Krischer v. McIver:
Physician-Assisted Suicide and Privacy in Florida

by Frederick A. Paola, MD., JD, Assistant Professor of Medicine, Division of Medical Ethics and Humanities, University of South Florida College of Medicine

     Almost lost in the shadow cast by the decisions of the U.S. Supreme Court in the twin assisted suicide cases Quill v. Vacco 1 and Washington v. Glucksberg 2 was the decision of the Florida Supreme Court in Florida's own assisted suicide case, Krischer v. Mclver.3
Three terminally ill patients brought suit, asking a Florida trial court to 1) tell them whether they had, under the Privacy Amendment of the Florida Constitution,4 a right to physician-assisted suicide (PAS), and 2) issue an injunction prohibiting Barry Krischer, the local State Attorney, from prosecuting one Dr. McIver in the event he assisted in their suicides. Before the case came to trial, two of the terminally ill patients expired. Only one, Charles Hall, a 35 year old patient suffering with AIDS, lived to see the case go to trial.
     In February of this year, Circuit Judge S. Joseph Davis held that Mr. Hall had a constitutional right to PAS under the Florida Privacy Amendment, and that Dr. McIver had a corresponding right to provide that assistance.5 Judge Davis also concluded that Mr. Hall's right to PAS was protected under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The subsequent decision to the contrary by the U.S. Supreme Court in Quill v. Vacco authoritatively laid to rest any federal constitutional claims, but the state constitutional claims remained undisturbed. The state appealed and, be-cause of the great public importance of the case, the Court of Appeal certified the case directly to the Florida Supreme Court. On July 17,1997, the Florida Supreme Court handed down its long-awaited opinion. The Supreme Court reversed the trial court and held that the Florida statute prohibiting assisted suicide 6 did not violate the Privacy Amendment of the Florida Constitution.

The Analysis of the Court
     The opinion of the Court was authored by Justice Grimes, who was joined by Justices Shaw and Wells. The issue for the Court was whether the state constitutional right to privacy gave Mr. Hall the right to have Dr. McIver assist him in committing suicide.
     Under Florida law, once a state law infringes upon an individual's right to privacy, that law will be struck down as unconstitutional unless the state can show that it has a compelling interest at stake justifying the infringement,7 and that the means used to advance that interest are the least restrictive available (strict scrutiny). 8 Where, on the other hand, neither the right to privacy nor any other fundamental right is implicated, a state law will be upheld as constitutional unless those challenging it can show that the law is not reasonably related to any legitimate state purpose (rational basis test). Thus, for all practical purposes, the decision about whether or not the right to privacy has been implicated is usually outcome determinative.
     Because the Court had rendered several prior decisions 8, 9, 10, 11 declaring that the right to refuse medical treatment is grounded in the Florida Privacy Amendment, the strategy of McIver et al. had been to argue that there is no distinction between the right to refuse medical treatment and the right to commit PAS through self-administration of a lethal dose of medication. Had this argument prevailed, it would have followed that the right to PAS, too, was protected under the Florida Privacy Amendment.
     The Court rejected this argument, however, meaning that the above-mentioned "treatment refusal" cases would not control on the question of whether the right to PAS was protected under the privacy amendment.
     Inexplicably, however, the Court then subjected the state law prohibiting assisted suicide to the same "strict scrutiny" standard that would have been employed had it accepted the "no distinction" argument. While the Court ultimately did find that the state had three compelling interests at stake - "an unqualified interest in the preservation of life," as well as interests "in preventing suicide" and "in maintaining the integrity of the medical profession" and in the process upheld the law against assisted suicide, one wonders why they employed this analysis. Does their employment of the strict scrutiny standard mean that there is a right to PAS independent of the right to refuse medical treatment, and that both fall within the scope of the privacy amendment? The answer would seem to be "no," for the Court goes on to say: "By broadly construing the privacy amendment to include the right to assisted suicide, we would run the risk of arrogating to our-selves those powers to make social policy that as a constitutional matter belong only to the legislature." This strongly implies that the alleged right to PAS does not fall within the scope of the privacy amendment.
     Another possible explanation for the employment of the strict scrutiny analysis is that the Court was concerned that future plaintiffs might try to ground the right to PAS in some other fundamental state constitutional right - perhaps the state constitutional equal protection clause,12 or the due process clause,13 or the religious freedom clause 14 - and wished to discourage such at-tempts by announcing that the state interests at stake were, in the Court's mind, compelling.
     The Court emphasized that just because the law prohibiting assisted suicide had been adjudged constitutional did not mean that a carefully worded statute authorizing assisted suicide would be unconstitutional. Thus, future battles over assisted suicide are likely to be waged in the Florida political arena.

