Washington v. Glucksberg/Concurrence Souter
Justice Souter, concurring in the judgment.
Three terminally ill individuals and four physicians who sometimes treat terminally ill patients brought this challenge to the Washington statute making it a crime "knowingly...[to] ai[d] another person to attempt suicide," Wash. Rev. Code §9A.36.060 (1994), claiming on behalf of both patients and physicians that it would violate substantive due process to enforce the statute against a doctor who acceded to a dying patient's request for a drug to be taken by the patient to commit suicide. The question is whether the statute sets up one of those "arbitrary impositions" or "purposeless restraints" at odds with the Due Process Clause of the Fourteenth Amendment. Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting). I conclude that the statute's application to the doctors has not been shown to be unconstitutional, but I write separately to give my reasons for analyzing the substantive due process claims as I do, and for rejecting this one.
Although the terminally ill original parties have died during the pendency of this case, the four physicians who remain [p. 753] as respondents here continue to request declaratory and injunctive relief for their own benefit in discharging their obligations to other dying patients who request their help. See, e. g., Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911) (question was capable of repetition yet evading review). The case reaches us on an order granting summary judgment, and we must take as true the undisputed allegations that each of the patients was mentally competent and terminally ill, and that each made a knowing and voluntary choice to ask a doctor to prescribe "medications...to be self-administered for the purpose of hastening...death." Complaint ¶2.3. The State does not dispute that each faced a passage to death more agonizing both mentally and physically, and more protracted over time, than death by suicide with a physician's help, or that each would have chosen such a suicide for the sake of personal dignity, apart even from relief from pain. Each doctor in this case claims to encounter patients like the original plaintiffs who have died, that is, mentally competent, terminally ill, and seeking medical help in "the voluntary self-termination of life." Id., ¶¶2.5–2.8. While there may be no unanimity on the physician's professional obligation in such circumstances, I accept here respondents' representation that providing such patients with prescriptions for drugs that go beyond pain relief to hasten death would, in these circumstances, be consistent with standards of medical practice. Hence, I take it to be true, as respondents say, that the Washington statute prevents the exercise of a physician's "best professional judgment to prescribe medications to [such] patients in dosages that would enable them to act to hasten their own deaths." Id., ¶2.6; see also App. 35–37, 49–51, 55–57, 73–75.
[p. 754] In their brief to this Court, the doctors claim not that they ought to have a right generally to hasten patients' imminent deaths, but only to help patients who have made "personal decisions regarding their own bodies, medical care, and, fundamentally, the future course of their lives," Brief for Respondents 12, and who have concluded responsibly and with substantial justification that the brief and anguished remainders of their lives have lost virtually all value to them. Respondents fully embrace the notion that the State must be free to impose reasonable regulations on such physician assistance to ensure that the patients they assist are indeed among the competent and terminally ill and that each has made a free and informed choice in seeking to obtain and use a fatal drug. Complaint ¶3.2; App. 28–41.
In response, the State argues that the interest asserted by the doctors is beyond constitutional recognition because it has no deep roots in our history and traditions. Brief for Petitioners 21–25. But even aside from that, without disputing that the patients here were competent and terminally ill, the State insists that recognizing the legitimacy of doctors' assistance of their patients as contemplated here would entail a number of adverse consequences that the Washington Legislature was entitled to forestall. The nub of this part of the State's argument is not that such patients are constitutionally undeserving of relief on their own account, but that any attempt to confine a right of physician assistance to the circumstances presented by these doctors is likely to fail. Id., at 34–35, 44–47.
First, the State argues that the right could not be confined to the terminally ill. Even assuming a fixed definition of that term, the State observes that it is not always possible to say with certainty how long a person may live. Id., at 34. It asserts that "[t]here is no principled basis on which [the right] can be limited to the prescription of medication for terminally ill patients to administer to themselves" when the right's justifying principle is as broad as "'merciful termina- [p. 755] tion of suffering.'" Id., at 45 (citing Y. Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, Hastings Center Report 32, 36–37 (May–June 1993)). Second, the State argues that the right could not be confined to the mentally competent, observing that a person's competence cannot always be assessed with certainty, Brief for Petitioners 34, and suggesting further that no principled distinction is possible between a competent patient acting independently and a patient acting through a duly appointed and competent surrogate, id., at 46. Next, according to the State, such a right might entail a right to or at least merge in practice into "other forms of life-ending assistance," such as euthanasia. Id., at 46–47. Finally, the State believes that a right to physician assistance could not easily be distinguished from a right to assistance from others, such as friends, family, and other health-care workers. Id., at 47. The State thus argues that recognition of the substantive due process right at issue here would jeopardize the lives of others outside the class defined by the doctors' claim, creating risks of irresponsible suicides and euthanasia, whose dangers are concededly within the State's authority to address.
When the physicians claim that the Washington law deprives them of a right falling within the scope of liberty that the Fourteenth Amendment guarantees against denial without due process of law, they are not claiming some sort of procedural defect in the process through which the statute has been enacted or is administered. Their claim, rather, is that the State has no substantively adequate justification for barring the assistance sought by the patient and sought to be offered by the physician. Thus, we are dealing with a claim to one of those rights sometimes described as rights [p. 756] of substantive due process and sometimes as unenumerated rights, in view of the breadth and indeterminacy of the "due process" serving as the claim's textual basis. The doctors accordingly arouse the skepticism of those who find the Due Process Clause an unduly vague or oxymoronic warrant for judicial review of substantive state law, just as they also invoke two centuries of American constitutional practice in recognizing unenumerated, substantive limits on governmental action. Although this practice has neither rested on any single textual basis nor expressed a consistent theory (or, before Poe v. Ullman, a much articulated one), a brief overview of its history is instructive on two counts. 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, 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.
Before the ratification of the Fourteenth Amendment, substantive constitutional review resting on a theory of unenumerated rights occurred largely in the state courts applying state constitutions that commonly contained either due process clauses like that of the Fifth Amendment (and later the Fourteenth) or the textual antecedents of such clauses, re- [p. 757] peating Magna Carta's guarantee of "the law of the land." On the basis of such clauses, or of general principles untethered to specific constitutional language, state courts evaluated the constitutionality of a wide range of statutes.
Thus, a Connecticut court approved a statute legitimating a class of previous illegitimate marriages, as falling within the terms of the "social compact," while making clear its power to review constitutionality in those terms. Goshen v. Stonington, 4 Conn. 209, 225–226 (1822). In the same period, a specialized court of equity, created under a Tennessee statute solely to hear cases brought by the state bank against its debtors, found its own authorization unconstitutional as "partial" legislation violating the State Constitution's "law of the land" clause. Bank of the State v. Cooper, 2 Yerg. 599, 602–608 (Tenn. 1831) (opinion of Green, J.); id., at 613–615 (opinion of Peck, J.); id., at 618–623 (opinion of Kennedy, J.). And the middle of the 19th century brought the famous Wynehamer case, invalidating a statute purporting to render possession of liquor immediately illegal except when kept for narrow, specified purposes, the state court finding the statute inconsistent with the State's due process clause. Wynehamer v. People, 13 N.Y. 378, 486–487 (1856). The statute was deemed an excessive threat to the "fundamental rights of the citizen" to property. Id., at 398 (opinion of Comstock, J.). See generally E. Corwin, Liberty Against Government 58–115 (1948) (discussing substantive due process in the state courts before the Civil War); T. Cooley, Constitutional Limitations *85–*129, *351–*397.
