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Vacco v. Quill
Supreme Court of the United States (1996)




The list of fundamental rights or liberty interests protected by the Fourteenth Amendment's Due Process Clause is short and well defined. Fundamental rights have been recognized in connection with child rearing, Pierce v. Society of Sisters, 268 U.S. 510 (1925), family relationships, Prince v. Mass., 321 U.S. 158 (1944), procreation, Skinner v. Oklahoma, 316 U.S. 535 (1942), and the decision as to whether or not to beget or bear a child, Loving v. Virginia, 388 U.S. 1 (1967); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973).

Moreover, this Court has warned that it will offer "great resistance" to attempts to expand that list. Bowers v. Hardwick, 478 U.S. 186, 195 (1986). The Court in Bowers stated that "announcing rights not readily identifiable in the Constitution's text involves much more than the imposition of the Justices' own choice of values." Id., at 191. Instead, this Court must proceed on the basis of criteria set forth in its earlier seminal decisions. It must find that the suggested right is "implicit in the concept of ordered liberty" such that "neither liberty nor justice would exist if it were sacrificed," Palko v. Connecticut, 302 U.S. 319, 325 (1937), or that the suggested right is a liberty "deeply rooted in this nation's history and tradition." Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977)(opinion of Powell, J.). Accord., Bowers, 478 U.S. at 191-192.

In the context of these cases, even the Court of Appeals for the Second Circuit, which struck down New York's ban on physician assisted suicide on equal protection grounds, rejected the suggestion that such a fundamental right or liberty interest was to be newly created under the Due Process Clause. The Quill court held that this contended right "cannot be considered so implicit in our understanding of ordered liberty" and succinctly concluded that the "right to assisted suicide finds no cognizable basis in the Constitution's language or design," 80 F.3d at 724.

The Second Circuit also recognized that this suggested right is not deeply rooted in this nation's traditions and history. The court noted the prohibition of assisted suicide under the Common Law of England. Amici here offer for the Court's consideration the position of the Jewish legal tradition in its role as one of the central roots of this nation's legal structure.

It is well recognized that many of the laws of this nation are rooted in moral traditions brought to this country by her first settlers. Those moral traditions are derived from a familiar set of moral strands woven together in what has come to be referred to as our common Judeo-Christian heritage. It is well recognized that "if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." Bowers v. Hardwick, 478 U.S. 186, 196 (1986). Amici are in no way suggesting that these cases ought to be decided by this Court on the basis of religious teaching. We are contending, however, that the Judeo-Christian rejection of physician assisted suicide informs us that it is not a fundamental right to be accorded constitutional protection.

The approach to treatment of the terminally ill in traditional Jewish sources is one which venerates the infinite value of human life. Judaism not only recognizes the inestimable value of each life, but of every moment of that life as well. Thus, one may violate the sabbath to free an individual from a collapsed building even if it is clear that the person will only survive a short time. Code of Jewish Law (I:329:4), cited in J.D. Bleich, Treatment of the Terminally Ill, Tradition, A Journal of Orthodox Jewish Thought (30:3) at 52 (hereinafter, Bleich).

Under traditional Jewish law, the preservation of life outweighs virtually every other religious commandment. Thus, for example, one should violate the sabbath or eat non-kosher foods in order to save a life. Although Jewish tradition does not champion asceticism or suffering, it does recognize that "life with suffering is, in many cases, preferable to cessation of life and with it the elimination of suffering." Bleich, at 52. Thus, the rabbinic commentary to Genesis (9:5) notes that the Bible seemingly repetitiously prohibits fratricide after having already condemned homicide because of a recognition that in certain circumstances the taking of a life might be wrongly perceived as motivated by love or compassion; it is precisely in those cases, the Bible instructs us, that such an act still constitutes murder. See Bleich, at 53. While Judaism recognizes personal autonomy and freedom as religious values, it has also long recognized that they are values which are not paramount to all others.

The traditional Jewish position goes so far as to say that one ought not take any action that might actively hasten the death of the terminally ill person. See Talmud, Tractate Shabbat, 151b. Nevertheless, it does carve out an extremely narrow exception for an individual who is deemed to be in the "throes of death." A person in such a state is essentially defined as one who is irreversibly certain to die within seventy-two hours. Bleich, at 64, fn. 24. In such limited circumstances, Jewish law permits those treating the patient to withdraw treatment so that death may occur naturally. While there is great debate in Jewish legal sources over the application of these principles it is clear that nothing may be done to actively speed the death process. See F. Rosner, Jewish Perspectives on Issues of Death and Dying, 11 Journal of Halacha and Contemporary Society, 50 (1986).

Despite these clear principles the mandate of Bowers and the clarity that this "right" is neither implicit in our understanding of ordered liberty nor rooted in our nation's traditions -- the Court of Appeals for the Ninth Circuit felt compelled to invent a new fundamental liberty interest, the right to die, under the Due Process Clause by a patchwork reading of this Court's precedents. The holding of the Ninth Circuit must be rejected for several reasons.

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