Ann. We begin, as we do in all due process cases, by examining our Nation's history, legal traditions, and practices. 552 (1995); Md. I write separately to make it clear that there is also room for further debate about the limits that the Constitution places on the power of the States to punish the practice. Unlike Fletcher, Dred Scott was textually based on a due process clause (in the Fifth Amendment, applicable to the national government), and it was in reliance on that clause's protection of property that the Court invalidated the Missouri Compromise. of 1777, Art. Wash. Rev.Code 9A.36.060(1) (1994). §62-5-504 (Supp.1996); Va.Code Ann. . v. Rodriguez, 411 There, the Court's opinion concluded that "the essential holding of Roe v. Wade should be retained and once again reaffirmed." Pp. Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition," id., at 503 (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) ("so rooted in the traditions and conscience of our people as to be ranked as fundamental"), and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed," Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). 7. Cruzan, 497 U.S., at 279, 110 S.Ct., at 2843; id., at 287, 110 S.Ct., at 2856 (O'CONNOR, J., concurring) (" [A] liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions''). As the court below recognized, 79 F.3d, at 816-817,20 Washington's assisted-suicide ban implicates a number of state interests.21 See 49 F.3d, at 592-593; Brief for State of California et al. 1234 (1938) (economic legislation "not . Cruzan, 497 U.S., at 294, 110 S.Ct., at 2859-2860 (SCALIA, J., concurring). 1817, 1823-1824, 18 L.Ed.2d 1010 (1967) ("The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness''); Turner v. Safley, 482 U.S. 78, 95, 107 S.Ct. The persistence of substantive due process in our cases points to the legitimacy of the modern justification for such judicial review found in Justice Harlan's dissent in Poe,4 on which I will dwell further on, while the acknowledged failures of some of these cases point with caution to the difficulty raised by the present claim. In Salerno itself, the Court would have needed only to look at whether the statute could be constitutionally applied to the arrestees before it; any further analysis would have been superfluous. 578, 581-582, 81 L.Ed. Thornhill, Australia Repeals Euthanasia Law, Washington Post, March 25, 1997, p. A14; see Euthanasia Laws Act 1997, No. County of Sacramento v. Lewis. Code Ann. §§ 707A.2, 707A.3 (Supp. . Respondents' contention that the asserted interest is consistent with this Court's substantive-due-process cases, if not with this Nation's history and practice, is unpersuasive. Other countries are embroiled in similar debates: The Supreme Court of Canada recently rejected a claim that the Canadian Charter of Rights and Freedoms establishes a fundamental right to assisted suicide, Rodriguez v. British Columbia (Attorney General), 107 D. L. R. (4th) 342 (1993); the British House of Lords Select Committee on Medical Ethics refused to recommend any change in Great Britain's assisted suicide prohibition, House of Lords, Session 1993-94 Report of the Select Committee on Medical Ethics, 12 Issues in Law & Med. . . 1030, 1965 N.Y. Laws at 2387 (codified at N.Y. pt. American Medical Association, Code of Ethics §2.211 (1994); see Council on Ethical and Judicial Affairs, Decisions Near the End of Life, 267 JAMA 2229, 2233 (1992) (" [T]he societal risks of involving physicians in medical interventions to cause patients' deaths is too great''); New York Task Force 103-109 (discussing physicians' views). Compassion in Dying v. Washington, 79 F.3d 790, 798 (1996). These interests include prohibiting intentional killing and preserving human life; preventing the serious public-health problem of suicide, especially among the young, the elderly, and those suffering from untreated pain or from depression or other mental disorders; protecting the medical profession's integrity and ethics and maintaining physicians' role as their patients' healers; protecting the poor, the elderly, disabled persons, the terminally ill, and persons in other vulnerable groups from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards voluntary and perhaps even involuntary euthanasia. I agree with both of those assumptions, but I insist that the source of Nancy Cruzan's right to refuse treatment was not just a common law rule. See, e.g., Quill v. Vacco, 80 F.3d 716, 724 (C.A.2 1996) ("right to assisted suicide finds no cognizable basis in the Constitution's language or design''); Compassion in Dying v. Washington, 49 F.3d 586, 591 (C.A.9 1995) (referring to alleged "right to suicide,'' "right to assistance in suicide,'' and "right to aid in killing oneself''); People v. Kevorkian, 447 Mich. 436, 476, n. 47, 527 N.W.2d 714, 730, n. 47 (1994) (" [T]he question that we must decide is whether the [C]onstitution encompasses a right to commit suicide and, if so, whether it includes a right to assistance''). Leaving aside any difficulties in coming to a clear concept of imminent death, mistaken decisions may result from inadequate palliative care or a terminal prognosis that turns out to be error; coercion and abuse may stem from the large medical bills that family members cannot bear or unreimbursed hospitals decline to shoulder. L. Rev. The State says that the claim, in practical effect, would entail consequences that the State could, without doubt, legitimately act to prevent. Case Name and Citation: [1] Washington v. Glucksberg, 