dissenting:
This case involves the state’s power arbitrarily to deprive terminally ill, mentally competent adults of the right to choose how to die. Because RCW 9A.36.060 violates plaintiffs’ privacy and equal protection rights, I dissent. The majority’s approach subjects such patients to unwanted and needless suffering. See Brief of Amicus Curiae of Ten Surviving Family Members In Support of Physician-Assisted “Suicide.”
The majority views the asserted right as illimitable because it depends upon the meaning of “terminally ill.”1 But if we were to affirm, our task would not be to specify the parameters of the right. We are limited, as was the district court, to the dispute before us. The majority’s “depressed twenty-one year old” is not a party before us.2 The *595deceased plaintiff patients were terminally ill, mentally competent adults, entitled to be free from unwarranted state interference in their last days.
A. Due Process
1. Privacy Right
Planned Parenthood v. Casey, — U.S. —, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), defines the scope of protected liberty interests. The Court there explained that:
[MJatters [] involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Id. at —, 112 S.Ct. at 2807. The majority contends that this language is out of context in this case. Yet that general language was not tailored specifically for the abortion context but derived from well-established Supreme Court precedent. The same paragraph explains:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.
Id. (citation omitted).
The district court’s application of Casey hardly amounts to “an enormous leap” that does “violence to the context.”
An aspect of the liberty interest is the right to personal privacy, or a guarantee of certain areas or zones of privacy. Carey v. Population Servs. Int’l, 431 U.S. 678, 684, 97 S.Ct. 2010, 2015, 52 L.Ed.2d 675 (1977) (quotation omitted). This privacy right includes “the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977).
The right to die with dignity falls squarely within the privacy right recognized by the Supreme Court. The decision by a terminally ill, mentally competent adult to request physician assistance in hastening death is a highly personal one, directly implicating the right to privacy. The Supreme Court recognized that “[t]he choice between life and death is a deeply personal decision.” Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 281, 110 S.Ct. 2841, 2853, 111 L.Ed.2d 224 (1990). The Court declared that 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, 110 S.Ct. at 2851. Accord In re Quinlan, 70 N.J. 10, 355 A.2d 647, 663 (1976) (privacy right “is broad enough to encompass a patient’s decision to decline medical treatment under certain circumstances.”); Superintendent v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 424 (1977).
A constitutional distinction cannot be drawn between refusing life-sustaining medical treatment and accepting physician assistance in hastening death.3 “[I]f an individual has a constitutionally protected right to refuse lifesaving medical treatment and life sustaining nutrition, it would seem logically impossible to make it a crime for that person to take active steps to terminate his life.” 3 Rotunda & Nowak, Treatise on Constitutiop*596al Law 388 (1992).4 Such a distinction yields patently unjust results. For example, a respirator-dependent patient may demand that the respirator be removed when the pain becomes unbearable. Terminally ill patients not dependent on such life support, however, cannot receive physician assistance to end unwanted agony. So says the majority opinion.
Along with established precedent, “this Nation’s history and tradition” help to define the content of substantive due process. Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977). Because medicine is constantly evolving and presenting new legal questions,5 whether American history and tradition support the right asserted must be answered at a more abstract level than the majority would permit. For example, in Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010 (1967), the Court looked beyond the historical and traditional bars to interracial marriages to the more abstract principles of the “rights essential to the orderly pursuit of happiness by free men.”
Likewise, we must ask whether American history and tradition reflect the values of self-determination and privacy regarding personal decisions. In the late nineteenth century, the Court wrote: “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestioned authority of law.” Union Pac. R. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891). The right to die with dignity accords with the American values of self-determination and privacy regarding personal decisions.
2. Standard of Review
The applicable standard of review is strict scrutiny.6 Because a fundamental right is involved, the statute that limits this right can be justified only by a “compelling state interest,” Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969), and it must be narrowly drawn to serve only that interest. Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1665, 12 L.Ed.2d 992 (1964).
3. The Statute is Invalid as Applied
The state has an interest in preserving the lives of its citizens. But the state’s interest weakens and the individual’s right to privacy grows as natural death approaches. In re Quinlan, 70 N.J. 10, 355 A.2d 647, 664 (1976); Superintendent v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 426 (1977) (rational decision by terminally ill, competent patient to refuse *597life-sustaining treatment has no connection with state interest in preserving life).
The Washington Legislature is capable of enacting regulations that serve the state’s interest in preserving human life, while protecting the fundamental liberties of terminally ill, mentally competent adults. As Washington law now stands, the statute prevents all terminally ill, mentally competent adults from exercising their right to physician-hastened death. Because the legislature can draft laws that would protect plaintiffs’ right to privacy, the existing legislation is not narrowly tailored.
