For the second time in recent weeks, a federal appeals court has struck down a state's ban on doctor-assisted suicide. The Second Circuit Court of Appeals ruled April 2, 1996, that two New York laws were unconstitutional because they failed to treat individuals equally. The court noted that patients on life support can ask to be disconnected. But others wanting medication to hasten death were not allowed to be given it.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

No. 60 -- August Term, 1995.

(Argued: September 1, 1995 Decided: April 2, 1996)

Docket No. 95-7028

TIMOTHY E. QUILL, M.D.; SAMUEL C.
KLAGSBRUN, M.D.; and HOWARD A. GROSSMAN,
M.D.,

Plaintiffs-Appellants,

v.

DENNIS C. VACCO, Attorney General of the State of
New York; GEORGE E. PATAKI, Governor of the State
of New York; ROBERT M. MORGENTHAU, District
Attorney of New York County,

Defendants-Appellees.

Before: MINER and CALABRESI, Circuit Judges, and
POLLACK, Senior District Judge.*

Appeal from summary judgment for defendants entered
in the United States District Court for the Southern
District of New York (Griesa, Ch. J.) in action to declare
unconstitutional two New York statutes penalizing
assistance in suicide to extent that the statutes prohibit
physicians from acceding to requests of terminally-ill,
mentally competent patients for drugs to hasten death.

Affirmed in part and reversed in part.

Judge Calabresi concurs in a separate opinion.

KATHRYN L. TUCKER, Perkins Coie,
Seattle, WA, and CARLA A. KERR, Hughes
Hubbard & Reed, New York, NY (David J.
Burman, Thomas L. Boeder, Kari Anne
Smith, Perkins Coie, Seattle, WA, Leigh
A. Roveda, Hughes Hubbard & Reed, New
York, NY, of counsel), for Plaintiffs-
Appellants.

MICHAEL POPKIN, Assistant Attorney
General, New York, NY (Dennis C. Vacco,
Attorney General of the State of New
York, Victoria Graffeo, Solicitor
General, Kathie Ann Whipple, Acting
Bureau Chief, Litigation Bureau, Susan
L. Watson, Assistant Attorney General,
of counsel), for Defendants-Appellees.

MARC FRAZIER SCHOLL, Assistant District
Attorney, New York, NY (Robert M.
Morgenthau, District Attorney of New
York County, Marc Dwyer, Assistant
District Attorney, of counsel), for
Defendant-Appellee Robert M. Moraenthau.

(Michael L. Costello, New York State
Catholic Conference, Albany, NY, Mark E. Chopko,
Michael F. Moses, United States Catholic Conference,
Washington, DC, of counsel), for United States Catholic
Conference and New York State Catholic Conference as
amici curiae.

(Michael Tierney, New York, NY, of
counsel), for New York State Right to
Life Committee, Inc. as amicus curiae.

(James Bopp, Jr., Richard E. Coleson,
Bopp, Coleson & Bostrom, Terre Haute,
IN, of counsel), for The National Right
To Life Committee, Inc. as amicus
curiae.

(Paul Benjamin Linton, Clarke D.
Forsythe, Americans United for Life,
Chicago, IL, of counsel), for Members of the New York
State Legislature as amici curiae.

(Cameron Clark, Claudia L. Hammerman,
New York, NY, of counsel), for Lambda
Legal Defense and Education Fund, Inc.,
National Association of People with
AIDS, Unitarian Universalist
Association, Americans for Death with
Dignity, Death with Dignity Education
Center, Gray Panthers Project Fund,
Hemlock Society, and Minna Barrett as
amici curiae.

MINER, Circuit Judge.

Plaintiffs-appellants Timothy E. Quill, Samuel C.
Klagsbrun and Howard A. Grossman appeal from a
summary judgment entered in the United States District
Court for the Southern District of New York (Griesa, Ch.
J.) dismissing their 42 U.S.C. Section 1983 action against
defendants-appellees. The action was brought by
plaintiffs-appellants, all of whom are physicians, to
declare unconstitutional in part two New York statutes
penalizing assistance in suicide. The physicians contend
that each statute is invalid to the extent that it prohibits
them from acceding to the requests of terminally-ill,
mentally competent patients for help in hastening death.
In granting summary judgment in favor of defendants-
appellees, the district court considered and rejected
challenges to the statutes predicated upon the Due Process
and Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution. Quill v.
Koppell, 870 F. Supp. 78 (S.D.N.Y. 1994). We reverse in
part, holding that physicians who are willing to do so may
prescribe drugs to be self-administered by mentally
competent patients who seek to end their lives during the
final stages of a terminal illness.

BACKGROUND

The action giving rise to this appeal was commenced by
a complaint filed on July 20, 1994. The plaintiffs named
in that complaint were the three physicians who are the
appellants here and three individuals then in the final
stages of terminal illness: Jane Doe (who chose to conceal
her actual identity), George A. Kingsley and William A.
Barth. The sole defendant named in that complaint was
G. Oliver Koppell, then the Attorney General of the State
of New York. He has been succeeded as Attorney
General by Dennis C. Vacco, who has been substituted for
him as an appellee on this appeal. According to the
complaint, Jane Doe was a 76-year-old retired physical
education instructor who was dying of thyroid cancer;
Mr. Kingsley was a 48-year-old publishing executive
suffering from AIDS; and Mr. Barth was a 28- year-old
former fashion editor under treatment for AIDS. Each of
these plaintiffs alleged that she or he had been advised and
understood that she or he was in the terminal stage of a
terminal illness and that there was no chance of recovery.
Each sought to hasten death "in a certain and humane
manner" and for that purpose sought "necessary medical
assistance in the form of medications prescribed by [her
or his] physician to be self- administered."

The physician plaintiffs alleged that they encountered, in
the course of their medical practices, "mentally
competent, terminally ill patients who request assistance
in the voluntary self-termination of life."  Many of these
patients apparently "experience chronic, intractable pain
and/or intolerable suffering" and seek to hasten their
deaths for those reasons. Mr. Barth was one of the
patients who sought the assistance of Dr. Grossman. Each
of the physician plaintiffs has alleged that "[u]nder certain
circumstances it would be consistent with the standards of
[his] medical practice" to assist in hastening death by
prescribing drugs for patients to self-administer for that
purpose. The physicians alleged that they were unable to
exercise their best professional judgment to prescribe the
requested drugs, and the other plaintiffs alleged that they
were unable to receive the requested drugs, because of the
prohibitions contained in sections 125.15(3) and 120.30 of
the New York Penal Law, all plaintiffs being residents of
New York.

