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Justice Kogan's Dissent
The notion of "dying by natural causes" contrasts neatly with the word "suicide," suggesting two categories readily distinguishable from one another. How nice it would be if today's reality were so simple. No doubt there once was a time when, for all practical purposes, the distinction was clear enough to all. But that was a time before today, before technology had crept into medicine, when dying was a far more inexorable process. Medicine now has pulled the aperture separating life and death far enough apart to expose a limbo unthinkable fifty years ago, for which the law has no easy description. Dying no longer falls into the neat categories our ancestors knew. In today's world, we demean the hard reality of terminal illness to say otherwise.
Even the evolution of the legal term "suicide" shows the change forced upon us. At common law in both England and the United States, "suicide" was any action or inaction causing one's own death even if intended "to avoid those ills which [people] had not the fortitude to endure." 4 William Blackstone, Commentaries *189. The duty imposed by this law on the dying was especially rigorous:
The life of those to whom life has become a burdenof those who are hopelessly diseased or fatally woundednay, even the lives of criminals condemned to death, are under the protection of the law, equally as lives of those who are in the full tide of life's enjoyment, and anxious to continue to live.
Blackburn v. State, 23 Ohio St. 146, 163 (1873). If this law were in effect today, there could be no question about Mr. Hall's case: He would be forced to endure his final agony. Perhaps that notion made sense in the medieval age that invented it, before the most basic processes of disease were understood. Today it reflects a cruelty we cannot take lightly.
The ability of medicine to intrude so profoundly into the act of dying has prompted a rising emphasis on the right of privacy, with its deep concern with selfdetermination. Since being added to the state Constitution in 1980, Florida's privacy right unquestionably has subtracted certain deathinducing actions from the category of "suicide" as defined at common law. Thus, in Satz v. Perlmutter, 379 So. 2d 359, 360 (Fla. 1980), we upheld the decision of an individual suffering Lou Gehrig's disease to cease artificial respiration needed to keep him alive. In Public Health Trust v. Wons, 541 So. 2d 96, 9798 (Fla. 1989), we upheld an individual's right to refuse a blood transfusion needed to save her life even though she had children, where refusal was based on religious beliefs. On similar facts, we reached the same conclusion In re Dubreuil, 629 So. 2d 819, 82728 (Fla. 1993), where the State failed to establish the unfitness of the other parent to assume custody of the children. In re Guardianship of Browning, 568 So. 2d 4, 17 (Fla. 1990), we found that the right to refuse treatment could be asserted by a surrogate on behalf of a woman who was vegetative but not terminally ill, but who previously had indicated she wanted life support removed in such circumstances. All of these acts would have been suicide at common law, and the assistance provided by physicians would have been homicide. Today they are not.
Once Florida had set itself adrift from the common law definition, the problem that immediately arosethat has vexed our courts ever sinceis where to draw the new dividing line between improper "suicide" and the emerging "right of selfdetermination" without simultaneously authorizing involuntary euthanasia. This is no simple task. And until today, no Florida court had attempted it. The majority tries to fix the mark through scrutinizing the means by which dying occurs: Suicide thus is "active" death caused by a "death producing agent," whereas Floridians have a right to choose "passive" death through "natural causes." While language in our prior opinions can be read to support this view, I am not convinced this language can be stretched beyond the differing facts we previously faced. All of these earlier cases dealt with the refusal of medical treatment needed if life was to continue. The present case asks a far different question: How must Charles Hall die, given the fact an agonizing death is both imminent and inevitable? Principles developed in these earlier cases were not intended to, and to my mind cannot properly, resolve the very different and very troubling legal issues surrounding an unstoppable, painful death.
Indeed, the majority's "sharp" distinction between active and passive dying may cause substantial mischief. The price could be, on one hand, agony forced upon dying patients by physicians who simply do not know what else they can lawfully do, or on the other hand, a legally questionable medical hypocrisy that distorts the "active" versus "passive" distinction in an effort to be humane. Until today, for example, many people viewed Browning as letting patients make an advance refusal of nasogastric feeding and hydration effective whenever they became incompetent, no matter how incompetency came about. This was true even if a conscious patient voluntarily requested complete sedation to relieve otherwise unquenchable pain of a terminal illness. Given the majority's meansbased analysis, I am at a loss to explain what now must happen in this situation, because it is here that the distinction between "active death" and "passive death" breaks down. Honoring the patient's request is very hard to distinguish from the assistance Mr. Hall requests, since both involve the "active" administration of a drug with intent to produce a more rapid death. As Florida's own living will statute indicates, physicians are not authorized "to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying." ยง 765.309(1), Fla. Stat. (1995) (emphasis added). Yet, I for one have great difficulty saying that, privacy notwithstanding, the law must force Mr. Hall to suffer his agony as best he can or else must force nasogastric support on him until AIDS finally takes him away. This is little more than a retreat to the common law rule developed in Europe's Dark Ages.
