Education Wellness in Healthcare Assignment

71Fall 2017

Assisted Suicide: Is the Cruzan “Unquali!ed State Interest in the Preservation of Human Life”

a Legitimate State Interest? By Rebecca Critser

I. Introduction ................................................................................................ 72 II. Identifying a Legitimate State Interest .................................................................. 73 III. Review of Case History Relevant to the State Interest in Preserving Human Life ................................................................................ 75

A. !e Move From a State Interest in Protecting Human Life to Preserving Human Life ................................................................ 76 B. Birth of the State’s Unquali"ed Interest in Preserving Human Life .......... 79

IV. Application of the State’s Unquali"ed Interest in Preserving Human Life and Post-Glucksberg .................................................................. 81

A. Application of the State’s Unquali"ed Interest in Cases Dealing With Sexually Transmitted HIV ................................................ 81 B. Application of the State’s Unquali"ed Interest in Abortion Cases ........... 83 C. Application of the State’s Unquali"ed Interest in Cases Dealing With End-of-Life Care .............................................................. 86

V. Analysis: Legitimacy of the Cruzan Unquali"ed Interest in the Preservation of Human Life ......................................................................... 88

A. Inconsistency Between the Cruzan Reasoning and Assertion of a State’s Unquali"ed Interest in the Preservation of Human Life ................ 88 B. !e State’s Unquali"ed Interest in the Preservation of Human Life and the Promotion of the Public Health, Welfare, or Safety ............ 89

VI. Proposed Alternative Interests: !e State’s Quali"ed Interest in the Preservation of Human Life and the State’s Unquali"ed Interest in the Protection of Human Life .................................................................. 91 VII. Trend of States Toward Permitting Assisted Suicide ...................................... 92 VIII. Conclusion .................................................................................................. 95

About the Author Rebecca Critser is a 2018 JD candidate at Indiana University Robert H. McKinney School of Law and a 2018 MA in philosophy candidate at Indiana University — Purdue University Indianapolis. She received her BS degree in 2010 from Bucknell University, Lewisburg, Pennsylvania. !e author would like to thank Professor John Lawrence Hill for his valuable guidance and Jason Rauch and Elizabeth Little for their con- siderable assistance in the development of this article. !e author also would like to extend a very special thank you to Donna S. Harkness for her editorial assistance.

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An unquali!ed state interest in preserving life irrespective of either a patient’s express wishes or of the patient’s best interests trans- forms human beings into unwilling prison- ers of medical technology.

Matter of Guardianship of L.W. 1

I. Introduction From 1900 to 2014, the average life

expectancy of an individual living in the United States increased by more than 30 years.2 !is change can be attributed to a number of factors, including advances in medical technology.3 In addition to raising the average life expectancy, however, these advances have raised questions about the bene"ts of prolonging life.4 Consequently, the medical community has been forced to address serious ethical questions re- garding the balance between preserving life and guarding an individual’s dignity and interest in choosing the manner of her death.5

In Washington v. Glucksberg,6 the U.S. Supreme Court held that a Washing- ton state ban on assisted suicide did not violate an individual’s liberty interest un- der the Due Process Clause of the 14th Amendment.7 !ose in favor of assisted

1 482 N.W.2d 60, 74 (Wis. 1992). 2 Ctrs. for Disease Control & Prevention,

Health, United States, 2015: With Special Feature on Racial and Ethnic Health Dispari- ties, 109 (2015); see also Ctrs. for Disease Con- trol & Prevention, Ten Great Public Health Achievements—United States, 1900–1999, 48 Morbidity & Mortality Wkly. Rpt. 241 (1999).

3 Id. 4 See Washington v. Glucksberg, 521 U.S. 702,

716 (1997) (discussing how recent medical ad- vances have led to renewed discussions regard- ing assisted suicide), rev’g Compassion in Dying v. St. of Wash., 79 F.3d 790 (9th Cir. 1996).

5 Glucksberg, 521 U.S. at 707–708. 6 Id. at 702. 7 Id. at 706.

suicide argued that its criminalization was a violation of their substantive due pro- cess rights.8 Government action that im- pairs an individual’s right to life, liberty, or property may violate substantive due pro- cess.9 When a court evaluates a substantive due process claim that involves a liberty interest, the court must evaluate whether the right in question is a constitutionally protected fundamental right or a mere liberty interest.10 A liberty interest that is identi"ed as a fundamental right is sub- ject to heightened scrutiny, which requires state interference with a fundamental right to be narrowly tailored to a compel- ling state interest. However, for the state to interfere with a mere liberty interest, the state must only demonstrate that the interference is in furtherance of a reason- ably related legitimate interest. !us, at a minimum, the court must always examine the state interest and determine that it is a legitimate interest reasonably related to the statute in question.11 While the courts have repeatedly stated that the asserted liberty interest must be de"ned with care, this article suggests the same is true for the state interest.12

Four state interests were identi"ed in Glucksberg: 1) “unquali"ed interest in the preservation of human life,” 2) the preven- tion of suicide, 3) “protecting the integrity and ethics of the medical profession,” and 4) “protecting vulnerable groups.”13 !is article focuses on one of the Glucksberg

8 Id. at 708. 9 Russell W. Galloway Jr., Basic Substantive Due

Process Analysis, 26 U.S.F. L. Rev. 625, 626 (1992).

10 Id. at 627–628. 11 Glucksberg, 521 U.S. at 703, 728. 12 Id. at 703 (asserting that the court is required

to de"ne the asserted liberty interest by “care- ful description”).

13 Id. at 728–732.

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state interests, the unquali!ed interest in preserving human life.14 Speci!cally, this article argues that the unquali!ed interest in the preservation of human life is not a legitimate state interest.

Part II discusses the guideposts avail- able for determining the legitimacy of a state interest. It also includes an overview of the substantive due process analysis. Its focus, however, is to lay the groundwork for analyzing the legitimacy of a state in- terest.

Part III discusses the state’s interest in the preservation of human life. "is sec- tion provides historical context for the evolution of this interest from the protec- tion of human life to the preservation of human life. "is section also discusses two critical cases, Cruzan v. Director, Missouri Department of Health15 and Glucksberg, and their role in the development of the state’s unquali!ed interest in the preserva- tion of human life.

Part IV reviews the application of the unquali!ed interest in the preservation of human life since Glucksberg. "is sec- tion analyzes the types of cases that have applied this interest and reviews how the courts have treated the state interest.

Part V analyzes the legitimacy of the unquali!ed interest in the preservation of human life. "is section argues that the Cruzan opinion’s language reveals the unquali!ed interest in the preservation of human life to be illegitimate. Further, it discusses how the interest lacks a basis in the promotion of the public health, wel- fare, or safety.

Part VI proposes two alternative state interests that, when applied in tandem, will provide a legitimate state interest similar to the unquali!ed interest in the

14 Id. at 728. 15 497 U.S. 261 (1990).

preservation of human life without over- reaching. "is section concludes with an analysis of how these new interests might be applied in the types of cases that typi- cally have applied the unquali!ed interest in the preservation of human life.

Finally, Part VII looks at the current trend of states toward permitting assisted suicide. "is section reviews how certain state courts have handled the unquali!ed interest in the preservation of human life since permitting assisted suicide.

II. Identifying a Legitimate State Interest

Even when no constitutionally pro- tected right is at stake, the U.S. Constitu- tion requires the statute to be rationally related to a legitimate government inter- est.16 Yet the U.S. Supreme Court has not established a test for evaluating whether a government interest is legitimate.17 "e courts have provided little more than de- scriptive terms for identifying what is not a legitimate state interest.18

16 See e.g. Romer v. Evans, 517 U.S. 620 (1996); see also Cornell U. L. Sch., Rational Basis Test, Wex, https://www.law.cornell.edu/wex/rational _basis_test (accessed Mar. 31, 2017) (de!ning rational basis test).

17 Timothy Sandefur, Is Economic Exclusion a Legitimate State Interest? Four Recent Cases Test the Boundaries, 14 Wm. & Mary Bill Rights J. 1023, 1036 (2006) (citing Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 834 (1987)).

18 See generally Buchanan v. Warley, 245 U.S. 60, 74–75 (1917) (discussing limitations to state legislatures imposed by the U.S. Constitu- tion); City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (explaining that classi!cation by race, alienage, or national origin is generally not supported by a legiti- mate state interest); Griswold v. Conn., 381 U.S. 479, 498 (1965) (asserting that the state has a legitimate interest in discouraging mari- tal a#airs); see also Simi Inv. Co., Inc. v. Harris Co., Tex., 236 F.3d 240, 251 (5th Cir. 2000)

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For example, a state interest that repre- sents “a bare congressional desire to harm a politically unpopular group”19 or is an “irrational prejudice”20 is not considered legitimate.21 In U.S. Department of Ag- riculture v. Moreno, the Supreme Court refused to accept an interest in the pre- vention of hippie communes as a legiti- mate state interest.22 Under the Due Pro- cess Clause of the Fifth Amendment, the Court struck down a statute that sought to preclude households from food stamps if the homes contained one or more un- related members.23 !e Court considered several state interests, one of which was the prevention of hippie communes.24 With each of these interests, the Court looked "rst at the legitimacy of the in- terest and then at whether the statute in question had a rational basis grounded in the legitimate interest.25 Although the other interests failed to support the statute because there was no rational basis, the al- leged interest in the prevention of hippie communes failed the "rst prong of the test.26 !e Court held that the interest in the prevention of hippie communes was not legitimate and that generally “a bare congressional desire to harm a politically

(stating that the issue is “at least debatable” and that the interference of a property right is rationally related to a legitimate interest).

