The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH

March 22, 1995 95-R-0522

TO:

FROM: Lawrence K. Furbish, Assistant Director

You asked for a summary of the Michigan Supreme Court decision on assisted suicide and an update of the status of their law.

SUMMARY

In this case (which is actually several combined cases) the Michigan Supreme Court ruled that there is no constitutional right to assisted suicide in Michigan and that the state's statutory ban on this practice is constitutional. The court also reinterpreted common law to say that merely being involved in the events leading up to a suicide, such as providing the means, cannot be prosecuted as murder. Only when the death was the direct and natural result of a defendant's actions is murder the proper charge. The decision was not unanimous and dissenting judges believed that a competent patient, with a terminal condition who is in great pain, has a constitutional right to physician assistance.

The cases are being appealed to the U.S. Supreme Court although the court has not yet accepted them for review. Michigan's law banning assisted suicide was temporary and it has expired. Attempts to pass a new permanent ban in December 1994 failed and there is no law on the books today. But a common law offense of assisting in a suicide may exist. Apparently there have not been any bills introduced yet to reinstate the ban.

MICHIGAN V. KEVORKIAN, ET AL., 1994 WL 700448 (MICH.)

In this case the Michigan Supreme Court combined five different cases all of which dealt with the issue of assisted suicide: four of the cases concerned the constitutionality of Michigan's law banning assisted suicide and the fifth a charge of murder brought in Oakland County in a suicide case. There were separate concurring and dissenting opinions but, according to the decision, at least four justices agreed with every holding, statement, and disposition in the memorandum.

Background

Soon after the Michigan legislature enacted the assisted suicide law a group of plaintiffs (medical providers, two terminally ill people, and a friend) brought court action seeking to have the law declared unconstitutional. The circuit court found it unconstitutional and the attorney general appealed. Three of the cases were criminal actions against Dr. Jack Kevorkian for assisting in suicides. In each case the courts had dismissed the charges and the prosecutors had appealed. In one of these cases the assistance had been provided before enactment of the assisted suicide law and in this case the circuit court dismissed because it concluded that assisting in suicide does not constitute the crime of murder.

Michigan Assisted Suicide Law

In 1991 the Michigan legislature took up the subject of assisted suicide. The first bill would have created a commission on death and dying to study the issue and report to the legislature. The bill was subsequently amended to make assisting in suicide a criminal offense until the study commission had reported, and it passed and was signed in this form.

Multiple Object and Change in Purpose Challenge

The Michigan Constitution prohibits laws from having more than one object and bills from being altered or amended during passage to change their original purpose as determined by total content and title. Some of the lower courts had found the assisted suicide law invalid under these constitutional restrictions because the bill had been altered and its nature changed.

The Supreme Court cited cases holding that the "object" of a statute is the "general purpose or aim of the enactment" and that this must be determined by examining the law as enacted not as introduced. At the same time, in examining the question of change in purpose it must be determined if the subject matter of the change or amendment is germane to the original purpose. The court found that the assisted suicide law only embraces one object and is not invalid under the change in purpose provision.

Fourteenth Amendment Challenge

The court next turned to the assertion that the assisted suicide law was unconstitutional under Amendment XIV of the U.S. Constitution which prohibits depriving anyone of "life, liberty, or property, without due process of law." According to the court, the key question is whether the XIV Amendment encompasses a fundamental right to commit suicide and, if so, whether this right includes the right to assistance.

Plaintiffs had based their assertion of this right on several abortion and right to die cases, especially Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S Ct 2791 and Cruzan v. Director, Missouri Dept. of Health, 110 S Ct 2841. Kevorkian and the other plaintiffs had argued a fundamental liberty interest in suicide itself and urged that this right was analogous to the right to refuse unwanted medical treatment. The court disagreed with this analogy saying that there is a difference between active misconduct and passive inaction, and that the court in Cruzan distinguished between acts that artificially sustain life and those that artificially curtail life. The court stated that people who opt to discontinue life-sustaining medical treatment are not committing suicide. The court concluded that a constitutional right to commit suicide is not expressly recognized in the U.S. Constitution or in Supreme Court decisions and cannot be reasonably inferred. The court held that "the right to commit suicide is neither implicit in the concept of ordered liberty nor deeply rooted in this nation's history and tradition" and to declare that there is such a fundamental right protected by the Due Process Clause would be an impermissibly radical departure from existing tradition.

