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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sampson et al. v State of Alaska (09/21/2001) sp-5474

Sampson et al. v State of Alaska (09/21/2001) sp-5474

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA



KEVIN SAMPSON and JANE DOE,   ) 
Individually and as           )
Representatives of the Class  )    Supreme Court No. S-9338
of All Other Persons          )    
Similarly Situated,           )    Superior Court No.
                              )    3AN-98-11288 CI     
               Appellants,    )
                              )         
     v.                       )    O P I N I O N
                              )    
STATE OF ALASKA,              )    [No. 5474 - September 21, 2001]
                              )    
               Appellee.      )    
______________________________)    


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                     Eric T. Sanders, Judge.


          Appearances:   Robert H. Wagstaff, Law Offices
of Robert H. Wagstaff, Anchorage, and Kathryn Tucker, Perkins Coie,
LLP, Seattle, Washington, for Appellant.  Eric A. Johnson,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.  James M. Gorski, Hughes, Thorsness, Powell,
Huddleston & Bauman, L.L.C., Anchorage, for Amicus Curiae Alaska
Catholic Conference.  William Grant Callow, Law Office of William
Grant Callow, P.C., Anchorage, for Amicus Curiae Alaska Civil
Liberties Union.  Joseph M. Moran, DeLisio, Moran, Geraghty &
Zobel, P.C., Anchorage, and James Bopp, Jr., National Legal Center
for the Medically Dependent & Disabled, Terre Haute, Indiana, for
Amicus Curiae National Legal Center for the Medically Dependent &
Disabled, Inc.  Kevin G. Clarkson, Brena, Bell, & Clarkson, P.C.,
Anchorage, for Amici Curiae North Star Civil Rights Defense
Association, Inc., Focus on the Family, Family Research Council,
and Alaskan Doctors Against Physician Assisted Suicide.  James M.
Shine, James M. Shine, P.C., Juneau, for Amici Curiae Not Dead Yet
and Alaska Not Dead Yet.  Timothy Lynch, Lynch & Blum, P.C.,
Anchorage, for Amicus Curiae Physicians for Compassionate Care.


          Before:  Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.


          BRYNER, Justice.


I.   INTRODUCTION
          Kevin Sampson and Jane Doe were mentally competent,
terminally ill adults who sued for an order declaring their
physicians exempt from Alaska's manslaughter statute for the
purpose of assisting them to commit suicide.  The superior court
entered summary judgment against Sampson and Doe, and they
appealed.  We affirm the judgment, concluding that the Alaska
Constitution's guarantees of privacy and liberty do not afford
terminally ill patients the right to a physician's assistance in
committing suicide and that Alaska's manslaughter statute did not
violate Sampson and Doe's right to equal protection.
II.  FACTS AND PROCEEDINGS
          Sampson was an accountant who was diagnosed as carrying
human immunodeficiency virus (HIV) in 1985. [Fn. 1]  In 1992
doctors diagnosed Sampson as having acquired immune deficiency
syndrome (AIDS) due to an AIDS-defining opportunistic infection. 
By 1998 Sampson's doctors had advised him that he was in the
terminal phase of AIDS.  Sampson asserted that he wanted his
physician's assistance to end his life.
          Doe was a physician. [Fn. 2]  She was diagnosed as having
breast cancer in 1977 and later retired from her practice of
medicine as a result of the disease.  Doe underwent a mastectomy,
but the cancer metastasized and was rediscovered in 1989 in her
ribs and then later in her skin.  Despite radiation and
chemotherapy, the cancer had spread to Doe's bones and liver by
1998.  Doe's doctors informed her that she was in the terminal
stages of her cancer.  Doe asserted that she wanted to have the
option of physician assistance in ending her life.
          Sampson and Doe filed suit, asking the superior court to
declare Alaska's manslaughter statute invalid to the extent that it
prevents mentally competent, terminally ill individuals from
obtaining prescribed medication to self-administer for the purpose
of hastening death.  The state answered, and both sides moved for
summary judgment.  Superior Court Judge Eric T. Sanders denied
Sampson and Doe's motion for summary judgment and granted the
state's cross-motion.  Sampson and Doe appeal.
III. DISCUSSION
     A.   Standard of Review

