life. n77 Though palliative care is included in hospice care, patients can take advantage of what palliative care has to offer prior to a need or desire for hospice. n78

Hospice is a program that provides specialized care for the dying. n79 Hospice, part of the "death with dignity" movement, officially began in London, England in 1967 by Dr. Cicely Saunders, when she founded St. Christopher's Hospice. n80 Dr. Saunders imported her hospice idea to the United States in 1963 when she spoke at the Yale School of Nursing. n81 Hospice programs in the United States were cultivated by the influences of Dr. Saunders, Florence Wald, and Dr. Elisabeth Kubler-Ross. n82 The first legislation regarding federal funding for hospice care failed in 1974; however, Congress took the idea more seriously in the late 1970's and early 1980's when the U.S. Department of Health, Education and Welfare reported that providing hospice to terminally ill patients may reduce overall healthcare costs. n83 Between 1982 and 1984, hospice programs started to  [*56]  become a valid healthcare option in the United States when Congress approved hospice as a Medicare benefit and the Joint Commission on Accreditation of Healthcare Organizations (hereinafter "JCAHO") initiated hospice accreditation criteria. n84

The main criteria for qualifying for hospice care are that (1) the patient must be terminally ill with (2) a physician certifying that death will probably occur in less than six months. n85 Once in a hospice program, the patient is eligible to receive care by a physician, nursing care, medical equipment and supplies, prescription medication for symptom control and pain relief related to the hospice diagnosis, respite care in an inpatient facility, home health aide, physical, occupational, and

speech therapy, dietary counseling, social work services, pastoral care, and volunteer services. n86 With hospice, a patient's family is eligible for counseling while the patient is alive and grief counseling for up to one year after the patient's death. n87

"Zone of Privacy' and the Right of Personal Autonomy There are four distinct categories of assisted-suicide and euthanasia - (1) assisted suicide; which is carried out with assistance, but without physician assistance; (2) physician-assisted suicide; (3) voluntary euthanasia, which is carried out by a physician through a lethal injection, but with patient consent; and (4) involuntary euthanasia, which is carried out by a physician without patient consent or, in some cases, prior discussion of end-of-life issues. n88 Assisted-suicide, voluntary euthanasia and involuntary euthanasia are illegal throughout the United States. n89 Physician-assisted suicide is only legal in the State of Oregon. n90

The right to terminate medical treatment is an issue that can arise  [*57]  under the classification of death as part of the disease process. The right to terminate medical treatment can be a hotly contested issue. This right was questioned in the State of New Jersey through In re Quinlan. n91 The New Jersey Supreme Court referred to the right of privacy, which has slowly morphed into the right of personal autonomy, when holding that there was a constitutional right to terminate medical treatment. n92 In Quinlan, Joseph Quinlan had a daughter, Karen, who was allegedly incompetent. n93 Mr. Quinlan wished to gain guardianship of his daughter so that he could cease all medical intervention, as it was believed Karen had no hope of recovery, her "vital processes" being sustained solely through machinery. n94 The Court granted Mr. Quinlan's request and concluded that "the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims. Ultimately there comes a point at which the individual's rights overcome the State interest." n95 While Quinlan provided an avenue to terminate medical treatment once it had begun, the right to refuse medical intervention, including the withdrawal of nutrition and fluids, has been permitted in the United States. n96

In Cruzan, the U.S. Supreme Court determined to what extent the State could intervene with the withdrawal of life-sustaining treatment. The parents/guardians of Nancy Beth Cruzan wanted to remove their daughter's life-sustaining treatment, but were legally unable to do so, as there was no written evidence of Ms. Cruzan's wishes prior to her entering a persistent vegetative state as a result of injuries sustained in an automobile accident. n97 While the Court conceded that the State would have been required to accommodate Ms. Cruzan if she had explicitly

expressed a desire that life-sustaining treatment be withheld prior to her becoming incompetent, it held that the State had the right to put what it deemed appropriate safeguards in place in furtherance of a legitimate State interest to protect and preserve the lives of its vulnerable citizens. n98 Missouri successfully sought to protect its vulnerable population by applying a clear and convincing standard, the most rigid standard that could be applied to end-of-life medical decisions. n99 The Court held the clear and convincing standard employed by Missouri for  [*58]  end-of-life medical decisions was permitted under the Constitution. n100 The Court based its decision in part on In re Quinlan and in part on Superintendent of Belchertown State Sch. v. Saikewicz, a Supreme Judicial Court of Massachusetts case which declared that an incompetent person retains the same rights as a competent individual. n101

The right to refuse intervention need not be an expressed decision by the patient so long as the patient or a court has empowered a proxy (a person) to make medical decisions on his behalf. n102 A proxy has a duty to follow the explicit instructions of the patient regarding healthcare decisions. n103 In the absence of explicit instructions, the proxy should use "substituted judgment" in making healthcare decisions, taking into account the patient's values and goals and attempting to make the decision it is believed the patient would make were he capable. n104 If the patient's values and goals are unknown, then the proxy is to follow the "best interest" standard, under which decisions are made in the best interest of the patient given the patient's medical situation and prognosis. n105 Some states, such as Missouri, rely on a clear and convincing standard, while other states, such as Minnesota, might rely on a less restrictive legal standard, taking into account the "best interest" of a person. n106

In the United States, the right to refuse medical intervention extends to the utilization of a living will, including a request for a physician to execute a "Do Not Resuscitate" (hereinafter "DNR") order which would prevent further medical treatment from being administered should the patient experience a fatal episode; n107 however, the physician is unable to intentionally end a patient's life. In most states, a DNR order is the closest a physician can legally come to assisting suicide or euthanasia. The key distinction is that a DNR allows a physician to intentionally allow a patient's life to end through inaction, while assisted suicide or euthanasia would require the intentional action by the physician through writing a  [*59]  lethal prescription or administering a lethal injection. Despite the legal restrictions, there is some evidence that physicians in the United States do perform euthanasia or participate in physician-assisted suicide. n108 The data is scarce, but in a sample of U.S. oncologists, fourteen percent of physicians that had received a request for

euthanasia or physician-assisted suicide fulfilled their patients' wishes. n109 This could indicate that an informed decision to end one's life or to receive assistance with such an act, under certain circumstances, is not as morally repugnant as history describes.