19 U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).

20 City of Cleburne, 473 U.S. at 450. 21 Moreno, 413 U.S. at 534; City of Cleburne, 473

U.S. at 450. 22 413 U.S. at 534–535. 23 Id. at 528. 24 Id. at 533–537 (discussing a government in-

terest in the stimulation of the agricultural economy, the provision of those in need with nutritional food, the prevention of hippie communes, and the prevention of fraud).

25 Id. at 533. 26 Id. at 534–535.

unpopular group” will not support a le- gitimate state interest.27 Additionally, the Court has determined that a state interest is not legitimate if it is nothing more than “animus,”28 “hostility,”29 or “demeaning.”30

Despite the lack of a formal test, it is generally believed that a state’s interest must advance a public interest.31 More speci"cally, the interest must promote the health, welfare, or safety of the public.32 !e idea that the legitimate actions of a

27 Id. at 534 (“For if the constitutional concep- tion of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legiti- mate governmental interest.”).

28 Romer, 517 U.S. at 632–633 (“[I]ts sheer breadth is so discontinuous with the reasons o#ered for it that the amendment seems in- explicable by anything but animus toward the class it a#ects; it lacks a rational relationship to legitimate state interests.”).

29 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993).

30 Lawrence v. Texas, 539 U.S. 558, 578 (2003). 31 Moreno, 413 U.S. at 534–535 (“[A] purpose to

discriminate against hippies cannot, in and of itself and without reference to (some indepen- dent) considerations in the public interest, jus- tify the 1971 amendment.”). See also Sandefur, supra n. 17, at 1035 (citing City of Cleburne, 473 U.S. at 448).

32 Buchanan, 245 U.S. at 74 (“!e authority of the state to pass laws in the exercise of the po- lice power, having for their object the promo- tion of the public health, safety and welfare is very broad as has been a$rmed in numerous and recent decisions of this court.”); see gen- erally Butchers’ Union Slaughter-House & Live- Stock Landing Co. v. Crescent City Live-Stock Landing & Slaughter-House Co., 111 U.S. 746, 752 (1884) (“[P]olice power … however dif- "cult it may be to render a satisfactory de"ni- tion of it, there seems to be no doubt that it does extend to the protection of lives, health, property of the citizens, and to the preserva- tion of good order and public morals.”); see also Texas & New Orleans R.R. Co. v. Miller, 221 U.S. 408, 414–415 (1911).

Assisted Suicide: Is the Cruzan “Unquali!ed State Interest in the Preservation of Human Life” a Legitimate State Interest? Fall 2017 75

government are derived from the public interest is deeply and historically rooted in Western democracies.33 Other language used to describe a legitimate state inter- est includes “[a] matter of public concern that is addressed by a government in law or policy”34 and

!is power is, and must be from its very nature, incapable of any very exact de"- nition of limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated com- munity, the enjoyment of private and social life, and the bene"cial use of property.35

Additionally, a state interest that has the quality of being legitimate does not become illegitimate when faced with a strong countervailing liberty interest.36 Just as a fundamental right must be based on the meaning, if not the text, of the U.S. Constitution or state constitution, a legitimate state interest must be based on the public interest.37 However, once it has been determined that a state interest

33 Weems v. U.S., 217 U.S. 349, 363 (1910) (quoting the Supreme Court of Spain (1873): “to protect the interest of society by the most strict faithfulness on the part of a public o#cial in the administration of the o#ce intrusted to him and thereby [ful"ll] the responsibility of the state to the community for the o#cial or public documents under the safeguard of the state.”).

34 Black’s Law Dictionary, Governmental Inter- est (Bryan A. Garner ed., 10th ed., !omson West 2014).

35 Slaughter-House Cases, 83 U.S. 36, 62 (1872). 36 John Lawrence Hill, !e Constitutional Sta-

tus of Morals Legislation, 98 Ky. L.J. 1, 38–40 (2009–2010).

37 See Sandefur, supra n. 17, at 1035 (citing City of Cleburne, 473 U.S. at 448).

is based on the public interest, it does not lose its quality of being legitimate unless it has lost its basis within the public inter- est.38 A legitimate state interest may give way to a fundamental right, but in doing so it is not in that instance illegitimate; it is simply of less signi"cance or importance than the right it is balanced against.39

III. Review of Case History Relevant to the State Interest in Preserving Human Life

!e terms “protection” and “preserva- tion” as they pertain to the state’s interest in human life have comingled since the 1800s.40 At that time, the term “protec- tion” was favored when discussing the state’s interest in the lives of its citizens.41 It was not until courts began to hear cases dealing with abortion that the preserva- tion of human life became an identi"ed state interest.42 In 1990, the Supreme Court issued the Cruzan opinion and granted the state an “unquali"ed interest in the preservation of human life.”43

38 See Hill, supra n. 36. 39 Id. at 38; see also William J. Rich, Framework

for Equal Protection and Substantive Due Pro- cess Analysis: Fundamental Rights and Liberty Interests, 1 Modern Const. L. § 11:6 (2015) (discussing the di$erent scrutiny levels avail- able under a substantive due process chal- lenge).

40 See Mugler v. St. of Kan., 123 U.S. 623, 658 (1887); see also Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 252 (1897).

41 See Slaughter-House Cases, 83 U.S. 36; !ur- low v. Cmmw. of Mass., 46 U.S. 504 (1847); Mugler, 123 U.S. 623; Giozza v. Tiernan, 148 U.S. 657 (1893).

42 See Williams v. Zbaraz, 442 U.S. 1309 (1979). 43 Cruzan, 497 U.S. at 262.

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A. !e Move From a State Interest in Protecting Human Life to Preserving Human Life

As early as 1872, the Supreme Court stated that the police power of the state ex- tends “to the protection of the lives, limbs, health, comfort, and quiet of all persons … .”44 Early cases discussed health con- cerns primarily in relation to commerce.45 "ese cases included state statutes pro- scribing locations where animals could be slaughtered in order to reduce the risk of transmitting disease,46 whether the state had the power to restrict the sale of alcohol,47 and issues of eminent domain.48 In the early 1900s, the Supreme Court began to hear cases that dealt with state interference in the body of a person, and the Court reiterated its previous recogni- tion of the state’s authority to pass laws to protect the lives of its citizens.49

"e state’s interest in the preservation of health existed as early as its interest in the protection of human lives.50 Addition-

44 Slaughter-House Cases, 83 U.S. at 62; see also Hannibal & St. Joseph R.R. Co. v. Husen, 95 U.S. 465, 471 (1878).

45 See Slaughter-House Cases, 83 U.S. 36; Butch- ers’ Union Slaughter-House & Live-Stock Land- ing Co., 111 U.S. 746; Hodgson v. St. of Vt., 310 U.S. 88 (1897).

46 See Slaughter-House Cases, 83 U.S. 36; Butch- ers’ Union Slaughter-House & Live-Stock Land- ing Co., 111 U.S. 746.

47 See Mugler, 123 U.S. 623; Giozza, 148 U.S. 657; Chicago, Burlington & Quincy R.R. Co., 166 U.S. 226.

48 See Hodgson, 310 U.S. 88. 49 Jacobson v. Cmmw. of Mass., 197 U.S. 11, 28

(1905). 50 Mugler, 123 U.S. at 658 (“Without attempt-

ing to de#ne what are the peculiar subjects or limits of this power, it may safely be a$rmed that every law for the restraint or punishment of crime, for the preservation of the public peace, health, and morals must come within this category.”).

ally, the Supreme Court, in its opinions from the late 1800s into the early 1900s, occasionally used the phrase “preserva- tion of life.”51 "at phrase, however, was rarely, if ever, used as a state interest.52 In- stead, the Court typically used the phrase “preservation of life” only when quoting a report, a lower court, or other nonju- dicial publication.53 "is phrase appears frequently throughout Court opinions discussing the legality of abortion, and, in 1979, the Court clearly established the state’s legitimate interest in the preserva- tion of human life.54

In United States v. Vuitch,55 the U.S. Supreme Court reviewed a lower court’s ruling that a District of Columbia statute was unconstitutional for vagueness.56 "e statute criminalized abortions, exclud- ing abortions necessary for the health or life of the mother.57 "e lower court determined that once it was established that an abortion had occurred, the stat- ute placed the burden on the defendant to demonstrate that the mother’s health or life were in danger.58 "e presumption of guilt for all abortions when only cer-

51 See N.Y. C. R.R. Co. v. Lockwood, 84 U.S. 357, 371 (1873) (citing Sager v. Portsmouth, S. & P. & E.R. Co., 31 Me. 228, 238 (1850)); Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 558 (1960) (quoting Lord Eldron in Douglas v. Scougall, 4 Dow. 269, 276 (1816)); Strother v. Williams, 37 U.S. 471, n. 18 (1970) (citing Kirk v. Bd. of Regents, 273 Cal. App. 2d 430, 439–440 (1969)).

52 See Lockwood, 84 U.S. 357. 53 See id. at 371 (citing Sager, 31 Me. at 238);

Mitchell, 362 U.S. at 558 (quoting Lord El- dron in Douglas, 4 Dow. at 276); Strother, 37 U.S. at n. 18 (citing Kirk, 273 Cal. App. 2d at 439–440).

