July 9, 2003
By: John Kasprak, Senior Attorney
You asked for information on (1) physician- assisted suicide, specifically which states or countries allow it and (2) prosecutions for “mercy killings” and related court decisions.
Only the state of Oregon permits physician-assisted suicide. Its “Death with Dignity Act,” originally passed in a referendum in 1994 and in effect since 1997 following the lifting of an injunction, allows terminally ill state residents to end their lives through the voluntary self-administration of lethal medications prescribed by a physician for that purpose. While the act legalizes physician-assisted suicide, it specifically prohibits a physician or other person from directly administering a medication to end another's life.
In 2000, Maine came close to legalizing assisted suicide through a ballot initiative, but the voters narrowly defeated it. Nationwide, 38 states, including Connecticut explicitly criminalize assisted suicide by statute. Other states criminalize this activity through common law (case law).
In 2002, the Netherlands became the first country in the world to legalize euthanasia. That country's law in effect means that physicians no longer face prosecution for carrying out “mercy killings” if they are performed with due care and in accordance with specific guidelines.
In two cases decided in 1997, the U.S. Supreme Court held that statutes in New York and Washington prohibiting assisted suicide were not invalidated by the equal protection clause of the 14th Amendment of the U.S. Constitution because they bore a rational relation to the legitimate governmental goals of prohibiting intentional killing and preserving life.
Only Oregon law permits physician-assisted suicide. Oregon's “Death with Dignity Act” (ORS § 127.800 to 127.897) allows terminally ill Oregon residents to obtain and use prescriptions from their physicians for self-administered, lethal medications. Under the act, ending one's life in accordance with the law protects physicians and patients from criminal prosecution. While the Oregon law legalizes physician-assisted suicide, it specifically prohibits euthanasia, where a physician or other person directly administers a medication to end another's life.
Oregon's law initially passed in a November 1994 referendum by a 51% to 49% margin (“Measure 16”). But before the ballot initiative could take effect, a federal district court in Eugene, Oregon issued an injunction against the law, finding that it was unconstitutional because it lacked sufficient protections for those patients who are not mentally competent.
The U.S. Court of Appeals for the Ninth Circuit upheld the law on March 3, 1997. It reasoned that those who brought the suit were not in immediate danger. Opponents appealed to the U.S. Supreme Court, but it refused to hear the case and Measure 16 took effect.
Another legal issue raised was whether assisted suicide was a “legitimate medical purpose” within the meeting of the 1970 Federal Controlled Substances Act. Under this law, physicians can prescribe federally regulated drugs for legitimate purposes only. In a November 2001 letter to the Drug Enforcement Administration (DEA), U.S. Attorney General Ashcroft stated that assisted suicide was inconsistent with the public interest. Oregon's attorney general obtained a temporary restraining order on Ashcroft's directive. In April 2002, a U.S. District Court in Oregon upheld the Oregon assisted suicide law and ordered the federal government to cease efforts to prosecute Oregon health care providers who assist terminally ill persons to commit suicide.
More details on the Oregon law, including procedures, requirements, and remaining issues, can be found in a previous OLR report (2002-R-0077) attached.
Currently, 38 states, including Connecticut, explicitly criminalize assisted suicide through statute. The other states are Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Washington, and Wisconsin.
Nine states (Alabama, Idaho, Maryland, Massachusetts, Michigan, Nevada, South Carolina, Vermont, and West Virginia) criminalize assisted suicide through common law (three states have both a common law and statutory basis for criminalizing assisted suicide).
North Carolina, Utah, and Wyoming abolished the common law of crimes and do not criminalize assisted suicide through statute. In 1996, the Ohio Supreme Court held that assisted suicide is not a crime. The Ohio legislature has attempted to make assisted suicide illegal through enactment of a new law, but to date, no bill has passed both houses. Virginia has no clear case law on assisted suicide nor is there a statute criminalizing the act, however, Virginia statute does impose civil sanctions on persons assisting in a suicide.
U.S. SUPREME COURT DECISIONS
In the case of Vacco v. Quill (521 U.S. 793 (1997)), respondents argued that the New York statute banning assisted suicide violated the equal protection clause of the 14th Amendment to the U.S. Constitution. Although the lower court did not agree, the Second Circuit Court of Appeals reversed and held that the statute was unconstitutional. In a unanimous decision, the Supreme Court held that the New York statute was constitutional and that the state had the right to ban assisted suicide. Justice Rehnquist's opinion stated that “everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide.” The court found that the public interest in preserving life is valid and important.
In the case of Washington v. Glucksberg (521 U.S. 702 (1997)), respondents argued that Washington's statute banning assisted suicide violated the 14th Amendment. The lower court agreed and the Ninth Circuit affirmed that the statute was unconstitutional. Again in a unanimous decision, Justice Rehnquist held that the state statute was constitutional, making a distinction between refusing or removing life-sustaining treatment and assisting suicide. He stated, “the history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the due process clause” (see End of Life Issues, Health Policy Tracking Service Issue Brief, April 2003).
PROSECUTION FOR AIDING, ABETTING, OR COUNSELING SUICIDE
A common statutory scheme is to create a separate crime of adding and abetting (or assisting) suicide, rather than to treat such cases as murder. The key to distinguishing between the crimes of murder and of assisting suicide is the active or passive role of the defendant in the suicide. Generally, if the defendant merely furnishes the means, he is guilty of aiding a suicide; but if the defendant actively participates in the death of the suicide victim, he is guilty of murder (see Vol. 40A Am Jur 2d, § 624).
Defendants around the country have been held liable for murder (as opposed to aiding or abetting suicide) where, in assisting another to commit suicide, they carried out the physical act resulting in the death of the deceased (California, Indiana, Oklahoma, Iowa, Texas, for example). But where the defendant aided, assisted, or encouraged the person to commit suicide, without actually performing the act that caused the death, the result is not as clear. Courts have held that the defendant may be convicted of murder or manslaughter, or for assisting suicide (cases in Arkansas, California, Kentucky, New York, Massachusetts, Michigan, Iowa, Texas, for example).
The Netherlands is the first country in the world to legalize euthanasia, giving terminally ill patients the right to end their lives. As a result, doctors no longer face prosecution for carrying out “mercy killings” if they are performed with due care. Strict conditions apply, with regional review committees made up of legal, medical, and ethical
experts reviewing each patient's request. A second medical opinion is needed and the patient's suffering must be found to be unbearable. Where there is doubt after this process, the case is referred to the public prosecutor.
The lower house of the Dutch Parliament passed the legislation in later 2000, the upper house in April 2001, and it took effect on January 1, 2002.
According to the BBC News of January 1, 2001, and other reports, euthanasia has been tolerated for decades in the Netherlands, although in 2001 a court found a physician guilty of malpractice for helping an 86 year old former senator die because “he was tired of living.” But the doctor was neither fined nor sentenced by the court. Similar tolerance for euthanasia is found in Switzerland, Colombia, and Belgium, although none of these countries has legalized the practice, according to the CBS News of November 28, 2000.
In Canada, a father who murdered his 12-year-old disabled daughter in a “mercy killing” was sentenced to at least 10 years in jail, according to a 2001 Canadian Supreme Court decision. The daughter had cerebral palsy and other disabilities. The court refused to overturn the country's mandatory sentence for second-degree murder of life imprisonment with no parole for 10 years, rejecting arguments that prison time constitutes cruel and unusual punishment. In arguments before the court, the father's lawyers tried to argue the defense of “compassionate homicide” in Canadian law, insisting that his daughter was in such pain that her father “believed he had no reasonable alternative but to kill his daughter.”