Even in this early period, however, this Court anticipated the developments that would presage both the Civil War and the ratification of the Fourteenth Amendment, by making it clear on several occasions that it too had no doubt of the [p. 758] judiciary's power to strike down legislation that conflicted with important but unenumerated principles of American government. In most such instances, after declaring its power to invalidate what it might find inconsistent with rights of liberty and property, the Court nevertheless went on to uphold the legislative Acts under review. See, e. g., Wilkinson v. Leland, 2 Pet. 627, 656–661 (1829); Calder v. Bull, 3 Dall. 386, 386–395 (1798) (opinion of Chase, J.); see also Corfield v. Coryell, 6 F.Cas. 546, 550–552 (No. 3,230) (CC ED Pa. 1823). But in Fletcher v. Peck, 6 Cranch 87 (1810), the Court went further. It struck down an Act of the Georgia Legislature that purported to rescind a sale of public land ab initio and reclaim title for the State, and so deprive subsequent, good-faith purchasers of property conveyed by the original grantees. 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. Fletcher, supra, at 135–139.
Fletcher was not, though, the most telling early example of such review. For its most salient instance in this Court before the adoption of the Fourteenth Amendment was, of course, the case that the Amendment would in due course overturn, Dred Scott v. Sandford, 19 How. 393 (1857). 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. 19 How., at 449–452. This substantive protection of an owner’s property in a slave taken to the territories was traced to the absence of any enumerated power to affect that property granted to the Congress by Article I of the Constitution, id., at 451–452, the implication [p. 759] being that the Government had no legitimate interest that could support the earlier congressional compromise. The ensuing judgment of history needs no recounting here.
After the ratification of the Fourteenth Amendment, with its guarantee of due process protection against the States, interpretation of the words "liberty" and "property" as used in Due Process Clauses became a sustained enterprise, with the Court generally describing the due process criterion in converse terms of reasonableness or arbitrariness. That standard is fairly traceable to Justice Bradley's dissent in the Slaughter-House Cases, 16 Wall. 36 (1873), in which he said that a person's right to choose a calling was an element of liberty (as the calling, once chosen, was an aspect of property) and declared that the liberty and property protected by due process are not truly recognized if such rights may be "arbitrarily assailed," id., at 116. After that, opinions comparable to those that preceded Dred Scott expressed willingness to review legislative action for consistency with the Due Process Clause even as they upheld the laws in question. See, e. g., Bartemeyer v. Iowa, 18 Wall. 129, 133–135 (1874); Munn v. Illinois, 94 U.S. 113, 123–135 (1877); Railroad Comm'n Cases, 116 U.S. 307, 331 (1886); Mugler v. [p. 760] Kansas, 123 U.S. 623, 659–670 (1887). See generally Corwin, supra, at 121–136 (surveying the Court's early Fourteenth Amendment cases and finding little dissent from the general principle that the Due Process Clause authorized judicial review of substantive statutes).
The theory became serious, however, beginning with Allgeyer v. Louisiana, 165 U.S. 578 (1897), where the Court invalidated a Louisiana statute for excessive interference with Fourteenth Amendment liberty to contract, id., at 588–593, and offered a substantive interpretation of "liberty," that in the aftermath of the so-called Lochner Era has been scaled back in some respects, but expanded in others, and never repudiated in principle. The Court said that Fourteenth Amendment liberty includes "the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned." Id., at 589. "[W]e do not intend to hold that in no such case can the State exercise its police power," the Court added, but "[w]hen and how far such power may be legitimately exercised with regard to these subjects must be left for determination to each case as it arises." Id., at 590.
Although this principle was unobjectionable, what followed for a season was, in the realm of economic legislation, the echo of Dred Scott. Allgeyer was succeeded within a decade by Lochner v. New York, 198 U.S. 45 (1905), and the era to which that case gave its name, famous now for striking down as arbitrary various sorts of economic regulations that post-New Deal courts have uniformly thought constitutionally sound. Compare, e. g., id., at 62 (finding New York's maximum-hours law for bakers "unreasonable and entirely arbitrary"), and Adkins v. Children's Hospital of D. C., 261 [p. 761] U.S. 525, 559 (1923) (holding a minimum-wage law "so clearly the product of a naked, arbitrary exercise of power that it cannot be allowed to stand under the Constitution of the United States"), with West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937) (overruling Adkins and approving a minimum-wage law on the principle that "regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process"). As the parentheticals here suggest, while the cases in the Lochner line routinely invoked a correct standard of constitutional arbitrariness review, they harbored the spirit of Dred Scott in their absolutist implementation of the standard they espoused.
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 (1923). Without referring to any specific guarantee of the Bill of Rights, the Court invoked precedents from the Slaughter-House Cases through Adkins to declare that the Fourteenth Amendment protected "the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." 262 U.S., at 399. The Court then held that the same Fourteenth Amendment liberty included a teacher's right to teach and the rights of parents to direct their children's education without unreasonable interference by the States, id., at 400, with the result that Nebraska's prohibition on the teaching of foreign languages in the lower grades was "arbitrary and without reasonable relation to any end within the competency of the State," id., at 403. See also Pierce v. Society of Sisters, 268 U.S. 510, 534–536 (1925) [p. 762] (finding that a statute that all but outlawed private schools lacked any "reasonable relation to some purpose within the competency of the State"); Palko v. Connecticut, 302 U.S. 319, 327–328 (1937) ("[E]ven in the field of substantive rights and duties the legislative judgment, if oppressive and arbitrary, may be overridden by the courts." "Is that [injury] to which the statute has subjected [the appellant] a hardship so acute and shocking that our polity will not endure it? Does it violate those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?" (citation and internal quotation marks omitted)).
After Meyer and Pierce, two further opinions took the major steps that lead to the modern law. The first was not even in a due process case but one about equal protection, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), where the Court emphasized the "fundamental" nature of individual choice about procreation and so foreshadowed not only the later prominence of procreation as a subject of liberty protection, but the corresponding standard of "strict scrutiny," in this Court's Fourteenth Amendment law. See id., at 541. Skinner, that is, added decisions regarding procreation to the list of liberties recognized in Meyer and Pierce and loosely suggested, as a gloss on their standard of arbitrariness, a judicial obligation to scrutinize any impingement on such an important interest with heightened care. In so doing, it suggested a point that Justice Harlan would develop, that the kind and degree of justification that a sensitive judge would demand of a State would depend on the importance of the interest being asserted by the individual. Poe, 367 U.S., at 543.
The second major opinion leading to the modern doctrine was Justice Harlan's Poe dissent just cited, the conclusion of which was adopted in Griswold v. Connecticut, 381 U.S. 479 (1965), and the authority of which was acknowledged in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). See also n. 4, supra. The dissent is important [p. 763] for three things that point to our responsibilities today. The first is Justice Harlan's respect for the tradition of substantive due process review itself, and his acknowledgment of the Judiciary's obligation to carry it on. For two centuries American courts, and for much of that time this Court, have thought it necessary to provide some degree of review over the substantive content of legislation under constitutional standards of textual breadth. The obligation was understood before Dred Scott and has continued after the repudiation of Lochner 's progeny, most notably on the subjects of segregation in public education, Bolling v. Sharpe, 347 U.S. 497, 500 (1954), interracial marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967), marital privacy and contraception, Carey v. Population Services Int'l, 431 U.S. 678, 684–691 (1977); Griswold v. Connecticut, supra, at 481–486, abortion, Planned Parenthood of Southeastern Pa. v. Casey, supra, at 849, 869–879 (joint opinion of O'Connor, Kennedy, and Souter, JJ.); Roe v. Wade, 410 U.S. 113, 152–166 (1973), personal control of medical treatment, Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 287–289 (1990) (O'Connor, J., concurring); id., at 302 (Brennan, J., dissenting); id., at 331 (Stevens, J., dissenting); see also id., at 278 (majority opinion), and physical confinement, Foucha v. Louisiana, 504 U.S. 71, 80–83 (1992). This enduring tradition of American constitutional practice is, in Justice Harlan's view, nothing more than what is required by the judicial authority and obligation to construe constitutional text and review legislation for conformity to that text. See Marbury v. Madison, 1 Cranch 137 (1803). Like many judges who preceded him and many who followed, he found it impossible to construe the text of due process without recognizing substantive, and not merely procedural, limitations. "Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in ap- [p. 764] plication to individuals, nevertheless destroy the enjoyment of all three." Poe, supra, at 541. The text of the Due Process Clause thus imposes nothing less than an obligation to give substantive content to the words "liberty" and "due process of law."