Section 125.15 of the New York Penal Law provides in
pertinent part:


A person is guilty of manslaughter in the second degree
when:...

3. He intentionally . . . aids another person to commit
suicide.


A violation of this provision is classified as a class C
felony. Id.

Section 120.30 of the New York Penal Law provides:


A person is guilty of promoting a suicide attempt when
he intentionally .... aids another person to attempt suicide.


A violation of this provision is classified as a class E
felony. Id.

Count I of the complaint included an allegation that
"[t]he Fourteenth Amendment guarantees the liberty of
mentally competent, terminally ill adults with no chance
of recovery to make decisions about the end of their
lives." It also included an allegation that

[t]he Fourteenth Amendment guarantees the liberty of
physicians to practice medicine consistent with their best
professional judgment, including using their skills and
powers to facilitate the exercise of the decision of
competent, terminally ill adults to hasten inevitable death
by prescribing suitable medications for the patient to self-
administer for that purpose.


Count II of the complaint included an allegation that
[t]he relevant portions of . . . the New York Penal Law
deny the patient-plaintiffs and the patients of the
physician-plaintiffs the equal protection of the law by
denying them the right to choose to hasten inevitable
death, while terminally ill persons whose treatment
includes life support are able to exercise this choice with
necessary medical assistance by directing termination of
such treatment.


In their prayer for relief the plaintiffs requested
judgment declaring the New York statutes complained of
constitutionally invalid and therefore in violation of 42
U.S.C. Section 1983 "as applied to physicians who assist
mentally competent, terminally ill adults who choose to
hasten inevitable death."  Plaintiffs also sought an order
permanently enjoining defendants from enforcing the
statutes and an award of attorney's fees.

By order to show cause filed on September 16, 1994, the
plaintiffs moved for a preliminary injunction to enjoin
then- Attorney General Koppell "and all persons acting in
concert and participation with him from enforcing New
York Penal Law sections 125.15(3) and 120.30 against
physicians who prescribe medications which mentally
competent, terminally ill patients may use to hasten their
impending deaths."  A declaration by each of the plaintiffs
was submitted in support of the application, although Jane
Doe had died prior to the filing of the order to show
cause. Plaintiffs Kingsley and Barth were then in the
advanced stages of AIDS and therefore sought an
immediate determination by the district court.


In her declaration, Jane Doe stated:

I have a large cancerous tumor which is wrapped around
the right carotid artery in my neck and is collapsing my
esophagus and invading my voice box. The tumor has
significantly reduced my ability to swallow and prevents
me from eating anything but very thin liquids in
extremely small amounts. The cancer has metastasized to
my plural [sic] cavity and it is painful to yawn or cough. .
. . In early July 1994 I had the [feeding] tube implanted
and have suffered serious problems as a result. . . . I take
a variety of medications to manage the pain. . . . It is not
possible for me to reduce my pain to an acceptable level
of comfort and to retain an alert state. . . . At this time, it
is clear to me, based on the advice of my doctors, that I
am in the terminal phase of this disease. . . . At the point
at which I can no longer endure the pain and suffering
associated with my cancer, I want to have drugs available
for the purpose of hastening my death in a humane and
certain manner. I want to be able to discuss freely with
my treating physician my intention of hastening my death
through the consumption of drugs prescribed for that
purpose.


Mr. Kingsley subscribed to a declaration that included
the following:


At this time I have almost no immune system function. .
. My first major illness associated with AIDS was
cryptosporidiosis, a parasitic infection which caused me
severe fevers and diarrhea and associated pain, suffering
and exhaustion. . . . I also suffer from cytomegalovirus
("CMV") retinitis, an AIDS-related virus which attacks
the retina and causes blindness. To date I have become
almost completely blind in my left eye. I am at risk of
losing my sight altogether from this condition. . . . I also
suffer from toxoplasmosis, a parasitic infection which has
caused lesions to develop on my brain. . . . I . . . take
daily infusions of cytovene for the . . . retinitis condition.
This medication, administered for an hour through a
Hickman tube which is connected to an artery in my chest,
prevents me from ever taking showers and makes simple
routine functions burdensome. In addition, I inject my
leg daily with neupogen to combat the deficient white cell
count in my blood. The daily injection of this medication
is extremely painful. . . At this point it is clear to me,
based on the advice of my doctors, that I am in the
terminal phase of [AIDS]. . . . It is my desire that my
physician prescribe suitable drugs for me to consume for
the purpose of hastening my death when and if my
suffering becomes intolerable.


In his declaration, Mr. Barth stated:


In May 1992, I developed a Kaposi's sarcoma skin
lesion. This was my first major illness associated with
AIDS. I underwent radiation and chemotherapy to treat
this cancer... In September 1993, I was diagnosed with
cytomegalovirus ("CMV") in my stomach and colon
which caused severe diarrhea, fevers and wasting. . . . In
February 1994, I was diagnosed with microsporidiosis, a
parasitic infection for which there is effectively no
treatment. . . . At approximately the same time, I
contracted AIDS-related pneumonia. The pneumonia's
infusion therapy treatment was so extremely toxic that I
vomited with each infusion. . . . In March 994, I was
diagnosed with cryptosporidiosis, a parasitic infection
which has caused severe diarrhea, sometimes producing
20 stools a day, extreme abdominal pain, nausea and
additional significant wasting. I have begun to lose bowel
control... For each of these conditions I have undergone a
variety of medical treatments, each of which has had
significant adverse side effects. . . . While I have tolerated
some [nightly intravenous] feedings, I am unwilling to
accept this for an extended period of time... I understand
that there are no cures. . . . I can no longer endure the
pain and suffering . . . and I want to have drugs available
for the purpose of hastening my death


A cross-motion for judgment on the pleadings was filed
by Attorney General Koppell on October 11, 1994.
Thereafter, on October 14, 1994, an amended complaint
was filed by the three physicians and Mr. Kingsley
naming as defendants Attorney General Koppell and New
York State Governor Mario M. Cuomo. The counts of the
complaint were the same as set forth in the original
complaint, alleging violations of liberty interests
guaranteed by the Fourteenth Amendment in Count I and
violation of equal protection rights guaranteed by the
Fourteenth Amendment in Count II. The prayer for
relief remained the same as in the original complaint.
Supplemental declarations in support of the plaintiff's
motion for preliminary injunction also were filed on
October 14, 1994. In their supplemental declarations,
Doctors Klagsbrun and Grossman reiterated their desire
"to prescribe drugs, if and when medically and
psychiatrically appropriate, for such patients to self-
administer at the time and place of their choice for the
purpose of hastening their impending deaths."