In Washington v. Glucksberg, the U.S. Supreme Court faced the question of whether the right to commit suicide, including the right to have assistance to commit suicide, was a fundamental right guaranteed by the Constitution. n110 The plaintiffs in Glucksberg included four physicians who wanted to help terminally ill patients commit suicide if requested, as well as three terminally ill patients who wanted physician-assistance to commit suicide. n111 The plaintiffs sought the legal right to assist in or commit suicide by arguing that Washington's statute banning assisted suicide was a violation of the Fourteenth Amendment right to liberty and privacy. n112 Relying on cases such as Planned Parenthood and Cruzan, they argued that there was a fundamental liberty asserted by the Fourteenth Amendment that extended to mentally competent, terminally ill patients to have the autonomy to choose to commit physician-assisted suicide without State interference. n113

The Washington State Court of Appeals declared that the Washington Statute was in violation of the Fourteenth Amendment, n114 but the U.S. Supreme Court disagreed. n115 The Court discussed the history of suicide and physician-assisted suicide in the United States and highlighted the fact that in almost every State in the Union, "it is a crime to assist a suicide." n116 In exploring the history of suicide in the United States, the Court stated that Anglo-American common-law had, for over 700 years, placed harsh penalties on the estates of those who committed or assisted with a suicide, including the criminal-forfeiture of personal property upon committing  [*60]  suicide. n117 Moreover, the Court stated that "the prohibitions against assisting suicide never contained exceptions for those who were near death." n118 Furthermore, the Court found it improper to assert a constitutional right to physician-assisted suicide to such a specific group of people (terminally ill, competent individuals) under the analysis that if suicide were a constitutional right, it would have to extend to all citizens equally. n119 Moreover, the Court states that declaring a constitutional right to physician-assisted suicide would go against history and states' interests, as each State had the duty to protect its citizens as it saw fit. n120

Oregon's Death With Dignity Act Oregon's Death with Dignity Act (hereinafter, "The Act"), the only law in the United States to permit physician-assisted suicide, was implemented in 1997. n121

While the Death with Dignity Act provides terminally ill Oregon residents an option of treatment that is not available anywhere else in the country, the right granted by Oregon is specific and very limited. This limited action may provide a glimpse of what the future holds, from a legal perspective, with regard to physician-assisted suicide and euthanasia.

The Act provides the option of physician-assisted suicide to terminally ill residents of Oregon. n122 The Oregon resident who personally requests this medical option must be at least eighteen years of age, diagnosed by his attending physician as having six months left to live due to a terminal illness, capable of making personal medical decisions, and the decision to receive the lethal prescription must be an informed decision that is confirmed by a consulting physician. n123 In addition, the patient must make two oral requests, one written request, and must satisfy a waiting period of two weeks prior to his physician having the legal ability to provide the patient with a lethal prescription for medication. n124 The Act further mandates that requests of physician-assisted suicide that are granted must  [*61]  be reported to Oregon's Department of Human Services, who in turn are required to make annual statistical reports available to the public that analyzes the data received. n125

The Act is careful to distinguish between physician-assisted suicide, which the State has declared legally acceptable, and other forms of suicide. It reads:

 Nothing in [the Death with Dignity Act] shall be construed to authorize a physician or any other person to end a patient's life by lethal injection, mercy killing or active euthanasia. Actions taken in accordance with [the Death with Dignity Act] shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law. n126

 The U.S. Supreme Court recently upheld Oregon's Death with Dignity Act in Gonzales v. Oregon. n127 In Gonzales, the U.S. Attorney General attempted to strike down the Act, citing his authority through the Controlled Substances Act (hereinafter "CSA"). n128 The Court disagreed. n129 The purpose of the CSA, enacted in 1970, is for the federal government to have statutory authority to combat drug abuse and to control the legitimate and illegitimate traffic of controlled substances. n130 Under the CSA, substances can be placed into one of five schedules. n131 The most addictive drugs are placed into Schedule I and the least addictive drugs are

placed into Schedule V. n132 The more addictive the drug, the more severe the restrictions placed on its access and use. n133

The CSA provides the U.S. Attorney General with power to regulate the control of drugs scheduled in the CSA, as well as the regulation of the registration of physicians. n134 "Control" means the Attorney General has the authority to add, remove, or reschedule a drug; however, he must take his  [*62]  cues from the Secretary of Health and Human Services. n135 "Registration" means the Attorney General may deny, suspend, or revoke a physician's registration to prescribe drugs falling within the five schedules after considering five factors, including "such other conduct which may threaten the public health and safety." n136 The Attorney General used this factor to claim his authority to abolish the Act through an Interpretive Rule, stating that physician assisted suicide was not a legitimate medical purpose. n137 The Court rejected this argument, stating that the CSA provides the Attorney General with limited authority, which did not encompass defining standards of medical practice. n138 The Court went on to hold that the Attorney General's intention to halt physician-assisted suicide does not fall within the purpose of the CSA. n139