Following the first point of the Poe dissent, on the necessity to engage in the sort of examination we conduct today, the dissent's second and third implicitly address those cases, already noted, that are now condemned with virtual unanimity as disastrous mistakes of substantive due process review. The second of the dissent's lessons is a reminder that the business of such review is not the identification of extratextual absolutes but scrutiny of a legislative resolution (perhaps unconscious) of clashing principles, each quite possibly worthy in and of itself, but each to be weighed within the history of our values as a people. It is a comparison of the relative strengths of opposing claims that informs the judicial task, not a deduction from some first premise. Thus informed, judicial review still has no warrant to substitute one reasonable resolution of the contending positions for another, but authority to supplant the balance already struck between the contenders only when it falls outside the realm of the reasonable. Part III, below, deals with this second point, and also with the dissent's third, which takes the form of an [p. 765] object lesson in the explicit attention to detail that is no less essential to the intellectual discipline of substantive due process review than an understanding of the basic need to account for the two sides in the controversy and to respect legislation within the zone of reasonableness.
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. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S., at 847–849. That understanding begins with a concept of "ordered liberty," Poe, 367 U.S., at 549 (Harlan, J.); see also Griswold, 381 U.S., at 500, comprising a continuum of rights to be free from "arbitrary impositions and purposeless restraints," Poe, 367 U.S., at 543 (Harlan, J., dissenting).
"Due Process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. 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. No formula could [p. 766] serve as a substitute, in this area, for judgment and restraint." Id., at 542.
See also Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion of Powell, J.) ("Appropriate limits on substantive due process come not from drawing arbitrary lines but rather from careful 'respect for the teachings of history [and] solid recognition of the basic values that underlie our society'") (quoting Griswold, supra, at 501 (Harlan, J., concurring)).
After the Poe dissent, as before it, this enforceable concept of liberty would bar statutory impositions even at relatively trivial levels when governmental restraints are undeniably irrational as unsupported by any imaginable rationale. See, e. g., United States v. Carolene Products Co., 304 U.S. 144, 152 (1938) (economic legislation "not...unconstitutional unless...facts...preclude the assumption that it rests upon some rational basis"); see also Poe, supra, at 545, 548 (Harlan, J., dissenting) (referring to usual "presumption of constitutionality" and ordinary test "going merely to the plausibility of [a statute's] underlying rationale"). Such instances are suitably rare. 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[,] [c]f. Skinner v. Oklahoma [ex rel. Williamson, 316 U.S. 535 (1942)]; Bolling v. Sharpe, [ 347 U.S. 497 (1954)],” id., at 543; that is, interests in liberty sufficiently important to be judged "fundamental," id., at 548; see also id., at 541 (citing Corfield v. Coryell, 4 Wash. C. C. 371, 380 (CC ED Pa. 1825)). In the face of an interest this powerful a State may not rest on threshold rationality or a presumption of constitutionality, but may prevail only on the ground of an interest sufficiently compelling to place within the realm of the reasonable a refusal to recognize the individual right asserted. Poe, supra, at 548 (Harlan, J., dissenting) (an "enactment involv[ing]...a most fundamental as- [p. 767] pect of 'liberty'...[is] subjec[t] to 'strict scrutiny'") (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S., at 541); Reno v. Flores, 507 U.S. 292, 301–302 (1993) (reaffirming that due process "forbids the government to infringe certain 'fundamental' liberty interests...unless the infringement is narrowly tailored to serve a compelling state interest").
This approach calls for a court to assess the relative "weights" or dignities of the contending interests, and to this extent the judicial method is familiar to the common law. Common-law method is subject, however, to two important constraints in the hands of a court engaged in substantive due process review. First, such a court is bound to confine the values that it recognizes to those truly deserving constitutional stature, either to those expressed in constitutional text, or those exemplified by "the traditions from which [the Nation] developed," or revealed by contrast with "the traditions from which it broke." Poe, 367 U.S., at 542 (Harlan, J., dissenting). "'We may not draw on our merely personal and private notions and disregard the limits...derived from [p. 768] considerations that are fused in the whole nature of our judicial process...[,] considerations deeply rooted in reason and in the compelling traditions of the legal profession.'" Id., at 544–545 (quoting Rochin v. California, 342 U.S. 165, 170–171 (1952)); see also Palko v. Connecticut, 302 U.S., at 325 (looking to "'principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental'") (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
The second constraint, again, simply reflects the fact that constitutional review, not judicial lawmaking, is a court's business here. The weighing or valuing of contending interests in this sphere is only the first step, forming the basis for determining whether the statute in question falls inside or outside the zone of what is reasonable in the way it resolves the conflict between the interests of state and individual. See, e. g., Poe, supra, at 553 (Harlan, J., dissenting); Youngberg v. Romeo, 457 U.S. 307, 320–321 (1982). It is no justification for judicial intervention merely to identify a reasonable resolution of contending values that differs from the terms of the legislation under review. It is only when the legislation's justifying principle, critically valued, is so far from being commensurate with the individual interest as to be arbitrarily or pointlessly applied that the statute must give way. Only if this standard points against the statute can the individual claimant be said to have a constitutional right. See Cruzan v. Director, Mo. Dept. of Health, 497 U.S., at 279 ("[D]etermining that a person has a 'liberty interest' under the Due Process Clause does not end the inquiry; 'whether [the individual's] constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests'") (quoting Youngberg v. Romeo, supra, at 321).
[p. 769] The Poe dissent thus reminds us of the nature of review for reasonableness or arbitrariness and the limitations entailed by it. But the opinion cautions against the repetition of past error in another way as well, more by its example than by any particular statement of constitutional method: it reminds us that the process of substantive review by reasoned judgment, Poe, 367 U.S., at 542–544, is one of close criticism going to the details of the opposing interests and to their relationships with the historically recognized principles that lend them weight or value.
Although the Poe dissent disclaims the possibility of any general formula for due process analysis (beyond the basic analytic structure just described), see id., at 542, 544, Justice Harlan of course assumed that adjudication under the Due Process Clauses is like any other instance of judgment dependent on common-law method, being more or less persuasive according to the usual canons of critical discourse. See also Casey, 505 U.S., at 849 ("The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment"). When identifying and assessing the competing interests of liberty and authority, for ex- [p. 770] ample, the breadth of expression that a litigant or a judge selects in stating the competing principles will have much to do with the outcome and may be dispositive. As in any process of rational argumentation, we recognize that when a generally accepted principle is challenged, the broader the attack the less likely it is to succeed. The principle's defenders will, indeed, often try to characterize any challenge as just such a broadside, perhaps by couching the defense as if a broadside attack had occurred. So the Court in Dred Scott treated prohibition of slavery in the Territories as nothing less than a general assault on the concept of property. See 19 How., at 449–452.