          We review appeals from summary judgment de novo. [Fn. 3] 
Because Sampson and Doe do not dispute the material facts, we will
affirm the summary judgment if the state is entitled to judgment as
a matter of law. [Fn. 4]  The constitutionality of a statute and
constitutional interpretation are questions of law to which we
apply our independent judgment. [Fn. 5]  "We interpret the
constitution and Alaska law according to reason, practicality, and
common sense, taking into account the plain meaning and purpose of
the law as well as the intent of the drafters." [Fn. 6]
     B.   Alaska's Manslaughter Statute Is Constitutional.
          Alaska is among the vast majority of states that
criminalize assisted suicide. [Fn. 7]  Alaska Statute
11.41.120(a)(2) provides:  "A person commits the crime of
manslaughter if the person intentionally aids another person to
commit suicide."  The statute makes no exception for physicians
assisting their patients.  Sampson and Doe challenge the statute
insofar as it denies them the right to a physician's assistance in
committing suicide, arguing that it infringes their constitutional
rights to privacy, liberty, and equal protection.
          1.   Constitutional rights to privacy and liberty 
          Sampson and Doe contend that the guarantees of privacy
and liberty in article I of the Alaska Constitution [Fn. 8] protect
their right to "control the timing and manner of [their] death[s]."
               a.   The applicable balancing test
          This court has often emphasized the importance of
personal autonomy under our constitution. [Fn. 9]  Yet we have also
recognized that the rights to privacy and liberty are neither
absolute nor comprehensive -- that their limits depend on a balance
of interests. [Fn. 10]  The nature of the balance varies with the
importance of the rights actually infringed. [Fn. 11]  
          When the state encroaches on fundamental aspects of the
rights to privacy or liberty, it must demonstrate a compelling
governmental interest and the absence of a less restrictive means
to advance that interest. [Fn. 12]  But "[w]hen, on the other hand,
governmental action interferes with an individual's freedom in an
area that is not characterized as fundamental, a less stringent
test is ordinarily applied." [Fn. 13]  To justify interference with
non-fundamental aspects of privacy and liberty, the state must show
a legitimate interest and a close and substantial relationship
between its interest and its chosen means of advancing that
interest. [Fn. 14]  Sampson and Doe contend that application of the
manslaughter statute to physician-assisted suicide fails to
withstand scrutiny under either of these standards.
               b. Physician-assisted suicide is not a
fundamentally protected constitutional right.

