SUPREME COURT OF THE UNITED STATES

                                    --------
                                   No. 96-110
                                    --------
           WASHINGTON, ET AL., PETITIONERS v. HAROLD GLUCKSBERG ET AL.
                                          ____

       ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
                                  NINTH CIRCUIT

                                 [June 26, 1997]

  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 S9A.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.
                                        I

  Although the terminally ill original parties have died during the pendency of
this case, the four physicians

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2                           WASHINGTON v. GLUCKSBERG
                                      ____

who remain as respondents here (Ftnote. 1) continue to request declaratory and
                               (Ftnote. 1)
injunctive relief for their own benefit in discharging their obligations to
other dying patients who request their help. (Ftnote. 2)  See, e.g., Southern
                                             (Ftnote. 2)       _____ ________
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
(para.)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., at
                                                                   ___
(para.)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

                    
____________________

   1)  A nonprofit corporation known as Compassion in Dying was also a
   1)  
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
   2)  
statute not as facial but as-applied, and I understand it to be in narrower
terms than those accepted by the Court.


prescribe medications to [such] patients in dosages that would enable them to
act to hasten their own deaths."  Id., at (para.)2.6; see also App. 35-37,
                                  ___
49-51, 55-57, 73-75.
  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 (para.)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

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4                           WASHINGTON v. GLUCKSBERG
                                      ____

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 termination 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.
                                       II
  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, (Ftnote. 3) they are not
                                           (Ftnote. 3)

                    
____________________

   3)  The doctors also rely on the Equal Protection Clause, but that source of
   3)  
law does essentially nothing in a case like this that the Due Process Clause
cannot do on its own.


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 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, (Ftnote. 4) on which I will dwell further on, while the ac-
                (Ftnote. 4)
           ___

                    
____________________

   4)  The status of the Harlan dissent in Poe v. Ullman, 367 U. S. 497 (1961),
   4)                                      ___    _______
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).

                                 96-110 - CONCUR

6                           WASHINGTON v. GLUCKSBERG
                                      ____

knowledged 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, repeating Magna Carta's
guarantee of "the law of the land." (Ftnote. 5)  On the basis of such clauses,
                                    (Ftnote. 5)
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) (Green, J.); id., at 613-615 (Peck, J.); id., at 618-623 (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,

                    
____________________

   5)  Coke indicates that prohibitions against deprivations without "due
   5)  
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).


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 (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 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) (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 subse-
            _________
quent, 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, S10 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

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8                           WASHINGTON v. GLUCKSBERG
                                      ____

authentically "legislative" act.  Fletcher, 6 Cranch, 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 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. (Ftnote. 6)  After that, opinions
                                            (Ftnote. 6)
                               ____

                    
____________________

   6)  The Slaughter-House Cases are important, of course, for their holding
   6)      _____________________
that the Privileges or Immunities Clause was no source of any but a specific
handful of substantive rights.  Slaughter-House Cases, 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 or 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.


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. Kansas, 123 U. S. 623, 659-670
______                            ______    _______
(1887).  See generally Corwin, Liberty Against Government, 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

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10                          WASHINGTON v. GLUCKSBERG
                                      ____

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 determina-
tion 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 suc-
                                                  __________   ________
ceeded 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 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."  Id., 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) (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,
                                      _____    ____________
327-238 (1937) ("even 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).

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12                          WASHINGTON v. GLUCKSBERG
                                      ____

  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. 478 (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 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 acknowledgement 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, 505 U. S. 833, 849,
          ______________________________________    ______
869-879 (1992) (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 application to individuals, nevertheless destroy the
enjoyment of all three."  Poe, 367 U. S., at 541. (Ftnote. 7)  The
                                                  (Ftnote. 7)
                          ___

                    
____________________

   7)  Judge Johnson of the New York Court of Appeals had made the point more
   7)  
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, "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." 
Wynehamer v. People, 13 N. Y. 378, 420 (1856).
_________    _______

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14                          WASHINGTON v. GLUCKSBERG
                                      ____

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 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.
                                       III
  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. 833, 847-849 (1992).  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 serve as a substitute, in this area, for judgment
   and restraint."  Id.,
                    ____

                                 96-110 - CONCUR

16                          WASHINGTON v. GLUCKSBERG
                                      ____

   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, 481 U. S., 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,
                                                                           ____
367 U. S., 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 sub-
stantive rights are those resting on "certain interests requir[ing] particularly
careful scrutiny of the state needs asserted to justify their abridgment.  Cf.
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
aspect of `liberty' . . . [is] subjec[t] to `strict scrutiny'") (quoting
Skinner v. Oklahoma ex rel. Williamson, 316 U. S., at
_______    ____________________________
541); (Ftnote. 8) Reno v. Flores, 507 U. S. 292, 301-302 (1993) (reaffirming
      (Ftnote. 8) ____    _______
that due process "forbids the government to infringe certain `fundamental'
liberty interests . . . unless the infringement is narrowly tailored to serve a
compelling state interest"). (Ftnote. 9)
                             (Ftnote. 9)
  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 exempli-

                    
____________________

   8)  We have made it plain, of course, that not every law that incidentally
   8)  
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
   9)  
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 17-18.
                                                               _____

                                 96-110 - CONCUR

18                          WASHINGTON v. GLUCKSBERG
                                      ____

fied 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 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). (Ftnote. 10)
      (Ftnote. 10)
  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 in-

                    
____________________

   10)  Our cases have used various terms to refer to fundamental liberty
   10)  
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, 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, 367 U. S., 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.