In his supplemental declaration, Dr. Quill declared:


The removal of a life support system that directly results
in the patient's death requires the direct involvement by
the doctor, as well as other medical personnel. When such
patients are mentally competent, they are consciously
choosing death as preferable to life under the
circumstances that they are forced to live. Their doctors
do a careful clinical assessment, including a full
exploration of the patient's prognosis, mental competence
to make such decisions, and the treatment alternatives to
stopping treatment. It is legally and ethically permitted
for physicians to actively assist patients to die who are
dependent on life-sustaining treatments. . . .
Unfortunately, some dying patients who are in agony that
can no longer be relieved, yet are not dependent on life-
sustaining treatment, have no such options under current
legal restrictions. It seems unfair, discriminatory, and
inhumane to deprive some dying patients of such vital
choices because of arbitrary elements of their condition
which determine whether they are on life- sustaining
treatment that can be stopped.


Along with the supplemental declarations filed on
October 14th, an original declaration in support of the
motion was filed by Dr. Jack Froom, a physician and
Professor of Family Medicine with substantial experience
in detecting depression in primary care patients. He
declared:


Physicians can determine whether a patient's request to
hasten death is rational and competent or motivated by
depression or other mental illness or instability.
Physicians currently make these determinations as to
patient capacity to make end-of-life decisions with respect
to orders not to  resuscitate and refusal of life-sustaining
treatment. . . . Terminally ill persons who seek to hasten
death by consuming drugs need medical counseling
regarding the type of drugs and the amount and manner
in which they should be taken, as well as a prescription,
which only a licensed medical doctor can provide. . . .
Knowing what drug, in what amount, will hasten death
for a particular patient, in light of the patient's medical
condition and medication regimen, is a complex medical
task. . . . It is not uncommon, in light of present legal
constraints on physician assistance, that patients seeking to
hasten their deaths try to do so without medical advice. .
Very often, patients who survive a failed suicide attempt
find themselves in worse condition than before the
attempt. Brain damage, for example, is one result of
failed suicide attempts.


A second amended complaint was filed on October 20,
1994. The parties, allegations and prayer for relief were
the same as those contained in the first amended
complaint, except that Robert M. Morgenthau, District
Attorney of New York County, was added as a defendant
in his official capacity. Both Dr. Grossman and Dr.
Klagsbrun practice medicine in New York City, and Mr.
Morgenthau is responsible for the prosecution of crimes
occurring in New York County. The physician plaintiffs
each filed second supplemental declarations on November
28, 1994, in support of the motion for a preliminary
injunction. Each stated that he was currently treating
mentally competent, terminally-ill patients who desired to
hasten their deaths by self-administering drugs to be
provided by the physicians "if and when medically and
psychiatrically appropriate."  These patients, according to
the physicians, understood "their condition, diagnosis, and
prognosis and wish[ed] to avoid prolonged suffering by
hastening their deaths if and when their suffering
[became] intolerable." None of the three terminally-ill
plaintiffs named in the original complaint survived to the
date of the district court's decision.

The opinion of the district court was filed on December
16, 1994. The district court denied the motion for a
preliminary injunction and granted the defendants' cross
motion to dismiss the action, treating the cross motion as
one for summary judgment "since the court has
considered matters outside the pleadings-- i.e.,
declarations filed on the motion for preliminary
injunction." Quill, 870 F. Supp. at 79. After finding that
the action presented a justiciable case or controversy, the
district court first addressed the due process issue. The
court determined that physician assisted suicide could not
be classified as a fundamental right within the meaning of
the Constitution:


The Supreme Court has described the considerations
which are appropriate before there can be a declaration
that rights "not readily identifiable in the Constitution's
text" are deserving of constitutional protection. Such
rights must be implicit in the concept of ordered liberty
so that neither liberty nor justice would exist if they were
sacrificed. The Supreme Court has also characterized such
rights as those liberties that are deeply rooted in the
nation's history and traditions.


The trouble is that plaintiffs make no attempt to argue
that physician assisted suicide, even in the case of
terminally ill patients, has any historic recognition as a
legal right.


Id. at 83 (internal citations omitted). Accordingly, the
district court concluded "that the type of physician
assisted suicide at issue in this case does not involve a
fundamental liberty interest protected by the Due Process
Clause of the Fourteenth Amendment."  Id. at 84.

Turning to the equal protection issue, the district court
identified a reasonable and rational basis for the
distinction drawn by New York law between the refusal
of treatment at the hands of physicians and physician
assisted suicide:


[I]t is hardly unreasonable or irrational for the State to
recognize a difference between allowing nature to take its
course, even in the most severe situations, and
intentionally using an artificial death-producing device.
The State has obvious legitimate interests in preserving
life, and in protecting vulnerable persons. The State has
the further right to determine how these crucial interests
are to be treated when the issue is posed as to whether a
physician can assist a patient in committing suicide.


Id. at 84-85. Accordingly, the court held "that plaintiffs
have not shown a violation of the Equal Protection Clause
of the Fourteenth Amendment."  Id. at 85.

DISCUSSION

I. Justiciability

As they did in the district court, the state defendants
contend on appeal that this action does not present a
justiciable case or controversy. We reject this contention.

In Babbitt v. United Farm Workers Nat'l Union, 442
U.S. 289 (1979), the Supreme Court was faced with a
constitutional challenge to an Arizona farm labor statute.
The Court stated that, when contesting the
constitutionality of a state criminal statute, it is not
necessary that the plaintiff first expose himself to actual
prosecution. Id. at 298. Rather,


[w]hen the plaintiff has alleged an intention to engage in
a course of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder, he "should not
be required to await and undergo a criminal prosecution
as the sole means of seeking relief."