54 See Williams, 442 U.S. 1309. 55 402 U.S. 62 (1971). 56 Id. at 68–70. 57 Id. at 67–68. 58 Id. at 68–69.

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tain abortions were criminal was deemed unconstitutional.59 However, the U.S. Supreme Court held that the statute was not unconstitutionally vague because “the burden is on the prosecution to plead and prove that an abortion was not necessary for the preservation of the mother’s life or health.”60 !e Court reasoned that “the change [in law] must represent a judg- ment by Congress that it is desirable that women be able to obtain abortions need- ed for the preservation of their-lives [sic] or health.”61 !ough not with respect to a state interest expressly, this case marks an early use of the phrase “preservation of … life.”62

In Roe v. Wade,63 the landmark abortion case, the U.S. Supreme Court referred to the state’s interest in the preservation of human life throughout the opinion but stopped short of declaring the preservation of human life a legitimate state interest.64 !e claim, brought by a pregnant woman using the pseudonym Jane Doe, alleged that the relevant Texas statutes criminal- izing abortion were unconstitutionally vague.65 !e district court held that the statutes were both unconstitutionally vague and violated Doe’s constitutionally protected right to privacy.66 !e Supreme Court held the statute unconstitutional as a violation of the Due Process Clause of the 14th Amendment; the Court did not rule on the question of vagueness.67

!e Roe Court balanced the indi-

59 Id. at 67–70. 60 Id. at 71. 61 Id. at 70. 62 Id. at 71. 63 410 U.S. 113 (1973). 64 Id. at 129, 137–139, 151, 158 n. 55, 162–

165. 65 Id. at 120. 66 Id. at 122. 67 Id. at 164–165.

vidual’s privacy interests in terminat- ing a pregnancy with the state’s interest in “safeguarding health, in maintaining medical standards, and in protecting po- tential life.”68 !e Court went on to re- "ne the constitutionally protected privacy right as it pertains to abortion and as bal- anced against the state’s legitimate interest in protecting the life of the fetus.69 !e Court also established the state’s interest “in preserving and protecting the health of the pregnant woman.”70 !roughout the opinion, the Court discussed the state’s interest in “preserving the fetus or embryo” as well as the importance of “pre- serving the life of the mother.”71 However, the Court did not expressly declare either of these state interests legitimate.72

68 Id. at 154. 69 Id. at 164–165 (drawing lines along the tri-

mester of the pregnancy and fetal viability). 70 Id. at 162. 71 Id. at 151–152. 72 Id. at 150–152, 154–155, 162–165 (“!e

State has a legitimate interest in seeing to it that abortion, like any other medical proce- dure, is performed under circumstances that insure maximum safety for the patient. !is interest obviously extends at least to the per- forming physician and his sta#, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise … . !us, the State retains a de"nite interest in protecting the woman’s own health and safety when an abor- tion is proposed at a late stage of pregnancy … . [A] state may properly assert important in- terests in safeguarding health, in maintaining medical standards, and in protecting potential life … . [T]hat, at some point, the state inter- ests as to protection of health, medical stan- dards, and prenatal life, become dominant … . [T]he State does have an important and legiti- mate interest in preserving and protecting the health of the pregnant woman … still another important and legitimate interest in protecting the potentiality of human life. … [T]he State in promoting its interest in the potentiality of human life may … .”).

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It was not until 1979, in Williams v. Zbaraz,73 that the Supreme Court as- serted that the state had a legitimate in- terest in the preservation of human life.74 !e Court heard a request for a stay of a lower court’s order requiring the state to reimburse physicians for abortions per- formed to save the life of the mother.75 !e stay would have prevented numer- ous lawful abortions because of "nancial limitations.76 !e lower court had ordered Illinois to fund medically necessary abor- tions, but the applicants for the stay were concerned about the possibility of ir- reparable "nancial burden on the state.77 !e Court dismissed the "nancial burden interest and moved to what the Court termed a state interest that “merits greater concern,” the interest in protecting hu- man life.78 !e Court acknowledged with- out question that “the State clearly has an interest in preserving and protecting the life and health of the mother … .”79 !e Court also recognized a legitimate interest in promoting childbirth, but the Court determined that this interest could not outweigh the interest in the health of the mother because the type of abortions in question were only those that were medi- cally necessary for the health of the moth- er.80 !e Court held that the stay should not be granted.81

!e Supreme Court rea#rmed the state interest in the preservation of human life in the context of abortion when it decided Planned Parenthood Association of Kansas

73 442 U.S. 1309. 74 See id. at 1313; see also supra n. 42. 75 442 U.S. at 1309–1311. 76 Id. at 1312–1313. 77 Id. at 1311. 78 Id. at 1313–1314. 79 Id. at 1312–1314. 80 Id. at 1313–1314. 81 Id. at 1316.

City, Missouri, Inc. v. Ashcroft.82 !e claim was brought by Planned Parenthood and two physicians to challenge the constitu- tionality of a state statute that required, among other things, a second physician to be present for any abortion performed after fetal viability.83 !e Court reversed the court of appeals decision and upheld the statute’s provision that required a sec- ond physician.84 !e Court reasoned that the state’s interest in preserving life was compelling and the presence of a second physician allowed greater attention to be given to the fetus.85

In this context, it seems reasonable to suggest that the terms do not mean the same thing. One de"nition of “protect” is to keep something from harm;86 one de"- nition of “preserve” is to keep something unchanged.87 It is possible that one reason the phrase “preservation of life” came onto the legal scene when the courts were deal- ing with abortion issues was to allow the courts to avoid answering the question of when life begins.88 By using the word

82 462 U.S. 476 (1983). 83 Id. at 478–479. 84 Id. at 494. 85 Id. at 485–486 (“And given the compelling in-

terest that the State has in preserving life, we cannot say that the Missouri requirement of a second physician in those unusual circum- stances where Missouri permits a third-trimes- ter abortion is unconstitutional. Preserving the life of a viable fetus that is aborted may not of- ten be possible, but the State legitimately may choose to provide safeguards for the compara- tively few instances of live birth that occur.”).

86 Merriam-Webster, Protect, http://www.merri am-webster.com/dictionary/protect (accessed April 1, 2017).

87 Merriam Webster, Preserve, http://www.merri am-webster.com/dictionary/preserve (accessed April 1, 2017).

88 See Steven Staihar, !e State’s Unquali"ed In- terest in Preserving Life: A Critique of the For- mulations of Life’s Sanctity in Washington v.

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“preserve” instead of “protect,” this ques- tion could remain unanswered and a state interest could be ascribed to the fetus. Even though this may have seemed like a smooth, perhaps seamless, transition that achieved the immediate goal of not hav- ing to answer the question of when life beings, the distinction deserves further scrutiny. !is is particularly true after the attribute “unquali"ed” is attached to the interest.

B. Birth of the State’s Unquali!ed Interest in Preserving Human Life

In Cruzan,89 the U.S. Supreme Court upheld a Missouri statute that required clear and convincing evidence of a pa- tient’s wish to have life-sustaining medical treatment withdrawn.90 To support this holding, the Court cited several legitimate state interests.91 One of these interests was the state’s “unquali"ed interest in the preservation of human life.”92 Unlike the evolution of the term “preservation,” the term “unquali"ed” came onto the scene with a substantial description. !e term “unquali"ed” allows the state to assert an interest in the preservation of human life without considering the quality of life.93 !is case was the "rst time the Supreme Court asserted this interest.94

Glucksberg, 34 Idaho L. Rev. 401, 406 (1998) (discussing the foundational cases for the phrase “preservation of life”).

89 497 U.S. 261. 90 Id. at 286. 91 Id. at 281–282. 92 Id. at 282. 93 Id. (“[W]e think a State may properly de-

cline to make judgments about the ‘quality’ of life that a particular individual may enjoy, and simply assert an unquali"ed interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.”).

94 See id.

Following Cruzan, the lower courts ap- plied the unquali"ed interest in the pres- ervation of human life with caution95 and express concern.96 In Matter of Guardian- ship of L.W.,97 the Wisconsin Supreme Court heard a claim regarding the right of an individual in a persistent vegetative state to be removed from life-sustaining medical treatment and the guardian’s au- thority to consent to the removal of this treatment on behalf of the patient.98 !e court weighed the state’s interests, includ- ing the state’s interest in the preservation of human life, against the right of the pa- tient to refuse unwanted treatment and against the best interest of the patient.99 !e court held that the guardian had authority to consent to the withdrawal of the patient’s life-sustaining treatment when he was acting in good faith that withdrawal would be in the patient’s best interest.100 !e court determined the un- quali"ed interest in the preservation of human life was insu#cient to outweigh the right of the individual in this circum- stance.101 Further, the court’s language suggested it was concerned about the le- gitimacy of the state’s unquali"ed interest in the preservation of human life and all but condemned the interest: “An unquali- "ed state interest in preserving life irre- spective of either a patient’s express wishes or of the patient’s best interests transforms human beings into unwilling prisoners of medical technology.”102 Although the court applied the terminology as used in

95 See infra nn. 103–115. 96 Matter of Guardianship of L.W. , 482 N.W.2d

at 91. 97 482 N.W.2d 60. 98 Id. at 63. 99 Id. at 90. 100 Id. at 72. 101 Id. at 74–76. 102 Id. at 91.

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the Cruzan decision, the court largely ig- nored the “unquali!ed” aspect.103

"is case was followed by Compassion in Dying v. State of Washington,104 in which the Ninth Circuit held that the Wash- ington state ban on assisted suicide vio- lated the Due Process Clause of the 14th Amendment for terminally ill patients who have expressed a wish to end their lives.105 Although the court recognized the state’s unquali!ed interest in the preserva- tion of human life as laid out by Cruzan, the Ninth Circuit adopted the approach that the state’s interest is not always con- trolling and that its “strength is dependent on relevant circumstances, including the medical condition and the wishes of the person whose life is at stake.”106

Around the same time as Compassion in Dying, the Second Circuit heard a similar case regarding the constitutionality of a New York statute that prohibited assisted suicide.107 In Quill v. Vacco,108 the court held, under a rational basis review, that the statute violated the 14th Amendment’s Equal Protection Clause.109 Although the court discussed Cruzan at length, it made no reference to the unquali!ed interest in

103 See Matter of Guardianship of L.W., 482 N.W.2d 60.

104 79 F.3d 790. Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992) (discussing the liberty interest in abortion without discussing the unquali!ed interest in the preservation of human life) was decided after Cruzan, 497 U.S. 261, but before Compassion in Dying, 79 F.3d 790 (9th Cir. 1996), rev’d sub nom. Wash- ington v. Glucksberg, 521 U.S. 702 (1997).