One might argue that the two situations are distinguishable because in the latter the drug is not actually the "death producing agent"starvation and dehydration arewhereas in Mr. Hall's case the drug itself would cause death. Yet the distinction is unworkable, as demonstrated in another hypothetical: Suppose, for example, that the person asking to be permanently sedated is not terminally ill but merely suffers chronic, irreversible pain. Would it be an illegal assisted suicide if the attending physician agreed to narcotize the patient to allow starvation and dehydration? And what if the patient is an adult of sound mind who simply feels life no longer worthwhile? Can the physician also sedate and starve this one? Under a meansbased test, any one of these hypotheticals must be suicide if any other is. And while I might agree that the latter two examples are questionable, I am utterly unwilling to suggest that Mr. Hall's case also might be. When his pain becomes unbearable, which one of us on this Court will be at his bedside telling him to be brave and bear it?
The issue is different here. In cases of this type, we simply cannot focus on the means by which death occurs, but on the fact that the patient at the time in question has reached the death bed. That is the fact unique in this case that was not present in the earlier cases, and it is the reason why we must use a different analysis. A meansbased test works well in the context of refusing medical treatment where life otherwise will continue. It does not work where there is no question death must occur, and must occur painfully.
To my mind, the right of privacy attaches with unusual force at the death bed. This conclusion arises in part from the privacy our society traditionally has afforded the death bed, but also from the very core of the right of privacythe right of selfdetermination even in the face of majoritarian disapproval. See Shaktman v. State, 553 So. 2d 148, 151 (Fla. 1989). 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. Terminal illness is not a portrait in blacks and whites, but unending shades of gray, involving the most profound of personal, moral, and religious questions. Many people can and do disagree over these questions, but the fact remains that it is the dying person who must resolve them in the particular case. And while we certainly cannot ignore the slipperyslope problem, we previously have established fully adequate standards to police the exercise of privacy rights in this context to ensure against abuse.
Finally, I cannot ignore the majority's statement that the issues in this case must be left to the legislature. Such a statement ignores fundamental tenets of our law. Constitutional rights must be enforced by courts even against the legislature's powers, and privacy in particular must be enforced even against majoritarian sentiment. Shaktman. Indeed, the overarching purpose of the Florida Declaration of Rights along with its privacy provision is to "protect each individual within our borders from the unjust encroachment of state authorityfrom whatever official sourceinto his or her life." Traylor v. State , 596 So. 2d 957, 963 (Fla. 1992).
At a fundamental level, the role of the Justices and judges of Florida is to guarantee and enforce the protection afforded by these basic rights. This is at once a judge's greatest calling and heaviest burden. It is an obligation we shoulder by our oath of office, binding ourselves to enforce individual liberty even in the face of public or official opposition. To shield the liberties of the individual from encroachment is uniquely the task of courts. In that sense, we are obliged to give sanctuary against the overreaches of government.
I think we must be mindful of the history that led the American states to interpose their courts as a bulwark between majority will and the basic rights of individuals. When governed by the British Parliament and Crown, our states not only were denied representation in the general government: They also were subject to a system of rule in which individual liberties came and went with passing political currents. This was possible because Great Britain had no written constitution and a judicial system readily controlled by Parliament and the sovereign. Though in earlier times the Church had offered some degree of sanctuary from the State's excesses, this protection had vanished when the English Reformation subordinated the pulpit to the Crown. The collective abuses heaped on the colonies by this political climate directly led to the American Revolution and inspired the most basic provisions of the federal and state constitutions.
