Dissenting:
Wash.Laws 1975, 1st Ex.Sess., ch. 260, § 9A.36.060 says:
PROMOTING A SUICIDE ATTEMPT.
(1) A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide.
(2) Promoting a suicide attempt is a Class C felony.
This law is codified as RCW 9A.36.060. A Class C felony is punishable by imprisonment of up to five years and a fine of up to $10,000. RCW 9A.20.020(1)(c).
The question is whether Washington’s criminal prohibition of promoting a suicide attempt, defined as knowingly causing or aiding another person to attempt suicide, violates the constitutional substantive due process or equal protection rights of mentally competent, terminally ill adults to commit physician-assisted suicide. The district court held the Washington statute unconstitutional and I would reverse.
To succeed in arguing that a statute violates substantive due process, the party challenging the statute must show either: (1) that the statute violates a fundamental right and is not narrowly tailored to serve a compelling state interest, or (2) that the statute violates an ordinary, nonfundamental, liberty interest and does not rationally advance some legitimate governmental purpose. Reno v. Flores, 507 U.S. 292, 301-306, 113 S.Ct. 1439, 1447-1449, 123 L.Ed.2d 1 (1993). I would hold that the mentally competent, terminally ill adults do not have a fundamental right to physician-assisted suicide, but I would hold that they do have an ordinary, nonfundamental, liberty interest in doing so. I would further hold that RCW 9A.36.060 rationally advances four legitimate governmental purposes: preserving life, protecting the interests of innocent third parties, preventing suicide and maintaining the ethical integrity of the medical profession. Because RCW 9A.36.060 rationally advances these four legitimate governmental purposes, it does not violate plaintiffs’ constitutional substantive due process rights.
Likewise, I would hold that RCW 9A.36.060 does not violate plaintiffs’ constitutional equal protection rights. Plaintiffs are not similarly situated to patients who wish to refuse or withdraw life-sustaining medical treatment, so an equal protection analysis is not even appropriate. If it were appropriate, I would hold that RCW 9A.36.060 rationally advances four legitimate legislative goals and does not violate plaintiffs’ constitutional equal protection rights.
*840I
It is imperative that I make clear what I mean by physician-assisted suicide. The process should be distinguished definitionally from both euthanasia and the withdrawal or refusal of life-sustaining treatment.
Euthanasia occurs when the physician actually administers the agent which causes death. An example is when a physician injects the patient with a poisonous substance. A gray area between euthanasia and bona fide treatment arises when, for example, a physician administers ever-increasing doses of palliative pain-killing medication, and those doses eventually reach toxic levels.
Life-sustaining treatment is defined in Washington as “any medical means that uses mechanical or other artificial means, including artificially provided nutrition and hydration, to sustain, restore, or replace a vital function, which, when applied to a qualified patient, would serve only to prolong the process of dying. [It does not include treatment] deemed necessary solely to alleviate pain.” RCW 70.122.020(5). A patient has a nonfundamental constitutionally protected liberty-based right to refuse or withdraw life-sustaining treatment, including respirators and artificial nutrition and hydration. See Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). In Washington, that right is also explicitly guaranteed by the Natural Death Act, RCW 70.122.010 et seq.
Physician-assisted suicide encompasses the situation where a physician makes available to a patient the means for that patient intentionally to cause his or her own death. For example, physician-assisted suicide would be the proper description of a process in which a physician, with the intent to assist a patient to commit suicide, prescribes medication which, when taken by the patient in sufficient potency and quantity, is lethal. The prescription may be part of a bona fide treatment, or it may be specifically prescribed as a means by which the patient commits suicide.
In all three sorts of cases, euthanasia, withdrawal of life-sustaining treatment, and physician-assisted suicide, there is a decision that other factors outweigh the patient’s continuing to five. Plaintiffs ask us to blur the fine between withdrawal of life-sustaining treatment and physician-assisted suicide. At the same time, some proponents of physician-assisted suicide would maintain a conceptual distinction between physician-assisted suicide and euthanasia. Associating physician-assisted suicide with a relatively accepted procedure and dissociating it from an unpalatable one are rhetorically powerful devices, but run counter to U.S. Supreme Court precedent,1 Washington State statutory law,2 medical ethics guidelines of the American Medical Association and the American College of Physicians,3 and legal reasoning.4
The proper place to draw the fine is between withdrawing life-sustaining treatment (which is based on the right to be free from unwanted intrusion) and physician-assisted suicide and euthanasia (which implicate the assistance of others in controlling the timing and manner of death). The former is constitutionally protected (under Cruzan); the latter are not.
*841H
There are several jurisdictional and prudential concerns which I consider before addressing the merits of this appeal.
A.Procedural posture
This is an interlocutory appeal from the district court’s grant of partial summary judgment in favor of plaintiff patients and physicians, insofar as the physicians represent the interests of their patients. The partial summary judgment has been certified as final pursuant to Fed.R.Civ.P. 54(b). Plaintiff Compassion in Dying is not a party to this appeal; neither are plaintiff physicians, insofar as they represent their own interests.
Three groups, representing four sets of interests, filed this action in the U.S. District Court for the Western District of Washington, seeking a declaration that RCW 9A.36.060 violates the Due Process and Equal Protection Clauses of the United States Constitution. The groups also sought to enjoin the State of Washington from enforcing the statute.
The first plaintiff is Compassion in Dying, a Washington nonprofit corporation organized to assist mentally competent, terminally ill patients in committing suicide by providing them information, counselling and emotional support. The second group of plaintiffs consisted of three mentally competent, terminally ill patients, litigating under pseudonyms: Jane Roe, John Doe, and James Poe. All three are now dead. The third group consists of four physicians licensed by the State of Washington to practice medicine and surgery (Drs. Glucksberg, Preston, Halperin, and Shalit), representing their own interests and those of their patients. Compassion in Dying v. Washington, 850 F.Supp. 1454, 1457-1458 (W.D.Wash.1994).
Defendants in this action are the State of Washington (“the State”) and Christine Gre-goire, the Attorney General of Washington. In suits against the State, the Attorney General is designated by statute as the person to receive service of the summons and eom-plaint and to appear and act as counsel for the State. RCW 4.92.020,4.92.030.
On cross-motions for summary judgment, the district court granted only the motions of the patients and of the physicians “insofar as the physicians purport to raise claims on behalf of their terminally ill patients.” Compassion in Dying, 850 F.Supp. at 1457. It denied the motions of Compassion in Dying, the physicians on behalf of themselves, and the State. The district court also declined to enjoin the State from enforcing the statute. The district court found that the statute violated the patients’ equal protection and due process rights.