105 Compassion in Dying, 79 F.3d 790, 838 (9th Cir. 1996), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997).

106 Id. at 817. 107 See Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996),

rev’d sub nom. Vacco v. Quill, 521 U.S. 793 (1997).

108 Id. 109 Id. at 727.

the preservation of human life.110 To the extent the Second Circuit responded to the state’s assertion that it had an interest in “preserving the life of all its citizens,” the court concluded, “But what interest can the state possibly have in requiring the prolongation of a life that is all but ended? Surely, the state’s interest lessens as the potential life diminishes.”111

However, in 1997, the Supreme Court reversed the Ninth Circuit’s ruling in Com- passion in Dying, which was decided under Glucksberg on appeal, and the Second Cir- cuit’s ruling in Vacco v. Quill.112 Although decided at the same time and on the same issue of assisted suicide, the Court handed down separate opinions distinguished on the basis of the constitutional argument.113 Whereas the Glucksberg claim asserted a vio- lation of the Due Process Clause of the 14th Amendment,114 the Vacco v. Quill claim as- serted a violation of the Equal Protection Clause of the 14th Amendment.115 "e fol- lowing analysis focuses on Glucksberg; how- ever, the Vacco v. Quill Court discussed the state interest in a similar manner.116

110 Id. at 725–731. 111 Id. at 729–730 ("e court went on to say,

“And what business is it of the state to require the continuation of agony when the result is imminent and inevitable? What concern prompts the state to interfere with a mentally competent patient’s right to de!ne his own concept of existence, of meaning, of the uni- verse, and of the mystery of human life, when the patient seeks to have drugs prescribed to end life during the !nal stages of a terminal illness? "e greatly reduced interest of the state in preserving life compels the answer to these questions: ‘None.’”).

112 Glucksberg, 521 U.S. at 735–736; Vacco v. Quill, 521 U.S. at 799.

113 See Glucksberg, 521 U.S. at 735–736; Vacco v. Quill, 521 U.S. at 799.

114 Glucksberg, 521 U.S. at 709–710. 115 Vacco v. Quill, 521 U.S. at 797. 116 See id.

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Similar to Cruzan, the Glucksberg Court applied several state interests.117 !e Court refused to weigh the state interests, in- cluding the state’s unquali"ed interest in the preservation of human life, against the liberty interest of the individual.118 In Glucksberg, the Court suggested that the balance between the state and liberty in- terests had already been considered when Washington enacted its statutory ban on assisted suicide.119 !e Court upheld both state statutes that banned assisted sui- cide.120 In Glucksberg, the Court rested not on any particular state interest but stated, sweepingly, the legitimacy of all the stated interests including the unquali"ed state in- terest in the preservation of human life.121 “We need not weigh exactingly the relative strengths of these various interests. !ey are unquestionably important and legiti- mate, and Washington’s ban on assisted suicide is at least reasonably related to their promotion and protection.”122

117 Glucksberg, 521 U.S. at 728–733 (“First, Washington has an ‘unquali"ed interest in the preservation of human life.’ … [Second,] [t]he State has an interest in preventing suicide … . [!ird,] [t]he State also has an interest in pro- tecting the integrity and ethics of the medical profession. … [Finally,] the State has an inter- est in protecting vulnerable groups — includ- ing the poor, the elderly, and disabled persons — from abuse, neglect, and mistakes.”).

118 Id. at 729–730. 119 Id. 120 Id. at 735–736; Vacco v. Quill, 521 U.S. at

796. !e Court determined that there was not a constitutionally protected fundamental liberty interest and that there was a legitimate state interest in prohibiting assisted suicide. Glucksberg, 521 U.S. at 727, 735 (“[T]he as- serted ‘right’ to assistance in committing sui- cide is not a fundamental liberty interest pro- tected by the Due Process Clause.”).

121 Glucksberg, 521 U.S. at 735. 122 Id.

IV. Application of the State’s Unquali!ed Interest in Preserving Human Life and Post-Glucksberg

Since the Glucksberg decision in 1997, the state’s unquali"ed interest in the pres- ervation of human life has continued to be applied as a legitimate state interest.123 !is interest is primarily applied in one of three types of cases: sexually transmitted human immunode"ciency virus (HIV), abortion, and end-of-life care.124 In many of these cases, the unquali"ed interest in the preservation of human life is unneces- sary to reach the court’s holding; in other cases, it is not clear that the holding of the case re#ects the public interest.125

A. Application of the State’s Unquali!ed Interest in Cases Dealing With Sexually Transmitted HIV

Since the Cruzan opinion, court opin- ions that deal with the criminality of en- gaging in sex while HIV positive have often referenced the state’s unquali"ed interest in the preservation of human life.126 However, the courts rarely rely on that interest to reach the holding.127 Instead, the interest is used to bolster the holding, which rests on

123 See U.S. v. Bygrave, 46 Armed Forces App. 491 (1997); St. v. Musser, 721 N.W.2d 734 (Iowa 2006); People v. Jensen, 586 N.W.2d 748 (Mich. App. 1998); Britell v. U.S., 372 F.3d 1370 (Fed. Cir. 2004); Montalvo v. Borkovec, 647 N.W.2d 413 (Wis. App. 2002); Woods v. Com., 142 S.W.3d 24 (Ky. 2004); Blouin ex rel. Est. of Pouliot v. Spitzer, 356 F.3d 348 (2d Cir. 2004); Lozada Tirado v. Testigos Jehova, 177 D.P.R. 893 (P.R. 2010) (English trans.); Krischer v. McIver, 697 So. 2d 97 (Fla. 1997).

124 See infra n. 126. 125 See e.g. McIver, 697 So. 2d 97; see also infra n.

158. 126 See Bygrave, 46 Armed Forces App. 491; Muss-

er, 721 N.W.2d 734; Jensen, 586 N.W.2d 748. 127 See infra pts. IV(A) ¶¶ 2–3, IV(B) ¶¶ 1–7,

IV(C) ¶¶ 1–6.

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a di!erent state interest.128 Although use of the unquali"ed interest in the preservation of human life gives additional credence to the holding, it is unnecessary, and the same outcome could result without the assertion of an unquali"ed state interest in the pres- ervation of human life.129

In United States v. Bygrave,130 the U.S. Court of Appeals for the Armed Forces upheld an aggravated assault conviction despite the defendant’s challenge that the conviction violated his constitutionally protected privacy interests.131 Bygrave, a member of the military, was convicted for engaging in unprotected sex with an in- formed and consenting adult while posi- tive for HIV.132 #e court did not address whether the individual’s privacy interest in engaging in sexual intercourse reached the level of a constitutionally protected fundamental right because of the gov- ernment’s compelling interest in “hav- ing those who defend the nation remain healthy and capable of performing their duty.”133 #e court also applied the un-

128 Id. 129 #e state’s unquali"ed interest in the preser-

vation of human life is deemed unnecessary when the same outcome could be reached by applying the state’s quali"ed interest in the protection of human life or alternatively the state’s quali"ed interest in the preservation of human life. See infra pt. VI.

130 46 Armed Forces App. 491. 131 Id. at 494–495. 132 Id. at 494. #e defendant had also been

charged with engaging in unprotected sex with an uninformed adult while positive for HIV. #is charge was not at issue on appeal.

133 Id. at 495–497 (“[T]he Government has suf- "ciently compelling interests to proscribe unprotected sexual intercourse between HIV- positive servicemembers and uninfected, un- married, noncivilian partners, even assuming that some sort of constitutional right to pri- vate heterosexual intercourse exists.” (citations omitted)).

quali"ed state interest in the preservation of human life as a legitimate interest.134 However, the aforementioned compel- ling interest indicates that the result did not rest on the unquali"ed interest and the same result could have been reached without any reliance or mention of the unquali"ed interest.135

Similarly, in State v. Musser,136 the Iowa Supreme Court upheld the constitution- ality of a state statute that criminalized intimate contact by a person who knows she is HIV positive; the statute allowed as an a$rmative defense the other person’s knowledge of the infection and consent to the contact.137 #e court recognized the individual’s right to privacy but found that the state had “a compelling interest in discouraging the spread of the virus and protecting human life.”138 #erefore, the court held that the statute was not an unconstitutional infringement on the in- dividual’s right to privacy.139

#e court supported the asserted com- pelling interest by referring to the Cruzan opinion and the unquali"ed interest in the preservation of human life.140 How- ever, similar to the Bygrave analysis, the court’s reliance on the unquali"ed interest in the preservation of human life was suf- "cient to support its conclusion but was not necessary.141 Instead, the court could have relied more narrowly on the state’s

134 Id. at 496 (citing Cruzan, 497 U.S. at 282). 135 See supra n. 133. 136 Musser, 721 N.W.2d 734. 137 Id. at 741, 748. 138 Id. at 748. 139 Id.; see also Jensen, 586 N.W.2d 748 (“We be-

lieve that defendant’s ostensible right to with- hold disclosure of her HIV status from her sexual partners is not an absolute right when balanced against the state’s ‘unquali"ed inter- est’ in preserving human life.”).