          Sampson and Doe initially argue that physician-assisted
suicide is a fundamental right guaranteed by the privacy and
liberty clauses of the Alaska Constitution.  Neither clause
explicitly deals with the right to die or to assisted suicide.  But
we have previously acknowledged this court's responsibility to 
recognize fundamental rights under the Alaska Constitution that are
not within its literal language.  In Baker v. City of Fairbanks we
stated:
               [W]e are under a duty . . . to develop
          additional constitutional rights and privileges under our
          Alaska Constitution if we find such fundamental rights
          and privileges to be within the intention and spirit of
          our local constitutional language and to be necessary for
          the kind of civilized life and ordered liberty which is
          at the core of our constitutional heritage.[ [Fn. 15]]
               In keeping with Baker, our cases have identified several
rights not explicitly mentioned in the Alaska Constitution as
fundamental freedoms within the intention and spirit of its
language; these rights include the right to reproductive privacy,
[Fn. 16]  the right to control personal appearance, [Fn. 17] the
right to privacy within the home, [Fn. 18] and the right of self-
representation in a post-conviction hearing. [Fn. 19]  With these
cases in mind, we turn to the right at issue here -- the right of
physician-assisted suicide. 
          We begin our analysis by looking to the relevant history
of assisted suicide within Alaska's constitutional heritage. [Fn.
20]  Sampson and Doe offer nothing from the Alaska Constitution's
history suggesting that either suicide or assisted suicide were
topics of concern when the privacy and liberty clauses were drafted
and adopted.  The approach of the Alaska Statutes toward assisted
suicide has been consistent since statehood: Alaska law has
prohibited all forms of assisted suicide and has never recognized
an exception for physicians assisting their patients. [Fn. 21]   
          The criminal code in effect at statehood included a
provision prohibiting assisted suicide that closely resembles our
current statute. [Fn. 22]  In 1978 the Alaska legislature enacted
a comprehensive criminal code to replace then-existing criminal
statutes. [Fn. 23]  The Criminal Code Revision Subcommission's
report specifically recommended retaining the ban of assisted
suicide, stating that the ban furthers two purposes: (1) "to
indicate a duty not to knowingly facilitate suicide;" and (2) "to
make clear that this activity is not to be viewed as murder unless
the defendant uses duress or deception in bringing about the
suicidal act." [Fn. 24]  Acting on this recommendation, the
legislature retained the ban on assisted suicide in its current
form. [Fn. 25]
          In 1996 the legislature considered a bill that would have
decriminalized physician-assisted suicide by exempting it from
Alaska's manslaughter statute. [Fn. 26]  The proposed Act Relating
to the Rights of Terminally Ill Persons closely resembled the
Oregon Death with Dignity Act passed by ballot initiative in
Oregon. [Fn. 27]  The bill failed to pass our legislature, and
physician-assisted suicide remains within the scope of the
manslaughter statute's assisted suicide provision.  
          Sampson and Doe nonetheless point to Alaska's tradition
of respect for individual freedom; they argue that their strong
interest in personal autonomy encompasses physician-assisted
suicide and justifies locating that right within the core of our
constitution's guarantees of privacy and liberty. 
          Our cases dealing with personal autonomy do not go as far
as Sampson and Doe suggest.  In Valley Hospital Ass'n v. Mat-Su
Coalition for Choice, we recognized that reproductive rights are
fundamental and protected by the right to privacy.  A quasi-public
hospital had instituted a policy that prohibited abortions from
being performed at the hospital.  We held that the hospital's
policy infringed a woman's fundamental right to reproductive
autonomy, which included the right to abortion.  In holding that
reproductive rights were fundamental, we stated that "[a] woman's
control of her body, and the choice whether or when to bear
children, involves the kind of decision-making that is 'necessary
for . . . civilized life and ordered liberty.'"  We also
acknowledged the important relationship between reproduction and
privacy: "[D]ecisions whether to accomplish or prevent conception
are among the most private and sensitive."
          In Breese v. Smith, we held that Alaskans have a
fundamental right to control their appearance.  We addressed a
dispute over a school board's ability to regulate the appearance of
school children and require that male students wear short hair.  In
establishing that control of personal appearance was a fundamental
liberty right, we began by discussing the social history of
personal appearance:  "Hairstyles have been the subject of great
variety and individual taste and have traditionally been left to
personal decision; they are manifestations of our diverse and
numerous individual personalities."  We also stated that the right
to control personal appearance implicated the important Alaskan
values of the "preservation of maximum individual choice,
protection of minority sentiments, and appreciation for divergent
lifestyles," as well as "notions of a government of limited
powers."
          In Ravin v. State, we reviewed the claim that the
consumption of marijuana was a fundamental right under our
constitution.  We held that it was not, but we did recognize the