The State appealed, and a panel of this court filed an opinion reversing the district court. Compassion in Dying, 49 F.3d 586 (9th Cir.1995). A majority of the active judges of this court voted to grant a rehearing en banc. Compassion in Dying, 62 F.3d 299 (9th Cir.1995).
The district court’s grant of summary judgment is reviewed de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). There are no factual issues in dispute; the only issues are constitutional.
B. Mootness
Because the plaintiff patients have all died, the case is now moot as to them. The only remaining plaintiffs who were parties to the partial summary judgment are the plaintiff physicians, insofar as they represent the interests of their patients.
C. Standing
“[T]o satisfy the ‘case’ or ‘controversy' requirement of Article III of the United States Constitution, a plaintiff must allege a present or immediate injury in fact which is fairly traceable to the challenged action and is likely to be redressed by a favorable court-decision.” Board of Natural Resources v. Brown, 992 F.2d 937, 945 (9th Cir.1993). The plaintiff physicians assert a sufficient injury in fact to satisfy Article Ill’s standing requirements. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (liquor store owner had standing to challenge restriction on selling beer with 3.2% alcohol *842content to 18-20 year-old males). The physicians’ injury is fairly traceable to the challenged statute, and the relief sought will redress their harm.
When one party asserts the rights of another party, there is also a prudential component to standing. This prudential component consists of three factors: “the relationship of the litigant to the person whose rights are being asserted; the ability of the person to advance his own rights; and the impact of the litigation on third party interests.” Caplin & Drysdale Chartered v. United States, 491 U.S. 617, 623 n. 3, 109 S.Ct. 2646, 2651 n. 3, 105 L.Ed.2d 528 (1989). In the abortion context, physicians may assert the rights of their patients. Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). The same reasoning, regarding jus tertii standing based on the physician-patient relationship, applies in this case. In Quill v. Koppell, 870 F.Supp. 78 (S.D.N.Y.1994),5 a case similar to this one, the district court for the Southern District of New York held that physician plaintiffs do have standing to represent the interests of their patients, apparently on the theory that the physicians are in a special relationship with their patients in respects relevant to the alleged right. Id. at 82.
Ill
Plaintiffs’ challenge to the Washington statute is “as applied.” Challenges to a statute may either be facial or as applied. Justice Scalia concisely summarizes the operation of facial and as applied challenges:
Statutes are ordinarily challenged, and their constitutionality evaluated, “as applied” — that is, the plaintiff contends that the application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional. The practical effect of holding a statute unconstitutional “as applied” is to prevent its future application in a similar context but not to render it utterly inoperative. To achieve the latter result, the plaintiff must succeed in challenging the statute “on its face.” Our traditional rule has been, however, that a facial challenge must be rejected unless there exists no set of circumstances in which the statute can constitutionally be applied. See, e.g., United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987).
Ada v. Guam Society of Obstetricians and Gynecologists, 506 U.S. 1011, 1012, 113 S.Ct. 633, 634, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting from denial of certiorari). See also, e.g., Frazier v. Heebe, 482 U.S. 641, 643, 107 S.Ct. 2607, 2610, 96 L.Ed.2d 557 (1986) (petition alleged unconstitutionality of a regulation on its face and as applied); United States v. James Daniel Good Real Property, 510 U.S. 43, -, 114 S.Ct. 492, 513, 126 L.Ed.2d 490 (1993) (O’Connor, J., concurring in part, dissenting in part) (characterizing the constitutional challenge in that ease as “as applied”).
The district court characterizes plaintiffs’ challenge as “facial.” Compassion in Dying, 850 F.Supp. at 1459. The district court’s characterization is apparently due to the fact that the action is a preenforcement review seeking a declaratory judgment. It has not yet been “applied” to the plaintiffs, in the sense that no party to this action has been prosecuted. This is an incorrect usage of the “facial” and “as applied” distinction.
In Salerno, the Supreme Court described what is necessary to succeed in a facial constitutional challenge to a statute:
A facial challenge to a statute is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the [statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an “overbreadth” doctrine outside the limited context of the First Amendment.
481 U.S. at 745, 107 S.Ct. at 2100.
Plaintiffs here do not challenge the applicability and constitutionality of the statute *843to, for example, prison inmates who incite their coprisoners to suicide. Rather, as the district court states, “Plaintiffs challenge the statute only insofar as it bans physician-assisted suicide by mentally competent, terminally ill adults who knowingly and voluntarily choose to hasten their death.” Compassion in Dying, 850 F.Supp. at 1456. Because plaintiffs have made no attempt to demonstrate that there is no set of circumstances under which the statute would be valid, their challenge cannot be facial under Salerno.
Analyzing RCW 9A.86.060, the district court concludes “that the Casey ‘undue burden’ standard, set forth by the Supreme Court five years after Salerno, controls in this case.” Compassion in Dying, 850 F.Supp. at 1462 (citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 907-910, 112 S.Ct. 2791, 2836-2837, 120 L.Ed.2d 674 (1992) (“Casey”)). The district court relies on two Court of Appeals cases and a concurrence by Justice O’Connor to support the proposition that Casey and Salerno conflict with each other. Id. at 1463. All of the cases cited by the district court deal with the abortion context.
To date, the Supreme Court has not extended Casey’s undue burden test beyond abortion cases. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 510 U.S. 43, -, 114 S.Ct. 909, 911, 127 L.Ed.2d 352 (1994) (Souter, J., in chambers) (describing the undue burden test as “the standard for assessing constitutionality of abortion regulation”) (“Casey II”). The language of Casey supports the proposition that the undue burden test is unique to the abortion right and derived from the right itself. As restated by Casey, the essence of the abortion right is “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” Casey, 505 U.S. at 846, 112 S.Ct. at 2804.
Since Casey, the Court has continued to expressly rely on Salerno for facial challenges in non-abortion contexts. E.g., Anderson v. Edwards, - U.S. -, - - - n. 6, 115 S.Ct. 1291, 1298-1299 n. 6, 131 L.Ed.2d 178 (1995); Reno v. Flores, 507 U.S. at 301, 113 S.Ct. at 1446.