140 Musser, 721 N.W.2d at 748. 141 See supra n. 133.

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interest in the protection of human life, which matches the terms the court used and which has been supported as a legiti- mate state interest since the late 1800s.142

B. Application of the State’s Unquali!ed Interest in Abortion Cases

In Britell v. United States, the court upheld the constitutionality of a statute that prevented Department of Defense funds from being used to !nance an abor- tion, except when the mother’s life was at risk.143 Britell’s husband was in the Air National Guard, and their family was in- sured through a program designed to pro- vide uniform medical coverage to members of the military.144 Britell sought an abor- tion because the fetus had anencephaly, but she was denied coverage for the pro- cedure under the statute in question.145 Britell claimed, and the lower court held, that the statute violated the equal protec- tion component of the Fifth Amendment’s Due Process Clause.146 "e Federal Circuit Court evaluated the constitutionality of the statute as an infringement on basic liberty interests under the rational basis review.147 "e court determined that the statute was rationally related to the state’s legitimate interest in “the potential of human life.”148

142 See supra pt. III. 143 Britell, 372 F.3d at 1373–1374. 144 Id. at 1373. 145 Id. 146 Britell v. U.S., 204 F. Supp. 2d 182, 183–184

(D. Mass. 2002); Britell, 372 F.3d at 1372. 147 Britell, 372 F.3d at 1373. "e court also re-

viewed the Fifth Amendment equal protection challenge to the constitutionally protected fundamental right to choose to have an abor- tion. However, the court determined that the statute preventing insurance coverage did not prevent access to an abortion and therefore did not infringe on the fundamental constitution- ally protected interest. Id. at 1380.

148 Id.

Anencephalic fetuses have an extremely low likelihood of surviving at birth.149 Britell therefore argued that the state’s interest in the potential life of this fetus was not applicable.150 "e court rejected Britell’s claim that this interest was not applicable to the current situation because of the child’s condition.151 In response to Britell’s claim, the court referenced the U.S. Supreme Court’s assertion that the state’s interest in potential human life expands the entire duration of the pregnancy;152 it does not apply only at the moment of fetal viability.153 Additionally, the court relied on the Cruzan unquali!ed interest in the preservation of human life, with an emphasis on the unquali!ed as- pect; the court reiterated that the interest applies “regardless of [a] physical or men- tal condition.”154

Britell is an example of a case that does not need to rely on an unquali!ed inter- est in the preservation of human life. At the heart of the analysis, the Britell opin- ion rests on 1) the state’s interest in the potential for human life and 2) the un- quali!ed nature of the state’s interest.155 "e unquali!ed interest does not have to be speci!cally hinged on the idea of

149 Id. at 1373 n. 1 (“Anencephaly is a neural tube defect in which the fetus develops without forebrain, cerebellum, or cranium. In place of a brain, the fetus develops with a gelatinous tissue covering the crown of the head. "e condition is fatal: most anencephalic fetuses die during pregnancy or birth, and the few (thirty-two percent) of anencephalic fetuses that are carried to term can survive for up to two months with continuous life support and intensive care.” (citations omitted)).

150 Id. at 1382. 151 Id. at 1382–1383. 152 Id. at 1381. 153 Id. 154 Id. at 1383. 155 Id. at 1381–1383.

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preservation, and in Britell the court did in fact uncouple “unquali!ed” from “preservation.”156 In its opinion, the Britell court relied on the state’s unquali!ed in- terest in the potential for, rather than the preservation of, human life.157 "erefore, although the Britell opinion references the Cruzan unquali!ed state interest in the preservation of human life, ultimately that interest was not used to support the Britell court’s holding.158

In Montalvo v. Borkovec, Montalvo went into preterm labor and delivered a child who survived because of the physi- cian’s lifesaving resuscitation measures.159 "e parents brought a suit against the physician alleging a violation of the in- formed consent statute.160 Under at least partial reliance on the Cruzan unquali- !ed interest to preserve human life, the court held that the parents did not have

156 Uncoupled from the idea of preservation, the concept of an unquali!ed interest in human life can have a strong basis in promoting the public health, welfare, and safety. See supra pt. VI.

157 See supra n. 155. Alternatively, it could be sug- gested that the Britell court came to the wrong conclusion and should have found that the statutory prohibition on using Department of Defense funds for an abortion in this situa- tion was a violation of Britell’s liberty interest because the statutory restriction was not ratio- nally related to a legitimate interest.

158 "is article does not go so far as to defend the holding in Britell. Instead it simply highlights that the holding is not dependent on the Cru- zan unquali!ed state interest in the preserva- tion of human life. Although in part VI this article argues that an unquali!ed interest in the protection of human life would be legitimate, this interest is distinct from an unquali!ed interest in the protection of potential human life. "is article makes no argument regarding the legitimacy of the unquali!ed state interest in the protection of potential human life.

159 Montalvo, 647 N.W.2d at 415–416. 160 Id. at 416.

the right to withdraw life-sustaining care from the child.161

"e Montalvo opinion deals with an unusual circumstance in which begin- ning-of-life issues are combined with end-of-life care.162 A child was born.163 Without complicated medical interven- tion, the child likely would have died.164 Complicated medical intervention was provided, and the child lived.165 "e issue raised by the parents was whether, when the child was born, they should have been given the opportunity to decline the com- plicated medical interventions and allow their child’s life to end through natural means.166

"e Montalvo court determined that it is always in the best interest of the patient to remain on life-sustaining treatment un- less the individual is in a persistent veg- etative state.167 "is case was limited to circumstances that required a surrogate decision-maker.168 "e court’s reliance

161 Id. at 418. 162 Id. at 416. 163 See id. at 478. 164 Id. at 420–421 (discussing a similar case in

which the physician did not attempt resusci- tation, the child died, and the parents !led a claim against the physician).

165 Id. at 416. 166 Id. 167 Id. at 421. 168 Id. Removed from the context of a surrogate

decision-maker, the claim that it is always in the best interest of the patient to remain on life-sustaining treatment, barring a persistent vegetative state (PVS), directly contradicts the assumed constitutionally protected funda- mental right to refuse life-sustaining treatment as identi!ed in Cruzan. "is is necessarily true unless we are willing to conclude that an in- dividual will act against her own best interest. Individuals with capacity voluntarily make the decision to remove themselves from life-sus- taining treatment; these conscious individuals are not in a PVS. "erefore, the courts may have more accurately concluded that the saf-

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on the Cruzan unquali!ed interest in the preservation of human life is similar to the Britell situation.169 "e unquali!ed component was important because of the questionable quality of life awaiting the child.170 However, as in Britell, the court did not need to apply an interest in the preservation of human life.171 Because the claim was brought by a surrogate decision- maker, the court could have simply im- posed a state interest in the protection of human life.172 An unquali!ed interest in the protection of human life, rather than the preservation of human life, was suf- !cient to support the Montalvo opinion and conclusion that the parents did not have the right to withdraw their child’s life-sustaining treatment.173

In Stewart-Graves v. Vaughn, the court relied on the state’s interest in preserv- ing human life along with its interest in protecting third parties and the medical community.174 At 35 weeks, Liam Stew- art-Graves su#ered a placental abruption and was born without a heartbeat.175 "e attending medical sta# performed resus- citation measures for 24 minutes before Liam’s heart began to beat.176 As a result

est approach, rather than the best interest of the patient, is to limit the removal of life-sus- taining treatment to patients in a PVS when the decision is left to a surrogate in order to preserve the patient’s ability to make a choice in the future.

169 See supra pt. IV(B) ¶¶ 1–3. 170 See Cruzan, 497 U.S. at 282 (asserting an

unquali!ed interest in place of making judg- ments about the quality of life in question).

171 See supra nn. 155–157. 172 Id. 173 Montalvo, 647 N.W.2d at 418. 174 Stewart-Graves v. Vaughn, 170 P.3d 1151,

1161 (Wash. 2007). Interestingly, the court refrained from using the term “unquali!ed” throughout the opinion.

175 Id. at 1153–1154. 176 Id. at 1154.

of the resuscitation measures, Liam sur- vived.177 However, he required constant and elaborate medical care.178 During the resuscitation e#orts, neither of Liam’s par- ents was consulted regarding the appropri- ate course of treatment.179 Liam’s parents !led several claims against the attending physician, including negligent failure to follow standard of care.180

"e court went out of its way to avoid the term “unquali!ed” while clearly ap- plying the state’s unquali!ed interest in the preservation of human life.181 "e court held, “[A]s a matter of law, we will not recognize a standard of care that re- quires a health care provider to withhold treatment of a newborn infant based on the likelihood that the infant will be se- verely disabled, if it survives.”182 "e court relied on two key state interests: preserva- tion of the infant’s life and maintaining the integrity of the medical profession.183 Further, the court noted that the state’s interest in the preservation of the infant’s life was particularly strong, at least until the infant was stable and could be fully as- sessed.184 Once again, however, the court applied the state’s interest in human life in the context of a surrogate decision-maker, which is inherently a matter of protec- tion.185 When the patient’s preference is unknown, the presumption that life is preferable to death may be justi!ed to preserve the patient’s future choice.186 "is

177 Id. 178 Id. 179 Id. 180 Id. at 1161. 181 Id. at 1161–1162. 182 Id. at 1161. 183 Id. at 1161–1162. 184 Id. at 1162. 185 See id. at 1159–1160; see supra nn. 89–90. 186 See Cruzan, 497 U.S. at 324–325 (Brennan,

J., dissenting); see also Stewart-Graves, 170 P.3d at 1162 (“Physicians must presume that life is

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is a protectionist action.187 !is is distinct from an act of preservation, which disre- gards the subjective nature of the value of life in favor of maintaining life if at all feasible.188

C. Application of the State’s Unquali!ed Interest in Cases Dealing With End-of-Life Care

In Blouin ex rel. Estate of Pouliot v. Spitzer,189 New York state directly inter- vened in the medical treatment of a pa- tient to ensure the preservation of life.190 Blouin was the sister of Sheila Pouliot, a woman who had been incompetent since her young years and became very ill around the age of 40.191 After an onset of pain, Pouliot was taken to the hospital where the medical sta" determined her to be near death.192 !e hospital ethics com- mittee decided that the appropriate course of action was to administer palliative care in the form of painkillers; life-sustaining treatment, including hydration and nutri- tion, would not be administered.193 !is decision was in line with the family’s wish- es.194 However, the state of New York in- tervened and required the hospital to ad- minister life-sustaining treatment against the wishes of the family and medical ad- vice of the hospital.195

Boulin’s family brought suit against the New York attorney general and assis- tant attorney general, claiming, “[!eir]

preferable to death, even if that means a se- verely disabled life.”).