fundamental right of privacy within the home.  We noted the
"distinctive nature of the home" in Alaska's statutory and
jurisprudential history in finding that the privacy amendment "was
intended to give recognition and protection to the home."  We also
recounted the importance of individual autonomy in Alaskan history
and concluded that the right to privacy in the home is directly
linked to a notion of individual autonomy.  And privacy within the
home, we emphasized, is vital:  "If there is any area of human
activity to which a right of privacy pertains more than any other,
it is the home."  Based on these considerations, we ultimately
concluded that the right of privacy within the home protected
personal possession and consumption of small quantities of
marijuana in the home.  
          Finally, in McCracken v. State, we discussed the types of
rights that are retained by the people under article I, section 21
of the Alaska Constitution.  In McCracken, a convicted prisoner
asserted that he had the right under the constitution to represent
himself in post-conviction hearings.  We looked to the legal
history of the right of self-representation in Alaska and concluded
that it was "long established and of . . . fundamental importance"
at the time the Alaska Constitution was enacted.  We stated that
Alaskans have "valu[ed] the autonomy of the individual and [one's]
freedom of choice" and recognized the "paramount importance" of the
right "to present one's own case."
          Valley Hospital, Breese, Ravin, and McCracken
collectively set the framework for recognizing fundamental rights
of personal autonomy implicit in our constitution.  These cases
establish that the history and tradition of a right in Alaska are
important because they help to determine whether the right falls
within the intention and spirit of our constitution.  Moreover,
history and tradition tend to define our society's expectations of
what rights are necessary for civilized life and ordered liberty. 
All of these cases address situations involving personal autonomy
to control our appearance or to direct the course of our lives;
none even remotely hints at any historical or legal support for the
proposition that the general right of personal autonomy
incorporates a right to physician-assisted suicide.
          Other courts addressing the issue of personal autonomy
support this conclusion as well.  As the United States Supreme
Court stated in rejecting a claim that personal autonomy protects
the right to choose physician-assisted suicide:  "That many of the
rights and liberties protected by the Due Process Clause sound in
personal autonomy does not warrant the sweeping conclusion that any
and all important, intimate, and personal decisions are so
protected."  
          Sampson and Doe nevertheless insist that Alaska's privacy
clause categorically bars any governmental restriction of personal
privacy in the absence of a showing of "genuine harm to others."
They particularly emphasize Valley Hospital's reliance on the
following quotation from Professor Tribe's treatise, American
Constitutional Law:
               Of all decisions a person makes about his or
          her body, the most profound and intimate relate to two
          sets of ultimate questions: first, whether, when, and how
          one's body is to become the vehicle for another human
          being's creation; second, when and how -- this time there
          is no question of "whether" -- one's body is to terminate
          its organic life.[]
     According to Sampson and Doe, by ratifying Tribe's language, Valley
Hospital effectively established physician-assisted suicide as a
fundamental right protected under the Alaska Constitution's privacy
clause.
          But this argument overstates the scope of Valley
Hospital's holding.  That decision quoted Tribe in the context of
a discussion involving reproductive rights; the quoted passage
itself appears in the introduction to a section of Tribe's treatise
entitled "Governmental Control Over the Body: Decisions About Birth
and Babies."  In context, then, our use of Tribe's language in
Valley Hospital cannot properly be read to suggest that we
recognized a fundamental right to physician-assisted suicide.
          Nor can Valley Hospital be read to support Sampson and
Doe's argument that the government may not abridge any aspect of
personal privacy unless it involves conduct posing a threat of harm
to another.  In State v. Erickson, for example, we stated that
"[n]o one has an absolute right to do things in the privacy of his
own home which will affect himself or others adversely."  Other
Alaska cases, too, have upheld regulation of private conduct where
the only harm threatened was to the actor.  
          Even if we accepted the proposition that the state cannot
regulate any aspect of the right to privacy in the absence of a
threat of harm to others, Sampson and Doe would not prevail on
their claim that physician-assisted suicide is a fundamentally
protected right.  The manslaughter statute's assisted suicide
prohibition regulates the conduct of the physician who assists in
a suicide, not the conduct of the patient who commits the suicide. 
And a physician who assists in a suicide undeniably causes harm to
others.  
          For these reasons, we reject Sampson and Doe's contention
that physician-assisted suicide is a fundamental right within the
core meaning of the Alaska Constitution's privacy and liberty
clauses.  
               c.   The manslaughter statute's ban on physician-
                    assisted suicide bears a close and substantial
relationship to a legitimate state interest.