Just as results in substantive due process cases are tied to the selections of statements of the competing interests, the acceptability of the results is a function of the good reasons for the selections made. It is here that the value of common-law method becomes apparent, for the usual thinking of the common law is suspicious of the all-or-nothing analysis that tends to produce legal petrification instead of an evolving boundary between the domains of old principles. Common-law method tends to pay respect instead to detail, seeking to understand old principles afresh by new examples and new counterexamples. The "tradition is a living thing," Poe, 367 U.S., at 542 (Harlan, J., dissenting), albeit one that moves by moderate steps carefully taken. "The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take its place in relation to what went before and further [cut] a channel for what is to come." Id., at 544 (Harlan, J., dissenting) (internal quotation marks omitted). Exact analysis and characterization of any due process claim are critical to the method and to the result.
So, in Poe, Justice Harlan viewed it as essential to the plaintiffs' claimed right to use contraceptives that they sought to do so within the privacy of the marital bedroom. This detail in fact served two crucial and complementary [p. 771] functions, and provides a lesson for today. It rescued the individuals' claim from a breadth that would have threatened all state regulation of contraception or intimate relations; extramarital intimacy, no matter how privately practiced, was outside the scope of the right Justice Harlan would have recognized in that case. See id., at 552–553. It was, moreover, this same restriction that allowed the interest to be valued as an aspect of a broader liberty to be free from all unreasonable intrusions into the privacy of the home and the family life within it, a liberty exemplified in constitutional provisions such as the Third and Fourth Amendments, in prior decisions of the Court involving unreasonable intrusions into the home and family life, and in the then-prevailing status of marriage as the sole lawful locus of intimate relations. Id., at 548, 551. The individuals' interest was therefore at its peak in Poe, because it was supported by a principle that distinguished of its own force between areas in which government traditionally had regulated (sexual relations outside of marriage) and those in which it had not (private marital intimacies), and thus was broad enough to cover the claim at hand without being so broad as to be shot-through by exceptions.
[p. 772] On the other side of the balance, the State's interest in Poe was not fairly characterized simply as preserving sexual morality, or doing so by regulating contraceptive devices. Just as some of the earlier cases went astray by speaking without nuance of individual interests in property or autonomy to contract for labor, so the State's asserted interest in Poe was not immune to distinctions turning (at least potentially) on the precise purpose being pursued and the collateral consequences of the means chosen, see id., at 547–548. It was assumed that the State might legitimately enforce limits on the use of contraceptives through laws regulating divorce and annulment, or even through its tax policy, ibid., but not necessarily be justified in criminalizing the same practice in the marital bedroom, which would entail the consequence of authorizing state enquiry into the intimate relations of a married couple who chose to close their door, id., at 548–549. See also Casey, 505 U.S., at 869 (strength of State's interest in potential life varies depending on precise context and character of regulation pursuing that interest).
The same insistence on exactitude lies behind questions, in current terminology, about the proper level of generality at which to analyze claims and counterclaims, and the demand for fitness and proper tailoring of a restrictive statute is just another way of testing the legitimacy of the generality at which the government sets up its justification. We may [p. 773] in any of these ways: as applying concepts of normal critical reasoning, as pointing to the need to attend to the levels of generality at which countervailing interests are stated, or as examining the concrete application of principles for fitness with their own ostensible justifications. But whatever the categories in which we place the dissent's example, it stands in marked contrast to earlier cases whose reasoning was marked by comparatively less discrimination, and it points to the importance of evaluating the claims of the parties now before us with comparable detail. For here we are faced with an individual claim not to a right on the part of just anyone to help anyone else commit suicide under any circumstances, but to the right of a narrow class to help others also in a narrow class under a set of limited circumstances. And the claimants are met with the State's assertion, among others, that rights of such narrow scope cannot be recognized without jeopardy to individuals whom the State may concededly protect through its regulations.
Respondents claim that a patient facing imminent death, who anticipates physical suffering and indignity, and is capable of responsible and voluntary choice, should have a right to a physician's assistance in providing counsel and drugs to be administered by the patient to end life promptly. Complaint ¶3.1. They accordingly claim that a physician must have the corresponding right to provide such aid, contrary to the provisions of Wash. Rev. Code §9A.36.060 (1994). I do not understand the argument to rest on any assumption that rights either to suicide or to assistance in committing it are historically based as such. Respondents, rather, acknowledge the prohibition of each historically, but rely on the fact that to a substantial extent the State has repudiated that history. The result of this, respondents say, is to open [p. 774] the door to claims of such a patient to be accorded one of the options open to those with different, traditionally cognizable claims to autonomy in deciding how their bodies and minds should be treated. 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.
The dominant western legal codes long condemned suicide and treated either its attempt or successful accomplishment as a crime, the one subjecting the individual to penalties, the other penalizing his survivors by designating the suicide's property as forfeited to the government. See 4 W. Blackstone, Commentaries *188–*189 (commenting that English law considered suicide to be "ranked...among the highest crimes" and deemed persuading another to commit suicide to be murder); see generally Marzen, O'Dowd, Crone, & Balch, Suicide: A Constitutional Right?, 24 Duquesne L. Rev. 1, 56–63 (1985). While suicide itself has generally not been considered a punishable crime in the United States, largely because the common-law punishment of forfeiture was rejected as improperly penalizing an innocent family, see id., at 98–99, most States have consistently punished the act of assisting a suicide as either a common-law or statutory crime and some continue to view suicide as an unpunishable crime. See generally id., at 67–100, 148–242. Criminal prohibi- [p. 775] tions on such assistance remain widespread, as exemplified in the Washington statute in question here.
The principal significance of this history in the State of Washington, according to respondents, lies in its repudiation [p. 776] of the old tradition to the extent of eliminating the criminal suicide prohibitions. Respondents do not argue that the State's decision goes further, to imply that the State has repudiated any legitimate claim to discourage suicide or to limit its encouragement. The reasons for the decriminalization, after all, may have had more to do with difficulties of law enforcement than with a shift in the value ascribed to [p. 777] life in various circumstances or in the perceived legitimacy of taking one's own. See, e. g., Kamisar, Physician-Assisted Suicide: The Last Bridge to Active Voluntary Euthanasia, in Euthanasia Examined 225, 229 (J. Keown ed. 1995); CeloCruz, Aid-in-Dying: Should We Decriminalize Physician-Assisted Suicide and Physician-Committed Euthanasia?, 18 Am. J. L. & Med. 369, 375 (1992); Marzen, O'Dowd, Crone, & Balch, 24 Duquesne L. Rev., at 98–99. Thus it may indeed make sense for the State to take its hands off suicide as such, while continuing to prohibit the sort of assistance that would make its commission easier. See, e. g., American Law Institute, Model Penal Code §210.5, Comment 5 (1980). Decriminalization does not, then, imply the existence of a constitutional liberty interest in suicide as such; it simply opens the door to the assertion of a cognizable liberty interest in bodily integrity and associated medical care that would otherwise have been inapposite so long as suicide, as well as assisting a suicide, was a criminal offense.