Physician-Assisted Suicide in The Netherlands While the Netherlands did not implement the legalization of physician-assisted suicide until 2002, the country has been tolerant of the practice for over a decade, performing nationwide studies as early as 1990. n140 The Dutch law, the Termination of Life on Request and Assisted Suicide Act, n141 has a broader definition of physician-assisted suicide than Oregon. The Act classifies what is traditionally thought of in the United States as euthanasia as physician-assisted suicide, permitting the physician to personally administer a lethal injection to a patient as opposed to solely providing the means for suicide, which is the only form of physician-assisted suicide permitted under Oregon law. n142 The Dutch Act applies to people ages twelve and older. n143 An incompetent individual can be legally subjected to euthanasia through a lethal injection administered by a physician provided that the patient indicated his preferences in a written declaration prior to becoming incompetent. n144

Studies were conducted in the Netherlands regarding physician-  [*63]  assisted suicide in 1990 and 1995. n145 Though physician-assisted suicide and euthanasia were not legal at the time of either study, standards had been adopted by the medical community that condoned the illegal practice. n146 The studies indicated that, of those patients requesting physician assistance for suicide between 1990 and

1995, the majority had cancer. n147 What was alarming about this study was that 23% - 27% of physicians interviewed for the study indicated that they had euthanized a patient without prior discussion or patient consent (involuntary euthanasia), in some instances with the estimate that the patient had longer than a month left of life prior to receiving the lethal injection. n148 The study further indicated that in a country where sixteen percent of all deaths occur in nursing homes, eighty-six percent of those deaths that involved opiods were carried out on incompetent patients without any information regarding the patients' end-of-life wishes. n149 While figures in this study suggested that the rate of involuntary euthanasia in the Netherlands had decreased roughly five percent between 1990 and 1995, there was no definitive information to conclude that the Netherlands had not begun down a slippery slope feared by assisted-suicide/euthanasia opponents concerned with the possible social acceptance of euthanasia for "morally unacceptable reasons." n150

An additional study regarding physician-assisted suicide and euthanasia in the Netherlands was performed in 2001 at the request of the Dutch government. n151 The findings of this study were not published until after the Termination of Life on Request and Assisted Suicide Act went into effect. The study indicated that "active euthanasia" was preferred over assisted in the Netherlands. n152 "The argument that assisted suicide is [an act] more respectful of patient autonomy and responsibility, often weighs less with doctors, and presumably also the patients, than the better control achieved when the doctor injects a lethal drug." n153 Furthermore, the study concluded that, ""termination of life without request of the patient' is still practiced on an undiminished scale, in defiance of the official rules of careful conduct." n154 The study also indicated that Dutch physicians did not follow protocols such as mandatory consultation that were put in place to  [*64]  protect vulnerable populations. n155 Many cases indicate that the mandatory consultation consisted of general conversations between two physicians on the telephone, with no thorough exploration of the specific patient's case and no discussion between the consulting physician and the patient. n156

In response to U.S. concerns that vulnerable groups in society might be singled out to receive euthanasia, the report declared that there was no difference discovered between the rate of euthanasia among different social and economic groups. n157 However, critics quickly point out that this finding does not adequately address the U.S. concern, as the Netherlands is a welfare state that provides healthcare for all of its citizens, and therefore, there are no socially or economically vulnerable groups. n158 Furthermore, critics of the studies performed between 1990 and 2001 suggested that reports on studies after 1990 indicate that there were efforts at

damage control in order to thwart international opinion that Dutch euthanasia was a social experiment gone awry. n159

IV. DISCUSSION AND CONCLUSION There is a legal link between abortion and physician-assisted suicide. Both procedures have relied on the same legal argument, that to prohibit either choice is a violation of an unspecified, constitutionally protected, liberty interest that one may make decisions affecting one's own body free from legal interference. n160 The argument expounding a right to privacy gradually became focused as a right to autonomy - the right to make decisions regarding one's body and healthcare without interference from the State. n161 While the same argument is applied to both issues, the U.S. Supreme Court only agrees with this reasoning regarding abortion, leaving physician-assisted suicide wholly under State discretion. n162 Abortion is promoted as a choice to be enjoyed by all women, whereas supporters of the right to assisted suicide promote this right to be made constitutionally available only to mentally competent, terminally ill individuals. n163 The Court declared the latter inappropriate. n164

 [*65]  Roe has set forth complications regarding abortion rights that are mirrored in the controversy of assisted suicide. The Court stated that there are deep and absolute convictions on both sides of the abortion argument that are influenced by one's philosophy, experiences, religion, attitudes toward life and family, along with the personal values and moral standards strived for throughout one's life. n165 "In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem." n166

However, physician assisted suicide presents issues unique from abortion. While cases such as Cruzan and In re Quinlan affirm a federal right to autonomy in deciding how people might proceed with their healthcare decisions, these cases do not recognize a right to end life through deliberate action(s) on the part of the physician, the patient, or a proxy acting on a patient's behalf. n167 However, if all terminally ill patients are deemed to have the right to an autonomy that includes the right to physician-assisted suicide, is that not extending a right to all citizens equally?

"Assisted suicide and voluntary active euthanasia, unlike abortion, involve the extinction of what all involved agree is a human life." n168 Unlike the history of abortion in the United States, the history of suicide and assisted suicide never contained periods of tolerance or exceptions that deemed the procedure

permissible. n169 This makes it less likely that the U.S. Supreme Court would ever conclude that suicide, assisted or otherwise, was a fundamental liberty protected by the Constitution. n170 It should be noted that the Court in Gonzales did not grant constitutional protection to commit physician-assisted suicide, but rather based their decision on the conclusion that the Attorney General erroneously interpreted a federal statute. n171

Additional concerns that contrast abortion with physician assisted suicide are that people could be heavily influenced by their physicians and family members to utilize assisted suicide due to the high cost of healthcare. n172 Undue influence by a physician encouraging abortion might  [*66]  not prove true, as women do not always receive pre-natal care, depriving physicians of the opportunity to steer an expectant mother's decision in the same manner as might be applied to the terminally ill. Furthermore, there is a concern that vulnerable populations, such as disabled individuals and the elderly, would be targets of involuntary euthanasia disguised as physician-assisted suicide. n173