521 U.S. 702 (1997) B. Its value is surely as apparent here as in the abortion cases, for just as the decision about abortion is not directed to correcting some pathology, so the decision in which a dying patient seeks help is not so limited. The 1937 New York Report of the Law Revision Commission found that the history of the ban on assisting suicide was "traceable into the ancient common law when a suicide or felo de se was guilty of crime punishable by forfeiture of his goods and chattels." And although Casey recognized that many of the rights and liberties protected by the Due Process Clause sound in personal autonomy, 505 U. S., at 852, it does not follow that any and all important, intimate, and personal decisions are so protected, see San Antonio School Dist. I note that there is evidence that a significant number of physicians support the practice of hastening death in particular situations. O'Connor, J., filed a concurring opinion, in which Ginsburg To hold for respondents, the Court would have to reverse centuries of legal See, e.g., Kamisar, Physician Assisted Suicide: The Last Bridge to Active Voluntary Euthanasia, in Euthanasia Examined 225, 229 (J. Keown ed. 6333 (1995); Neb. Washington Administrative Code, Title 208 - Financial Institutions, Department of, Chapter 208-400 - Credit union corporate governance, 208-400-010 - Reasonable compensation June 26, 1997. Even though the State has a legitimate interest in discouraging abortion, see Casey, 505 U. S., at 871 (joint opinion of O'Connor, Kennedy, and Souter, JJ.) Attitudes toward suicide itself have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, assisting suicide. 356 (1816)), as was the similar principle that the consent of a homicide victim is "wholly immaterial to the guilt of the person who cause[d] [his death],'' 3 J. Stephen, A History of the Criminal Law of England 16 (1883); see 1 F. Wharton, Criminal Law §§451-452 (9th ed. 92, 93 (1914). Since the Ninth Circuit's decision, Louisiana, Rhode Island, and Iowa have enacted statutory assisted suicide bans. The second step in the argument is to emphasize that the State's own act of decriminalization gives a freedom of choice much like the individual's option in recognized instances of bodily autonomy. [n13] Criminal prohibitions on such assistance remain widespread, as exemplified in the Washington statute in question here. (citation and internal quotation marks omitted). Id., at 851, 112 S.Ct., at 2807. And, "To provide for a trial to ascertain whether a man is in the enjoyment of [any] of these rights, and then, as a consequence of finding that he is in the enjoyment of it, to deprive him of it, is doing indirectly just what is forbidden to be done directly, and reduces the constitutional provision to a nullity." 249, §§ 135-136, 1909 Wash. Laws, 11th sess., 929. Respondents, four Washington 1956). They are unquestionably important and legitimate, and Washington's ban on assisted suicide is at least reasonably related to their promotion and protection. REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. Id., at 118-119. This same intent and causation may exist when a doctor complies with a patient's request for lethal medication to hasten her death. See, e.g., H. Hendin, Seduced By Death 75-84 (1997) (noting many cases in which decisions intended to end the life of a fully competent patient were made without a request from the patient and without consulting the patient); Keown, Euthanasia in the Netherlands: Sliding Down the Slippery Slope?, in Euthanasia Examined 261, 289 (J. Keown ed. 1, 148-242 (1985) (Appendix) (hereinafter Marzen). 30, 1874, ch. Stevens, J., Souter, J., Ginsburg, J., A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. The relative strengths of these various interests need not be weighed exactingly, since they are unquestionably important and legitimate, and the law at issue is at least reasonably related to their promotion and protection. ranked [suicide] among the highest crimes,'' ibid, although, anticipating later developments, he conceded that the harsh and shameful punishments imposed for suicide "borde[r] a little upon severity.'' . 28, 1854, §17, 1854 Wash. Laws 78, and re-enacted the provision in 1869 and 1873, see Act of Dec. 2, 1869, §17, 1869 Wash. Laws 201; Act of Nov. 10, 1873, §19, 1873 Wash. Laws 184 (codified at Wash.Code §794 (1881)). 1996); App. Although as a general matter the State's interest in the contributions each person may make to society outweighs the person's interest in ending her life, this interest does not have the same force for a terminally ill patient faced not with the choice of whether to live, only of how to die. The experimentation that should be out of the question in constitutional adjudication displacing legislative judgments is entirely proper, as well as highly desirable, when the legislative power addresses an emerging issue like assisted suicide. . They seek the option to obtain the services of a physician to give them the benefit of advice and medical help, which is said to enjoy a tradition so strong and so devoid of specifically countervailing state concern that denial of a physician's help in these circumstances is arbitrary when physicians are generally free to advise and aid those who exercise other rights to bodily autonomy. Stat. The most lenient standard that we have applied requires the challenger to establish that the invalid applications of a statute "must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Cruzan, 497 U. S., at 282. The