          Sampson and Doe next contend that, even if the privacy
and liberty clauses do not incorporate a fundamental right to
physician-assisted suicide, the manslaughter statute's ban on
physician-assisted suicide nonetheless amounts to an impermissible
interference with their general right to privacy and liberty.  To
the extent that the manslaughter statute's general prohibition of
assisted suicide prevents terminally ill patients from seeking a
physician's help in ending their lives, we agree that the provision
substantially interferes with Sampson and Doe's general privacy and
liberty interests, as guaranteed by the Alaska Constitution.  As
previously stated, when state action limits non-fundamental privacy
or liberty interests, the state must identify a legitimate
governmental purpose and show that the challenged limitation bears
a close and substantial relationship to that purpose.  
          There can be little doubt that substantial state
interests underlie the manslaughter statute's general ban of 
assisted suicide.  Other courts have recognized state interests in
preserving human life, protecting vulnerable persons, protecting
the integrity of the medical profession, regulating dangerous
substances and activities in the state, and preventing suicide.
          In this case, the state emphasizes its strong interest in
protecting potentially vulnerable Alaskans, including terminally
ill persons, from undue influence.  Sampson and Doe do not
seriously dispute the legitimacy of this interest as a general
proposition.  Indeed, by arguing that we should recognize a right
to physician-assisted suicide that could be exercised only by
mentally competent, terminally ill adults who are capable of self-
administering lethal drugs prescribed by their physicians, Sampson
and Doe tacitly acknowledge both that assisted suicide generally
poses a significant risk of harm to potentially vulnerable persons
and that a corresponding need exists for state regulation except in
the narrow class of cases that they view to be relatively risk-
free.     
          The chief point of dispute, then, is whether, in the
absence of a particularized exception for physicians assisting
terminally ill patients, the manslaughter statute's assisted-
suicide provision bears a close and substantial relationship to the
state's legitimate interest in protecting vulnerable persons. 
Sampson and Doe posit that, without an exception for physicians,
the assisted-suicide ban does not bear a close and substantial
relationship to the state's interests.  The state forcefully
refutes this position.  It insists that the terminally ill are a
class of persons who need protection from family, social, and
economic pressures, and who are often particularly vulnerable to
such pressures because of chronic pain, depression, and the effects
of medication.  
          In support of its position, the state cites a New York
task force report that unanimously rejected a narrowly tailored
exemption similar to the one proposed by Sampson and Doe:
               The moral claim to autonomy is weakened by
          both the overall risks of the practice and the
          extraordinary nature of the remedy sought.  Moreover, if
          assisted suicide and euthanasia are legalized, the
          autonomy of some patients would be extended while the
          autonomy of others would be compromised by the pressures
          to exercise these new options.[]
     The task force concluded that public policy considerations of
assisted suicide must include a recognition that our society is one
that, despite legal and social declarations to the contrary,
frequently judges others on the basis of physical and mental
disabilities, race, ethnicity, social-standing, and other factors
unacceptable in life-valuing decision-making:
          [I]t must be recognized that assisted suicide
and euthanasia will be practiced through the prism of social
inequality and prejudice that characterizes the delivery of
services in all segments of society, including health care.  Those
who will be most vulnerable to abuse, error, or indifference are
the poor, minorities, and those who are least educated and least
empowered. . . .
               . . . [T]here [is no] reason to believe
that the practices, whatever safeguards are erected, will be