British abuses were many. Property rights honored under the rule of one monarch might succumb to abrupt confiscation when an heir succeeded to the throne. When government turned evil, nothing existed to stop its overreaching short of revolution. Confessions were admissible even if obtained with the rack and the screw. Parliament couldand didapprove legislation that created "retroactive crimes," punishing conduct lawful at the time of its commission. This often was done for simple revenge or to eliminate a hated rival. "Bills of attainder" were passed by Parliament imposing the death penalty on an individual without benefit of trial, often for reasons purely political in nature. Treason, punishable by death, could consist of mere criticism of the Crown or its policies as demonstrated in the trial and execution of St. Thomas More. Those "attainted" by act of Parliament or convicted of treason could suffer confiscation of all their property. Their bloodlines could be declared legally "corrupt," depriving heirs of the right to inherit. In this climate, every change in the political structure of British government put the liberties of all in jeopardy.
The American states would have none of this when the chance came for them to establish a new order in the New World. As noted by James Madison, one of the framers of the federal Constitution: "The sober people of America are weary of the fluctuating policy which has directed the public councils." The Federalist No. 44, at 282 (James Madison)(Clinton Rossiter ed., 1961). Their solution was to entirely remove from the political process certain kinds of issues. While the American states would be democracies in a broad sense, the authority of their democratic assemblies and executives was carefully circumscribed. This was achieved not merely by the adoption of the world's first written Constitution, but also by the subsequent addition of the Bill of Rights. Early state constitutions, though differing in many ways, both influenced and followed the federal model.
The truly remarkable, and at the time unprecedented, feature of these documents was that they defined basic rights neither the legislative nor executive branches could modify. These rights, in other words, were put beyond the ordinary political process. They could not be repealed by a mere majority vote of legislators nor were they alterable through any process except constitutional amendment.
From the outset, the framers of the federal Constitution envisioned the courts as the crucial enforcers of the new limitations they placed on government. Alexander Hamilton wrote:
Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
The Federalist No. 78, at 466 (Alexander Hamilton)(Clinton Rossiter ed., 1961). In Florida, our judiciary likewise is the one branch that emphatically must protect the basic rights of individuals against governmental overreaching. We guard liberty's sanctuary. It is our greatest duty to the people of Florida.
Florida's express right of privacy clearly forms a major component of the protections afforded by the Declaration of Rights. Codified in the Constitution in 1980, it is a fundamental right that protects the people's "legitimate expectations of privacy." Winfield v. Division of PariMutuel Wagering, 477 So. 2d 544, 547 (Fla. 1985). The legitimacy of such expectations are defined neither by consensus nor majoritarian sentiment, Shaktman v. State, 553 So. 2d 148, 151 (Fla. 1989), but by reference to the historical development of the AngloAmerican concept of "ordered liberty." Winfield, 477 So. 2d at 546. Put another way, our right of privacy is both general and comprehensive. It guarantees to individuals, as against government, the broadest possible personal autonomy and freedom from disclosures of personal information that are consistent with an ordered society. As we have stated:
[T]he concept of privacy encompasses much more than the right to control the disclosure of information about oneself. "Privacy" has been used interchangeably with the common understanding of the notion of "liberty," and both imply a fundamental right of selfdetermination subject only to the state's compelling and overriding interest. For example, privacy has been defined as an individual's "control over or the autonomy of the intimacies of personal identity, Gerety, Redefining Privacy, 12 Harv. C.R.C.L.L. Rev. 233, 281 (1977); or as a "physical and psychological zone within which an individual has the right to be free from intrusion or coercion, whether by government or by society at large." Cope, To Be Let Alone: Florida's Proposed Right of Privacy, 6 Fla. St. U.L. Rev. 671, 677 (1978).
In re Guardianship of Browning, 568 So. 2d 4, 910 (Fla. 1990). In sum, privacy protects at a minimum both a "nondisclosure interest" and an "autonomy interest."
Judicial analysis can differ according to which interest is at stake. The difference in analysis arises to the extent that one person's privacy interest is in conflict with other basic rights possessed by separate individuals. This can occur, for example, where enforcement of one person's nondisclosure interests will undermine freedom of the press or the right to a fair trial. When such conflict exists, the Court has used a balancing test to resolve the competing constitutional claims.
Autonomy interests, by contrast, typically involve personal decisions about one's own body, home, or private life. Intrusion is inherently less justifiable to the extent the state is acting solely in its regulatory capacity. Because privacy exists precisely to protect individuals from overuse of state powers, the general interest in regulating society does not in itself prevail against a valid privacy claim, without more. Rather, the state must establish a special or compelling interest justifying the intrusion into privacy. Otherwise privacy prevails.