                                 96-110 - CONCUR

20                          WASHINGTON v. GLUCKSBERG
                                      ____

stance 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 example, 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 Dred Scott v.
                                                             __________
Sandford, 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 is
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
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. (Ftnote. 11)  The individuals' interest was therefore at
                  (Ftnote. 11)
___

                    
____________________

   11)  Thus, as the Poe dissent illustrates, the task of determining whether
   11)               ___
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 justifica-
tion 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.

                                 96-110 - CONCUR

22                          WASHINGTON v. GLUCKSBERG
                                      ____

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.
  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
counter-claims, 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. (Ftnote. 12)  We may therefore
                                          (Ftnote. 12)
classify Justice Harlan's example of proper analysis 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

                    
____________________

   12)  The dual dimensions of the strength and the fitness of the government's
   12)  
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.
              ______ ______

                                 96-110 - CONCUR

24                          WASHINGTON v. GLUCKSBERG
                                      ____

narrow scope cannot be recognized without jeopardy to individuals whom the State
may concededly protect through its regulations.
                                       IV

                                        A
  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
(para.)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 S9A.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
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.

                                        1
  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 Duquense 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. (Ftnote. 13)  Criminal prohibi-
                 (Ftnote. 13)
                    
____________________

   13)  Washington and New York are among the minority of States to have
   13)  
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 Feb. 21, 1788, ch. 37, S2, 1788 N.Y. Laws 664
(codified at 2 N. Y. Laws 242) (Jones & Varick 1789).  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, S7, 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, SS 172-178, 1881 N. Y. Laws (3 Penal
Code), pp. 42-43 (codified at 4 N. Y. Consolidated Laws, Penal Law SS2300 to
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, S1, 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 at 2387 (codified at N. Y.  Penal
Law S125.15(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,
S17, 1854 Wash. Laws 78, and re-enacted the provision in 1869 and 1873, see Act
of Dec. 2, 1869, S17, 1869 Wash. Laws 201; Act of Nov. 10, 1873, S19, 1873 Wash.
Laws 184 (codified at Wash. Code S794 (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, mak-
ing 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, SS133-137, 1909 Wash. Laws, 11th
Sess. 890, 929 (codified at Remington & Ballinger's Wash. Code SS2385-2389
(1910)).  In 1975, the Washington Legislature repealed these provisions, see
Wash. Crim. code, 1975, ch. 260, S9A.92.010 (213-217) 1975 Wash. Laws 817, 858,
866, and enacted the ban on assisting suicide at issue in this case, see Wash.

                                 96-110 - CONCUR

26                          WASHINGTON v. GLUCKSBERG
                                      ____

tions on such assistance remain widespread, as exemplified in the Washington
statute in question here. (Ftnote. 14)
                          (Ftnote. 14)

                    
____________________

Crim. code, 1975, ch. 260, S9A.36.060 1975 Wash. Laws 817, 836, codified at Rev.
Wash. Code SS9A.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. 
   14)  
See, e.g., Alaska Stat. Ann. S11.41.120(a)(2) (1996); Ariz. Rev. Stat. Ann.
     _____
S13-1103(A)(3) (West Supp. 1996-1997); Ark. Code Ann. S5-10-104(a)(2) (1993);
Cal. Penal Code Ann. S401 (West 1988); Colo. Rev. Stat. S18-3-104(1)(b) (Supp.
1996); Conn. Gen. Stat. S53a-56(a)(2) (1997); Del. Code Ann. Tit. 11, S645
(1995); Fla. Stat. S782.08 (1991); Ga. Code Ann. S16-5-5(b) (1996); Haw. Rev.
Stat. S707-702(1)(b) (1993); Ill. Comp. Stat., ch. 720, S5/12-31 (1993); Ind.
Stat. Ann. SS35-42-1-2 to 35-42-1-2.5 (1994 and Supp. 1996); Iowa Code Ann.
S707A.2 (West Supp. 1997); Kan. Stat. Ann. S21-3406 (1995); Ky. Rev. Stat. Ann.
S216.302 (Michie 1994); La. Rev. Stat. Ann. S14:32.12 (West Supp. 1997); Me.
Rev. Stat. Ann., Tit. 17-A, S204 (1983); Mich. Comp. Laws Ann. S752.1027 (West
Supp. 1997-1998); Minn. Stat. S609.215 (1996); Miss. Code Ann. S97-3-49 (1994);
Mo. Stat. S565.023.1(2) (1994); Mont. Code Ann. S45-5-105 (1995); Neb. Rev.
Stat. S28-307 (1995); N. H. Rev. Stat. Ann. S630:4 (1996); N. J. Stat. Ann.
S2C:11-6 (West 1995); N. M. Stat. Ann. S30-2-4 (1996); N. Y. Penal Law S120.30
(McKinney 1987); N. D. Cent. Code S12.1-16-04 (Supp. 1995); Okla. Stat. Tit. 21,
SS813-815 (1983); Ore. Rev. Stat. S163.125(1)(b) (1991); Pa. Cons. Stat. Ann.,
Tit. 18 Purdon S2505 (1983); R. I. Gen. Laws SS11-60-1 through 11-60-5 (Supp.
1996); S. D. Codified Laws S22-16-37 (1988); Tenn. Code Ann. S39-13-216 (Supp.
1996); Tex. Penal Code Ann. S22.08 (1994); Wash. Rev. Code S9A.36.060 (1994);
Wis. Stat. S940.12 (1993-1994).  See also P. R. Law Ann., Tit. 33, S 4009
(1984).