Applying the Salerno analysis to RCW 9A.36.060, the group affected by the statute consists of all people who attempt suicide with someone else’s assistance or encouragement. This includes prisoners encouraged by their cellmates, depressed teenagers in suicide pacts, ailing persons of advanced age assisted by their spouses, and mentally competent terminally ill adults seeking the assistance of a physician in committing suicide. The group allegedly enjoying constitutional protection consists only of mentally competent, terminally ill adults seeking the assistance of a physician in committing suicide. The entire group affected by the statute is not a subset of those claiming constitutional protection; rather, only a portion of the group affected by the statute overlaps with the group claiming constitutional protection. The inquiry in Salerno for the permissibility of a facial challenge is what proportion of the instances of application of the statute will impede constitutional rights. If the answer in the Salerno inquiry is less than 100%, then a facial challenge is impermissible.
The challenge of RCW 9A.36.060 cannot be a facial challenge. It is an “as applied” challenge. Because the challenge is “as applied,” the fact that there has been no violation of the statute or threatened prosecution for a violation of the statute implicates straightforward ripeness concerns.
IV
The doctrine of ripeness contains two criteria: (1) hardship to parties in delaying resolution of the issues; (2) fitness of issues for judicial resolution. See Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). The legal issues are fit for judicial resolution. Waiting for further factual development would require someone to attempt physician-assisted suicide, and for that person’s physician to face reasonably foreseeable prosecution under the statute. This is a ripe and justiciable controversy.
It has been suggested that Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 *844(1961) might control the ripeness inquiry in this case. Poe does not apply here. In Poe, the Supreme Court held unripe a challenge by a physician and patients to a Connecticut statute prohibiting the use of contraceptive devices and the giving of medical advice about the use of such devices. The statute had been on the books since 1879, but had been enforced only once in the ensuing eight decades — and that case was a test case in 1940 that was ultimately dismissed. Additionally, contraceptives were “commonly and notoriously” sold in drug stores in Connecticut. Accordingly, the Supreme Court determined that there had been an “undeviating policy of nullification by Connecticut of its anti-contraceptive laws.” Poe, 367 U.S. at 502, 81 S.Ct. at 1755. It added, ‘“Deeply embedded traditional ways of carrying out state policy ... ’ — or not carrying it out — ‘are often tougher and truer law than the dead words of the written text.’” Id. (citation omitted). The Court concluded that there was no “realistic fear of prosecution” and therefore no justiciable controversy ripe for adjudication. Poe, 367 U.S. at 508, 81 S.Ct. at 1758.
Though the history of RCW 9A.36.060 bears some similarities to the statute in Poe, the cases may be readily distinguished. In Poe, the statute had been on the books for a very long time, and it had never been enforced. And there was more than just a pattern of nonenforcement; the statute was openly and notoriously violated on a regular basis. RCW 9A.36.060 has similarly been on the books, in one form or another, since 1854. But it has been enforced. E.g., State v. Jamison, 94 Wash.2d 663, 619 P.2d 352 (1980). Further, the factual circumstances in this ease are different. First, there is no evidence that the Washington statute is at all “commonly and notoriously” flouted, particularly in the narrow circumstances of physician-assisted suicide for the mentally competent and terminally ill. Second, the issue of physician-assisted suicide as a plausible medical alternative is relatively new. Only since Dr. Kevorkian started assisting patients to commit suicide in Michigan in 1990 has there been significant public and legal attention to the possible differences between physician-assisted suicide and ordinary cases of aiding and abetting suicide. Research indicates at least a dozen prosecutions in states other than Washington of suicide-assisters since 1961.6 Additionally, there have been a number of murder prosecutions of people who were more actively involved in helping others end their fives (i.e. these defendants actually pulled the trigger or committed similar active steps to cause death).7
A limited reading of Poe is consistent with intervening Supreme Court precedent. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 302, 99 S.Ct. 2301, 2310-11, 60 L.Ed.2d 895 (1979) (“when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative a plaintiff need not ‘first expose himself to actual arrest or prosecution to be *845entitled to challenge [the] statute’ ” (citation omitted)).
We have construed Poe narrowly as well. San Francisco County Democratic Central Committee v. Eu, 826 F.2d 814, 821 (9th Cir.1987), aff'd, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (justiciable controversy exists over constitutionality of never-enforced statute where there is no record that the statute has been commonly and notoriously violated).
In short, there are no jurisdictional or prudential concerns which foreclose consideration of the constitutional issues presented by the parties to this appeal.
V
I turn now to an historical account of the role of suicide and assisted suicide in the traditions and consciences of our forbears. Thomas Marzen et al. (Marzen) devote over eighty pages to a survey of the attitudes of the “Western Tradition” to suicide. Thomas Marzen et al., “Suicide: A Constitutional Right?” 24 Duq.L.Rev. 1, 17-100. The ‘Western Tradition” has some of its roots in the laws and philosophy of Judeo-Christian groups; however, I am concerned here with the underlying moral and philosophical arguments, and their impact on the historical development of attitudes about suicide.
Here I recount and supplement salient portions of Marzen’s account.
Marzen finds only eight instances of suicide in the Old Testament, including the Apocrypha. Seven of the eight instances were cases of ignoble death; the only exception is Samson’s destruction of the Philistine temple. Marzen at 18. Marzen speculates that “[t]he infrequency of suicide among the Hebrews ... was most probably due to their religious creed’s positive emphasis on the value of life and the special providence of God.” Marzen at 20.
In Plato’s philosophy, the ultimate good, aspiration to the realm of the gods and the Forms, is attainable only upon death. However, that death should not be hastened by suicide. Marzen at 21. As Socrates explained, “[I]t probably seems strange to you that it should not be right for those to whom death would be an advantage to benefit themselves ... [but] we men are put in a sort of guard post, from which one must not release oneself or run away.” Plato, Phaedo 62a-62b (in Edith Hamilton and Hungtington Cairns, eds., Plato: The Collected Dialogues 44-45, 1987). Plato views suicide as a breach of the relationship between the individual, the state, and the universe. “[W]hen suicide is a rational and deliberate choice, it is deemed to be a flagrant act of contempt for the state and an abandonment of duty to society and the divine order.” Marzen at 23-24.
Aristotle echoed Plato’s sentiments against suicide:
To kill oneself to escape from poverty or love or anything else that is distressing is not courageous but rather the act of a coward, because it shows weakness of character to run away from hardships, and the suicide endures death not because it is a fine thing to do but in order to escape from suffering.
Marzen at 24 (quoting Aristotle, Ethics Bk. III, ch. 7 (J. Thompson, trans., 1977)).
By contrast, the Stoics endorsed suicide. As Marzen states, “the inevitability of death is the ultimate challenge to liberty ... [and one must] ‘make death [one’s] own in order to be free from it.’ ” Marzen at 25.