The saying "it is better to let ten innocent men go free rather than to wrongly convict one innocent one" seems to be the essence behind prohibiting physician-assisted suicide, with the fear being that if physician-assisted suicide were legal, a multitude of vulnerable people would fall victim to the syringe. n174 While concern for vulnerable populations is valid, as demonstrated by the studies conducted in the Netherlands, proper legislation of physician-assisted suicide could potentially safeguard these populations. n175 For example, under Oregon's Death with Dignity Act, a disabled citizen of Oregon who is able to make and communicate his healthcare decisions, but unable to personally administer the medication that would lead to his death, cannot take advantage of the physician-assisted suicide provision. n176 This safeguard has been put in place in an effort to prevent involuntary euthanasia of a vulnerable population and to distinguish physician-assisted suicide from euthanasia, which is illegal in Oregon and the rest of the Union. n177 It is safeguards such as these, as well as distinct differences between what is currently legally and morally permissible in the United States and the Netherlands, that make it appear unlikely that the U.S. will progress in the same manner as the Dutch with regard to physician-assisted suicide. In the U.S., the only law permitting physician-assisted suicide employs a rigid standard of what a physician may do to assist a suicide, which is in direct contrast to the Dutch legislation which embraces more lenient guidelines. n178 Furthermore, many states have had recent legislative proposals on their ballots that would have permitted physician-assisted suicide, but the citizens of those states demonstrated their unwillingness to condone any form of suicide through the failure to pass the proposed legislation. n179

An argument opposing physician-assisted suicide as a readily available legal option is that managed care would push for this option due  [*67]  to the decreased cost endured when paying for additional medical treatment. n180 This presumably would put patients in the awkward position of having to justify why they should receive treatment and a possible opportunity to live beyond their prognosis. n181 This argument seems all the more reasonable when coupled with the U.S. managed health care system; however, patients already have to justify why they should live. If a patient's health insurance policy will not pay for a test or procedure, then the patient, in most instances, is not able to utilize those medical options for lack of finances. If the patient or his physician feels strongly enough about the treatment or test, there can be heated discussions with insurance representatives and conferences with medical directors of insurance companies. However, if the health insurance company still refuses to cover what is being requested, the patient is sent home empty-handed unless the patient has the private funds to obtain the treatment he seeks.

Another argument against legalizing physician-assisted suicide is that research on pain management will cease because ending life will be viewed as the "better" option, as the patient could die peacefully without becoming a burden to his family. n182 The fear is that physicians will force most people into "choosing" physician-assisted suicide, rather than pain management, so that they do not have to form an intimate relationship with their patients who are experiencing pain. n183 This argument has less merit. Hospice was developed to help patients and their families cope with the dying process. The option of hospice treatment has not caused research to cease on terminal diseases, such as cancer and AIDS. Physician-assisted suicide, similar to hospice, would provide patients with an option of how to navigate their care. This would be an option utilized by some, not all, patients.

Roe and Casey have upheld State interference with the abortion procedure through the viability test; however, it is not possible to draw as clear a line with regard to suicide. n184 While viability of a fetus is speculated to be around twenty-four weeks, we cannot predict with any certainty when a person will die. A physician can make an estimate that a person has six months to live which would enable the person to receive hospice services. However, there is no "death date" that can provide a rough estimate as to when death will occur the same way a "due date" estimates when a fetus will become a person. n185

 [*68]  Outcome prediction models may become available for utilization in the future. n186 These models could help a patient determine if physician-assisted suicide was the right choice for him. The implementation of these models may

persuade those who oppose physician-assisted suicide, due to the uncertainty of death, to embrace this concept as a potential treatment option. n187

A concern regarding abortion and physician-assisted suicide are that both are deemed "liberal" issues. While many might see Gonzales as a positive indicator as to how the Court will rule on future cases, it again should be noted that the issue in Gonzales was statutory, not constitutional, interpretation. n188 Furthermore, Gonzales was heard prior to Justice Samuel Alito replacing Justice Sandra Day O'Connor. The make-up of the U.S. Supreme Court is potentially much different than it was a year ago in that the Court is now considered to be more conservative. n189 The replacement of Chief Justice William Rehnquist with Chief Justice John Roberts was not thought to shift the Court, as both are viewed as "Conservatives." n190 However, replacing Justice O'Connor with Justice Alito has been met with a collective gasp from "moderates" and "liberals," as Justice O'Connor has often been referred to as the "swing vote." n191 Justice Alito has been judged decisively conservative, n192 which may pose a problem for issues thought to be in constitutionally gray areas such as abortion and "the right to die."

Cases addressing controversial issues, such as late term abortion, will provide better insight as to how the nation can expect the Court to rule on future issues. However, based on the Court's treatment of late-term abortions in the past with Roe and Casey, it seems likely that the Court would rule in favor of imposing a federal ban on late-term abortions, provided there was an exception granted for the physical health of the mother. Furthermore, should the recently passed South Dakota statute awaiting affirmation by the State's voters regarding abortion be heard  [*69]  before the Court, it is possible that the Court would declare the statute invalid. The statute presumes to have evidence as to when life begins, which it states was "evidence" gathered post Roe, n193 but Roe specifically declined to answer the question of when life begins. n194 Stare decisis could be used to avoid revisiting pre-viable abortions. However, in the event that the right to privacy is nullified with regard to a woman's ability to receive an abortion, there is always an argument based on a women's right to equality. n195

It also appears unlikely that the Court would conclude there was a constitutional right to physician-assisted suicide, as there is no historical basis to fuel such an argument. n196 While arguments using personal autonomy have been successful with determining whether to pursue a particular path of medical treatment, the cultural arguments that lend support to the autonomy argument have not yet been solidified due to the rejection of suicide in any form throughout most of our history. However, while the Glucksberg Court stated that it was improper to assert

a constitutional right to physician-assisted suicide to such a specific group of people (terminally ill, competent individuals), n197 would that not be extending the choice of suicide to all citizens equally? Women have the right to choose whether or not to have an abortion; however, they cannot exercise this right until such time as they become pregnant. n198 Can this same logic not be applied to terminally ill patients? In other words, could not everyone have the right to choose physician-assisted suicide, but not have access to this right until statutory requirements are met?