The Concurrences
     Justice Overton wrote separately to emphasize that the absolute right to assisted suicide is not protected under the privacy amendment. Yet he, too, found it necessary to add, "the State has clearly established . . . that its compelling interests . . . outweigh any interests Mr. Hall may have," without explaining why he found it necessary to do so. He did point out, however, as an argument against interpreting the privacy amendment as protecting assisted suicide, that at the time the privacy amendment was adopted in 1980, the state law against assisted suicide was already in existence.
     Justice Harding writes unambiguously, "the distinction [between re-fusing medical treatment and obtain-ing a physician's assistance in committing suicide] is of such magnitude that the constitutional right of privacy is not implicated here." Thus, for Justice Harding, there is never any need to reach the question of whether or not the state interests at stake are "compelling".

The Dissent
     Chief Justice Kogan was the lone dissenter. He argued that in cases where "death must occur, and must occur painfully," the distinction between passively refusing medical treatment (permissible and constitutionally protected) and actively causing death by means of a death producing agent (impermissible and unprotected) was inapposite. The Chief Justice argued that the right of privacy protects Mr. Hall's request for PAS, as it protects health-care decision-making in general. Further, while the Chief Justice admitted that "there is no doubt that the state has an interest in preserving life," he added, "I cannot in good conscience say that the state's interest is compelling, given the fact that Mr. Hall's life no longer can be saved." Indeed, he went further in minimizing the state's interest: "What possible interest does society have in saving life when there is nothing of life to save but a final convulsion of agony? The state has no business in this arena." The Chief Justice did not comment on the importance of the state's interest in maintaining the ethical integrity of the medical profession; and in any event he suggested that, as was the case with refusal of medical treatment, it is not necessary to completely prohibit PAS in order to protect against abuses - that means less restrictive than a complete prohibition of PAS (tight regulation by the state, for example) would protect whatever state interests might be at stake.

Conclusion
     Krischer v. McIver was important because, notwithstanding the decision of the U.S. Supreme Court in Quill v. Vacco and Washington v. Glucksberg, a victory by McIver et al. would have provided Hall and similarly situated plaintiffs with a state constitutionally protected right to PAS that the federal government could have done little about. As it turns out, the case now stands as a triumph for the principle of respect for human life, for the ethi-cal integrity of the medical profession, as well as for what has been termed the "antisuicide tradition"15 - that is, the law's traditional discouragement of suicide and at-tempted suicide and its criminalization of assisted suicide. The "antisuicide tradition" has long coexisted with the tradition of allowing persons to refuse life saving medical treatment and, in the wake of Kircher v. McIver continues to do so. Had McIver et al. prevailed, the "antisuicide tradition" in Florida would have been effectively swallowed up by right to refuse medical treatment.

Address correspondence to Dr. Paola at the University of South Florida College of Medicine, Division of Medi-cal Ethics and Humanities, Depart-ment of Internal Medicine, MDC Box 19, 12901 Bruce B. Downs Blvd., Tampa, FL 33612-4799, Tel. (813) 974-5300, Fax (813) 974-5460.

Endnotes:

1 Quill v. Vacco, No. 95-1858 (1997 U.S. Lexis 4038).
2 Washington v. Glucksberg, No. 96-110 (1997 U.S. Lexis 4039).
3 Kischer v. McIver, No. 89, 837 (1997 Fla. Lexis 1053).
4 Article 1, section 23, Florida Constitu-tion.
5 McIver v. Krischer, In the Fifteenth Ju-dicial Circuit Court in and for the County of Palm Beach, Florida, Case No. CL-96-1504- AF.
6 Section 782.08, Florida Statutes (1995).
7 Winfield v. Division of Pari-Mutuel Wa-gering, 477 So.2d 544 (Fla. 1985).
8 In re Guardianship of Browning, 568 So.2d 4, 14 (Fla. 1990).
9 In re Dubreuil, 629 So. 2d 819 (Fla. 1993).
10 Public Health Trust v. Wons, 541 So. 2d 96 (Fla. 1989).
11 Satz v. Perlmutter, 379 So. 2d 359 (Fla. 1980).
12 Article I, section 2, Florida Constitu-tion.
13 Article I, section 9, Florida Constitu-tion.
14 Article I, section 3, Florida Constitu-tion.
15 Kamisar Y. Are laws against assisted suicide unconstitutional? Hastings Center Report. 1993;23(3):32-4l.