Roman law forbade suicide, and introduced the penalty of forfeiture of one’s goods and property. Marzen at 26.
Between the decline of the Roman Empire and the rise of the Common Law, ecclesiastical law was a dominant force in the English legal order. See Sir Frederick Pollock and Frederic William Maitland, The History of English Law, vol. 1, pp. 1-20 (1968).
St. Augustine opposed suicide as violative of the sixth commandment (“Thou shalt not kill.”) Marzen at 27. In his Summa Theologica, St. Thomas Aquinas stated that
it is unlawful to kill oneself for three reasons[:] ... [first], suicide is contrary to the inclination of nature, and to charity whereby every man should love himself[;] ... [second], every man is part of the community, ... [and] by killing himself he injures *846the community!;] ... [third], because life is God’s gift to man, ... whoever takes his own life, sins against God.
St. Thomas Aquinas, Summa Theologica, II-II, q. 64, art. 5, (Fathers of the English Dominican Province, eds., vol. 2, pp. 1465 et seq., 1947). Martin Luther and John Calvin also opposed suicide. Marzen at 31.
In the mid-thirteenth century, Henry de Bracton wrote that a felon committing suicide to escape punishment forfeited all his real property and movable goods, but a person committing suicide “in weariness of life or because he is unwilling to endure further bodily pain ... may have a successor [of his real property], but his movable goods are confiscated.” 2 Bracton on the Laws of England 424 (fol. 150) (G. Woodbine ed., S. Thorne trans. 1968). “The principle that suicide of a sane person, for whatever reason, was a punishable felony was thus introduced into English common law.” Marzen at 59. In 1644, Sir Edward Coke published his Third Institute, in which he treated suicide by a sane person as a form of murder. Mar-zen at 60-61.
In 1765, Sir William Blaekstone condemned suicide in his Commentaries on the Laws of England:
[T]he suicide is guilty of a double offence; one spiritual, in invading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects; the law has therefore ranked this among the highest crimes, making it a peculiar species of felony, a felony committed on one’s self.
William Blackstone, 4 Commentaries ch. 14, *189.
Among the philosophers who influenced America’s founders, John Locke opposed suicide as against natural law and the principle of self-preservation. Marzen at 42.
The American colonies in the seventeenth century generally adopted the English common law criminal prohibitions of suicide. Marzen at 63-66. However, in 1701, William Penn abolished the criminal penalty of forfeiture for suicide, and most of the rest of the colonies (later states) followed suit by the end of the eighteenth century. Marzen at 65-68. Most states have adopted the English common law, to the extent that it does not conflict with state or federal statutory or constitutional requirements. Washington did so in 1862.8
Thomas Jefferson opposed criminal prohibitions of suicide, presaging the sentiments of the drafters of the Model Penal Code:
Men are too much attached to this life to exhibit frequent instances of depriving themselves of it. At any rate, the quasi-punishment of confiscation will not prevent it. For if one can be found who can calmly determine to renounce life, who is so weary of his existence here as rather to make experiment of what is beyond the grave, can we suppose him, in such a state of mind, susceptible to influence from the losses to his family by confiscation? That men in general disapprove of this severity is apparent from the constant practice of juries finding the suicide in a state of insanity; because they have no other way of saving the forfeiture.
Marzen at 45 (quoting Thomas Jefferson, 6 The Papers of Thomas Jefferson 155 (J.P. Boyd ed. 1952)).
By the turn of the nineteenth century, criminal penalties for suicide appear to have been abandoned in the United States. But the reason for doing so was not a recognition of the supremacy of individual autonomy; rather, it was the desire not to penalize the decedent’s family combined with a recognition of the limited deterrent effect of criminal penalties for suicide.
As the nineteenth century progressed, states began to enact criminal prohibitions on assisting suicide. Marzen at 71-74. By 1868, when the Fourteenth Amendment was *847ratified, twenty-one of the thirty-seven states prohibited assisted suicide by either statute or common law. Marzen at 75. Within the first year of becoming a Territory, Washington enacted a prohibition of assisted suicide.9 Thirty-six states and territories currently have statutes imposing criminal sanctions for aiding, assisting, causing, or promoting suicide.10 Three additional states and the District of Columbia do not impose explicit criminal sanctions on assisted suicide, but nonetheless condemn assisted suicide in statutes allowing withdrawal of medical treatment.11 Three other states have definitions of criminally negligent homicide that are sufficiently broad to encompass aiding, assisting, causing or promoting suicide.12 An additional four states impose criminal penalties under case law.13 In total, forty-four states, the District of Columbia and two territories prohibit or condemn assisted suicide.
The trend toward repeal of criminal sanctions against suicide, while still regarding suicide as an indicium of mental illness, and continued prohibition of aiding or assisting suicide, has produced what appears to be a modem consensus on the subject. The modem consensus consists of an overall disapproval of suicide which is manifested through (1) not criminally punishing suicide itself,14 but instead treating it as a medical or psychological problem;15 (2) allowing the state to intervene to prevent someone from committing suicide; and (3) enacting criminal statutes prohibiting the aiding or assisting of suicide.
VI
Plaintiffs allege that RCW 9A.36.060 violates their substantive due process rights under the Fourteenth Amendment of the United States Constitution. They argue that physician-assisted suicide fits within the broad description of the liberty aspect of the substantive due process right set forth in Casey:
*848These matters, including 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.
Casey, 505 U.S. at 851, 112 S.Ct. at 2807.
Specifically, plaintiffs allege that mentally competent, terminally ill adults have a constitutionally protected liberty interest ’n committing physician-assisted suicide, 'the district court also addresses the issue in those terms. This narrow formulation follows the teaching of the Supreme Court in Cruzan, which says, “in deciding ‘a question of such magnitude and importance ... it is the [better] part of wisdom not to attempt, by any general statement, to cover every possible phase of the subject.’ ” Cruzan, 497 U.S. at 278, 110 S.Ct. at 2851. See also Reno v. Flores, 507 U.S. at 302, 113 S.Ct. at 1447 (“ ‘Substantive due process’ analysis must begin with a careful description of the asserted right, for ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.’ ”).