This liberty interest in bodily integrity was phrased in a general way by then-Judge Cardozo when he said, "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body" in relation to his medical needs. Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 129, 105 N.E. 92, 93 (1914). The familiar examples of this right derive from the common law of battery and include the right to be free from medical invasions into the body, Cruzan v. Director, Mo. Dept. of Health, 497 U.S., at 269–279, as well as a right generally to resist enforced medication, see Washington v. Harper, 494 U.S. 210, 221–222, 229 (1990). Thus "[i]t is settled now...that the Constitution places limits on a State's right to interfere with a person's most basic decisions about...bodily integrity.” Casey, 505 U.S., at 849 (citations omitted); see also Cruzan, 497 U.S., at 278; id., at 288 (O'Connor, J., concurring); Washington v. Harper, supra, at 221–222; Winston v. Lee, 470 U.S. 753, 761–762 (1985); Rochin v. California, 342 [p. 778] U.S., at 172. Constitutional recognition of the right to bodily integrity underlies the assumed right, good against the State, to require physicians to terminate artificial life support, Cruzan, supra, at 279 ("[W]e assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition"), and the affirmative right to obtain medical intervention to cause abortion, see Casey, supra, at 857, 896; cf. Roe v. Wade, 410 U.S., at 153.
It is, indeed, in the abortion cases that the most telling recognitions of the importance of bodily integrity and the concomitant tradition of medical assistance have occurred. In Roe v. Wade, the plaintiff contended that the Texas statute making it criminal for any person to "procure an abortion," id., at 117, for a pregnant woman was unconstitutional insofar as it prevented her from "terminat[ing] her pregnancy by an abortion 'performed by a competent, licensed physician, under safe, clinical conditions,'" id., at 120, and in striking down the statute we stressed the importance of the relationship between patient and physician, see id., at 153, 156.
The analogies between the abortion cases and this one are several. Even though the State has a legitimate interest in discouraging abortion, see Casey, supra, at 871 (joint opinion of O'Connor, Kennedy, and Souter, JJ.); Roe, 410 U.S., at 162, the Court recognized a woman's right to a physician's counsel and care. Like the decision to commit suicide, the decision to abort potential life can be made irresponsibly and under the influence of others, and yet the Court has held in the abortion cases that physicians are fit assistants. Without physician assistance in abortion, the woman's right would have too often amounted to nothing more than a right to self-mutilation, and without a physician to assist in the suicide of the dying, the patient's right will often be confined to crude methods of causing death, most shocking and painful to the decedent's survivors.
[p. 779] There is, finally, one more reason for claiming that a physician's assistance here would fall within the accepted tradition of medical care in our society, and the abortion cases are only the most obvious illustration of the further point. While the Court has held that the performance of abortion procedures can be restricted to physicians, the Court's opinion in Roe recognized the doctors' role in yet another way. For, in the course of holding that the decision to perform an abortion called for a physician’s assistance, the Court recognized that the good physician is not just a mechanic of the human body whose services have no bearing on a person's moral choices, but one who does more than treat symptoms, one who ministers to the patient. See id., at 153; see also Griswold v. Connecticut, 381 U.S., at 482 ("This law...operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation"); see generally R. Cabot, Ether Day Address, Boston Medical and Surgical J. 287, 288 (1920). This idea of the physician as serving the whole person is a source of the high value traditionally placed on the medical relationship. 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 patients here sought not only an end to pain (which they might have had, although perhaps at the price of stupor) but an end to their short remaining lives with a dignity that they believed would be denied them by powerful pain medication, as well as by their consciousness of dependency and helplessness as they approached death. In that period when the end is imminent, they said, the decision to end life is closest to decisions that are generally accepted as proper instances of exercising autonomy over one's own body, instances recognized under the Constitution and the State's own law, instances in which the help of physicians is accepted as falling within the traditional norm.
[p. 780] Respondents argue that the State has in fact already recognized enough evolving examples of this tradition of patient care to demonstrate the strength of their claim. Washington, like other States, authorizes physicians to withdraw life-sustaining medical treatment and artificially delivered food and water from patients who request it, even though such actions will hasten death. See Wash. Rev. Code §§70.122.110, 70.122.051 (1994); see generally Notes to Uniform Rights of the Terminally Ill Act, 9B U. L. A. 168–169 (Supp. 1997) (listing state statutes). The State permits physicians to alleviate anxiety and discomfort when withdrawing artificial life-supporting devices by administering medication that will hasten death even further. And it generally permits physicians to administer medication to patients in terminal conditions when the primary intent is to alleviate pain, even when the medication is so powerful as to hasten death and the patient chooses to receive it with that understanding. See Wash. Rev. Code §70.122.010 (1994); see generally Rousseau, Terminal Sedation in the Care of Dying Patients, 156 Archives of Internal Medicine 1785 (1996); Truog, Berde, Mitchell, & Grier, Barbiturates in the Care of the Terminally Ill, 327 New Eng. J. Med. 1678 (1992).
The argument supporting respondents' position thus progresses through three steps of increasing forcefulness. First, it emphasizes the decriminalization of suicide. 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. See Poe v. Ullman, 367 U.S., at 542 (Harlan, J., dissenting). While the common law prohibited both suicide and aiding a suicide, with the prohibition on aiding largely justified by the primary prohibition on self-inflicted death itself, see, e.g., American Law Institute, Model Penal Code §210.5, Comment 1, at 92–93, and n. 7, the State's rejection of the traditional treatment of the one leaves the criminality of the other open to questioning that previously would not have been appropriate. 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. One of these, abortion, is a legal right to choose in spite of the interest a State may legitimately invoke in discouraging the practice, just as suicide is now subject to choice, despite a state interest in discouraging it. The third step is to emphasize that respondents claim a right to assistance not on the basis of some broad principle that would be subject to exceptions if that continuing interest of the State's in discouraging suicide were to be recognized at all. Respondents base their claim on the traditional right to medical care and counsel, subject to the limiting conditions of informed, responsible choice when death is imminent, conditions that support a strong analogy to rights of care in other situations in which medical counsel and assistance have been available as a matter of course. There can be no stronger claim to a physician's assistance than at the time when death is imminent, a moral judgment implied by the State's own recognition of the legitimacy of medical procedures necessarily hastening the moment of impending death.
[p. 782] In my judgment, the importance of the individual interest here, as within that class of "certain interests" demanding careful scrutiny of the State's contrary claim, see Poe, supra, at 543, cannot be gainsaid. 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.
The State has put forward several interests to justify the Washington law as applied to physicians treating terminally ill patients, even those competent to make responsible choices: protecting life generally, Brief for Petitioners 33, discouraging suicide even if knowing and voluntary, id., at 37–38, and protecting terminally ill patients from involuntary suicide and euthanasia, both voluntary and nonvoluntary, id., at 34–35.
It is not necessary to discuss the exact strengths of the first two claims of justification in the present circumstances, for the third is dispositive for me. That third justification is different from the first two, for it addresses specific features of respondents' claim, and it opposes that claim not with a moral judgment contrary to respondents', but with a recognized state interest in the protection of nonresponsible individuals and those who do not stand in relation either to death or to their physicians as do the patients whom respondents describe. The State claims interests in protecting patients from mistakenly and involuntarily deciding to end their lives, and in guarding against both voluntary and involuntary euthanasia. 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 [p. 783] or unreimbursed hospitals decline to shoulder. Voluntary and involuntary euthanasia may result once doctors are authorized to prescribe lethal medication in the first instance, for they might find it pointless to distinguish between patients who administer their own fatal drugs and those who wish not to, and their compassion for those who suffer may obscure the distinction between those who ask for death and those who may be unable to request it. The argument is that a progression would occur, obscuring the line between the ill and the dying, and between the responsible and the unduly influenced, until ultimately doctors and perhaps others would abuse a limited freedom to aid suicides by yielding to the impulse to end another's suffering under conditions going beyond the narrow limits the respondents propose. The State thus argues, essentially, that respondents' claim is not as narrow as it sounds, simply because no recognition of the interest they assert could be limited to vindicating those interests and affecting no others. The State says that the claim, in practical effect, would entail consequences that the State could, without doubt, legitimately act to prevent.
