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Smith v. Washington (2013)

Justice RAKES delivers the opinion of the court:

The case that is brought to us is very unique and interesting to say the least. The

petitioner is a19 year old college student who has a terminal illness and diagnosed with six

months to live. One month before his assumed death, he wants to be “frozen” by a cryogenics

company, in hopes of being brought back to life when a cure for his illness is discovered. The

respondent, states that the act of freezing a human being is legally murder, and has a compelling

state interest to protect not only the petitioner, but also the citizens of Washington (Equal

Protection Clause of the Fourteenth Amendment). The petitioner states that he is protected by the

First Amendment’s right to privacy, and the Due Process Clause of the Fourteenth Amendment.

The facts of the case has lead us to look at the constitutionality of a person’s right to “freeze”

themselves, an addition to the right to die cases that have been presented to us in previous years.

Yet, this case has absolutely nothing to do with right to die, but for a person to freeze themselves

before death can occur, is it protected by the First amendment and the Fourteenth Amendment of

the Constitution? The court believes that it is not.

According to American history, all, naturalized Americans have fundamental rights, and

liberties, that cannot be infringed by the federal government. This is also true in state

governments as they have modeled there Constitution’s on the federal level. Yet, at times, they

have made laws that did infringe on society (i.e. Jim Crow laws of the south), but were

eventually overturned. Yet, the right to die, or assisted-suicide as it is also known, is relatively

new in our society and this court has ruled on, at least on one case see Washington v.

Glucksberg, 1997. Yet, those were different times, and the citizens of Washington have changed

their way of thinking, on approving a Death with Dignity Law in 2008. This law allowed those

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with a terminal illness, who are mentally competent may request physician-assisted suicide on

grounds that this is what the patient wants, and the respected family concurs. In addition to

Oregon’s passing of a similar law, they are the only two states in the Union to allow physician-

assisted suicide. Therefore, to establish if the present case has constitutionality in front of us, we

must look at the following: First Amendment right to privacy, the Due Process Clause of the

Fourteenth Amendment, set against the compelling state interest of Washington, and the Equal

Protection Clause, also of the Fourteenth Amendment. We will also have to take a reasonable

look at Washington’s Death with Dignity Law of 2008, and determine its constitutionality as

well.

The First Amendment is a critical part of our Constitution. It covers the basic rights of the

people that were so important in 1789 and today: freedom of speech, the press, to assemble, and

to petition the government for grievances. Two other rights, privacy and travel, were later

discovered by this Court. The case presented to us “concerns a relationship lying within the zone

of privacy created by several fundamental constitutional guarantees” Griswold v. Connecticut

381, U.S. 479. We must also take in the Due Process Clause and the Equal Protection Clause of

the Fourteenth Amendment that assures that the rights of life, liberty, and property shall not be

deprived by any State, “nor any person within its jurisdiction the equal protection of the laws.”

An area that is heavily sacred to all citizens is that of their personal freedoms. We hold that the

legislatures will seek a right course of action in making laws protecting freedoms, or in some

cases, granting new ones. Finding freedoms within the Constitution, that is not written is a tricky

business, and something this court tries to avoid. But in regards to the right to privacy, this “is

the matrix, the indispensable condition, of nearly every other form of freedom” Palko v.

Connecticut, 302, U.S. 327. Even though this court has declared the right to privacy as a

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fundamental right, we must look at this right from a moral and cultural view, and we must ask a

question: can an adult, who knows they’re going to die, “freeze” themselves before death occurs?

To answer this question, we must look at the constitutionality of other, similar cases, and

additional evidence that we feel is important in our opinion.

We understand that liberty is crucial for the citizens of the United States, and we also

know that the right to privacy is important as well. Many states have condemned the right to die

laws nationwide. Many terminally ill patients have brought suit against their State of residence to

allow them the liberty to, either die their own way, or be “frozen” for a possible cure later. The

California Supreme Court held that “A person with an incurable brain disease, which will result

in a persistent vegetative state and ultimately death, does not have a constitutional right to either

premortem cryogenic suspension or a state-assisted suicide, nor does a third person have a

constitutional right to aid, advise, or encourage such as suicide” Donaldson v. Van De Kamp,

Issues in Law and Medicine 8, no. 1: 105. Legal Collection, EBSCOhost (accessed Nov. 21,

2013). We believe that, with the petitioner’s current status and failing health that he might

possibly go into a persistent vegetative state sometime before death occurs, and we have ruled on

this item as well.

Many cases have been brought to us concerning a person, or the State, making a decision

for an individual in a persistent vegetative state. Our ruling on Cruzan supported the state when

making decisions for a person in this manner Cruzan v. Director, Missouri Dep. of Public Health,

497, U.S. 261 (1990). To this, we stick by that ruling and do not plan on changing it here.

In 2008, Washington citizens voted for, and adopted a Death with Dignity Act. This Act

granted that any state citizen, who is terminally ill, can request (both oral and written) to

physicians for physician-assisted suicide. The petitioner has a terminal form of leukemia and has

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been diagnosed with six months to live. According to the Act, he meets all the following criteria

if he wanted to go this route: a. the patient must be an adult (18 or over) and a resident of the

state of Washington, b. the patient must be mentally competent, verified by two physicians (or

referred to a mental health evaluation), c. the patient must be terminally ill with less than six

months to live, verified by two physicians. There are also request that the patient must make with

the physicians and paperwork to be filled out by witnesses before a patient receives the medicine

to end their lives.