Autonomy, control, self-determination - these are the essential issues in all cases regarding abortion and end-of-life medical decisions. Both types of cases determine whether man has control over his own destiny or if mother-nature through State interference maintains that power. As a nation, we have stated that in both situations, self-determination is permissible to a point.

Abortion recognized a woman's liberty over her person by giving her legal control over her body in order for her, not society, to decide what she  [*70]  could do when faced with pregnancy. n199 However, the liberty granted by the U.S. Supreme Court has its limits, as do end-of-life medical decisions. Refusing medical intervention, choosing a health care proxy, executing a living will, or utilizing services to ease pain and increase comfort level, such as palliative care and hospice care, are the liberties that an adult has over his person regarding end-of-life medical decisions. n200

Like abortion, end-of-life medical decisions have limits as well. Many states will probably observe the progression of Oregon's Death with Dignity Act to determine if a similar or identical statute may become realized in their State in the future. While there are many moral, legal and medical complexities yet to be resolved, the current statutes and case law will continue to be relied on and changed in an effort to resolve new complexities as they are introduced to our society.

 [*71]  APPENDIX A

REQUEST FOR MEDICATION TO END MY LIFE IN A HUMANE AND DIGNIFIED MANNER

I, , am an adult of sound mind.

I am suffering from, which my attending physician has determined is a terminal disease and which has been medically confirmed by a consulting physician.

I have been fully informed of my diagnosis, prognosis, the nature of medication to be prescribed and potential associated risks, the expected result, and the feasible alternatives, including comfort care, hospice care and pain control.

I request that my attending physician prescribe medication that will end my life in a humane and dignified manner.

INITIAL ONE:

I have informed my family of my decision and taken their opinions into consideration.

I have decided not to inform my family of my decision. I have no family to inform of my decision.

I understand that I have the right to rescind this request at any time.

I understand the full import of this request and I expect to die when I take the medication to be prescribed. I further understand that although most deaths occur within three hours, my death may take longer and my physician has counseled me about this possibility.

I make this request voluntarily and without reservation, and I accept full moral responsibility for my actions.

Signed:

Dated:

 [*72]  DECLARATION OF WITNESSES

We declare that the person signing this request:

(a) Is personally known to us or has provided proof of identity;

(b) Signed this request in our presence;

(c) Appears to be of sound mind and not under duress, fraud or undue influence; (d) Is not a patient for whom either of us is attending physician.

Witness1/Date

Witness2/Date

NOTE: One witness shall not be a relative (by blood, marriage or adoption) of the person signing this request, shall not be entitled to any portion of the person's estate upon death and shall not own, operate or be employed at a health care facility where the person is a patient or resident. If the patient is an inpatient at a health care facility, one of the witnesses shall be an individual designated by the facility.

Or. Rev. Stat. §127,897 §6.01 (2003).

Legal Topics:

For related research and practice materials, see the following legal topics:Constitutional LawSubstantive Due ProcessPrivacyPersonal DecisionsHealthcare LawTreatmentEnd-of-Life DecisionsAbortionRight to PrivacyHealthcare LawTreatmentEnd-of-Life DecisionsAssisted Suicide

FOOTNOTES:

n1. This paper does not contain an in depth discussion of voluntary or involuntary euthanasia, topics of heightened interest in the wake of Hurrican Katrina. For readings on this subject, see generally, Kevorkian v. Thompson, 947 F. Supp. 1152 (1997); People v. Kevorkian, 527 N.W.2d 714 (1994); John-Henry Westen, Court Documents: Hospital Gave Lethal Injections to Patients During Hurricane Katrina, http://www.lifesite.net/ldn/2006/feb/06022201.html (last visited Sept. 19, 2006); Liz Townsend, Officials Investigate Possible Euthanasia Cases During Hurricane Katrina, available at http://www.nrlc.org/news/2005/NRL11/KatrinaEuthanasia.html (last visited Sept. 19, 2006), and Three Arrested For Euthanasia Deaths After Katrina, available at http://www.northcountrygazette.org/articles/071806Euthanas iaDeaths.html (last visited Sept. 19, 2006).

n2. Lucinda M. Finley, The Story of Roe v. Wade: From a Garage Sale for Women's Lib, to the Supreme Court, to Political Turmoil, in Constitutional Law Stories 359, 361-62 (Michael C. Dorf ed., Foundation Press 2004).

n3. Id. at 362.

n4. Id.

n5. Patrick Lee, The Pro-life Argument: From Substantial Identity: A Defense, 18(3) BIOETHICS, 2004, 249, 250; Human Life in the Womb, American Life League, available at http://www.all.org/article.php?id=10120 (last visited Nov. 4, 2006).

n6. See Lucinda M. Finley, The Story of Roe v. Wade: From a Garage Sale for Women's Lib, to the Supreme Court, to Political Turmoil, in Constitutional Law Stories, supra note 2, at 362-68.

n7. Finley, supra note 2, at 362-63.

n8. Finley, supra note 2, at 362-65.

n9. Finley, supra note 2, at 362-65.