I would hold that mentally competent, terminally ill adults do not have a fundamental right to commit physician-assisted suicide. The Supreme Court has repeatedly indicated an unwillingness to expand the list of rights deemed fundamental. Physician-assisted suicide is not currently on that list. To be fundamental, a liberty interest must be central to personal autonomy or deeply rooted in history. The district court relies on language in Casey’s plurality opinion to hold that substantive due process protects a wide range of autonomy-based liberty interests, including physician-assisted suicide. Such a reading of Casey is permissible, provided it is clearly understood that the liberty interests so protected are not fundamental. Casey’s reaffirmation of the abortion right is best understood as a decision that relies heavily on stare decisis; the abortion right, uniquely protected under the undue burden standard, is sui generis. The second test for determining the existence of fundamental rights, whether the interest is rooted in the nation’s history, similarly militates against a fundamental right to physician-assisted suicide.
I would hold that mentally competent, terminally ill adults do have an autonomy-based, nonfundamental liberty interest in committing physician-assisted suicide.
A. No new fundamental rights
While the list of fundamental rights has not been definitively closed to expansion, the Court has indicated an unwillingness to find new penumbral, privacy-type fundamental rights. In Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), the Court refuses to expand the list of fundamental rights to include a right of juveniles to be released into a noncustodial setting. Reno states:
We are unaware ... that any court — aside from the courts below — has ever held that [the asserted fundamental right exists]. The mere novelty of such a claim is reason enough to doubt that “substantive due process” sustains it; the alleged right certainly cannot be considered “ ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Salerno, supra, 481 U.S., at 751, 107 S.Ct., at 2103 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)).
507 U.S. at 303, 113 S.Ct. at 1447. See also Bowers v. Hardwick, 478 U.S. 186, 190, 106 S.Ct. 2841, 2843, 92 L.Ed.2d 140 (1986) (“[T]here should be ... great resistance to expand the substantive reach of [the due process clauses of the Fifth and Fourteenth Amendments], particularly if it requires redefining the category of rights deemed fundamental.”).
Bowers clearly identifies its liberty inquiries as fundamental, and states the two tests as follows:
In Palko v. Connecticut, 302 U.S. 319, 325, 326 [58 S.Ct. 149, 152, 82 L.Ed. 288] (1937), it was said that this category [of rights which qualify for heightened judicial protection] includes those fundamental liberties that are “implicit in the concept of *849ordered liberty,” such that “neither liberty nor justice would exist if [they] were sacrificed.” A different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U.S. 494, 503 [97 S.Ct. 1932, 1937, 52 L.Ed.2d 531] (1977) (opinion of Powell, J.), where they are characterized as those liberties that are “deeply rooted in this Nation’s history and tradition.”
Bowers, 478 U.S. at 191-192, 106 S.Ct. at 2844.
These tests are distinct from the broader nonfundamental liberty inquiry of Casey. The sweeping description of liberty in Casey is never characterized as “fundamental” under the Constitution; rather, its wide purview covers all liberty protected by the Fourteenth Amendment, nonfundamental as well as fundamental.
There is no fundamental liberty interest in physician-assisted suicide. First, as discussed above in Part V, there is no history or tradition supporting any form of suicide. Second, however compelling the suicidal wishes of terminally ill patients are regarded, it cannot honestly be said that neither liberty nor justice will exist if access to physician-assisted suicide is proscribed.
B. The abortion right’s strength rests on stare decisis
The Casey plurality states repeatedly that it is the combined force of stare decisis and liberty that protects a woman’s right to abortion. Casey, 505 U.S. at 845, 853, 112 S.Ct. at 2804, 2808. This implies that liberty alone would be insufficient to support a new fundamental right to abortion.
The plurality never characterizes the abortion right as fundamental. This omission is significant, given the plurality’s broad characterization of the liberty interest, as well as its use of the undue burden test in lieu of the strict scrutiny ordinarily applied to fundamental rights. The four-Justice dissent goes farther, stating that it would hold the abortion right to be nonfundamental:
We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier opinions upon which it based its decision much too broadly. Unlike marriage, procreation and contraception, abortion “involves the purposeful termination of human life.” The abortion decision must therefore “be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy.”
Casey, 505 U.S. at 951-52, 112 S.Ct. at 2859 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part) (citations omitted). Central to the dissent’s reason for wanting to call the abortion right nonfunda-mental is the fact that it involves the purposeful termination of human life. Abortion is sui generis, and the courts are on notice that these four Justices will not find fundamental any other asserted right that involves the purposeful termination of human life.
The other main end-of-life ease, Cruzan, presumes a nonfundamental liberty interest in refusing unwanted medical treatment. This interest was subjected to ordinary balancing against the state interests, rather than strict scrutiny. Cruzan, 497 U.S. 261, 110 S.Ct. 2841.
These eases, combined with the Supreme Court’s disinclination to find new fundamental rights, compel the conclusion that a liberty interest in physician-assisted suicide, if one exists, is nonfundamental.
C. The history test does not support a liberty interest in physician-assisted suicide
In a recent English case, Lord Hoffman succinctly articulated the misperception upon which a history-based right to suicide is premised: “Suicide is no longer a crime, but its decriminalization was a recognition that the principle of self-determination should in that case prevail over the sanctity of life.” Airedale N.H.S. Trust v. Bland (C.A.), 2 W.L.R. 316, 351-352 (1993).
Yale Kamisar harshly criticizes this mis-perception:
[T]he decriminalization of both suicide and attempted suicide did not come about because suicide was deemed a “human right” or even because it was no longer considered reprehensible. These changes oc*850curred, rather, because punishment was seen as unfair to innocent relatives of the suicide and because those who committed or attempted to commit the act were thought to be prompted by mental illness.
Yale Kamisar, “Are Laws Against Assisted Suicide Unconstitutional?” 23 Hastings Center Report 32 (5/93) (citing “the most comprehensive and most heavily documented law review article ever written on the subject,” Thomas Marzen et al., “Suicide: A Constitutional Right?” 24 Duq.L.Rev. 1, 68-100 (1985)). Kamisar also quotes the comments to the Model Penal Code, which explain the elimination of criminal sanctions for suicide: “There is a certain moral extravagance in imposing criminal punishment on a person who has sought his own self-destruction ... and who more properly requires medical or psychiatric attention.” Kamisar, id.
As I discussed above in Part V, suicide and assisted suicide are clearly not “deeply rooted in this Nation’s history and tradition.” Bowers, 478 U.S. at 192, 106 S.Ct. at 2844. Nor are suicide or assisted suicide rooted in the English Common Law as adopted by the states, or in the legal and philosophical order underlying the English Common Law.