  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.  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 encourage-
ment.  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
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

                                 96-110 - CONCUR

28                          WASHINGTON v. GLUCKSBERG
                                      ____

Physician-Assisted Suicide and Physician-Committed Euthanasia?, 18 Am. J. L. &
Med. 369, 375 (1992); Marzen, O'Dowd, Crone, & Balch 24 Duquesne L. Rev. supra,
                                                                         _____
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
                                  ____
S210.5, 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 Wash-
                                                                         _____
ington 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 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
                                                         ______  ______
("we 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 assis-
tance 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,
                                                                         _____
505 U. S., 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 physi-
cian 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.
  There is, finally, one more reason for claiming that a physician's assistance
here would fall within the ac-

                                 96-110 - CONCUR

30                          WASHINGTON v. GLUCKSBERG
                                      ____

cepted 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 appar-
ent 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.


  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 SS70.122.110, 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 S70.122.010 (1994); see generally P. 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). (Ftnote. 15)
                                                  (Ftnote. 15)

                    
____________________

   15)  Other States have enacted similar provisions, some categorically
   15)  
authorizing such pain treatment, see, e.g., Ind. Code Ann. S35-42-1-2.5(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. S707A.3.1 (West Supp. 1997)
(same); Ky. Rev. Stat. Ann. S216.304 (Michie 1997) (same); Minn. Stat. Ann.
S609.215(3) (West Supp. 1997) (same); Ohio Rev. Code Ann. SS2133.11(A)(6),
2133.12(E)(1) (1994); R. I. Gen. Laws S11-60-4 (Supp. 1996) (same); S. D.
Codified Laws S22-16-37.1 (Supp. 1997); see Mich. Comp. Laws Ann. S752.1027(3)
(West Supp. 1997); Tenn. Code Ann. S39-13-216(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, SS5-804,
                                ____
5-809 (1996); N. M. Stat. Ann. SS24-7A-4, 24-7A-9 (Supp. 1995); S. C. Code Ann.
S62-5-504 (Supp. 1996); Va. Code Ann. SS54.1-2984, 4.1-2988 (1994).

                                 96-110 - CONCUR

32                          WASHINGTON v. GLUCKSBERG
                                      ____

                                        2
  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
                                  ____
S210.5, Comment 1, pp. 92-93, and n. 7 (1980), 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.
  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. 
                                        B
  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

                                 96-110 - CONCUR

34                          WASHINGTON v. GLUCKSBERG
                                      ____

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 or
unreimbursed hospitals decline to shoulder.  Voluntary and involuntary eutha-
nasia 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 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. (Ftnote. 16)  Second, this
                                                      (Ftnote. 16)

                    
____________________

   16)  While it is also more difficult to assess in cases involving limita-
   16)  
tions 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.

                                 96-110 - CONCUR

36                          WASHINGTON v. GLUCKSBERG
                                      ____

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 were 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 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. (Ftnote. 17)  The case for the slippery slope is
                                (Ftnote. 17)
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

                    
____________________

   17)  Again, the same can be said about life support and shortening life to
   17)  
kill pain, but the calculus may be viewed as different in these instances, as
noted just above.


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 time span; 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 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 increas-

                                 96-110 - CONCUR

38                          WASHINGTON v. GLUCKSBERG
                                      ____

ingly 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 un-
doubtedly legitimate exercise of power; facts necessary to resolve the contro-
versy are not readily ascertainable through the judicial process; but they are
more readily subject to discovery through legislative factfinding and experimen-
tation.  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 experi-
mentation in some jurisdictions confirmed or discredited the concerns about
progression from assisted suicide to euthanasia.
  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.
                                                               ___

                                 96-110 - CONCUR

40                          WASHINGTON v. GLUCKSBERG
                                      ____

Rev. Stat. Ann. SS127.800 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 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.