n10. Griswold v. Connecticut, 381 U.S. 479 (1965).

n11. Id. at 480.

n12. Id.

n13. Id.

n14. Id. at 481-86.

n15. U.S. Const. amend. I.

n16. U.S. Const. amend. XIV, §1.

n17. Griswold, 381 U.S. at 482.

n18. Id. at 482-83.

n19. Id. at 483-84. The Court mentioned cases such as NAACP v. Alabama, 357 U.S. 449 (1958) (order requiring production of records containing personal information of association members was a violation of due process that could hinder members' rights to freedom of association); Schware v. Bd. of Bar Exam'rs, 353 U.S. 232 (1957) (refusal of the right to qualify for the practice of law based on applicant's prior affiliation with the Communist Party was a denial of due process); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (requiring students to

salute the American flag was a violation of freedom of speech and freedom of worship); De Jonge v. Oregon, 299 U.S. 353 (1937) (conviction based on a man's association with the Communist Party was a violation of due process).

n20. Id. at 485-86.

n21. Id. at 485-86. The Court upheld the same right to control contraceptive decisions for unmarried couples in Eisenstadt v. Baird, 405 U.S. 438 (1972), and for minors in Carey v. Population Servs. Intl., 431 U.S. 678 (1977).

n22. Roe v. Wade, 410 U.S. 113 (1973).

n23. Id. at 120. The Court specifically declined to determine the role of men with regard to the abortion issue. Id. at 165 n.67.

n24. Roe, 410 U.S. at 120.

n25. Roe 410 U.S. at 138-39.

n26. Id.

n27. Id. at 148.

n28. Id. at 159. Viability was placed as early as 24 weeks. Id. at 160.

n29. Id. at 163.

n30. Id. at 156-59.

n31. Id. At the time of Roe, there were no statutes in Texas or the rest of the United States that protected a fetus. Lucinda M. Finley, The Story of Roe v. Wade: From a Garage Sale for Women's Lib, to the Supreme Court, to Political Turmoil, in Constitutional Law Stories, supra note 2, at 360-63. However, states now have civil and criminal laws that protect a fetus. See Ala Code §6-5-391 (2005) (allows civil suit for wrongful death action against a viable fetus), Cal Penal Code §187 (West 2006) (defines "murder" as "the unlawful killing of a human being, or a fetus, with malice aforethought" but excludes instances, such as abortion, when "the act was solicited, aided, abetted, or consented to by the mother of the fetus").

n32. Roe, 410 U.S. at 153.

n33. Id. at 153-54. See also Jacobson v. Massachusetts, 197 U.S. 11 (1905) (Upholding a mandatory smallpox vaccination program).

n34. Id. at 155.

n35. Id. at 162-63.

n36. Id. at 164-65.

n37. Id. at 164.

n38. Id. at 164-65.

n39. Doe v. Bolton, 410 U.S. 179 (1973).

n40. Id. at 184-85.

n41. Id at 184.

n42. Id. at 189.

n43. Id. at 194-99. Doe has been credited with the rise of freestanding abortion clinics that provide less costly, accessible alternatives in women-centered environments. Lucinda M. Finley, The Story of Roe v. Wade: From a Garage Sale for Women's Lib, to the Supreme Court, to Political Turmoil, in Constitutional Law Stories , supra note 2, at 398..

n44. Doe, 410 U.S. at 198.

n45. Id. at 200. See also U. S. Const. art. IV, §2, cl. 1.

n46. Planned Parenthood v. Casey, 505 U.S. 833 (1992).

n47. Id. at 844.

n48. Id.

n49. Id.

n50. Planned Parenthood, 505 U.S. at 844.

n51. Id.

n52. Id. The current reporting requirements in Pennsylvania include reporting the name and address of the facility providing abortions and identifying information regarding organizations affiliated with the facility. 18 Pa. Cons. Stat. §3207 (2005). In addition, the facility is required to report the name of the physician providing the abortion, the patient's age, county of residence, gestational age of the fetus, weight of the fetus, the manner in which the abortion was performed and the patient's pre-existing medical conditions. 18 Pa. Cons. Stat. §3214 (2005).

n53. Planned Parenthood, 505 U.S. at 846.

n54. Id. at 877-878.

n55. Id. at 878.

n56. Id. at 846.

n57. Id. at 883, 885-87, 899, 900.

n58. Planned Parenthood, 505 U.S. at 898.

n59. Id. at 895.

n60. Id. at 898.

n61. Glen Warchol & Dan Harrie, Abortion: Girls Must Get Parent OK, Salt Lake Trib., Mar. 17, 2006, available at http://www.sltrib.com/utahpolitics/ci 3611263.

n62. H.B. 85, 2006 Gen. Sess. (Utah 2006), available at http://www.le.state.ut.us/2006/bills/hbillenr/hb0085.pdf.

n63. Id.

n64. Id.

n65. Id.

n66. Id.

n67. H.B. 1215, 2006 Leg. Assemb., 81st Sess., (S.D. 2006) available at http://legis.state.sd.us/sessions/2006/1215.htm (last visited Sept 20, 2006).

n68. Id. available at http://legis.state.sd.us/sessions/2006/bills/HB1215enr.pdf (last visited Sept. 19, 2006).

n69. South Dakota To Vote on Abortion Law, CBS News, June 19, 2006, http://www.cbsnews.com/stories/2006/06/19/politics/main1728218. shtml (last visited Sept. 19, 2006).

n70. Id.

