Georgia Supreme Court Strikes Down State’s Assisted-Suicide Law

In a unanimous decision issued today, the Georgia Supreme Court has struck down a 1994 state law that makes helping a person commit suicide a felony. At issue was whether the law was a violation of the free-speech clauses of the United States and Georgia constitutions.

The most widely known advocate for “physician-assisted suicide” was almost certainly Dr. Jack Kevorkian, a medical pathologist in Michigan who helped dozens of terminally ill persons end their lives. He was sentenced in 1999 to 10 to 25 years in prison after being convicted of second-degree murder, according to his obituary last year in the New York Times, but was released after serving eight years on the condition that he would never assist in another suicide.

Although the subject of physician assisted-suicide seldom makes news today, Dr. Kevorkian was the central figure in a drama that gripped the nation during the 1990s, at least until the United States Supreme Court in the 1997 case Washington v. Glucksberg held that Washington State’s prohibition against “causing or aiding” a suicide does not violate the Fourteenth Amendment to the U. S. Constitution.

In that case, explained the U. S. Supreme Court, the four Washington physicians who occasionally assisted their terminally-ill patients in ending their lives did not have a “fundamental liberty interest” that was protected by the federal constitution’s Due Process Clause.

It was in the midst of this national debate about the meaning and purpose of the “liberty interests” articulated in the U. S. Constitution that the Georgia legislature, in 1994, enacted Section § 16-5-5 (b) of the Official Code of Georgia Annotated, a section which provides that any person “who publicly advertises, offers, or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of suicide and commits any overt act to further that purpose is guilty of a felony.” Violation of the statute is punishable by imprisonment for not less than one nor more than five years.

In 2010 this law was utilized to indict Final Exit Network, Inc., Lawrence Egbert, Thomas Goodwin, Nicholas Sheridan, and Claire Behr by a Forsyth County, Georgia, grand jury. The accused pled not guilty, in part on the grounds that the statute was unconstitutional on its face, including in violation of the First Amendment of the U. S. Constitution (the Free Speech Clause) and of a comparable clause in the 1983 Georgia Constitution.

In analyzing the statute, Justice Thompson noted that as a general matter, the Free Speech Clause prohibits the government from “restricting expression because of its message, its ideas, its subject matters, or its content.” But it does not prohibit every law that purports to “abridge[e] freedom of speech” if the law satisfies a strict level of scrutiny.

Under this strict scrutiny test, a law will be held unconstitutional unless the State can demonstrate it is justified by a “compelling interest” and the law is narrowly drawn to serve that interest.

In striking down the law, the Supreme Court found that the Georgia law failed to meet both prongs of this two-prong test.

First, suicide in the state of Georgia is conduct which is not illegal. The State’s compelling interest in preserving human life therefore cannot be invoked: the Georgia law does not ban assistance in all suicides; it does not render illegal all advertisements or offers to assist in a suicide; instead, it bans only those offers which are “public.”

Second, the State failed to provide any explanation or evidence as to why a public advertisement or offer to assist in an otherwise legal activity is sufficiently problematic to justify an intrusion on protected speech.

The legal effect of the holding is that the indictments against Final Exit Network, Inc., and its four members will be dismissed.

The court’s opinion did leave the legislature a way around the ruling, however.

“Had the State truly been interested in the preservation of human life, however, it could have imposed a ban on all assisted suicides with no restriction on protected speech whatsoever. Alternatively, the State could have sought to prohibit all offers to assist in suicide when accompanied by an overt act to accomplish that goal. The State here did neither.”

Final Exit Network, Inc. et al. v State of Georgia, Feb. 6, 2012.

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