D. The autonomy test supports a limited liberty interest in physician-assisted suicide
The district court’s starting point for the autonomy inquiry is the now-famous assertion in Casey that “[a]t 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.” Casey, 505 U.S. at 851, 112 S.Ct. at 2807. Application of this statement in the adjudication of substantive due process claims is a matter of “reasoned judgment.” Casey, 505 U.S. at 849, 112 S.Ct. at 2806. This throws courts into the wide-open realm of pure moral reasoning about liberty. As a practical matter, such unfettered theoretical musing could not plausibly form the basis of a constitutional fundamental rights jurisprudence. This is borne out by Casey’s notable omission to mention “fundamental” rights. Casey should therefore be read as describing more general, nonfunda-mental liberty.
There is scant guidance in the quoted passage from Casey as to what may constitute a nonfundamental liberty interest. Taken out of context, the “right to define one’s own concept of existence” is so broad and melodramatic as to seem almost comical in its rhetorical flourish. But the preceding sentence in Casey provides a more somber and usable definition of liberty. Personal decisions which “involv[e] 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.” Casey, 505 U.S. at 851, 112 S.Ct. at 2807.
As plaintiffs and amicus Ten Surviving Family Members in Support of Physician-Assisted “Suicide” assert, a terminally ill person is dying, not eventually as all humans do, but imminently. Often, the decline to death is not only painful, but debilitating and demoralizing. Ideally, terminally ill people will be surrounded by caring, supportive family members, doctors, and friends, who will be able to alleviate the pain and the low morale. But ultimately, many of those who are terminally ill will face a choice of whether to continue the slow decline to death, or instead to truncate their lives.
The Hemlock Society’s how-to suicide book, Final Exit illustrates that there are many feasible methods of ending one’s life. But many of the choices are not terribly dignified. Casey says that liberty protects not only choices that are personal, intimate and central to autonomy, but also that are central to personal dignity. Suicide by physician-prescribed medication is seen by some as an inherently more dignified way to hasten an imminent and inevitable death than other methods in common usage.
To the extent that Casey defines the outer limits of the Constitution’s nonfundamental liberty right, it can plausibly be said to include decisions about the manner and timing of one’s death.
*851VII
Whatever test is ultimately used to evaluate the constitutionality of RCW 9A.36.060, the plaintiffs’ liberty interest must be compared against the state interests underlying the statute.
The State asserts three interests: (1) preventing suicide, (2) protecting vulnerable individuals from abuse or undue influence and (3) preserving and protecting the lives of its people. It asserts that the interest in preventing suicide applies equally to all the state’s citizens; the State does not evaluate the quality of life among its citizenry, and preserve and protect only those whose lives are deemed “worth living.”
Washington courts recognize four state interests common to end-of-life cases: (1) the preservation of life, (2) the protection of the interests of innocent third parties, (3) the prevention of suicide, and (4) the maintenance of the ethical integrity of the medical profession. In re Guardianship of Grant, 109 Wash.2d 545, 747 P.2d 445, 451 (Wash.1987); In re Colyer, 99 Wash.2d 114, 660 P.2d 738, 743 (Wash.1983). The Supreme Court has also recognized all four of these state interests. Cruzan, 497 U.S. at 271, 110 S.Ct. at 2847.
The four governmental interests recognized by Washington courts and endorsed by the Supreme Court are all very strong, and apply with undiminished vigor to justify RCW 9A.36.060’s prohibition of physician-assisted suicide for mentally competent, terminally ill adults. Any one of these interests would be sufficient to support this application of the statute under a rational relationship test. Were it necessary for me to do so, I would even be inclined to hold that the cumulative force of all four governmental interests is sufficient to enable this application of the statute to withstand strict scrutiny.
A. The preservation of life
This interest has been addressed extensively in the cases involving withdrawal of nutrition and hydration. In particular, Grant and Colyer describe the contours of Washington’s interest in the preservation of life. The Colyer court held that the interest “weakens ... in situations where continued treatment serves only to prolong a life inflicted with an incurable condition.” Colyer, 660 P.2d at 743. The Grant court held the interest “weaken[s] considerably ... if treatment will merely postpone death for a person with a terminal and incurable condition.” Grant, 747 P.2d at 451.
It may be tempting to extrapolate from these cases a principle that terminally ill patients seeking to commit physician-assisted suicide fall within the zone where the state’s interest in preserving life is weakened. Such an extrapolation would be improper. The state’s interest is weakened only where continued medical treatment would do nothing more than postpone death. This is the holding of both Colyer and Grant, and it matches the' line drawn in Part I of this opinion, between discontinuing medical treatment on one hand, and physician-assisted suicide and euthanasia on the other hand. As applied to terminally ill adults seeking physician-assisted suicide, the state’s interest in preserving life remains at full strength.
The state’s interest in preserving life is equally strong when applied to terminally ill patients seeking to commit assisted suicide as it is when applied to the general populace. The analogy to abortion is a rough one: in the abortion context, the Supreme Court tells us that the state’s interests in fetal life are weaker before viability than they are once the fetus becomes viable. See Casey, 505 U.S. at 845, 112 S.Ct. at 2804. A state’s interest in preserving human life is stronger when applied to viable beings than it is when applied to nonviable beings. Like a first-trimester fetus, a person kept alive by life-sustaining treatment is essentially nonviable. A terminally ill patient seeking to commit physician-assisted suicide, by contrast, is essentially viable. The patient may be inexorably approaching the line of nonviability. But the patient is still on the viable side of that line, and consequently enjoys the full protection of the state’s interest in preserving life.
B. The protection of the interests of innocent third parties
The question of physician-assisted suicide raises many issues involving the interests of *852innocent third parties. Constitutional protection for a- right to assisted suicide might spawn pressure on the elderly and infirm— but still happily alive — to “die and get out of the way.”16 Also at risk are the poor and minorities, who have been shown to suffer more pain (i.e. they receive less treatment for their pain) than other groups. See Yale Kamisar, “Against Assisted Suicide-Even a Very Limited Form,” 72 U.Det.Mercy L.Rev. 735, 737-739 (1995). Further, like the elderly and infirm, they, as well as the handicapped, are at risk of being unwanted and subjected to pressure to choose physician-assisted suicide rather than continued treatment. Kamisar quotes the New York State Task Force on Life and the Law:
[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. This risk does not reflect a judgment that physicians are more prejudiced or influenced by race and class than the rest of society — • only that they are not exempt from the prejudices manifest in other areas of our collective life.
[Many patients] in large, overburdened facilities serving the urban and rural poor .. will not have the benefit of skilled pain management and comfort care. Indeed, a recent study found that patients treated for cancer at centers that care predominantly for minority individuals were three times more likely to receive inadequate therapy to relieve pain. Many patients will also lack access to psychiatric services. Furthermore, for most patients who are terminally or severely ill, routine psychiatric consultation would be inadequate to diagnose reliably whether the patient is suffering from depression.