187 See infra pt. VI. 188 Id. 189 356 F.3d 348. 190 Id. at 351. 191 Id. at 352. 192 Id. 193 Id. at 352–353. 194 Id. at 352. 195 Id. at 353–354.

intervention, without the consent of her sister or a surrogate decisionmaker, caused unwarranted and unnecessary pain and su"ering and violated her sister’s right to bodily integrity, protected by the 14th Amendment.”196 !e Second Circuit ap- plied the state’s “unquali#ed interest in the preservation of human life,” as asserted in Cruzan.197 !e court insisted that only the patient herself could assert an interest to be balanced against the state’s interest.198 !e court therefore upheld the interven- tion as lawful under its interest to preserve the life of a citizen.199

In Lozada Tirado v. Testigos Jehova, the Supreme Court of Puerto Rico re- versed a lower court’s ruling that denied a patient the right to refuse medical treat- ment through an advance directive.200 !e court determined that “no evidence was presented of the existence of any state interest that would outweigh the patient’s right to refuse medical treatment” and held that the statute at issue was uncon- stitutional insofar as it prevented citizens from exercising their will over their medi- cal treatment.201 In a dissenting opinion, Justice Pabon Charneco brie$y discussed the U.S. Supreme Court’s assertion of an unquali#ed state interest in the preserva- tion of life.202 Justice Charneco contrasted this interest with other repeated assertions that “the State’s interest in authorizing a medical treatment weakens and the right to self-determination grows as the degree

196 Id. at 353. 197 Id. at 359. 198 Id. 199 Id. at 360–361. 200 177 D.P.R. at 900 (English trans.). 201 Id. 202 Id. at n. 9 (Charneco, J., dissenting) (Eng-

lish trans.); see also Woods, 142 S.W.3d at 42 (discussing how the state’s interest weakens as bodily invasion increases).

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of bodily invasion increases and the medi- cal prognosis dims.”203

Interestingly, Judge Charneco’s dissent- ing opinion begins by calling attention to the majority’s assertion that “the refusal of medical treatment by any person of sound mind as part of a conscientious objection or for religious reasons must be respected unless such refusal causes serious harm to third parties.”204 According to the dissent, the requirement that a liberty interest be limited only by its ability or likelihood of causing harm to another “does away with all the state interests that had been … recognized.”205 On its face this is not true. Both the majority and the dissent recount the four state interests identi!ed in Cruzan.206

Several jurisdictions have recognized four state interests that may limit the patient’s right to refuse medical treat- ment: 1) the preservation of human life; 2) the prevention of suicide; 3) the maintenance of the ethical integrity of the medical profession; and 4) the protection of the interests of innocent third parties.207

Interests three and four are most clearly based on concern for third parties.208 "ese interests would therefore not be “done away with.”209 Further, the roots of

203 Lozada Tirado, 177 D.P.R. at n. 9 (Charneco, J., dissenting) (English trans.) (“However, we have no information that this is the situation in this instant case.”) (citing Matter of Quinlan 355 A.2d 647, 664 (N.J. 1976)).

204 Id. at 951 (Charneco, J., dissenting) (English trans.).

205 Id. 206 Id. at 915–916 (majority opinion); id. at 960

(Charneco, J., dissenting). 207 Id. at 960 (Charneco, J., dissenting). 208 See infra pt. V(B). 209 Id.

the state’s (quali!ed) interest in both the preservation of human life and the pre- vention of suicide are arguably based on concern for third parties through sanctity- of-life arguments.210

Shortly after the Glucksberg opinion, the Florida Supreme Court upheld the constitutionality of a Florida statute that criminalized assisted suicide.211 In Krischer v. McIver,212 the court’s reasoning closely mirrored the reasoning in Glucksberg.213 "e court denied a constitutionally pro- tected fundamental right to die and then cited three legitimate state interests to which the statute was rationally related.214 "e three interests were 1) the unquali!ed interest in the preservation of human life, 2) the state’s interest in preventing suicide, and 3) the interest in maintaining the in- tegrity of the medical profession.215

In McIver, the patient was conscious and actively requesting assisted suicide.216 "erefore, the state interest was correctly described as an interest in the “preserva- tion of life.”217 "is case demonstrates, as most assisted-suicide cases do, the power given to the states through the unquali!ed interest in the preservation of human life to require a person to remain alive when the individual has determined and the im- mediate medical professionals have agreed that the individual has little to no quality of life remaining.218 "is power has no ba- sis in the promotion of the public health, welfare, or safety.219

210 Id. 211 McIver, 697 So. 2d at 104. 212 Id. 213 Id. at 100–104. 214 Id. at 103–104. 215 Id. 216 Id. at 99. 217 See supra pt. III(B). 218 McIver, 697 So. 2d at 99–100. 219 See infra pt. V(B). It should be noted that

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V. Analysis: Legitimacy of the Cruzan Unquali!ed Interest in the Preservation of Human Life

A. Inconsistency Between the Cruzan Reasoning and Assertion of a State’s Unquali!ed Interest in the Preservation of Human Life

!e Cruzan Court engaged in a sub- stantive due process analysis.220 !e Court assumed a constitutionally protected fun- damental right to withdraw life-sustaining hydration and nutrition and focused its analysis on the state interest.221 !e state asserted an interest in the “protection and preservation of human life.”222 !e Court supported this state interest by referring to the seriousness of homicide and the prevalence of state statutes criminalizing assisted suicide.223 Yet this is not where the Court focused its decision. Instead it switched its focus to a “more particular in- terest at stake.”224

!e Court recognized that the “choice between life and death is a deeply per- sonal decision of obvious overwhelming "nality.”225 !e state’s “more particular in- terest at stake,” as referred to by the Court, was that “Missouri [could] legitimately seek to safeguard the personal element of this choice through the imposition of

with two other legitimate state interests, the unquali"ed interest in the preservation of hu- man life is potentially unnecessary to reach the same conclusion. See Glucksberg, 521 U.S. at 731–733.

220 Cruzan, 497 U.S. at 279. 221 Id. at 278, 279. 222 Id. at 280. 223 Id. 224 Id. at 281. 225 Id. (emphasis added) (characterizing this ac-

tion as a decision and therefore suggesting that some aspect of autonomy is preserved when an individual is faced with the question of contin- ued life).

heightened evidentiary requirement.”226 !erefore, Missouri could, in the case of a surrogate decision-maker, require a cer- tain level of proof that the surrogate is acting in accordance with the wishes of the patient when requesting the removal of life-sustaining treatment.227 !e inter- est on which the Court rested its conclu- sion, “the interest to safeguard the per- sonal element of this choice,”228 was the state’s interest in the protection of human life. !e Court supported this conclusion by referring to potential abuses of family members and the customary absence of the adversarial process in court hearings to determine the unconscious or incompe- tent patient’s wishes.229 Despite spending an entire paragraph discussing the state’s interest in the protection of human life,230

226 Id. 227 Id. at 282. 228 Id. at 281. 229 Id. 230 Id. at 281–282 (“But in the context presented

here, a State has more particular interests at stake. !e choice between life and death is a deeply personal decision of obvious and over- whelming "nality. We believe Missouri may legitimately seek to safeguard the personal ele- ment of this choice through the imposition of heightened evidentiary requirements. It can- not be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment. Not all incompetent patients will have loved ones available to serve as surrogate decision- makers. And even where family members are present, there will, of course, be some unfortu- nate situations in which family members will not act to protect a patient. A State is entitled to guard against potential abuses in such situ- ations. Similarly, a State is entitled to consider that a judicial proceeding to make a determi- nation regarding an incompetent’s wishes may very well not be an adversarial one, with the added guarantee of accurate fact"nding that the adversary process brings with it. Finally, we think a State may properly decline to make

Assisted Suicide: Is the Cruzan “Unquali!ed State Interest in the Preservation of Human Life” a Legitimate State Interest? Fall 2017 89

the Court ended the paragraph with an as- sertion that the unquali!ed interest in the preservation of human life is a legitimate state interest.231

Arguably, the contradiction between the Court’s reasoning and the Court’s as- sertion of the unquali!ed interest in the preservation of human life is what gave the lower courts di"culty following the Cru- zan opinion.232 #e Court discussed the importance of “choice”233 when one pos- sible outcome has such great “!nality.”234 However, the unquali!ed interest in the preservation of human life strips the in- dividual of that choice and claims that the state has an interest in keeping individu- als alive despite the individual’s quality of life or desire for life. #is is inherently contradictory. If the Court believed that end-of-life decisions, which for the sake of argument impact no one but the individ- ual, were the sole province of the state, the Court should not have emphasized the need to safeguard the individual’s choice.

#e lower courts tried to address this inherent contradiction by suggesting that the strength of the unquali!ed interest in the preservation of human life varies by circumstances.235 However, this method is inconsistent with traditional substan- tive due process analysis.236 #e Glucks-

judgments about the quality of life that a par- ticular individual may enjoy, and simply assert an unquali!ed interest in the preservation of human life to be weighed against the constitu- tionally protected interests of the individual.”) (internal quotation marks omitted).