n71. Id. A current bill in Missouri proposes an outright bans on abortion unless the life of the mother is in danger. S.B. 1248, 93d Gen. Assemb, 2d Reg. Sess. (Mo. 2006), available at http://www.senate.mo.gov/06info/pdf-bill/intro/SB1248.pdf (last visited Sept. 20, 2006). A proposed Louisiana bill proposes a complete ban unless the pregnancy was the result of rape or incest, or the life of the mother is in danger. H.B. 132, 2006 Reg. Sess. (La. 2006), available at http://www.legis.state.la.us/billdata/streamdocument.asp?did=36 6011 (last visited Sept. 20, 2006).

n72. Supreme Court to Rule on Abortion, BBC News, Feb. 21, 2006, http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk /2/hi/americas/4737082.stm (last visited Apr. 16, 2006).

n73. Id.

n74. Id.

n75. Id.

n76. EJGH - Palliative Care, http://www.ejgh.org/membership/palliativecare/palliative.html (last visited Sept. 20, 2006).

n77. Id.

n78. What is Hospice and Palliative Care?, http://www.nhpco.org/i4a/pages/index.cfm?pageid=4648&openpa ge=4648 (last visited Apr. 16, 2006).

n79. History of Hospice Care, http://www.nhpco.org/i4a/pages/index.cfm?pageid=3285&openpa ge=3285 (last visited Apr. 16, 2006); Lane Nelson, Still Growing, The Angolite, Sept.-Oct. 2002, Vol. 27, No. 5, 16-19.

n80. History of Hospice Care, supra note 79.

n81. Id.

n82. Id. Florence Wald was the Dean of the Yale School of Nursing at the time. Dr. Elisabeth Kubler-Ross wrote, On Death and Dying, which identified the five stages of dying for the terminally ill. Id. The five stages a dying person goes through as identified by Dr. Kubler-Ross are (1)denial, (2)anger, (3)bargaining, (4)depression, and (5)acceptance. Stages of Grief, http://www.cancersurvivors.org/Coping/end%20term/stages.htm (last visited on Apr. 16, 2006).

n83. History of Hospice Care, supra note 79.

n84. Id. While JCAHO is not an official governmental regulatory agency, the organization is instrumental in developing and maintaining standards of quality in medical facilities and healthcare programs in the United States, as JCAHO accreditation is an indication to the public that the medical facility has strived to maintain standards of care. What is JCAHO?, http://www.msdistributors.com/biomed/meh/JCAHO.htm (last visited Apr. 16, 2006).

n85. Id.

n86. Id.

n87. Frequently Asked Questions About Hospice, http://www.hospicenet.org/html/faq.html (last visited Sept. 20, 2006).

n88. Paul J. van der Maas et al, Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995, 335 New Eng. J. Med., 1699, 1699-1705 (1996).

n89. See Washington v. Glucksberg, 521 U.S. 702, 706-707, 711-718 (1997); See, e.g. N.Y. Penal Law §125.25(b) (McKinney 2006).

n90. FAQ's About Physician-Assisted Suicide, http://egov.oregon.gov/DHS/ph/pas/faqs.shtml#whatis (last visited Apr. 16, 2006).

n91. In re Quinlan, 355 A.2d 647 (1976).

n92. Id. at 664.

n93. Id. at 651.

n94. Id.

n95. Id. at 664.

n96. Cruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261 (1989).

n97. Id. at 265.

n98. Id. at 267, 281-87.

n99. Id. at 265, 284.

n100. Id. at 284.

n101. Id. at 270-271; Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417 (1977).

n102. C. Christopher Hook & Paul S. Mueller, The Terri Schiavo Saga: The Making of a Tragedy and Lessons Learned, 80 Mayo Clinic Proc. 1449, 1454-1455 (Nov. 2005). In the Terri Schiavo situation, the question of whether to continue or halt medical treatment was cased within the issue of who was the best person to serve as her court-appointed proxy. Id. at 1449-1459.

n103. Id. at 1455.

n104. Id.

n105. Id.

n106. Cruzan , 497 U.S. at 275-276, 282 (1989).

n107. East Jefferson General Hospital: The Foundation, Five Wishes, 6, on file with author.

n108. van der Maas et al, supra note 88.

n109. Id. An oncologist is a medical specialist who treats cancer. Nat'l Cancer Institute found at http://www.cancer.gov/templates/db alpha.aspx?CdrID=46260.

n110. Glucksberg, 521 U.S. 702.

n111. Id. at 707.

n112. Id. at 708.

n113. Id.

n114. Id. at 709.

n115. Id. at 705-06, 735-36.

n116. Id. at 710, 717.

n117. Id. at 711-13.

n118. Id. at 714.

n119. Id. at 732-33.

n120. Id. at 723, 728-33.

n121. FAQ's About Physician-Assisted Suicide, supra note 90.

n122. Or. Rev. Stat. §127.805 §2.01 (2003).

n123. Id. at §127.800 §1.01; Id. at §127.820 §3.02. Oregon's criteria of terminal illness with a prognosis of six months left of life is identical to criteria for hospice admission. Ctr. for Medicare & MEdicaid Serv., Medicare Hospice Benefits: A Special Way of Caring for People Who Have a Terminal Illness, CMS Pub. No. 02154 (2005), available at http://www.medicare.gov/publications/pubs/pdf/02154.pdf.

n124. Or. Rev. Stat. §127.840 §3.06 (2003). The written request form provided by the Death with Dignity Act can be found in Appendix A.

n125. Or. Rev. Stat. §127.865 §3.11 (2003).

n126. Or. Rev. Stat. §127.880 §3.14 (2003).

n127. Gonzales v. Oregon, 126 S. Ct. 904 (2006).

n128. Id. at 911.

n129. Id. at 921-922.

n130. Id. at 911.

n131. Id.

n132. Id. Examples include: Schedule I - heroin; Schedule II - morphine; Schedule III - anabolic steroids; Schedule IV - valium; Schedule V - cough medicine with codeine. The Controlled Substances Act, Ch. 1 available at http://www.dea.gov/pubs/abuse/1-csa.htm#Schedule%20I (last visited Apr. 16, 2006). Prescriptions filled under Oregon's Death with Dignity Act are schedule II substances. Gonzales, 126 S.Ct. at 914.