Kamisar, Id. at 738 (quoting The New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context at 125, 143 (1994)). Pain and suffering are directly related to the prevalence of requests for assisted suicide. Kamisar reports that
Although pain is notoriously undertreated in this country, “according to experts in the field of pain control, almost all terminally ill patients can experience adequate relief with currently available treatments.” Thus, ... suicidal ideation and suicide requests “commonly ... dissolve with adequate control of pain and other symptoms.”
Id. (quoting Judith Ahronheim & Doron Weber, Final Passages: Positive Choices For the Dying and Their Loved Ones 102 (1992); Kathleen Foley, “The Relationship of Pain and Symptom Management to Patient Requests for Physician-Assisted Suicide,” J. Pain & Symptom Management 289, 290 (1991)). Kamisar repeatedly suggests the explanation for inadequate control of pain: lack of universal access to adequate medical care. Id. at 738, 744 n. 43. People request physician-assisted suicide because they are in pain or are otherwise suffering. If their suffering is alleviated, they will likely withdraw their requests for physician-assisted suicide. We the courts are asked, in a nation of inadequate and unequal access to medical care for the alleviation of pain and suffering, to create a constitutional right to physician-assisted suicide. Surely this is a case of misplaced priorities.
Plaintiffs suggest that adequate procedural safeguards can be implemented to protect the interests of innocent third parties. This assertion is refuted by the experience of The Netherlands, where physician-assisted suicide and euthanasia are nominally legal.17 At *853the outset, The Netherlands had guidelines: the patient must be incurably ill, the patient’s suffering must be subjectively unbearable, the request for termination should be in writing, and there should be adequate consultation with other physicians before euthanasia was carried out. Lagerway at 439.
In 1991, the Dutch Government released a report on the practice of euthanasia and physician-assisted suicide in The Netherlands. Commissie Onderzoek Medische Praktijk Inzake Euthanasie, Medische Beslissingen Rond Het Levenseinde (1991) (the “Remmel-ink Report”). According to the Remmelink Report, 2.1% of all deaths in The Netherlands are due to physician-assisted suicide or euthanasia. Another 7% are due to the alleviation of pain or symptoms where the physician had the explicit (total or partial) purpose of shortening life. In 1990: 2300 people were euthanized upon request, 400 died as a result of physician-assisted suicide, 1000 died from involuntary euthanasia (patients were killed without their knowledge or consent), and 8100 died as a result of doctors deliberately giving them overdoses of pain medication (again, 61% of this category were killed without their knowledge or consent).18
Critics of this data would respond that the Dutch experiment has focused mainly on euthanasia, rather than physician-assisted suicide. But even proponents of assisted suicide have begun to abandon the distinction between physician-assisted suicide and euthanasia:
To confine legalized physician-assisted death to assisted suicide unfairly discriminates against patients with unbelievable suffering who resolve to end their lives but are physically unable to do so. The method chosen is less important than the careful assessment that precedes assisted death.
Franklin G. Miller et al., “Sounding Board: Regulating Physician-Assisted Death,” 331 New England J. Med. 119, 120 (1994). Likewise, the AMA Code of Ethics § 2.211 uses identieal language to condemn both euthanasia and physician-assisted suicide.
The poor, the elderly, the disabled and minorities are all at risk from undue pressure to commit physician-assisted suicide, either through direct pressure or through inadequate treatment of their pain and suffering. They cannot be adequately protected by procedural safeguards, if the Dutch experience is any indication. The only way to achieve adequate protection for these groups is to maintain a bright-line rule against physician-assisted suicide.
But it is not only people at the margins who are imperilled by the threat of a constitutional right to physician-assisted suicide. Such a right could disrupt the established legal order of wills, trusts, life insurance, annuities, pensions, and other estate planning tools employed by many Americans. Many life insurance policies have suicide clauses in them, which negate the insurer’s liability if the insured commits suicide. Many states have statutes like Washington’s Slayer’s Act, which preclude participants in the unlawful killing of another person from acquiring property or receiving benefits as the result of the death.19 A sampling of eases demonstrates that these and related concerns are real. In People v. Matlock, 51 Cal.2d 682, 336 P.2d 505 (Cal.1959) (In Bank) and Gospodareck v. State, 666 So.2d 835 (Ala.Cr.App.1993), the defendants were tried for killing people who had hired or requested to be killed because they wanted to die, but did not want to void their life insurance by committing suicide. In Keddie v. Delaware Violent Crimes Compensation Board, 1991 WL 215655 (Del.Super.1991), Ms. Keddie was denied compensation under the Compensation for Innocent Victims of Crime Act for her husband’s suicide. He committed suicide at the encouragement of Anthony Sabbato, who was convicted of promoting a suicide. The court reasoned that Ms. Keddie’s husband was not an innocent victim of crime, insofar as he contributed to his own death. In Holmes v. Morgan, 135 Or.App. 617, 899 *854P.2d 738 (Or.App.1995), a distraught young man changed the named beneficiary on his life insurance policy from his parents to a friend, who may have assisted him in a suicide attempt. He later committed suicide without assistance. The Oregon Court of Appeals held that the friend could receive the policy proceeds. Finally, in Wilmington Trust Co. v. Clark, 289 Md. 313, 424 A.2d 744 (Md.1981), the Maryland Supreme Court considered whether a woman could bring a contract or tort action against her former husband’s estate,, on the ground that his suicide deprived her of alimony.
The interests of many innocent third parties are implicated by a putative right to physician-assisted suicide. Most obviously, the poor, minorities and the disabled are at risk of suffering undue indifference or pressure to commit physician-assisted suicide. Less obviously, a right to physician-assisted suicide could severely disrupt the economic interests of the relatives, partners and associates of those who commit physician-assisted suicide.
C. The prevention of suicide
The state interest in preventing suicide runs directly contrary to any claimed right to physician-assisted suicide. It is a longstanding interest. In Washington, committing or attempting suicide was punishable as a crime at least from 1909 to 1976. The 1976 repeal arguably represents a recognition that suicide is not a criminal problem, but rather one of mental and, public health.20 Suicide is a leading cause of death in Washington for all age groups, 15-54. Washington State Dep’t of Health, Washington State Annual Summary of Vital Statistics 1989 38-39 (1990). Suicide is the cause of 1.8% of all deaths in Washington. Id. at 37. Aiding suicide has been codified as a crime in Washington law since 1854, and continues to the present, in RCW 9A.36.060.