231 Id. at 282. 232 See supra pt. III(B). 233 Cruzan, 497 U.S. at 281. 234 Id. 235 See supra pt. III(B). 236 See supra pt. II. But see Glucksberg, 521 U.S.

at 746 (Stevens, J., concurring) (“Properly viewed, however, this interest is not a collec- tive interest that should always outweigh the

berg decision correctly applied the tradi- tional substantive due process analysis.237 #e Court determined that rational basis review was appropriate because the issue dealt with a mere liberty interest;238 the Court applied an interest known to be le- gitimate from a previous Court ruling;239 and the Court analyzed whether the stat- ute had a rational relationship to the in- terest, which it did.240 #e method of the Glucksberg Court was consistent with tra- ditional methods of substantive due pro- cess analysis.241 However, the Court relied, in part, on the Cruzan Court’s inherently contradictory claim that the unquali!ed interest in the preservation of human life is a legitimate state interest.242

B. !e State’s Unquali"ed Interest in the Preservation of Human Life and the Promotion of the Public Health, Welfare, or Safety

#e state’s unquali!ed interest in the preservation of human life is not founded on the promotion of the public health, welfare, or safety. What interest could the state have in preserving a life devoid of quality when it is understood that the life does not want to be preserved?243 If an

interests of a person who because of pain, in- capacity, or sedation !nds her life intolerable, but rather, an aspect of individual freedom.”).

237 See supra pt. II. 238 Glucksberg, 521 U.S. at 728. 239 Id. at 728–729. 240 Id. at 728. 241 See supra pt. II. 242 #is article does not suggest that the Court

was wrong to rely on the legitimacy of the other asserted state interests. #erefore, the Glucksberg Court could have reached the same outcome without relying on the unquali!ed interest in the preservation of human life.

243 See Quill v. Vacco, 80 F.3d at 729–730; Baxter v. St., 224 P.3d 1211, 1232 (2009) (Warner, J., concurring).

NAELA Journal Volume 13, Number 2 90

individual wants to preserve her life, the state need only assert its interest in the protection of human life. Some states will appeal to a concern for the lives of people with disabilities or for the lives of people who are depressed.244 But concern for those who may fall victim to abuses under a system that does not protect absolutely against death is truly a concern for the protection of life. Action that may jeop- ardize these lives could be properly coun- tered by the state asserting an interest in the protection of human life.

Additionally, it has been suggested that the state’s interest in the preservation of human life has origins in its interest in the “sanctity of life.”245 !is concept has often been de"ned as the intrinsic value of human life itself.246 Several articles have discussed the sanctity of life as it relates to the state’s unquali"ed interest in the preservation of human life.247 In many of these articles, the authors suggest that the interest is not legitimate because the sanctity of life is rooted in religion; the argument then continues with an asser- tion that a religious concept cannot be used as a state interest to block a liberty interest.248 Alternatively, another way to view the sanctity of life is to consider the idea that the public health is promoted by a common understanding that life has value. !is common understanding serves to reduce the instances of homicide and to encourage altruistic acts. In this respect, the sanctity of life as it relates to the state interest is concerned with the idea that al- lowing individuals to choose to die will

244 Glucksberg, 521 U.S. at 732. 245 Staihar, supra n. 88. 246 Id. at 418. 247 See id. ; Shelly Cohen, De-Moralizing Death: A

Humanistic Approach to the Sanctity of Life, 14 Elder L.J. 91, 101–106 (2006).

248 Staiher, supra n. 88.

result in a decline in the way society views and values life.249 Consequently, individu- als may react more coldly to the loss of life or may not act as "ercely to protect life.250

However, when the interest in the pres- ervation of human life is converted into an unquali"ed interest, the intrinsic value of life that the state seeks to protect is actu- ally diminished. !e value is diminished because autonomy is inherently part of the value of life along with pleasure, joy, and happiness.251 At the same moment an individual is stripped of her autonomy, she is required to endure pain, which is not always controlled by medication.252 When the medical community can do no more to improve the quality of the patient’s life, the state’s unquali"ed inter- est in the preservation of human life pro- claims the individual’s life as important to the community regardless of its quality or importance to the individual. In order for others to respect life, therefore, we must force individuals to endure until their bodies give out. !is notion is hypocriti- cal. What value does life have if we force it to be a slave to the will of others without any regard for the life itself? !e state’s in- terest in the sanctity of life cannot defend an unquali"ed state interest in the preser- vation of human life.

Further, the application of the unquali- "ed interest in the preservation of human life since Glucksberg has often resulted in an outcome no di#erent from the out-

249 See id. 250 See id. 251 Matthew P. Previn, Assisted Suicide and Reli-

gion: Con!icting Conceptions of the Sanctity of Human Life, 84 Geo. L.J. 589, 597–598 (1996).

252 Stephen P. Williams, An Opportunity Slipping By: Why Lawyers Should Speak Up About Phy- sician Assisted Suicide, S.C. Law. 32, 32, 37 (Dec. 1997).

Assisted Suicide: Is the Cruzan “Unquali!ed State Interest in the Preservation of Human Life” a Legitimate State Interest? Fall 2017 91

come that would have resulted by apply- ing the proposed protection of human life interest.253 In cases that deal with the spread of HIV, the court always discusses the state’s interest in the life of someone who is not being con!ned by state action; therefore, the state always discusses pro- tection.254 In most of these cases, the state seeks to ensure adherence to the informed consent doctrine and protect the life of an individual who may be at risk because of the actions of another individual.255 Simi- larly, issues raised concerning abortion in which the state asserts an unquali!ed interest in the preservation of human life almost exclusively focus on the life of a developed fetus when the mother’s life is not at risk.256 In these instances, the state’s interest is more correctly described as an interest in the protection of human life.257

However, one area in which there is a clear di"erence involves cases that deal with individuals seeking to end their own lives. Even with the proposed protection of human life interest, the court opinions regarding assisted suicide may remain un- changed because of other applicable state interests.258 However, by removing the unquali!ed interest in the preservation of human life from the list of legitimate state interests, the conversation can begin to fo- cus on a more precisely de!ned con#ict.

253 See supra pt. IV. 254 See supra pt. IV(A). 255 Id. 256 See supra pt. IV(B). 257 Id. 258 See Glucksberg, 521 U.S. at 731-733 (discuss-

ing the state’s interest in protecting the medi- cal profession, protecting vulnerable individu- als, and preventing suicide).

VI. Proposed Alternative Interests: !e State’s Quali"ed Interest in the Preservation of Human Life and the State’s Unquali"ed Interest in the Protection of Human Life

Although it appears that the unquali- !ed interest in the preservation of human life is not based on the promotion of the public health, welfare, or safety and there- fore is not a legitimate state interest,259 the related state interests should not be abandoned altogether. $e state inter- est in the protection of human life has a strong foundation in the United States.260 It is part of the social contract theory of government and is more clearly related to the promotion of the public health and safety.261

Further, although the state interest in the preservation of human life has enjoyed a shorter history, in its quali!ed form it appears to have a strong relationship to the broader idea of promoting the public health.262 $e state’s interest in the preserva- tion of human life more accurately re#ects a concern for the individuals who continue to live after the patient has died.263 $ese types of interests have been separately ex- pressed as an interest in maintaining the ethics of the medical profession and an in- terest in the lives of family members, par- ticularly minor children.264

$ese interests seem clearly grounded in the public health, welfare, and safety. However, it is worth brie#y explaining that there is a real concern that the goal of the medical profession may be blurred

259 See supra pt. V(B). 260 See supra pt. III(A). 261 See John B. Mitchell, My Father, John Locke,

and Assisted Suicide: !e Real Constitutional Right, 3 Ind. Health L. Rev. 45, 82–88 (2006).

262 See supra pt. III. 263 Glucksberg, 521 U.S. at 731–732. 264 Id.

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when medical personnel are asked to participate in life-ending, instead of life- prolonging, measures.265 Historically, this has not been the goal of the medical pro- fession; a transition of this nature would require careful scrutiny.266 Further, many individuals have in their lives someone who depends on them or who relies on them in some manner whether !nan- cially, emotionally, or otherwise. When such an individual is no longer alive, the remaining and formerly dependent indi- viduals su"er.267 #e goal of preserving an individual to protect a dependent in- dividual relates to the promotion of the public health and welfare.

Finally, the notion that the government should not be required to investigate or de- termine the relative degree of quality of life is important to ensure the safety and health of all individuals without making any dis- tinctions based on each person’s quality of life.268 #is is especially important to individuals with disabilities, who are of- ten presumed by society to have a lower quality of life.269 However, the appropriate application of the unquali!ed interest is in the protection of human life, not in its preservation of human life. An individual’s quality of life should not play a role if she has a will to live. #erefore, the state inter- est regarding the unquali!ed interest in the preservation of human life should be sepa- rated into two new state interests: the state’s quali!ed interest in the preservation of hu- man life and the state’s unquali!ed interest in the protection of human life.

As discussed previously, the cases that have applied the unquali!ed interest in

265 See id. 266 Id. 267 Application of Eichner, 102 Misc. 2d 184,

202–203 (N.Y. Sup. Ct. 1979). 268 Glucksberg, 521 U.S. at 732. 269 Id.

the preservation of human life would be mostly unchanged.270 However, there would be a di"erence for end-of-life cas- es. #e court would need to determine whether the state was imposing a protec- tion or a preservation interest. If the state was imposing a preservation interest, it would need to evaluate potential quality of life and possibly potential duration of life. Further, the state’s interests in pre- venting suicide, protecting the integrity of the medical profession, and protecting vulnerable groups presumably still would be applicable.271 By removing the unquali- !ed interest in the preservation of human life, those state interests that remain and are grounded in the promotion of the public health, welfare, or safety could be brought to the forefront of the discus- sion. #is would allow the discussion to progress in light of truly legitimate state objectives.