unaffected by the broader social and medical context in which they
will be operating.  This assumption is naive and unsupportable.[]
          In our view, the state's argument is persuasive.  We note
that there appears to be no consensus within the medical community
about the adequacy of protective measures such as those proposed by
Sampson and Doe.  Indeed, some medical associations, including two
amici to this case, have voiced concerns that physician-assisted
suicide is "fundamentally incompatible with the physician's role as
healer" and, if adopted, might erode the doctor-patient
relationship.  As an expression of views currently held by a
sizable segment of the medical community, these concerns reinforce
the state's position: they illustrate that, even in its application
to the relationship between physicians and terminally ill patients,
Alaska's assisted-suicide provision furthers the state's protective
interests by promoting the integrity of the medical profession and
fostering healthy physician-patient relationships.
          We note, additionally, that the specifics of Sampson and
Doe's proposed physician-assisted suicide exemption are problematic
in their own right.  A physician-assisted suicide exemption that
narrowly restricts the right to mentally competent, terminally ill
patients raises many unexamined and potentially troubling issues. 
For example, Sampson and Doe would have us draw a constitutional
line between terminally ill patients who can self-administer lethal
drugs and those who cannot.  Yet this would arguably amount to
discrimination based upon physical disability.
          Furthermore, by proposing to restrict physician-assisted
suicide to mentally competent adults, Sampson and Doe would hinge
the exercise of that right on a vague, unverifiable, and subjective
standard.  While mental competency is certainly well accepted as a
measure for determining when physicians may render life-prolonging
medical treatment, it is potentially far more controversial as a 
measure for determining when a physician is entitled to terminate
a patient's life.  This is so not only because the prescription of
life-ending medication is a unique and absolute form of medical
"treatment," but also because the mental competency of terminally
ill patients is uniquely difficult to determine.  
          Sampson and Doe's proposal to extend physician-assisted
suicide only to patients who are near death raises similar
problems.  To define an eligible class of terminally ill persons
would be a daunting enterprise -- especially for a court of law. 
And even if a general medical consensus allowed us to resolve the
difficult question of how near death a terminally ill patient must
be before becoming eligible to request assistance in committing
suicide, this resolution would not be particularly helpful, since
"physicians' predictions of expected remaining life are generally
inaccurate." 
          In highlighting these difficulties, we do not mean to
suggest that they are necessarily insurmountable.  Nor do we mean
to disparage Sampson and Doe's proposed exemption or to suggest
that their arguments lack merit.  To the contrary, we recognize
that Sampson and Doe have raised close and difficult issues.  But
these issues flow quickly away from questions of the law and lapse
seamlessly into questions of morality, medical ethics, and
contemporary social norms.  Because the controversy surrounding
physician-assisted suicide is so firmly rooted in questions of
social policy, rather than constitutional tradition, it is a
quintessentially legislative matter.  
          Accordingly, we hold that the right to physician-assisted
suicide is not implicit in text, context, or history of the Alaska
Constitution's liberty and privacy clauses.  While these guarantees
encompass a broad range of autonomy, they do not require an
exemption to Alaska's manslaughter statute that would provide for
physician-assisted suicide.  As another court said in reaching the
same conclusion:  "By broadly construing the privacy amendment to
include the right to assisted suicide, we would run the risk of
arrogating to ourselves those powers to make social policy that as
a constitutional matter belong only to the legislature."  
          2.   Equal protection 