Id. (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)).
The Court in Doe held that plaintiff physicians had
presented a justiciable controversy despite the fact that
none had been threatened with prosecution. 410 U.S. at
188. The law that the physicians challenged was a
criminal statute that directly criminalized the physician's
participation in abortion. Accordingly, a sufficiently
concrete controversy was presented.

The same principles lead to the conclusion that there is a
case or controversy at issue here. Dr. Quill has had a
criminal proceeding instituted against him in the past, and
the state nowhere disclaims an intent to repeat a
prosecution in the event of further assisted suicides. The
other two physician plaintiffs also face the threat of
criminal prosecution. Like the physicians in Doe, they
"should not be required to await and undergo a criminal
prosecution as the sole means of seeking under Doe, the
physicians may raise the rights relief." Finally, of their
terminally-ill patients. See id.

Although District Attorney Morgenthau argues in his
brief on appeal that appellants have not shown that they
are in any jeopardy of prosecution in New York County,
a recent indictment by a New York County grand jury
demonstrates the contrary. A newspaper report printed on
December 15, 1995 disclosed the following:


Yesterday, District Attorney Robert M. Morgenthau of
Manhattan announced that a grand jury had indicted
[George] Delury, an editor who lives on the Upper West
Side, on manslaughter charges for helping his 52-year-
old wife, Myrna Lebov, commit suicide last summer.


Carey Goldberg, Suicide's Husband Is Indicted: Diary
Records Pain of 2 Lives, N.Y. Times, Dec. 15, 1995, at
B1.[1] The physician plaintiffs have good reason to fear
prosecution in New York County.

II. Substantive Due Process

Plaintiffs argue for a right to assisted suicide as a
fundamental liberty under the substantive component of
the Due Process Clause of the Fourteenth Amendment.
This Clause assures the citizenry that any deprivation of
life, liberty or property by a state will be attended by
appropriate legal processes.

However, despite the language of the Due Process
Clause] of the... Fourteenth Amendment, which appears to
focus only on the processes by which life, liberty, or
property is taken, the cases are legion in which that
Clause has een interpreted to have substantive content,
subsuming rights that to a great extent are immune from .
. . state regulation or proscription. Among such cases are
those recognizing rights that have little or no textual
support in the constitutional language.


Bowers v. Hardwick, 478 U.S. 186, 191 (1986).

Rights that have no textual support in the language of the
Constitution but qualify for heightened judicial protection
include fundamental liberties so "implicit in the concept
of ordered liberty" that "neither liberty nor justice would
exist if they were sacrificed." Palko v. Connecticut, 302
U.S. 319, 325- 26 (1937). Fundamental liberties also have
been described as those that are "deeply rooted in this
Nation's history and tradition." Moore v. City of East
Cleveland, 431 U.S. 494, 503 (1977); see also Griswold v.
Connecticut, 381 U.S. 479, 506 (1965) (White, J.,
concurring). It is well settled that the state must not
infringe fundamental liberty interests unless the
infringement is narrowly tailored to serve a compelling
state interest. Reno v. Flores, 113 S. ct. 1439, 1447
(1993). The list of rights the Supreme Court has actually
or impliedly identified as fundamental, and therefore
qualified for heightened judicial protection, include the
fundamental guarantees of the Bill of Rights as well as the
following: freedom of association; the right to participate
in the electoral process and to vote; the right to travel
interstate; the right to fairness in the criminal process; the
right to procedural fairness in regard to claims for
governmental deprivations of life, liberty or property;
and the right to privacy. 2 Ronald D. Rotunda & John E.
Nowak, Treatise on Constitutional Law Section 15.7, at
434-36 (2d ed. 1992). The right of privacy has been held
to encompass personal decisions relating to marriage,
procreation, family relationships, child rearing and
education, contraception and abortion. See Carey v.
Population Servs. Int'l, 431 U.S. 678, 684-85 (1977).
While the Constitution does not, of course, include any
explicit mention of the right of privacy, this right has
been recognized as encompassed by the Fourteenth
Amendment's Due Process Clause. Id. at 684.
Nevertheless, the Supreme Court has been reluctant to
further expand this particular list of federal rights, and it
would be most speculative for a lower court to do so. See
Rotunda & Nowak, Treatise on Constitutional Law, supra,
Section 15.7, at 433-37.

In any event, the Supreme Court has drawn a line, albeit
a shaky one, on the expansion of fundamental rights that
are without support in the text of the Constitution. In
Bowers, the Supreme Court framed the issue as "whether
the Federal Constitution confers a fundamental right upon
homosexuals to engage in sodomy and hence invalidates
the laws of the many States that still make such conduct
illegal and have done so for a very long time." 478 U.S.
at 190. Holding that there was no fundamental right to
engage in consensual sodomy, the Court noted that the
statutes proscribing such conduct had "ancient roots." Id.
at 192. The Court noted that sodomy was a common law
criminal offense, forbidden by the laws of the original 13
states when they ratified the Bill of Rights, and that 25
states and the District of Columbia still penalize sodomy
performed in private by consenting adults. Id. at 192-93.

As in Bowers, the statutes plaintiffs seek to declare
unconstitutional here cannot be said to infringe upon any
fundamental right or liberty. As in Bowers, the right
contended for here cannot be considered so implicit in
our understanding of ordered liberty that neither justice
nor liberty would exist if it were sacrificed. Nor can it
be said that the right to assisted suicide claimed by
plaintiffs is deeply rooted in the nation's traditions and
history. Indeed, the very opposite is true. The Common
Law of England, as received by the American colonies,
prohibited suicide and attempted suicide. See Thomas J.
Marzen et al., Suicide: A Constitutional Right?, 24 Duq.
L. Rev. 1, 56-67 (1985). Although neither suicide nor
attempted suicide is any longer a crime in the United
States, 32 states, including New York, continue to make
assisted suicide an offense. The New York State Task
Force on Life and the Law, When Death Is Sought:
Assisted Suicide and Euthanasia in the Medical Context,
55 (1994) ("When Death Is Sought"). Clearly, no "right"
to assisted suicide ever has been recognized in any state in
the United States. See generally Mark E. Chopko &
Michael F. Moses, Assisted Suicide: Still a Wonderful
Life?, 70 Notre Dame L. Rev. 519, 561 (1995); Yale
Kamisar, Are Laws against Assisted Suicide
Unconstitutional?, 23 Hastings Center Rep., May-June
1993, at 32.