Court rested the invalidation on alternative sources of authority: the specific prohibitions against bills of attainder, ex post-facto laws, laws impairing contracts in Article I, § 10 of the Constitution; and "general principles which are common to our free institutions," by which Chief Justice Marshall meant that a simple deprivation of property by the State could not be an authentically "legislative" act. See, e.g.,United States v. Carolene Products Co., 304 U.S. 144, 152 (1938) (economic legislation "not . By the mid-16th century, the Court at Common Bench could observe that " [suicide] is an Offence against Nature, against God, and against the King . [n23] Washington's ban on assisting suicide prevents such erosion. Mercy L.Rev. See Lee et al., Legalizing Assisted Suicide--Views of Physicians in Oregon, 335 New England J. Med. Properly focused, there were two questions before the Supreme Court in Washington v. Glucksberg. . § 2C:11-6 (West 1995); N. M. Stat. 1903). The appropriate standard to be applied in cases making facial challenges to state statutes has been the subject of debate within this Court. Even before the deviant economic due process cases had been repudiated, however, the more durable precursors of modern substantive due process were reaffirming this Court's obligation to conduct arbitrariness review, beginning with Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. We need not weigh exactingly the relative strengths of these various interests. Reno v. Flores, 507 But a state law that creates a "substantial obstacle,'' Casey, supra, at 877, 112 S.Ct., at 2820, for the exercise of a fundamental liberty interest requires a commensurably substantial justification in order to place the legislation within the realm of the reasonable. Fletcher was not, though, the most telling early example of such review. The business of manufacturing and selling contraceptives may be regulated in ways that do not [even] infringe protected individual choices"). . § 11.41.120(a)(2) (1996); Ariz. Rev. That tradition is a living thing. This ruling includes and is not limited to doctors. Williamson, 316 U.S. 535, 541 (1942)); Poe, supra, at 543 (Harlan, J., dissenting) ("certain interests" must bring "particularly careful scrutiny"); Casey, 505 U. S., at 851 ("protected liberty"); Cruzan v. Director, Mo. Where, however, a physician writes a prescription to equip a patient to end life, the prescription is written to serve an affirmative intent to die (even though the physician need not and probably does not characteristically have an intent that the patient die but only that the patient be equipped to make the decision). (4th) 342 (1993); the British House of Lords Select Committee on Medical Ethics refused to recommend any change in Great Britain's assisted-suicide prohibition, House of Lords, Session 1993-94 Report of the Select Committee on Medical Ethics, 12 Issues in Law & Med. The principal significance of this history in the State of Washington, according to respondents, lies in its repudiation of the old tradition to the extent of eliminating the criminal suicide prohibitions. §35-42-1-2.5(a)(1) (Supp.1996) (ban on assisted suicide does not apply to licensed health care provider who administers or dispenses medications or procedures to relieve pain or discomfort, even if such medications or procedures hasten death, unless provider intends to cause death); Iowa Code Ann. 3 E. Coke, Institutes *54. It reflects the gravity with which we view the decision to take one's own life or the life of another, and our reluctance to encourage or promote these decisions.'' The claims of arbitrariness that mark almost all instances of unenumerated substantive rights are those resting on "certain interests requir[ing] particularly careful scrutiny of the state needs asserted to justify their abridgment. Williamson, 316 U.S. 535, 541 (1942) ("Marriage and procreation are fundamental"); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (liberty includes "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men"). Reliance on this fact is sanctioned under the standard that looks not only to the tradition retained, but to society's occasional choices to reject traditions of the legal past. Sentencia No. My understanding of unenumerated rights in the wake of the Poe dissent and subsequent cases avoids the absolutist failing of many older cases without embracing the opposite pole of equating reasonableness with past practice described at a very specific level. Whether that interest might in some circumstances, or at some time, be seen as "fundamental'' to the degree entitled to prevail is not, however, a conclusion that I need draw here, for I am satisfied that the State's interests described in the following section are sufficiently serious to defeat the present claim that its law is arbitrary or purposeless. But a state law that creates a "substantial obstacle," Casey,supra, at 877, for the exercise of a fundamental liberty interest requires a commensurably substantial justification in order to place the legislation within the realm of the reasonable. York Hospital, 523 F. 2d 716, 719-720 ( CA7 1975 ) ) ``... 929 ( 1874 ) ; Casey, 505 U.S. 833 ( 1992 ). v. Planned of. But at least at this time [ n15 ] and just last,..., all admit that suicide of a sane person, for whatever reason, was not even cited one! Standard is fairly traceable to Justice to all this, then the legislative process is to be applied cases... 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