          Sampson and Doe also contend that the manslaughter
statute's assisted-suicide ban abridges their rights to equal
protection.  We apply a sliding-scale test in equal protection
challenges.  The test places a varying burden on the state
depending on the importance of the individual right and involves a
three-step analysis: first, we identify the nature of the interest
affected; next, we assess the importance of the purposes served by
the statute; and, last, we analyze the fit between the state
interests and means chosen to accomplish those interests. 
          Our earlier discussion of the Alaska Constitution's
privacy and liberty clauses controls the first two prongs of this
equal protection analysis.  As to the first prong -- the nature of
the interest affected by the assisted suicide ban -- we have
already concluded that, although terminally ill patients have no
fundamental right to physician-assisted suicide, the assisted-
suicide ban nonetheless implicates important privacy and autonomy
interests.  Thus, the first prong of the sliding-scale test calls
for relatively close scrutiny of the ban.  As to the second prong
-- the importance of the government's interest -- we have
recognized that the state's interest in prohibiting assisted
suicide is also important.  Accordingly, the third prong of the
sliding-scale test -- the closeness of the challenged statute's
means-to-end fit -- will be determinative.  
          Sampson and Doe argue that, insofar as it prevents
physicians from assisting mentally competent, terminally ill
patients who wish to end their lives, the assisted-suicide ban is
too loosely connected to any legitimate state interest to survive
scrutiny under the third prong's test requiring a close and
substantial means-to-end fit.  They insist that the ban creates
arbitrary distinctions, reasoning that it is both over-inclusive
and under-inclusive as applied to terminally ill patients because
it allows physicians to hasten the deaths of some patients by
passive measures -- such as withdrawal of life support or terminal
sedation -- but forbids them from helping other patients who prefer
physician-assisted suicide as a method for hastening death. 
          The state responds that Sampson and Doe's argument
overlooks an important distinction between a physician's active
participation in a patient's suicide and a physician's willingness
to honor a patient's request to cease or withdraw treatment.  We
agree that these two types of conduct are significantly different. 
Their difference reflects the long-recognized distinction between
action and forbearance.  
          In the absence of a clearly established duty to act, our
legal system has traditionally imposed liability only for
affirmative actions, not for omissions or failures to act.  For
purposes of establishing criminal liability, Alaska's criminal code
adopts this distinction in AS 11.81.600(a) and AS 11.81.900(b)(41). 
The former provision states that "[t]he minimal requirement for
criminal liability is the performance by a person of conduct that
includes a voluntary act or the omission to perform an act[.]"  The
latter limits the definition of "omission" to "a failure to perform
an act for which a duty of performance is imposed by law."   
          In the case of a physician who honors a dying patient's
request to withdraw life-sustaining medical treatment, the
patient's underlying disease or pathology runs its course and
causes death; the death is hastened by the physician's failure to
continue treatment.  Assuming for the moment that a terminally ill
patient's decision to cease further treatment can fairly be likened
to suicide, because physicians ordinarily have no duty -- indeed,
no right -- to treat patients who voluntarily reject medical
treatment, the physician's omission of further treatment does not
create liability for assisting a suicide.  
          In sharp contrast to this situation, when a physician
assists a terminally ill patient by prescribing medication to
hasten the patient's death, the death is caused by the patient and
is abetted by the physician's affirmative actions.  The physician
thus becomes liable because the physician actively participates in
the patient's suicide.  
          These admittedly similar situations lead to drastically
different outcomes for the physician.  But the difference in
outcome does not result from an arbitrary application of rules
restricting the rights of different classes of terminally ill
patients; instead, it is determined by a conventional application
of the settled and uniformly accepted legal principle: liability
may ordinarily be predicated only on a voluntary action or on a
failure to act in the face of a clearly established duty.
          Sampson and Doe are therefore mistaken in suggesting that
these different outcomes are anomalous or that they evidence an
arbitrary scheme of regulation.  While the law's traditional
distinction between action and forbearance is neither perfect nor
easily applied in all cases, it has nonetheless shown itself to be
sensible and dependable in the vast majority of situations. 
Accordingly, we hold that the assisted-suicide statute's reliance
on this distinction does not result in the imposition of over-
inclusive or under-inclusive restrictions on terminally ill
patients who seek to hasten death.  
          Our earlier discussion of the Alaska Constitution's
privacy and liberty clauses establishes that the manslaughter
statute's assisted-suicide ban bears a close and substantial
relationship to the state's legitimate interests in all other
significant respects.  It follows, then, that the ban satisfies the
third prong of this court's equal protection test.  Accordingly, we
conclude that the manslaughter statute's general prohibition of
assisted suicide did not, on its face, violate Sampson and Doe's
rights to equal protection.
IV.  CONCLUSION
          The superior court's decision is AFFIRMED.