In rejecting the due process-fundamental rights
argument of the plaintiffs, we are mindful of the
admonition of the Supreme Court:


Nor are we inclined to take a more expansive view of
our authority to discover new fundamental rights
imbedded in the Due Process Clause. The Court is most
vulnerable and comes nearest to illegitimacy when it deals
with judge-made constitutional law having little or no
cognizable roots in the language or design of the
Constitution.


Bowers, 478 U.S. at 194. The right to assisted suicide
finds no cognizable basis in the Constitution's language or
design, even in the very limited cases of those competent
persons who, in the final stages of terminal illness, seek
the right to hasten death. We therefore decline the
plaintiffs' invitation to identify a new fundamental right,
in the absence of a clear direction from the Court whose
precedents we are bound to follow. The limited room for
expansion of substantive due process rights and the
reasons therefor have been clearly stated: "As a general
matter, the Court has always been reluctant to expand the
concept of substantive due process because guideposts for
responsible decisionmaking in this unchartered area are
scarce and open- ended." Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992). Our position in the
judicial hierarchy constrains us to be even more reluctant
than the Court to undertake an expansive approach in this
unchartered area.

III. Equal Protection

According to the Fourteenth Amendment, the equal
protection of the laws cannot be denied by any State to
any person within its jurisdiction. U.S. Const. amend.
XIV, Section 1. This constitutional guarantee simply
requires the states to treat in a similar manner all
individuals who are similarly situated. See 3 Rotunda &
Nowak, Treatise on Constitutional Law, supra, Section
18.2, at 7. But disparate treatment is not necessarily a
denial of the equal protection guaranteed by the
Constitution. The Supreme Court has described the wide
discretion afforded to the states in establishing acceptable
classifications:


The Equal Protection Clause directs that "all persons
similarly circumstanced shall be treated alike." But so too,
"[t]he Constitution does not require things which are
different in fact or opinion to be treated in law as though
they were the same." The initial discretion to determine
what is "different" and what is "the same" resides in the
legislatures of the States. A legislature must have
substantial latitude to establish classifications that roughly
approximate the nature of the problem perceived, that
accommodate competing concerns both public and
private, and that account for limitations on the practical
ability of the State to remedy every ill. In applying the
Equal Protection Clause to most forms of state action, we
thus seek only the assurance that the classification at issue
bears some fair relationship to a legitimate public
purpose.


Plyler v. Doe, 457 U.S. 202, 216 (1982) (internal
citations omitted and alteration in original).

The general rule, then, is that state legislation carries a
presumption of validity if the statutory classification is
"rationally related to a legitimate state interest."  City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
440 (1985). In Cleburne, the equal protection issue
revolved around a zoning ordinance that required a
special use permit for homes for the mentally retarded
but not for other multiple-dwelling and care- giving
facilities. The Supreme Court resolved the issue as
follows:


Because in our view the record does not reveal any
rational basis for believing that the Featherston home [for
the mentally retarded] would pose any special threat to the
city's legitimate interests, we affirm the judgment below
insofar as it holds the ordinance


Id. at 448. In arriving at this conclusion, the Court
rejected the city's claims that the disparate classification
was justified by the negative attitudes of property owners
in the neighborhood of the proposed facility, the location
of the facility across the street from a junior high school
and on a 500-year flood plain, concerns about legal
responsibility for actions that might be taken by the
mentally retarded, or concerns about the size of the
facility and the number of occupants. Id. at 448-50. The
Court carefully examined each of these claims before
finding that there was no acceptable reason for the
disparate classification in any of them.

Also found invalid under the Equal Protection Clause
for failure to survive rational basis scrutiny was a New
Mexico statute providing a partial exemption from the
state's property tax for certain honorably discharged
veterans. Hooper v. Bernalillo County Assessor, 472 U.S.
612 (1985). The exemption was limited to veterans who
had served on active duty during the Vietnam War for at
least 90 continuous days and were New Mexico residents
before May 8, 1976. In finding the residence requirement
invalid under the Equal Protection Clause, the Court
analyzed the New Mexico statute in light of the following
principles: "When a state distributes benefits unequally,
the distinctions it makes are subject to scrutiny under the
Equal Protection Clause of the Fourteenth Amendment.
Generally, a law will survive that scrutiny if the
distinction rationally furthers a legitimate state purpose."
Id. at 618 (footnote omitted). The Court determined that
the distinction made between veterans who arrived in the
state prior to May 8, 1976 and those who arrived
thereafter bore no rational relationship to the state's
declared objectives of encouraging veterans to settle in the
state and of rewarding citizens who resided in the state
prior to the cut-off date for their military service. Id. at
619-20.

As to the first objective, the Court wrote:


The distinction New Mexico makes between veterans
who established residence before May 8, 1976, and those
veterans who arrived in the State thereafter bears no
rational relationship to one of the State's objectives-
-encouraging Vietnam veterans to move to New Mexico.
The legislature set this eligibility date long after the
triggering event occurred. The legislature cannot
plausibly encourage veterans to move to the State by
passing such retroactive legislation.


Id. at 619 (internal citation omitted). As to the second
declared objective, the Court noted that a state court may
legitimately compensate resident veterans

or past services by providing various advantages, but
that "the New Mexico statute's distinction between
resident veterans is not rationally related to the State's
asserted legislative goal." Id. at 621-22.   The Court held:


The State may not favor established residents over new
residents based on the view that the State may take care of
"its own," if such is defined by prior residence.
Newcomers, by establishing bona fide residence in the
State, become the State's "own" and may not be
discriminated against solely on the basis of their arrival in
the State after May 8, 1976.


Id. at 623. See also Zobel v. Williams, 457 U.S. 55
(1982) (holding that Alaska statute using length of
residence as basis for distribution of oil reserve dividends
violated Equal Protection Clause.)

While rational basis scrutiny governs judicial review of
the constitutionality of legislation in the areas of social
welfare and economics, see Bowen v. Owens, 476 U.S.
340, 345 (1986), strict scrutiny is the standard of review
where a classification "impermissibly interferes with the
exercise of a fundamental right or operates to the peculiar
disadvantage of a suspect class," Massachusetts Bd. of
Retirement v. Murqia, 427 U.S. 307, 312 (1976)
(footnotes omitted). Suspect classes are those identified by
race, alienage or national origin, Cleburne, 473 U.S. at
440, and fundamental rights are those explicitly or
implicitly derived from the Constitution itself, see San
Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-34
(1973). For the reasons described in Part II, supra, the
New York statutes prohibiting assisted suicide during the
terminal stages of illness do not impinge on any
fundamental rights nor can it be said that they involve
suspect classifications. Laws subject to strict scrutiny will
survive such review only if they are suitably tailored to
serve a compelling state interest. Cleburne, 473 U.S. at
440.