VII. Trend of States Toward Permitting Assisted Suicide

Oregon was the !rst state by legislative statute to decriminalize assisted suicide.272 Section 163.117 of the statute, which was enacted in 1981,273 reads as follows:

It is a defense to a charge of murder that the defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this section shall constitute a defense to a prosecution for, or preclude a con- viction of, manslaughter or any other crime.274

270 See supra pt. IV. 271 Glucksberg, 521 U.S. at 728–732. 272 See Or. Rev. Stat. § 163 (2015). 273 Id. at § 163.117. 274 Id.

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No case under or against this statute has been raised to the appellate level.

In 1995, Oregon passed a statute that legally permits a terminally ill patient to make a written request for prescribed medication that would hasten death.275 Section 2 of Oregon Revised Statute § 127.805 was added in 1999.276

(1) An adult who is capable, is a resi- dent of Oregon, and has been deter- mined by the attending physician and consulting physician to be su!ering from a terminal disease, and who has voluntarily expressed her wish to die, may make a written request for medi- cation for the purpose of ending her life in a humane and digni"ed man- ner in accordance with ORS [Oregon Revised Statutes] 127.800 to 127.897. (2) No person shall qualify under the provisions of ORS 127.800 to 127.897 solely because of age or disability.277

#e Oregon statute was at issue in a suit brought by medical professionals and pa- tients in Oregon in response to an inter- pretive rule issued by U.S. Attorney Gen- eral John Ashcroft.278 #e rule speci"cally stated that the Oregon statute violated the Controlled Substance Act of 1970.279 #e Ninth Circuit determined that the rule is- sued by Ashcroft was beyond his scope of powers granted by Congress.280 #erefore, the Oregon statute was una!ected by the interpretive rule.281

#ree states have enacted statutes that

275 Or. Rev. Stat. § 127.805 (1995). 276 Id. 277 Id. 278 Or. v. Ashcroft, 368 F.3d 1118, 1120 (9th Cir.

2004). 279 Id. 280 Id. at 1125. 281 Id. at 1131.

allow physicians to prescribe terminally ill patients medication to end their lives. In 2009, the state of Washington enact- ed the Death With Dignity Act.282 #is statute is almost identical to the Oregon statute.283 No case under or against this statute has been raised to the appellate level.284 In 2013, Vermont passed the Pa- tient Choice at End of Life Act.285 #e Vermont legislature amended the statute in 2015 to add reporting requirements.286 No case under or against this statute has been raised to the appellate level.287 In 2015, California passed the End of Life Option Act.288 No case under or against this statute has been raised to the appel- late level.289

In 2016, Colorado voters passed a bal- lot initiative to legally allow medical aid in dying for competent adults who are termi- nally ill.290 Most recently, the District of Columbia passed the Death With Dignity Act, which became law on February 20, 2016, after Congress failed to pass a reso- lution preventing its enactment.291 Finally,

282 Wash. Rev. Code § 70.245.020 (2009). 283 Id. 284 Id. 285 Vt. Stat. Ann. tit. 18, § 5283 (2015). 286 Id. 287 Id. 288 Cal. Health & Safety Code § 443.2 (2015). 289 Id. 290 Compassion & Choices, About the Colorado

End-of-Life Options Act, https://www.compas sionandchoices.org/about-the-colorado-end-of -life-options-act (accessed Apr. 4, 2017).

291 Death With Dignity, District of Columbia, https: //www.deathwithdignity.org/states/district-of -columbia (accessed April 10, 2017) (discuss- ing e!orts made by House members to prevent the Death With Dignity bill from becoming law after the Death With Dignity Act was passed by the D.C. Council and signed by the mayor); see also Compassion & Choices, D.C. Mayor Signs Death With Dignity Act, https:// www.compassionandchoices.org/d-c-mayor

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approximately 20 states are currently con- sidering a bill similar to Oregon’s Death With Dignity Act.292

!ese developments illustrate that state legislatures, through the enactment of statutes, are capable of and willing to take on the issue of helping terminally ill pa- tients die.293 As an alternative, some states have gone through state court to attempt to achieve the same objective.294 In Bax- ter v. State,295 the court denied the state’s assertion of a compelling interest in the preservation of human life.296

!is broad assertion, however, is en- tirely inadequate to sustain the State’s position in opposition to physician aid in dying. We are dealing here with persons who are mentally competent, who are incurably ill, and who expect death within a relatively short period of time. !e State has failed to explain what interest the government has in forcing a competent, incurably ill per- son who is going through prolonged

-signs-death-with-dignity-act (Dec. 20, 2016). 292 See Death With Dignity, Take Action: Death

With Dignity Around the U.S., https://www. deathwithdignity.org/take-action (as of Apr. 4, 2017); see also Compassion & Choices, Death- With-Dignity Boom: 26 States Now Consider- ing Laws, https://www.compassionandchoices. org/death-with-dignity-boom-26-states-now- considering-laws (Feb. 3, 2015).

293 See supra pt. VII ¶¶ 1–4. 294 See Baxter, 224 P.3d at 1222; Morris v. Bran-

denburg, 356 P.3d 564 (N.M. App. 2015), cert. granted, (N.M. Aug. 31, 2015), a!’d, 376 P.3d 836 (N.M. 2016).

295 Baxter, 224 P.3d 1211. 296 Id. at 1222 (“We therefore hold that under §

45-2-211, MCA [Montana Code Annotated], a terminally ill patient’s consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding phy- sician when no other consent exceptions ap- ply.”).

su"ering and slow, excruciating physi- cal deterioration to hang on to the last possible moment.297

However, other states have not moved in the same direction.298 Recently, the New Mexico Court of Appeals reversed a lower court decision that determined that the New Mexico ban on assisted suicide was unconstitutional under the state constitu- tion.299 !e court focused heavily on the issue of whether a right to die or a right to die with dignity exists.300 !e court spent little time discussing the state’s interests, although it did regurgitate a variation of the Glucksberg interest without using the term “unquali#ed.”301

In August 2015, the New Mexico Su- preme Court granted plainti"’s writ of certiorari, and in June 2016, the court held that the New Mexico ban on as- sisted suicide was constitutional and re- versed the district court’s ruling.302 !e New Mexico Supreme Court supported its holding without relying on the state’s unquali#ed interest in the preservation of human life. Instead, the court relied on the state’s interest in upholding the in- tegrity of the medical profession and the state’s interest in protecting vulnerable groups.303 !e court went so far as to re-

297 Id. at 1232 (Warner, J., concurring). 298 See Morris v. Brandenburg, 376 P.3d 836

(N.M. 2016). 299 Morris, 356 P.3d 564. 300 Id. at 582–584. 301 Id. at 581. 302 Morris v. Brandenburg, 369 P.3d 369 (N.M.

2015), Morris, 376 P.3d at 856–857 (dis- cussing #rst New Mexico’s rational basis test, which varies slightly from the federal rational basis test because it requires the petitioner to show “the legislation is not supported by a #rm legal rationale or evidence in the record.”).

303 !e court also discussed a concern for a slip- pery slope from voluntary to involuntary eu-

Assisted Suicide: Is the Cruzan “Unquali!ed State Interest in the Preservation of Human Life” a Legitimate State Interest? Fall 2017 95

iterate in its opinion the state’s concession that it had no legitimate interest in “pre- serving a painful and debilitating life that will end imminently.”304

Notably, the New Mexico appellate courts did not rely on the state’s unquali- !ed interest in the preservation of human life.305 However, 45 states whose legisla- tures have either taken no action or crimi- nalized assisted suicide remain.306 In these states especially, it is important to ensure that state interest is phrased correctly. In this respect, allowing the state to assert an illegitimate state interest undermines the substantive due process analysis and averts justice.

VIII. Conclusion "e state assertion of an unquali!ed

interest in the preservation of human life has deprived terminally ill individuals of the option to pursue a death with dignity. Consequently, states have devalued the lives they sought to preserve because com- petent adults with painful and debilitat- ing terminal illnesses have been forced to continue life and to endure needless suf- fering. Although the courts have cited this unquali!ed interest in the preservation of human life as a legitimate state interest,

thanasia as a justi!cation of the legitimacy of the ban on assisted suicide. Morris, 376 P.3d at 857.

304 Id. at 855. 305 See id. 306 Only !ve states have taken action through leg-

islation to legally allow some form of assisted suicide: Vermont, Oregon, Washington, Cali- fornia, and Colorado. See Deborah F. Buck- man, Validity of Criminalization of Urging or Assisting Suicide Under State Statutes and Com- mon Law, 96 Am.L.Rpts. 6th 475 (2014); Death With Dignity, supra n. 292.

the opinions examined in this article fail to provide evidence that the interest pro- motes the public health, welfare, or safety. Because the legitimacy of a state’s inter- est is founded on its ability to serve the public health, welfare, or safety, the state’s unquali!ed interest in the preservation of human life should be abandoned.307 In its place, states would do better to assert a quali!ed interest in preserving human life and an unquali!ed interest in protecting human life.308

Further, it is important to ensure that an asserted state interest is not given the title of legitimacy in error.309 Individuals are entitled to the constitutional protec- tion of life, liberty, and property.310 Even when a liberty interest does not rise to the level of a constitutionally protected fundamental interest, it can still only be encroached on by the state when the state’s action is rationally related to a le- gitimate state interest.311 For this reason, it is important to phrase both the indi- vidual’s right as well as the state’s interest in careful and deliberate terms. "e Cru- zan and Glucksberg holdings should now be reviewed with this more carefully tai- lored state interest in mind. "e result in Cruzan might well remain the same, but the result in Glucksberg arguably might be di#erent. In any event, the analysis would more fully address whether the state’s truly legitimate interests justify curtailing the liberty interests involved in choosing a death with dignity.

307 See supra pt. II. 308 See supra pt. VI. 309 See supra pt. II. 310 Galloway, supra n. 9. 311 See e.g. Romer, 517 U.S. 620; see also Cornell

U. L. Sch., supra n. 16.

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