n133. Gonzales, 126 S.Ct. at 911.

n134. Id. at 917.

n135. Id. at 912.

n136. Id.

n137. Id. at 913.

n138. Id. at 917.

n139. Id. at 923-926.

n140. Dutch Ponder "Mercy Killing' Rules, http://edition.cnn.com/2004/HEALTH/12/01/netherlands.mercykill (last visited Sept. 20, 2006); van der Maas et al, supra note 88.

n141. Termination of Life on Request & Assisted Suicide Act (2002), available at http://nvve.nl/nvve/pagina.asp?pagkey=44855 (last visited Nov. 4, 2006).

n142. Id.; Or. Rev. Stat. §127.815 §3.01(7) (2003).

n143. Termination of Life on Request & Assisted Suicide Act, Ch. II, §2 (2002), available at http://nvve.nl/nvve/pagina.asp?pagkey=44855 (last visited Nov. 4, 2006).

n144. Id.

n145. van der Maas et al, supra note 88.

n146. van der Maas et al, supra note 88.

n147. van der Maas et al, supra note 88.

n148. van der Maas et al, supra note 88.

n149. van der Maas et al, supra note 88.

n150. van der Maas et al, supra note 88.

n151. Richard Fenigsen, Dutch Euthanasia: The New Government Ordered Study, 20 Issues L. & Med. 73 (2004).

n152. Id. at 75.

n153. Id.

n154. Id. at 77.

n155. Id. at 78-79.

n156. Id. at 79.

n157. Id. at 78.

n158. Id.

n159. Id.

n160. See Glucksberg, 521 U.S. 702; Planned Parenthood, 505 U.S. 833; Roe, 410 U.S. 113.

n161. See Glucksberg, 521 U.S. 702; Planned Parenthood, 505 U.S. 833; Roe, 410 U.S. 113.

n162. See Glucksberg, 521 U.S. 702; Planned Parenthood, 505 U.S. 833; Roe, 410 U.S. 113.

n163. See Glucksberg, 521 U.S. 702; Planned Parenthood, 505 U.S. 833; Roe, 410 U.S. 113.

n164. Glucksberg, 521 U.S. at 702.

n165. Roe, 410 U.S. at 116.

n166. Id.

n167. Cruzan, 497 U.S. 261; In re Quinlan, 355 A.2d 647.

n168. Seth F. Kreimer, Does Pro-Choice Mean Pro-Kevorkian? An Essay on Roe, Casey, and The Right to Die, 44 Am. U. L. Rev. 803, 810 (1995).

n169. Glucksberg, 521 U.S. at 714-718; Roe, 410 U.S. at 130-148.

n170. See Glucksberg, 521 U.S. 702; Roe, 410 U.S. 113 . In both cases, the Court relied on thorough examination of the history of suicide and abortion in order to conclude whether a fundamental right was constitutionally present.

n171. Gonzales, 126 S.Ct. at 921-926.

n172. Kreimer, supra note 168, at 826-827, 841.

n173. Id. at 827-829.

n174. Id.

n175. Fenigsen, supra note 151.

n176. FAQ's About Physician-Assisted Suicide, supra note 90.

n177. FAQ's About Physician-Assisted Suicide, supra note 90.

n178. FAQ's About Physician-Assisted Suicide, supra note 90.

n179. Glucksberg, 521 U.S. at 717.

n180. Kreimer, supra note 168, at 826 - 829.

n181. Id.

n182. Id.

n183. Id.

n184. Planned Parenthood, 505 U.S. 833; Roe, 410 U.S. 113.

n185. Ctr. for Medicare & MEdicaid Serv., Medicare Hospice Benefits: A Special Way of Caring for People Who Have a Terminal Illness, supra note 123.

n186. See Pedro A. Mendez-Tellez & Todd Dorman, Predicting Patient Outcomes, Futility, and Resource Utilization in the Intensive Care Unit: The Role of Severity Scoring Systems and General Outcome Prediction Models, 80 Mayo Clin. Proc. 161 (2005). These models can predict with more accuracy than a physician's experiences if a person will die as a result of his illness. Id.

n187. Id.

n188. Gonzales, 126 S. Ct. 904.

n189. See Supreme Court to Rule on Abortion, BBC News, (Feb. 21, 2006), available at http://news.bbc.co.uk/2/hi/americas/4737082.stm (last visited Apr. 16, 2006).

n190. Id. Chief Justice Roberts and Justice Alito are viewed as being "squarely on the far right" after the end of the first term with both justices sitting on the Court. Jonathan Turley, The Roberts Court: Seeing is Believing, USA Today at 11A, (July 6, 2006), available at http://www.usatoday.com/news/opinion/editorials/2006-07-05-turley-edit-x.htm.

n191. Id.

n192. Id.

n193. South Dakota H.B. 1215, 2006 Leg. Sess. (SD 2006) available at http://legis.state.sd.us/sessions/2006/bills/HB1215enr.pdf (last visited Apr. 16, 2006).

n194. Roe, 410 U.S. at 159.

n195. Lucinda M. Finley, The Story of Roe v. Wade: From a Garage Sale for Women's Lib, to the Supreme Court, to Political Turmoil in Constitutional Law Stories, supra note 2 at 392.

n196. See Glucksberg, 521 U.S. 702.

n197. Glucksberg, 521 U.S. at 732-33.

n198. See Roe, 410 U.S. at 128-29.

n199. Planned Parenthood, 505 U.S. 833; Roe, 410 U.S. 113.

n200. Hook and Mueller, supra note 102.