An intermediate level of scrutiny has been applied in
analyzing certain equal protection guarantee violations.
To pass this scrutiny, the classification must be
substantially related to an important governmental
objective. Clark v. Jeter, 486 U.S. 456, 461 (1988). This
sort of examination has been applied to classifications
based on sex or illegitimacy. Id.; see also Kadrmas v.
Dickinson Pub. Sch., 487 U.S. 450, 459 (1988);
Mississippi Univ. for Women v. Hogan, 458 U.S. 718,
723-24 (1982). A heightened level of equal protection
scrutiny also was applied in Plyler, where the Supreme
Court struck down a Texas statute withholding from local
school districts funding for the education of children not
legally admitted into the United States. 457 U.S. at 202.

Applying the foregoing principles to the New York
statutes criminalizing assisted suicide, it seems clear that:
1) the statutes in question fall within the category of social
welfare legislation and therefore are subject to rational
basis scrutiny upon judicial review; 2) New York law
does not treat equally all competent persons who are in
the final stages of fatal illness and wish to hasten their
deaths; 3) the distinctions made by New York law with
regard to such persons do not further any legitimate state
purpose; and 4) accordingly, to the extent that the statutes
in questions prohibit persons in the final stages of
terminal illness from having assistance in ending their
lives by the use of self-administered, prescribed drugs,
the statutes lack any rational basis and are violative of the
Equal Protection Clause.

The right to refuse medical treatment long has been
recognized in New York. In 1914 Judge Cardozo wrote
that, under New York law, "[e]very human being of adult
years and sound mind has a right to determine what shall
be done with his own body." Schloendorff v. Society of
New York Hosp., 211 N.Y. 125, 129 (1914). In 1981, the
New York Court of Appeals held that this right extended
to the withdrawal of life-support systems. In re Eichner
(decided with In re Storar), 52 N.Y.2d 363, cert. denied,
454 U.S. 858 1981). The Eichner case involved a
terminally-ill, 83-year-old patient whose guardian
ultimately was authorized to withdraw the patient's
respirator. The Court of Appeals determined that the
guardian had proved by clear and convincing evidence
that the patient, prior to becoming incompetent due to
illness, had consistently expressed his view that life should
not be prolonged if there was no hope of recovery. Id. at
379-80. In Storar, the companion case to Eichner, the
Court of Appeals determined that a profoundly retarded,
terminally-ill patient was incapable of making a decision
to terminate blood transfusions. There, the patient was
incapable of making a reasoned decision, having never
been competent at any time in his life. Id. at 380. In both
these cases, the New York Court of Appeals recognized
the right of a competent, terminally-ill patient to hasten
his death upon proper proof of his desire to do so.

The Court of Appeals revisited the issue in Rivers v.
Katz, 67 N.Y.2d 485 (1986) (establishing the right of
mentally incompetent persons to refuse certain drugs). In
that case, the Court recognized the right to bring on death
by refusing medical treatment not only as a "fundamental
common-law right" but also as "coextensive with [a]
patient's liberty interest protected by the due process
clause of our State Constitution."  Id. at 493. The
following language was included in the opinion:


In our system of a free government, where notions of
individual autonomy and free choice are cherished, it is
the individual who must have the final say in respect to
decisions regarding his medical treatment in order to
insure that the greatest possible protection is accorded his
autonomy and freedom from unwanted interference with
the furtherance of his own desires.


Id.

After these cases were decided, the New York legislature
placed its imprimatur upon the right of competent citizens
to hasten death by refusing medical treatment and by
directing physicians to remove life-support systems
already in place. In 1987, the legislature enacted Article
29-B of the New York Public Health Law, entitled
"Orders Not to Resuscitate." N.Y. Pub. Health Law
Sections 2960-79 (McKinney 1993). The Article provides
that an "adult with capacity" may direct the issuance of an
order not to resuscitate. Section 2964. "Order not to
resuscitate" is defined as "an order not to attempt
cardiopulmonary resuscitation in the event a patient
suffers cardiac or respiratory arrest."  Section 2961(17).
"Cardiopulmonary resuscitation" is defined as "measures .
. . to restore cardiac function or to support ventilation in
the event of a cardiac or respiratory arrest."  Section
2961(4). An elaborate statutory scheme is in place, and it
provides, among other things, for surrogate decision-
making,  Section 2965, revocation of consent, Section
2969, physician review, Section 2970, dispute mediation,
Section 2972, and judicial review, Section 2973.

In 1990, the New York legislature enacted Article 29-C
of the Public Health Law, entitled "Health Care Agents
and Proxies." N.Y. Pub. Health Law Sections 2980-94
(McKinney 1993). This statute allows for a person to sign
a health care proxy, Section 2981, for the purpose of
appointing an agent with "authority to make any and all
health care decisions on the principal's behalf that the
principal could make."  Section 2982(1). These decisions
include those relating to the administration of artificial
nutrition and hydration, provided the wishes of the
principal are known to the agent. Section 2982(2). The
agent's decision is made "[a]fter consultation with a
licensed physician, registered nurse, licensed clinical
psychologist or certified social worker."  Id.
Accordingly, a patient has the right to hasten death by
empowering an agent to require a physician to withdraw
life- support systems. The proxy statute also presents a
detailed scheme, with provisions for a determination that
the principal lacks capacity to make health care decisions,
for such a determination to be made only by the attending
physician in consultation with another physician "[f]or a
decision to withdraw or withhold life-sustaining
treatment," Section 2983, for provider's obligations,
Section 2984, for revocation, Section 2985, and for
special proceedings, Section 2992, among other matters.