The mere assertion that the terminally sick might be pressured into suicide decisions by close friends and family members would not alone be very telling. Of course that is possible, not only because the costs of care might be more than family members could bear but simply because they might naturally wish to see an end of suffering for someone they love. But one of the points of restricting any right of assistance to physicians would be to condition the right on an exercise of judgment by someone qualified to assess the patient's responsible capacity and detect the influence of those outside the medical relationship.
The State, however, goes further, to argue that dependence on the vigilance of physicians will not be enough. First, the lines proposed here (particularly the requirement of a knowing and voluntary decision by the patient) would be more difficult to draw than the lines that have limited [p. 784] other recently recognized due process rights. Limiting a State from prosecuting use of artificial contraceptives by married couples posed no practical threat to the State's capacity to regulate contraceptives in other ways that were assumed at the time of Poe to be legitimate; the trimester measurements of Roe and the viability determination of Casey were easy to make with a real degree of certainty. But the knowing and responsible mind is harder to assess. Second, this difficulty could become the greater by combining with another fact within the realm of plausibility, that physicians simply would not be assiduous to preserve the line. They have compassion, and those who would be willing to assist in suicide at all might be the most susceptible to the wishes of a patient, whether the patient was technically quite responsible or not. Physicians, and their hospitals, have their own financial incentives, too, in this new age of managed care. Whether acting from compassion or under [p. 785] some other influence, a physician who would provide a drug for a patient to administer might well go the further step of administering the drug himself; so, the barrier between assisted suicide and euthanasia could become porous, and the line between voluntary and involuntary euthanasia as well. The case for the slippery slope is fairly made out here, not because recognizing one due process right would leave a court with no principled basis to avoid recognizing another, but because there is a plausible case that the right claimed would not be readily containable by reference to facts about the mind that are matters of difficult judgment, or by gatekeepers who are subject to temptation, noble or not.
Respondents propose an answer to all this, the answer of state regulation with teeth. Legislation proposed in several States, for example, would authorize physician-assisted suicide but require two qualified physicians to confirm the patient's diagnosis, prognosis, and competence; and would mandate that the patient make repeated requests witnessed by at least two others over a specified timespan; and would impose reporting requirements and criminal penalties for various acts of coercion. See App. to Brief for State Legislators as Amici Curiae 1a–2a.
But at least at this moment there are reasons for caution in predicting the effectiveness of the teeth proposed. Respondents' proposals, as it turns out, sound much like the guidelines now in place in the Netherlands, the only place where experience with physician-assisted suicide and euthanasia has yielded empirical evidence about how such regulations might affect actual practice. Dutch physicians must engage in consultation before proceeding, and must decide whether the patient's decision is voluntary, well considered, and stable, whether the request to die is enduring and made more than once, and whether the patient's future will involve [p. 786] unacceptable suffering. See C. Gomez, Regulating Death 40–43 (1991). There is, however, a substantial dispute today about what the Dutch experience shows. Some commentators marshall evidence that the Dutch guidelines have in practice failed to protect patients from involuntary euthanasia and have been violated with impunity. 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. 1995) (guidelines have "proved signally ineffectual; non-voluntary euthanasia is now widely practised and increasingly condoned in the Netherlands"); Gomez, supra, at 104–113. This evidence is contested. See, e. g., R. Epstein, Mortal Peril 322 (1997) ("Dutch physicians are not euthanasia enthusiasts and they are slow to practice it in individual cases"); R. Posner, Aging and Old Age 242, and n. 23 (1995) (noting fear of "doctors' rushing patients to their death" in the Netherlands "has not been substantiated and does not appear realistic"); Van der Wal, Van Eijk, Leenen, & Spreeuwenberg, Euthanasia and Assisted Suicide, 2, Do Dutch Family Doctors Act Prudently?, 9 Family Practice 135 (1992) (finding no serious abuse in Dutch practice). The day may come when we can say with some assurance which side is right, but for now it is the substantiality of the factual disagreement, and the alternatives for resolving it, that matter. They are, for me, dispositive of the due process claim at this time.
I take it that the basic concept of judicial review with its possible displacement of legislative judgment bars any finding that a legislature has acted arbitrarily when the following conditions are met: there is a serious factual controversy over the feasibility of recognizing the claimed right without at the same time making it impossible for the State to engage in an undoubtedly legitimate exercise of power; facts [p. 787] necessary to resolve the controversy are not readily ascertainable through the judicial process; but they are more readily subject to discovery through legislative factfinding and experimentation. It is assumed in this case, and must be, that a State's interest in protecting those unable to make responsible decisions and those who make no decisions at all entitles the State to bar aid to any but a knowing and responsible person intending suicide, and to prohibit euthanasia. How, and how far, a State should act in that interest are judgments for the State, but the legitimacy of its action to deny a physician the option to aid any but the knowing and responsible is beyond question.
The capacity of the State to protect the others if respondents were to prevail is, however, subject to some genuine question, underscored by the responsible disagreement over the basic facts of the Dutch experience. This factual controversy is not open to a judicial resolution with any substantial degree of assurance at this time. It is not, of course, that any controversy about the factual predicate of a due process claim disqualifies a court from resolving it. Courts can recognize captiousness, and most factual issues can be settled in a trial court. At this point, however, the factual issue at the heart of this case does not appear to be one of those. The principal enquiry at the moment is into the Dutch experience, and I question whether an independent front-line investigation into the facts of a foreign country's legal administration can be soundly undertaken through American courtroom litigation. While an extensive literature on any subject can raise the hopes for judicial understanding, the literature on this subject is only nascent. Since there is little experience directly bearing on the issue, the most that can be said is that whichever way the Court might rule today, events could overtake its assumptions, as experimentation in some jurisdictions confirmed or discredited the concerns about progression from assisted suicide to euthanasia.
[p. 788] Legislatures, on the other hand, have superior opportunities to obtain the facts necessary for a judgment about the present controversy. Not only do they have more flexible mechanisms for factfinding than the Judiciary, but their mechanisms include the power to experiment, moving forward and pulling back as facts emerge within their own jurisdictions. There is, indeed, good reason to suppose that in the absence of a judgment for respondents here, just such experimentation will be attempted in some of the States. See, e. g., Ore. Rev. Stat. §127.800 et seq. (Supp. 1996); App. to Brief for State Legislators as Amici Curiae 1a (listing proposed statutes).
I do not decide here what the significance might be of legislative foot dragging in ascertaining the facts going to the State's argument that the right in question could not be confined as claimed. Sometimes a court may be bound to act regardless of the institutional preferability of the political branches as forums for addressing constitutional claims. See, e. g., Bolling v. Sharpe, 347 U.S. 497 (1954). Now, it is enough to say that our examination of legislative reasonableness should consider the fact that the Legislature of the State of Washington is no more obviously at fault than this Court is in being uncertain about what would happen if respondents prevailed today. We therefore have a clear question about which institution, a legislature or a court, is relatively more competent to deal with an emerging issue as to which facts currently unknown could be dispositive. The answer has to be, for the reasons already stated, that the legislative process is to be preferred. There is a closely related further reason as well.