The Act leaves out the mental health aspect of the law in that “the empirical facts reveal

that the risk of harm to terminally ill patients is far from speculative: (1) persons with a terminal

disease are at a greatly increased risk for depression; (2) depression carries with it a serious risk

of becoming suicidal; and (3) primary care physicians regularly miss suicidal depression in their

own patients Lee v. State of Oregon [(9th

cir. 1996) http://caselaw.findlaw.com/us-9th-

circuit/1229763.html, accessed December 4, 2013)]. Additionally, with the advancement in

medicine, a terminally ill patient can live longer than the presupposed diagnosis of six months to

live. The protection of life is undoubtedly a state interest and must be protected, and any

assumed right to assisted suicide is just that, an assumed right. We have decided that the asserted

“right” to assistance in committing suicide is not a fundamental liberty interest protected by the

Due Process Clause Washington v. Glucksberg, 527, U.S. 702, (1997).Therefore, the

Washington Death with Dignity law cannot continue as is.

Unlike Washington and Oregon, California citizens voted against a similar Death with

Dignity law in 1992, but do allow a cryogenic’s company to conduct business in that state, and

nationwide. As the petitioner wants to be “frozen” before his assumed death, and that we don’t

know exactly which company he made an agreement with, we will look at one with a national

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reputation. The company, ALCOR Life Extension Foundation, philosophy is that life can be

extended by a process called vitrification. Vitrification, unlike freezing, is when a chemical is

injected into a human body that stops all cell movement (-120 degrees). This allows major

organs to structurally preserve without freezing. The goal of the company is to bring patients

back to life, once the technology has greatly improved, and a cure is submitted to the patient.

But, there are laws that the company must follow to remain in business. For a patient to submit to

a cryonics lab, they must legally die. It’s against the law to actively make someone die, even if

they wish it upon themselves and death must be declared by an independent authority once the

heart has stopped. Another issue is that it is unknown whether the technology will improve

enough for the company to reach its goal of bringing patients back to life. We find that ALCOR

has not broken any laws, and can remain in business (ALCOR Life Extension Foundation,

http://www.alcor.org/Library/index.html#legal, accessed November 20, 2013).

Washington state has a compelling state interest in protecting the citizens of its state,

especially those who are considered the most vulnerable (elderly, poor, children, etc.). By

allowing a person to “freeze” themselves by a physician, or anyone else who would be qualified

to perform this service, before their assumed death would “undermine the trust that is essential to

the doctor patient relationship by blurring the time-honored line between healing and harming”

Washington v. Glucksberg, 521, U.S. 702 (1997). Also, the state has a compelling state interest

to protect “terminally ill, disabled, and elderly people… and that a seriously disabled person’s

suicidal impulses should be interpreted and treated the same way as anyone else’s” Washington

v. Glucksberg, 521, U.S. 702 (1997). To this, Washington does have a special interest in

protecting its citizens from harming themselves.

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Additionally, Washington does have a special interest in the equal protection of its

citizens. The Fourteenth Amendment clearly states that “no[r] shall any state deprive any person

life, liberty, or property… nor deny to any person within its jurisdiction the equal protection of

the laws” Fourteenth Amendment, U.S. Constitution. To this, the sole purpose of the government

of Washington is to create laws to protect the lives of its citizens. The Washington Death with

Dignity Law barely passed with a slim majority, viewing that the entire population did not agree

with it. The state attorney general’s decision on protecting this individual from a premortem

death is well within the compelling state interest of the State. Additionally, Washington’s equal

protection argument is sound and clear.

The Death with Dignity Law of 2008 raises serious issues. By allowing a person

to die by physician assisted suicide, or allowing a person to freeze themselves before their

assumed death may lead to others to seek the same types of assistance. By this happening, it

causes the state murder rate to escalate to high levels. It would also lead to preplanned or false

murders, if people had themselves killed on false pretenses. Mainly, this would lead to out of

control euthanasia and anarchy. The Washington Death with Dignity Law, clearly, does not take

into account the health of a patient, emotional or physical. It does not take into account if the

patient decides to receive medical help prior to a six month to live diagnosis. The “six month to

live” diagnosis must be considered as a last resort diagnosis. Yet, the petitioner wants to “freeze”

himself premortem. This cannot be allowed due to Washington’s vow to protect life, liberty and

property. Also, the cryogenics company (either ALCOR or another company) must follow

current law in allowing a person to die before their respected process could begin. By taking

someone’s life premortem could lead to an out of control murder rate nationwide.

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To combat this, Washington must take into account all the moral issues this law brings

up. There are some ways to go about this: 1. The state could create a new law that a. adds the

emotional health of the patient; b. make it that it can only be provided by state supported

physicians, and that the medicines have to be proscribed by one physician and concurred by the

other, c. the mental health of the patient must be examined and includes a series of evaluations

by state supported psychologists and independent psychologists; d. appropriate action must be

accounted for if suicidal depression is determined and diagnosed. If this is deemed as

unattainable by the government, then they should remove to other business. Additionally, if a

terminally ill patient wants to “freeze” themselves before an assumed death, the parties involved

shall be held accountable in a court of law.

We do consider that the idea of “freezing” one’s self for a future cure may be someone’s

“right”, yet this assumption is constitutionally not a right. We do not condone the patient’s

interest in this procedure, but it must be done within the confines of the law. Therefore, the

petitioner’s case of “freezing” himself one month before his assumed death, because he feels it’s

his right to privacy, is frivolous. Washington’s enforcement of the Equal Protection Clause as a

state interest is viable. Yet, we also disagree with Washington State’s current law on physician-

assisted suicide, in that it does violate the Equal Protection Clause of the Fourteenth

Amendment.

Washington’s Death with Dignity Act is hereby struck down, and the decision of the

district court is Affirmed.

It is so ordered.