Assisted Suicide as Murder Issue

The final issue arose from the cases where Kevorkian had been charged with assisting in two suicides prior to enactment of Michigan's law. He was charged with murder, the circuit court dismissed the charges, and the Court of Appeals reversed, relying primarily on People v. Roberts, 211 Mich. 187 (1920). In Roberts a man had been charged with murder for providing his wife with a glass of poison which she subsequently drank and died. She had been suffering from advanced multiple sclerosis, was in great pain, and had previously unsuccessfully attempted suicide. The Roberts court concluded that he was guilty of murder. After considerable discussion the court observed that the key to distinguishing between murder and assisting suicide is the active or passive role of the defendant: if he merely furnishes the means, he is guilty of assisting in suicide, but if he actively participates in the death of the suicide victim, he is guilty of murder. The court concluded that since 1920 interpretation of causation in criminal laws has evolved in Michigan. Therefore, it overruled Roberts "to the extent that it can be read to support the view that the common-law definition of murder encompasses the act of intentionally providing the means by which a person commits suicide." When someone merely is involved in the events leading up to the death, such as providing the means, the proper charge is assisting in a suicide.

Concurring and Dissenting Opinions

Judge Boyle agreed with all of the court's holdings except that which redefines the statutory offense of murder by excluding the events leading up to the death, including providing the means. He appears to believe that the state should be able to charge a person who provides the means for someone to commit suicide with murder.

Judge Levin agrees with all of the holdings except a portion of the holding relating to possible violation of due process rights protected by the XIV Amendment. He would hold that Michigan's assisted suicide law "violates the Due Process Clause insofar as it bars a competent, terminally ill person facing imminent, agonizing death from obtaining medical assistance to commit suicide. Levin objects to the way the majority poses the question (whether the Due Process Clause encompasses a fundamental right to commit suicide) and says that framing it in this way foreordains the answer. He believes the question is "whether the state may deny a competent, terminally ill person, facing imminent, agonizing death, medical assistance to commit suicide." He answers that it may not.

Judge Mallett agrees with most of the majority's holdings, but he dissents because the lead opinion finds that there is no constitutional right, in any situation, to hasten one's death through physician-prescribed medications. Mallett cautions that there are strong moral arguments on both sides of the issue and that the court should not accept arguments based solely on moral principles. He believes it is the duty of the court to "define the liberty of all, not to mandate our own moral code." He would find the statute at issue to be facially invalid because it bans all physician assisted suicide. He believes that a terminally ill individual, suffering great pain, who has made a competent decision should have a constitutional right to hasten his death, and the statute represents an undue burden on that right.

CURRENT STATUS OF LAW IN MICHIGAN

The Michigan Supreme Court decision upheld the Michigan statute banning assisted suicide, but that law was temporary and it expired on November 25, 1994. Attempts by the Michigan legislature to enact a new permanent ban in December were unsuccessful. Bills passed both houses but the House version contained a referendum to be held in November 1996 on the law and the Senate version did not. A conference committee did not reach agreement and the two bills died. According to the staff of the Michigan law library, no bill has yet been filed this year to reenact the ban.

Depending on what the circuit court decides in the Oakland County murder case, there may be a common law offense of assisted suicide. In that portion of its decision the Supreme Court said that any common law indictable offense for which there is no express penalty in statute carries a penalty of imprisonment for up to five years, a fine of up to $10,000, or both. The Court said that its "reinterpretation of the common law does not enlarge the scope of criminal liability for assisted suicide, but rather reduces liability [from murder] where a defendant merely is involved in the events leading up to the suicide, such as providing the means."

According to Tom Casey, solicitor general in the Michigan Attorney General's Office, the American Civil Liberties Union, who represented the group of plaintiffs who sued the AG in two of the cases, has filed a petition asking the U.S. Supreme Court to grant certiorari and review the Michigan decision. Casey said the ACLU petition was filed on March 6 and the AG's office has 30 days to respond and then the U.S. Supreme Court will decide whether or not to hear the case. Casey said that he had heard that Dr. Kevorkian had also filed for certiorari, but these other cases are criminal and county prosecutors are the other parties.

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