The concept that a competent person may order the
removal of life-support systems found Supreme Court
approval in Cruzan v. Director. Missouri Dep't of Health,
497 U.S. 261 (1990). There the Court upheld a
determination of the Missouri Supreme Court that
required proof by clear and convincing evidence of a
patient's desire for the withdrawal of life-sustaining
equipment. The patient in that case, Nancy Cruzan, was in
a persistent vegetative state as the result of injuries
sustained in an automobile accident. Her parents sought
court approval in the State of Missouri to terminate the
artificial nutrition and hydration with which she was
supplied at the state hospital where she was confined. The
hospital employees refused to withdraw the life-support
systems, without which Cruzan would suffer certain
death. The trial court authorized the withdrawal after
finding that Cruzan had expressed some. years before to a
housemate friend some thoughts that suggested she would
not wish to live on a life-support system. The trial court
also found that one in Cruzan's condition had a
fundamental right to refuse death- prolonging procedures.

The Missouri Supreme Court, in reversing the trial
court, refused to find a broad right of privacy in the state
constitution that would support a right to refuse
treatment. Moreover, that court doubted that such a right
existed under the United States Constitution. It did
identify a state policy in the Missouri Living Will Statute
favoring the preservation of life and concluded that, in
the absence of compliance with the statute's formalities or
clear and convincing evidence of the patient's choice, no
person could order the withdrawal of medical life-support
services.

In affirming the Missouri Supreme Court, the United
States Supreme Court stated: "The principle that a
competent person has a constitutionally protected liberty
interest in refusing unwanted medical treatment may be
inferred from our prior decisions." Id. at 278. The Court
noted that the inquiry is not ended by the identification of
a liberty interest, because there also must be a balancing
of the state interests and the individual's liberty interests
before there can be a determination that constitutional
rights have been violated. Id. at 279. The Court all but
made that determination in the course of the following
analysis:


Petitioners insist that under the general holdings of our
cases, the forced administration of life- sustaining medical
treatment, and even of artificially- delivered food and
water essential to life, would implicate a competent
person's liberty interest. Although we think the logic of
the cases discussed above would embrace such a liberty
interest, the dramatic consequences involved in refusal of
such treatment would inform the inquiry as to whether
the deprivation of that interest is constitutionally
permissible. But for purposes of this case, we assume that
the United States Constitution would grant a competent
person a constitutionally protected right to refuse
lifesaving hydration and nutrition.

The Court went on to find that Missouri allowed a
surrogate to "act for the patient in electing to have
hydration and nutrition withdrawn in such a way as to
cause death," subject to "a procedural safeguard to assure
that the action of the surrogate conforms as best it may to
the wishes expressed by the patient while competent."  Id.
at 280. The Court then held that the procedural safeguard
or requirement imposed by Missouri--the heightened
evidentiary requirement that the incompetent's wishes be
proved by clear and convincing evidence--was not
forbidden by the United States Constitution. Id. at 280-82.

In view of the foregoing, it seems clear that New York
does not treat similarly circumstanced persons alike: those
in the final stages of terminal illness who are on life-
support systems are allowed to hasten their deaths by
directing the removal of such systems; but those who are
similarly situated, except for the previous attachment of
life-sustaining equipment, are not allowed to hasten death
by self-administering prescribed drugs. The district judge
has identified "a difference between allowing nature to
take its course, even in the most severe situations, and
intentionally using an artificial death-producing device."
Quill, 870 F. Supp. at 84. But Justice Scalia, for one, has
remarked upon "the irrelevance of the action-inaction
distinction," noting that "the cause of death in both cases
is the suicide's conscious decision to 'pu[t] an end to his
own existence."' Cruzan, 497 U.S. at 296-297 (citations
omitted and alteration in original) (Scalia, J., concurring).
See also Note, Physician-Assisted Suicide and the Right to
Die with Assistance, 105 Harv. L. Rev. 2021, 2028-31
(1992) (arguing that there is no distinction between
assisted suicide and the withholding or withdrawal of
treatment).

Indeed, there is nothing "natural" about causing death by
means other than the original illness or its complications.
The withdrawal of nutrition brings on death by
starvation, the withdrawal of hydration brings on death
by dehydration, and the withdrawal of ventilation brings
about respiratory failure. By ordering the discontinuance
of these artificial life-sustaining processes or refusing to
accept them in the first place, a patient hastens his death
by means that are not natural in any sense. It certainly
cannot be said that the death that immediately ensues is the
natural result of the progression of the disease or
condition from which the patient suffers.

Moreover, the writing of a prescription to hasten death,
after consultation with a patient, involves a far less active
role for the physician than is required in bringing about
death through asphyxiation, starvation and/or
dehydration. Withdrawal of life support requires
physicians or those acting at their direction physically to
remove equipment and, often, to administer palliative
drugs which may themselves contribute to death. The
ending of life by these means is nothing more nor less
than assisted suicide. It simply cannot be said that those
mentally competent, terminally-ill persons who seek to
hasten death but whose treatment does not include life
support are treated equally.

A finding of unequal treatment does not, of course, end
the inquiry, unless it is determined that the inequality is
not rationally related to some legitimate state interest. The
burden is upon the plaintiffs to demonstrate irrationality.
See Kadrmas, 487 U.S. at 463. At oral argument and in
its brief, the state's contention has been that its principal
interest is in preserving the life of all its citizens at all
times and under all conditions. But what interest can the
state possibly have in requiring the prolongation of a life
that is all but ended? Surely, the state's interest lessens as
the potential for life diminishes. See In re Quinlan, 70
N.J. 10, 41, cert. denied, 429 U.S. 922 (1976). And what
business is it of the state to require the continuation of
agony when the result is imminent and inevitable? What
concern prompts the state to interfere with a mentally
competent patient's "right to define [his] own concept of
existence, of meaning, of the universe, and of the mystery
of human life," Planned Parenthood v. Casey, 112 S. Ct.
2791, 2807 (1992), when the patient seeks to have drugs
prescribed to end life during the final stages of a terminal
illness? The greatly reduced interest of the state in
preserving life compels the answer to these questions:
"None."

A panel of the Ninth Circuit attempted to identify some
state interests in reversing a district court decision
holding unconstitutional a statute of the state of
Washington criminalizing the promotion of a suicide
attempt. Compassion in Dying v. Washington, 49 F.3d
586 (9th Cir. 1995) .2 The plaintiffs in the Washington
case contended for physician- assisted suicide for the
terminally-ill, but the panel majority found that the statute
prohibiting suicide promotion furthered the following:
the interest in denying to physicians "the role of killers of
their patients"; the interest in avoiding psychological
pressure upon the elderly and infirm to consent to death:
the interest of preventing the exploitation of the poor and
minorities; the interest in protecting handicapped persons
against societal indifference; the interest in preventing the
sort of abuse that "has occurred in the Netherlands
where... legal guidelines have tacitly allowed assisted
suicide or euthanasia in response to a repeated request
from a suffering, competent patient." Id. at 592-93. The
panel majority also raised a question relative to the lack
of clear definition of the term "terminally ill." Id. at 593.