One must bear in mind that the nature of the right claimed, if recognized as one constitutionally required, would differ in no essential way from other constitutional rights guaranteed by enumeration or derived from some more definite textual source than "due process." An unenumerated right should not therefore be recognized, with the effect [p. 789] of displacing the legislative ordering of things, without the assurance that its recognition would prove as durable as the recognition of those other rights differently derived. To recognize a right of lesser promise would simply create a constitutional regime too uncertain to bring with it the expectation of finality that is one of this Court's central obligations in making constitutional decisions. See Casey, 505 U.S., at 864–869.
Legislatures, however, are not so constrained. 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. The Court should accordingly stay its hand to allow reasonable legislative consideration. While I do not decide for all time that respondents' claim should not be recognized, I acknowledge the legislative institutional competence as the better one to deal with that claim at this time.
1 ^ . A nonprofit corporation known as Compassion in Dying was also a plaintiff and appellee below but is not a party in this Court.
2 ^ . As I will indicate in some detail below, I see the challenge to the statute not as facial but as-applied, and I understand it to be in narrower terms than those accepted by the Court.
3 ^ . The doctors also rely on the Equal Protection Clause, but that source of law does essentially nothing in a case like this that the Due Process Clause cannot do on its own.
4 ^ . The status of the Harlan dissent in Poe v. Ullman, 367 U.S. 497 (1961), is shown by the Court's adoption of its result in Griswold v. Connecticut, 381 U.S. 479 (1965), and by the Court's acknowledgment of its status and adoption of its reasoning in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 848–849 (1992). See also Youngberg v. Romeo, 457 U.S. 307, 320 (1982) (citing Justice Harlan's Poe dissent as authority for the requirement that this Court balance "the liberty of the individual" and "the demands of an organized society"); Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984); Moore v. East Cleveland, 431 U.S. 494, 500–506, and n. 12 (1977) (plurality opinion) (opinion for four Justices treating Justice Harlan's Poe dissent as a central explication of the methodology of judicial review under the Due Process Clause).
5 ^ . Coke indicates that prohibitions against deprivations without "due process of law" originated in an English statute that "rendred" Magna Carta's "law of the land" in such terms. See 2 E. Coke, Institutes 50 (1797); see also E. Corwin, Liberty Against Government 90–91 (1948).
6 ^ . The Slaughter-House Cases are important, of course, for their holding that the Privileges and Immunities Clause was no source of any but a specific handful of substantive rights. 16 Wall., at 74–80. To a degree, then, that decision may have led the Court to look to the Due Process Clause as a source of substantive rights. In Twining v. New Jersey, 211 U.S. 78, 95–97 (1908), for example, the Court of the Lochner Era acknowledged the strength of the case against Slaughter-House 's interpretation of the Privileges or Immunities Clause but reaffirmed that interpretation without questioning its own frequent reliance on the Due Process Clause as authorization for substantive judicial review. See also J. Ely, Democracy and Distrust 14–30 (1980) (arguing that the Privileges and Immunities Clause and not the Due Process Clause is the proper warrant for courts' substantive oversight of state legislation). But the courts' use of Due Process Clauses for that purpose antedated the 1873 decision, as we have seen, and would in time be supported in the Poe dissent, as we shall see.
7 ^ . Judge Johnson of the New York Court of Appeals had made the point more obliquely a century earlier when he wrote that "the form of this declaration of right, 'no person shall be deprived of life, liberty or property, without due process of law,' necessarily imports that the legislature cannot make the mere existence of the rights secured the occasion of depriving a person of any of them, even by the forms which belong to 'due process of law.' For if it does not necessarily import this, then the legislative power is absolute." And, "[t]o 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." Wynehamer v. People, 13 N.Y. 378, 420 (1856).
8 ^ . We have made it plain, of course, that not every law that incidentally makes it somewhat harder to exercise a fundamental liberty must be justified by a compelling counterinterest. See Casey, 505 U.S., at 872–876 (joint opinion of O'Connor, Kennedy, and Souter, JJ.); Carey v. Population Services Int'l, 431 U.S. 678, 685–686 (1977) ("[A]n individual's [constitutionally protected] liberty to make choices regarding contraception does not...automatically invalidate every state regulation in this area. The business of manufacturing and selling contraceptives may be regulated in ways that do not [even] infringe protected individual choices"). 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.
9 ^ . Justice Harlan thus recognized just what the Court today assumes, that by insisting on a threshold requirement that the interest (or, as the Court puts it, the right) be fundamental before anything more than rational basis justification is required, the Court ensures that not every case will require the "complex balancing" that heightened scrutiny entails. See ante, at 722.
10 ^ . Our cases have used various terms to refer to fundamental liberty interests, see, e. g., Poe, 367 U.S., at 545 (Harlan, J., dissenting) ("'basic liberty'") (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, [p. 769] 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. Dept. of Health, 497 U.S. 261, 278 (1990) ("constitutionally protected liberty interest"); Youngberg v. Romeo, 457 U.S., at 315 ("liberty interests"), and at times we have also called such an interest a "right" even before balancing it against the government's interest, see, e. g., Roe v. Wade, 410 U.S. 113, 153–154 (1973); Carey v. Population Services Int'l, supra, at 686, 688, and n. 5; Poe, supra, at 541 ("rights 'which are...fundamental '") (quoting Corfield v. Coryell, 4 Wash. C. C. 371, 380 (CC ED Pa. 1825)). Precision in terminology, however, favors reserving the label "right" for instances in which the individual's liberty interest actually trumps the government's countervailing interests; only then does the individual have anything legally enforceable as against the State's attempt at regulation.
11 ^ . Thus, as the Poe dissent illustrates, the task of determining whether the concrete right claimed by an individual in a particular case falls within the ambit of a more generalized protected liberty requires explicit analysis when what the individual wants to do could arguably be characterized as belonging to different strands of our legal tradition requiring different degrees of constitutional scrutiny. See also Tribe & Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1091 (1990) (abortion might conceivably be assimilated either to the tradition regarding women's reproductive freedom in general, which places a substantial burden of justification on the State, or to the tradition regarding protection of fetuses, as embodied in laws criminalizing feticide by someone other than the mother, which generally requires only rationality on the part of the State). Selecting among such competing characterizations demands reasoned judgment about which broader principle, as exemplified in the concrete privileges and prohibitions embodied in our legal tradition, best fits the particular claim asserted in a particular case.
12 ^ . The dual dimensions of the strength and the fitness of the government's interest are succinctly captured in the so-called "compelling interest test," under which regulations that substantially burden a constitutionally protected (or "fundamental") liberty may be sustained only if "narrowly tailored to serve a compelling state interest," Reno v. Flores, 507 U.S. 292, 302 (1993); see also, e. g., Roe v. Wade, 410 U.S., at 155; Carey v. Population Services Int'l, 431 U.S., at 686. How compelling the interest and how narrow the tailoring must be will depend, of course, not only on the substantiality of the individual's own liberty interest, but also on the extent of the burden placed upon it, see Casey, 505 U.S., at 871–874 (opinion of O'Connor, Kennedy, and Souter, JJ.); Carey, supra, at 686.