                            FOOTNOTES


Footnote 1:

     Sampson died while this case was pending.


Footnote 2:

     Doe is a pseudonym used to protect the physician's privacy. 
Doe also died while this case was pending.


Footnote 3:

See Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 759 (Alaska
1999).


Footnote 4:

See id.; Alaska R. Civ. P. 56(c).


Footnote 5:

See Hickel v. Cowper, 874 P.2d 922, 926 (Alaska 1994).


Footnote 6:

Native Village of Elim v. State, 990 P.2d 1, 5 (Alaska 1999).


Footnote 7:

See Washington v. Glucksberg, 521 U.S. 702, 710-11 & n.8 (1997)
(stating that forty-four states criminalize assisted suicide).


Footnote 8:

     Article I, section 22 of the Alaska Constitution states:
"The right of the people to privacy is recognized and shall not be
infringed.  The legislature shall implement this section."

          Article I, section 1 states:

          This constitution is dedicated to the
principles that all persons have a natural right to life, liberty,
the pursuit of happiness, and the enjoyment of the rewards of their
own industry; that all persons are equal and entitled to equal
rights, opportunities, and protection under the law; and that all
persons have corresponding obligations to the people and to the
State.


Footnote 9:

See, e.g., Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948
P.2d 963, 968 (Alaska 1997); Ravin v. State, 537 P.2d 494, 500,
502-03 (Alaska 1975); Breese v. Smith, 501 P.2d 159, 168-69 (Alaska
1972).


Footnote 10:

See State v. Erickson, 574 P.2d 1, 21-22 (Alaska 1978) (holding
that right to privacy in home not absolute and did not protect
ingestion of cocaine); Breese, 501 P.2d at 170 (noting fundamental
right to control appearance not absolute).


Footnote 11:

See Breese, 501 P.2d at 169-70; see also Valley Hosp., 948 P.2d at
968-69.


Footnote 12:

See Valley Hosp., 948 P.2d at 969; Ravin, 537 P.2d at 497-98. 


Footnote 13:

Ravin, 537 P.2d at 497.


Footnote 14:

See id. at 497-98, 511.


Footnote 15:

     471 P.2d 386, 402 (Alaska 1970).


Footnote 16:

See Valley Hosp., 948 P.2d at 966-69.


Footnote 17:

See Breese, 501 P.2d at 169.


Footnote 18:

See Ravin, 537 P.2d at 502-03.


Footnote 19:

See McCracken v. State, 518 P.2d 85, 89, 91 (Alaska 1974)  (holding
self-representation in a post-conviction hearing to be a
fundamental right under the "retained rights" provision of
article I, section 21 of the Alaska Constitution).


Footnote 20:

See, e.g., Breese, 501 P.2d at 169; McCracken, 518 P.2d at 91;
accord Washington v. Glucksberg, 521 U.S. 702, 710 (1997) ("We
begin . . . by examining our Nation's history, legal traditions,
and practices."). 


Footnote 21:

See former AS 11.15.050 (reprinted in Alaska Criminal Code Revision
Part I, at 102 (Tent. Draft 1977)).  Sampson and Doe have offered
no pre-statehood law or history suggesting a unique tolerance for
suicide or assisted suicide in Alaska.


Footnote 22:

See id. ("A person who purposely and deliberately procures another
to commit self-murder or assists another in the commission of self-
murder is guilty of manslaughter, and is punishable accordingly.").

          This statute and the other old criminal statutes were
largely unchanged from the territorial law -- itself a derivation
of Oregon law enacted by Congress and applied to Alaska in 1899.
See Alaska Criminal Code Revision Part I, at 6 (Tent. Draft 1977).


Footnote 23:

See ch. 166, sec. 3, SLA 1978.


 [Fn. 28]Footnote 24:

     Alaska Criminal Code Revision Part I, at 33 (Tent. Draft
1977).  The only other legislative history commenting on the
assisted suicide provision states: "the crime of manslaughter also
specifically covers the situation when a person intentionally aids
another to commit suicide."  Commentary on the Alaska Revised
Criminal Code, Senate Journal Supp. No. 47, at 13, 1978 Senate
Journal 1399.


Footnote 25:

See ch. 166, sec. 3, SLA 1978.


Footnote 26:

An Act Relating to the Rights of Terminally Ill Persons, House Bill
(H.B.) 371, 19th Leg., 2d Sess. (Jan. 8, 1996).


Footnote 27:

Compare id. with Or. Rev. Stat. sec. 127.800-.995 (1999).


Footnote 28:

     The bill was initially referred to the House Committee on
Health, Education and Social Services, which heard testimony from
witnesses on both sides of the issue.  See 1996 House Journal 2363;
Hearings on H.B. 371 before the House Standing Committee on Health,
Education and Social Services, 19th Leg., 2d Sess. (Feb. 6 & 13,
1996).  The bill was then referred to the House State Affairs
Committee, where it remained until the end of the session with no
further action taken.  See 1996 House Journal 2827.