The New York statutes prohibiting assisted suicide,
which are similar to the Washington statute, do not serve
any of the state interests noted, in view of the statutory
and common law schemes allowing suicide through the
withdrawal of life- sustaining treatment. Physicians do not
fulfill the role of "killer" by prescribing drugs to hasten
death any more than they do by disconnecting life-support
systems. Likewise, "psychological pressure" can be
applied just as much upon the elderly and infirm to
consent to withdrawal of life-sustaining equipment as to
take drugs to hasten death. There is no clear indication
that there has been any problem in regard to the former,
and there should be none as to the latter. In any event, the
state of New York may establish rules and procedures to
assure that all choices are free of such pressures. With
respect to the protection of minorities, the poor and the
non-mentally handicapped, it suffices to say that these
classes of persons are entitled to treatment equal to that
afforded to all those who now may hasten death by means
of life-support withdrawal. In point of fact, these persons
themselves are entitled to hasten death by requesting such
withdrawal and should be free to do so by requesting
appropriate medication to terminate life during the final
stages of terminal illness.

As to the interest in avoiding abuse similar to that
occurring in the Netherlands, it seems clear that some
physicians there practice nonvoluntary euthanasia,
although it is not legal to do so. When Death Is Sought,
supra, at 133-34. The plaintiffs here do not argue for
euthanasia3 at all but for assisted suicide for terminally-
ill, mentally competent patients, who would self-
administer the lethal drugs. It is difficult to see how the
relief the plaintiffs seek would lead to the abuses found in
the Netherlands   Moreover, note should be taken of the
fact that the Royal Dutch Medical Association recently
adopted new guidelines for those physicians who choose
to accede to the wishes of patients to hasten death. Under
the new guidelines, patients must self-administer drugs
whenever possible, and physicians must obtain a second
opinion from another physician who has no relationship
with the requesting physician or his patient. Marlise
Simons, Dutch Doctors to Tighten Rules on Mercy
Killings, N.Y. Times, Sept. 11, 1995, at A3.

Finally, it seems clear that most physicians would agree
on the definition of "terminally ill," at least for the
purpose of the relief that plaintiffs seek. The plaintiffs
seek to hasten death only where a patient is in the "final
stages" of "terminal illness," and it seems even more
certain that physicians would agree on when this condition
occurs. Physicians are accustomed to advising patients
and their families in this regard and frequently do so
when decisions are to be made regarding the furnishing
or withdrawal of life-support systems. Again, New York
may define that stage of illness with greater particularity,
require the opinion of more than one physician or impose
any other obligation upon patients and physicians who
collaborate in hastening death.4

The New York statutes criminalizing assisted suicide
violate the Equal Protection Clause because, to the extent
that they prohibit a physician from prescribing
medications to be self- administered by a mentally
competent, terminally-ill person in the final stages of his
terminal illness, they are not rationally related to any
legitimate state interest.

CONCLUSION

We reverse the judgment of the district court and
remand for entry of judgment in favor of the plaintiffs in
accordance with the foregoing. No costs are awarded to
either side. See Fed. R. App. P. 39(a).

ENDNOTES

* The Honorable Milton Pollack of the United States
District Court for the Southern District of New York,
sitting by designation.

1. On March 15, 1996, Delury pleaded guilty to second-
degree attempted manslaughter. Pam Belluck, Man Will
Get Prison Term for Helping His Wife Kill Herself, N.Y.
Times, Mar. 16, 1996, at 23, 26.

2. On rehearing in banc, the Ninth Circuit vacated the
decision of the panel and affirmed the decision of the
district court. Compassion in Dying v. Washington, No.
94-35534, 1996 WL 94848 (9th Cir. Mar. 6, 1996) (in
banc).

3. There are those who use the terms "assisted suicide"
and "euthanasia" interchangeably. See Patricia A. Unz,
Note, Euthanasia: A Constitutionally Protected Peaceful
Death, 37 N.Y.L. Sch. L. Rev. 439, 439 n.8 (1992).
While euthanasia is derived from the Greek words
meaning "good death," id. at 441, it seems clear that most
states, including New York, make a distinction between
the two acts. See When Death Is Sought, supra, at 63. In
euthanasia, one causes the death of another by direct and
intentional acts. Id. Accordingly, euthanasia falls within
the definition of murder in New York. See N.Y. Penal
Law Section 125.25(1) (McKinney 1987).

4. For example, the state might take steps to assure the
competence of prescribing physicians by imposing
education and training qualifications, including pain
management; it may require the establishment of local
ethics committees as resources for physicians faced with
questions relating to requests for lethal medications; it
could specify the information to be furnished to the
patient to ascertain that the patient's choice is a fully
voluntary one; it might require consultations with other
physicians for further diagnosis and prognosis in regard
to the patient's illness, for psychiatric evaluation, and for
evaluation of pain control possibilities; it may provide a
time delay between a request for lethal medication and the
prescription in order to allow a time for reflection; and it
may suggest some sort of notification to the patient's
family.

Recently, a group of physicians known as "Physicians
for Mercy" proposed ten guidelines for doctor-assisted
suicide. Doctors Offer Some Support to Kevorkian: Urge
10 Guidelines in Assisting Suicide, N.Y. Times, Dec. 5,
1995, at A21. These guidelines call for a physician who
assists in suicide, called an "obitiatrist," to refer his
patients to a psychiatrist, a specialist in the patient's
specific illness, and, if necessary, a specialist in pain
management, before acting at the behest of a mentally
competent person with an incurable affliction. Id.
"Physicians for Mercy" has decided to call the practice of
physician assisted suicide "patholysis," a term coined by
Dr. Jack Kevorkian, who has assisted in more than two
dozen suicides. Id. However, Dr. Kevorkian's assistance
has not been rendered exclusively to those beset by
terminal illnesses. Bruce Fein, The Right to Determine
One's Exit from Life, Wash. Times, Jan. 3, 1996, at A14.