Our case law illustrates the distinction between nondisclosure cases and cases involving personal autonomy. We have held that the privacy amendment does not shield public records from disclosure, State v. Hume, 512 So. 2d 185, 188 (Fla. 1987), although it can in certain instances require quashal of a subpoena aimed at private records containing personal information. This was true, for example, where the information sought could harm third parties by identifying them as potential carriers of HIV, at least where that information was not genuinely essential to a fair trial. Rasmussen v. South Fla. Blood Serv. Inc., 500 So. 2d 533, 53738 (Fla. 1987). In reaching this conclusion, the Court weighed the interest in nondisclosure against the information's relevance to the proceedings. Id.; accord Times Publishing Co. v. A.J., 626 So. 2d 1314, 131516 (Fla. 1993).
A similar balancing test has been applied in at least one case where closure of court proceedings and records was sought to preserve alleged privacy interests. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 11819 (Fla. 1988). There, the Court emphasized the need to balance the privacy interest against the right to freedom of information. Id. Thus, the latter outweighed privacy interests of a Florida politician who sought closure of divorce records containing his personal medical records. See id. at 120 (Barkett, J., specially concurring).
Autonomy casesof which the present controversy is oneinvolve issues of a wholly different magnitude. Generally, they ask not how to balance competing rights of individuals, but how far government in its regulatory capacity may intrude into personal decisionmaking. Wherever a legitimate expectation of privacy exists, governmental intrusion into that expectation must be based on a special or "compelling" interest. Interests are compelling if they lie at the core of government's ability to maintain order and protect the rights or wellbeing of others. Moreover, the means used to advance the compelling interest must be narrowly tailored through use of the least intrusive means available. Browning, 568 So. 2d at 14.
We have held, for example, that privacy forbids governmental intrusion into parenting decisions, absent a compelling state interest such as a threat of harm to the child. Beagle v. Beagle, 678 So. 2d 1271, 127576 (Fla. 1996). In broad terms, the intimacies of home life, the relation of parent and child, and the decision how to structure one's private life fall within the guarantee of article I, section 23, subject only to the state's compelling interests.
Yet our cases clearly establish two other autonomy interests of great magnitude. They arise from life's two most personal and private experiencesprocreation and death. In 1989, this Court noted that the voters of Florida approved the privacy amendment at a time when the concept of privacy clearly was understood to give women control of their own bodies in making reproductive decisions, within certain limits. In re T.W., 551 So. 2d 1186 (Fla. 1989). Likewise, we have found that healthcare decisionmaking in generalmost especially when confronting deathis a protected interest. This is so in part because privacy gives people inherent control over decisions affecting their own bodies. E.g., Browning, 568 So. 2d at 11; Public Health Trust v. Wons, 541 So. 2d 96 (Fla. 1989). Thus,
a competent person has the constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one's health.
Browning , 568 So. 2d at 11 (emphasis added).
There is no doubt that the state has an interest in preserving life. Id. at 14. In the vast majority of cases, that interest also is compelling. None of our case law assumes otherwise. But as our cases clearly show, there are rare instances when the state's interest falls below the mark of "compelling." Indeed, the issue before us today as in our earlier cases is the
'substantial distinction in the State's insistence that human life be saved where the affliction is curable, as opposed to the State interest where, as here, the issue is not whether, but when, for how long and at what cost to the individual [his][or her] life may be briefly extended.'
Browning, 568 So. 2d at 14 (quoting Satz v. Perlmutter, 362 So. 2d 160, 162 (Fla. 4th DCA 1978) (quoting Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 74044, 370 N.E. 2d 417, 42526 (1977)), approved, 379 So. 2d 359 (Fla. 1980)). Because Mr. Hall's case involves this same critical distinction, the right of privacy clearly attaches to the decisions he is confronting with the help of his physician. 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. Here, the state is vouchsafing nothing but indignity and sufferinghardly "compelling" interests. I further believe that the rule established by the majority is not merely unworkable but rests on concerns of an era that, however much we may regret it, no longer exists. A sharp dividing line once separated life from death. Today there stretches a chasm of ambiguities. Because the confrontation of these ambiguities is inherently a personal decision, I am unwilling to remove from Mr. Hall's control the way in which he confronts his own personal fate.
I respectfully dissent.