The district court invalidated the statute on its face. According to plaintiffs’ reply brief before the district-court and their oral argument before us, they challenge the statute as it is applied to them as well as on its face. I would hold the statute invalid only as it is applied to terminally ill, mentally competent adults.
B. Equal Protection
Washington law permits terminally ill persons to obtain medical assistance in withdrawing life-sustaining treatment. See In re Grant, 109 Wash.2d 545, 747 P.2d 445 (1987); RCW 70.122.010. Yet it prohibits other forms of physician-hastened death for terminally ill, mentally competent adults. Because Washington’s laws abrogate the fundamental rights of one group, but not those of a similarly situated group, they must be subjected to strict scrutiny and upheld only if the classifications are suitably tailored to serve a compelling state interest. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985).
The two groups of patients are similarly situated because they are both comprised of terminally ill, mentally competent adults. As observed by the district court, “[b]oth [groups of] patients may be terminally ill, suffering pain and loss of dignity and subjected to a more extended dying process without some medical intervention, be it removal of life support systems or the prescription of medication to be self-administered.” 850 F.Supp. at 1467. There is but one difference: one group can hasten death through withdrawal of life support; the other can do so only with affirmative medical assistance. Washington’s disparate treatment drawn on this difference is not suitably tailored to serve a compelling state interest. Therefore, RCW 9A.36.060 violates plaintiffs’ right to equal protection.
C. Conclusion
The majority has denied plaintiffs the right to die with dignity. Terminally ill, mentally competent adults, like plaintiff patients, have a fundamental privacy right to choose physician-hastened death. RCW 9A.36.060, as applied to those persons, violates the privacy and equal protection guarantees of the Constitution.
I dissent.
. A federal district court that recently decided against recognizing the asserted right did not have such definitional concerns. Quill v. Koppell, 870 F.Supp. 78, 84 (S.D.N.Y.1994) ("Plaintiffs are, of course, suggesting a limited form of physician assisted suicide.").
. In any event, the state has a legitimate interest in preserving the life of a "depressed twenty-one year old” because he or she has a significant life expectancy while the terminally ill plaintiffs before the court had only a limited amount of life left. The state’s interest in preserving life de*595clines and the individual's right to privacy grows as natural death approaches. In re Quinlan, 70 N.J. 10, 355 A.2d 647, 664 (1976). For a complete discussion of the state's interest in preserving the lives of non-terminally ill adults see Robert Sedler, Constitutional Challenges to Bans on "Assisted Suicide": The View From Without and Within, 21 Hastings Const.L.Q. 777, 790-795 (1994); Robert L. Risley, Ethical & Legal Issues in the Individual’s Right to Die, 20 Ohio N.U.L.Rev. 597, 610 (1993).
. Contrary to the majority's assertion, the Cruzan Court did not draw such a distinction. The majority lifts language from Cruzan that indicates only that states have a general interest in prohibiting the assistance of suicide. This begs the question whether a state can prohibit physi*596cian-hastened death for terminally ill, mentally competent adults.
.Indeed, as Justice Scalia framed the problem in his concurring opinion in Cruzan: "Starving oneself to death is no different from putting a gun to one's temple as far as the common-law definition of suicide is concerned; the cause of death in both cases is the suicide’s conscious decision to put an end to his own existence. Of course the common law rejected the action-inaction distinction in other contexts involving the taking of human life as well.... A physician ... could be criminally liable for failure to provide care that could have extended the patient's life, even if death was immediately caused by the underlying disease that the physician failed to treat.” 497 U.S. at 296-97, 110 S.Ct. at 2861 (quotations and citations omitted). See also James Rogers, Punishing Assisted Suicide: Where Legislators Should Fear to Tread, 20 Ohio N.U.L.Rev. 647, 650 (1993) (explaining impossibility of distinguishing between letting die and assistance in death).
. "With the development of the new techniques, serious questions as to what may constitute acting in the best interests of the patient have arisen.” Superintendent v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 423 (1977). "An inadvertent and unintended side effect of medicine's growing effectiveness is that the dying process has been elongated.... [F]or those who are suffering greatly ... it has become harder and harder to die.” Timothy E. Quill, M.D., Death and Dignity: Making Choices and Taking Charge 50 (1993).
. The district court applied the "undue burden” standard because "the constitutional rights at issue in this case are analogous to those in Casey and other decisions using an undue burden standard.” Compassion in Dying v. State of Washington, 850 F.Supp. 1454, 1463-64 (W.D.Wash.1994). But Casey does not reject the strict scrutiny standard of review in non-abortion cases. Because the instant case does not involve a challenge to a regulation of abortion rights, the traditional strict scrutiny test must be applied.