13 ^ . Washington and New York are among the minority of States to have criminalized attempted suicide, though neither State still does so. See Brief for Members of the New York and Washington State Legislatures as Amicus Curiae 15, n. 8 (listing state statutes). The common law governed New York as a Colony and the New York Constitution of 1777 recognized the common law, N. Y. Const. of 1777, Art. XXXV, and the state legislature recognized common-law crimes by statute in 1788. See Act of [p. 775] Feb. 21, 1788, ch. 37, §2, 1788 N. Y. Laws 664 (codified at 2 N. Y. Laws 73 (Greenleaf 1792)). In 1828, New York changed the common-law offense of assisting suicide from murder to manslaughter in the first degree. See 2 N. Y. Rev. Stat. pt. 4, ch. 1, tit. 2, art. 1, §7, p. 661 (1829). In 1881, New York adopted a new penal code making attempted suicide a crime punishable by two years in prison, a fine, or both, and retaining the criminal prohibition against assisting suicide as manslaughter in the first degree. Act of July 26, 1881, ch. 676, §§ 172–178, 1881 N. Y. Laws (3 Penal Code), pp. 42–43 (codified at 4 N. Y. Consolidated Laws, Penal Law §§2300–2306, pp. 2809–2810 (1909)). In 1919, New York repealed the statutory provision making attempted suicide a crime. See Act of May 5, 1919, ch. 414, §1, 1919 N. Y. Laws 1193. 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." State of New York, Report of the Law Revision Commission for 1937, p. 830. The report stated that since New York had removed "all stigma [of suicide] as a crime" and that "[s]ince liability as an accessory could no longer hinge upon the crime of a principal, it was necessary to define it as a substantive offense." Id., at 831. In 1965, New York revised its penal law, providing that a "person is guilty of manslaughter in the second degree when...he intentionally causes or aids another person to commit suicide." Penal Law, ch. 1030, 1965 N. Y. Laws 2387 (codified at N. Y. Penal Law §125.15(3) (McKinney 1975)).
Washington's first territorial legislature designated assisting another "in the commission of self-murder" to be manslaughter, see Act of Apr. 28, 1854, §17, 1854 Wash. Laws 78, and reenacted 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)). In 1909, the state legislature enacted a law based on the 1881 New York law and a similar one enacted in Minnesota, see Marzen, O'Dowd, Crone, & Balch, 24 Duquesne L. Rev., at 206, making attempted suicide a crime punishable by two years in prison or a fine, and retaining the criminal prohibition against assisting suicide, designating it manslaughter. See Criminal Code, ch. 249, §§133–137, 1909 Wash. Laws, 11th Sess., 890, 929 (codified at Remington & Ballinger's Wash. Code §§2385–2389 [p. 776] (1910)). In 1975, the Washington Legislature repealed these provisions, see Wash. Crim. Code, 1975, ch. 260, §9A.92.010 (213–217), 1975 Wash. Laws 817, 858, 866, and enacted the ban on assisting suicide at issue in this case, see Wash. Crim. Code, 1975, ch. 260, §9A.36.060, 1975 Wash. Laws 817, 836, codified at Rev. Wash. Code § 9A.36.060 (1977). The decriminalization of attempted suicide reflected the view that a person compelled to attempt it should not be punished if the attempt proved unsuccessful. See Compassion in Dying v. Washington, 850 F.Supp. 1454, 1464, n. 9 (WD Wash. 1994) (citing Legislative Council Judiciary Committee, Report on the Revised Washington Criminal Code 153 (Dec. 3, 1970).
14 ^ . Numerous States have enacted statutes prohibiting assisting a suicide. See, e. g., Alaska Stat. Ann. §11.41.120(a)(2) (1996); Ariz. Rev. Stat. Ann. §13–1103(A)(3) (Supp. 1996–1997); Ark. Code Ann. §5–10–104(a)(2) (1993); Cal. Penal Code Ann. §401 (West 1988); Colo. Rev. Stat. §18–3–104(1)(b) (Supp. 1996); Conn. Gen. Stat. §53a–56(a)(2) (1997); Del. Code Ann., Tit. 11, §645 (1995); Fla. Stat. §782.08 (1991); Ga. Code Ann. §16–5–5(b) (1996); Haw. Rev. Stat. §707–702(1)(b) (1993); Ill. Comp. Stat., ch. 720, §5/12–31 (1993); Ind. Code §§35–42–1–2 to 35–42–1–2.5 (1994 and Supp. 1996); Iowa Code Ann. §707A.2 (West Supp. 1997); Kan. Stat. Ann. §21–3406 (1995); Ky. Rev. Stat. Ann. §216.302 (Michie 1994); La. Rev. Stat. Ann. §14:32.12 (West Supp. 1997); Me. Rev. Stat. Ann., Tit. 17–A, §204 (1983); Mich. Comp. Laws Ann. §752.1027 (West Supp. 1997–1998); Minn. Stat. §609.215 (1996); Miss. Code Ann. §97–3–49 (1994); Mo. Rev. Stat. §565.023.1(2) (1994); Mont. Code Ann. §45–5–105 (1995); Neb. Rev. Stat. §28–307 (1995); N. H. Rev. Stat. Ann. §630:4 (1996); N. J. Stat. Ann. §2C:11–6 (West 1995); N. M. Stat. Ann. §30–2–4 (1996); N. Y. Penal Law § 120.30 (McKinney 1987); N. D. Cent. Code § 12.1–16–04 (Supp. 1995); Okla. Stat., Tit. 21, §§ 813–815 (1983); Ore. Rev. Stat. §163.125(1)(b) (1991); Pa. Stat. Ann., Tit. 18, §2505 (Purdon 1983); R. I. Gen. Laws§§ 11–60–1 through 11–60–5 (Supp. 1996); S. D. Codified Laws §22–16–37 (1988); Tenn. Code Ann. §39–13–216 (Supp. 1996); Tex. Penal Code Ann. §22.08 (1994); Wash. Rev. Code §9A.36.060 (1994); Wis. Stat. §940.12 (1993–1994). See also P. R. Laws Ann., Tit. 33, §4009 (1984).
15 ^ . Other States have enacted similar provisions, some categorically authorizing such pain treatment, see, e. g., Ind. Code §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. §707A.3.1 (West Supp. 1997) (same); Ky. Rev. Stat. Ann. §216.304 (Michie 1997) (same); Minn. Stat. Ann. §609.215(3) (West Supp. 1997) (same); Ohio Rev. Code Ann. §§2133.11(A)(6), 2133.12(E)(1) (1994); R. I. Gen. Laws §11–60–4 (Supp. 1996) (same); S. D. Codified Laws §22–16–37.1 (Supp. 1997); see Mich. Comp. Laws Ann. §752.1027(3) (West Supp. 1997); Tenn. Code Ann. §39–13–216(b)(2) (1996); others permit patients to sign health-care directives in which they authorize pain treatment even if it hastens death. See, e. g., Me. Rev. Stat. Ann., Tit. 18–A, §§5–804, 5–809 (1996); N. M. Stat. Ann. §§24–7A–4, 24–7A–9 (Supp. 1995); S. C. Code Ann. §62–5–504 (Supp. 1996); Va. Code Ann. §§54.1–2984, 4.1–2988 (1994).
16 ^ . While it is also more difficult to assess in cases involving limitations on life incidental to pain medication and the disconnection of artificial life support, there are reasons to justify a lesser concern with the punctilio of responsibility in these instances. The purpose of requesting and giving the medication is presumably not to cause death but to relieve the pain so that the State's interest in preserving life is not unequivocally implicated by the practice; and the importance of pain relief is so clear that there is less likelihood that relieving pain would run counter to what a responsible patient would choose, even with the consequences for life expectancy. As for ending artificial life support, the State again may see its interest in preserving life as weaker here than in the general case just because artificial life support preserves life when nature would not; and, because such life support is a frequently offensive bodily intrusion, there is a lesser reason to fear that a decision to remove it would not be the choice of one fully responsible. 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). The patient's responsibility and competence are therefore crucial when the physician is presented with the request.
17 ^ . Again, the same can be said about life support and shortening life to kill pain, but the calculus may be viewed as different in these instances, as noted just above.