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Law Quadrangle (formerly Law Quad Notes)

Abstract

On Feb. 25, 1993, shortly after Dr. Jack Kevorkian helped a 15th person die by suicide, Michigan enacted a law making assisted suicide a felony punishable by up to four years in prison. The law, effective that very day, prohibits anyone with knowledge that another person intends to commit suicide from either "intentionally providing the physical means" or "intentionally participating in a physical act" by which that other person commits suicide.

With its new anti-assisted suicide law, Michigan joined approximately 35 other states which criminalize assisted suicide (most by specific legislation, but a few by viewing it as a form of murder or manslaughter). As soon as the Michigan law went into effect, the American Civil Liberties Union of Michigan brought a law suit on behalf of two cancer patients and several health care professionals challenging the anti-assisted suicide law's constitutionality. Are all these laws constitutionally vulnerable?

In this article, adapted from one that appeared in the May-June 1993 issue of the Hastings Center Report, Professor Yale Kamisar considers and rejects various arguments that have been made for a due process right to assisted suicide. He concludes that the U.S. Supreme Court will not, and should not, strike down laws such as Michigan's on constitutional grounds.

On May 20, less than a week after Professor Kamisar's article was published, Judge Cynthia Stephens of the Wayne County Circuit Court struck down Michigan's three-month-old law (Hobbins v. Attorney General of Michigan).

Judge Stephens invalidated the law on the basis of a rather technical Michigan constitutional provision relating to the objects and changes of purpose of state laws. But in what some would call an advisory opinion and others an alternative holding, she made it clear that if she had not been able to invalidate the law on procedural grounds, she would have issued a preliminary injunction against its enforcement on the basis of a due process right to assisted suicide. Kamisar strongly criticizes this aspect of her opinion in "'Right to Die' Can't Be the Last Word," Legal Times, June 14, 1993, pp. 29-30. On June 22, the Michigan Court of Appeals stayed Judge Stephens' ruling and reinstated the assisted suicide ban while it reviewed the merits of her decision.

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