Plaintiffs imply that the prevention of suicide is merely a derivative of the state’s general interest in protecting life. Even if this were the entire substance of the state interest in preventing suicide, the state’s interest in preserving life remains at full strength in the case of terminally ill patients seeking to commit physician-assisted suicide.
However, the history of state regulation of suicide and the modem consensus on the regulation of suicide indicates that the state’s interest in preventing suicide goes deeper than just keeping people alive. The state recognizes suicide as a manifestation of medical and psychological anguish; people with suicidal tendencies are suffering. The state’s interest is in addressing and, where possible, relieving that suffering.
Plaintiffs make a compelling argument that in some cases of terminally ill patients, the suffering is due not to physical pain or to psychological illness, but to the knowledge that their terminal illness will slowly dissolve their physical and mental faculties, stripping them of dignity in their last days. But also compelling are the data indicating that a high percentage of persons withdraw their suicide requests once they receive adequate treatment for depression, pain, and the like. See, e.g., Kamisar, 72 U.Det.Mercy L.Rev. at 744.
The state’s interest in preventing suicide is distinct from its interest in preserving life, and it does not diminish with the onset and advancement of terminal illness.
D. The maintenance of the ethical integrity of the medical profession
It is sanctionable unprofessional medical conduct in Washington to “possess[], use, prescri[be] for use, or distributee] ... controlled substances or legend drugs in any way other than for legitimate or therapeutic purposes ...” RCW 18.130.180(6). Furthermore, “[t]he use of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create an unreasonable risk that a patient may be harmed.” RCW 18.130.180(4). These statutory provisions demonstrate that, in addition to the prohibitions of RCW 9A.36.060, physicians are subject to professional sanctions *855for prescribing drugs to their patients in order to assist those patients to commit suicide.
While not legally binding, the AMA Code of Ethics provides clear guidance on the current position of medical ethicists. Section 2.211 of the American Medical Association’s Code of Medical Ethics and Current Opinions of the Council on Ethical and Judicial Affairs (“AMA Code of Ethics”) prohibits physician participation in physician assisted suicide. In virtually identical language to its condemnation of euthanasia, section 2.211 provides:
Physician assisted suicide occurs when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act (e.g. the physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide).
It is understandable, though tragic, that some patients in extreme duress — such as those suffering from a terminal, painful, debilitating illness — may come to decide that death is preferable to life. However, allowing physicians to participate in assisted suicide would cause more harm than good. Physician assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.
Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life, Patients should not be abandoned once it is determined that cure is impossible. Patients near the end of life must continue to receive emotional support, comfort care, adequate pain control, respect for patient autonomy, and good communication.
Because it is contrary to Washington statutory law, reinforced by the AMA Code of Ethics, it would violate the state’s interest in maintaining the ethical integrity of the medical profession to allow physicians to participate in physician assisted suicide.
VIII
In reviewing a statute’s constitutionality under the substantive due process clause, courts should apply one of two tests. If the right asserted is fundamental, the statute is subjected to strict scrutiny, under which it must be narrowly tailored to serve a compelling state interest. If the liberty interest is not fundamental, the statute is subjected only to the “unexacting” inquiry of whether the statute rationally advances some legitimate governmental purpose. Reno v. Flores, 507 U.S. at 301-306, 113 S.Ct. at 1447-1449.
Because I would hold that the liberty interest of mentally competent, terminally ill adults in committing physician-assisted suicide is not a fundamental right, I would use the latter test, which has sometimes been called the rational relationship test.
The nonfundamental liberty interest at stake here is the right of mentally competent, terminally ill adults to commit physician-assisted suicide. This interest is rooted in the liberty to make intensely private choices that are central to personal dignity and autonomy. The exercise of this nonfun-damental liberty interest is barred in Washington by RCW 9A36.060, which states that promoting a suicide attempt is a criminal offense. The Washington statute rationally advances four legitimate state interests: the preservation of life, the protection of the interests of innocent third parties, the prevention of suicide, and the maintenance of the ethical integrity of the medical profession. Under the rational relationship test, RCW 9A.36.060 is valid.21
*856IX
The district court also holds that the Washington statute violates the Equal Protection Clause. Its analysis is based upon two premises, both of which are incorrect, and fall together. First, it assumes that Cruzan-type patients are similarly situated to the patients in this case. Second, it holds that the differentiation between these types of patients is subject to, and does not withstand, strict scrutiny. Compassion in Dying, 850 F.Supp. at 1466.
Cruzan-type patients are being subjected to unwanted lifesaving medical treatment, from which they have a constitutionally protected right to be free. The patients in this case, though also terminally ill, are not seeking any such freedom from treatment. Rather, they are seeking medical assistance in ending their lives. The district court rejected arguments that the distinction between the two groups is one between “natural” and “artificial” deaths. There are dozens of ways that the two groups of patients could be distinguished or associated, not the least of which is the dramatic difference in the nature of their constitutional rights. One group has not just an interest but a right to be free from unwanted medical treatment. The other group has an interest, but not a protected right, in committing physician-assisted suicide. Washington statutes clearly distinguish the two groups, as does the AMA Code of Ethics. They are not similarly situated, and are therefore not subject to an equal protection analysis.
Even though the physician plaintiffs argue that the two groups are similarly situated, the patients in this case are neither a suspect classification nor holders of fundamental rights. The patients’ position is entitled to no more than rational basis review. Strict scrutiny is only used where people are categorized into suspect classifications (e.g., race) or suffer the infringement of a constitutionally protected fundamental right. “[T]he pertinent inquiry is whether the [classification] advances legitimate legislative goals in a rational fashion. The Court has said that, although this rational basis standard is ‘not a toothless one,’ it does not allow us to substitute our notions of good public policy.” Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981). See also New York City Transit Auth. v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979); Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988). The state’s interests in protecting life, preventing suicide, protecting the interests of third parties, and preserving the ethical integrity of the medical profession are strong, perhaps even compelling. Even if the two groups — patients refusing unwanted medical treatment and mentally competent terminally ill adults seeking to commit physician-assisted suicide — were similarly situated, the distinction between them rests solidly on a rational basis and is constitutionally valid under the Equal Protection Clause.
X
The issue of whether mentally competent, terminally ill adults have a constitutionally protected right to commit physician-assisted suicide is one of the most difficult, divisive and heart-wrenching issues facing the courts today. The correlative issue of whether terminally ill loved ones ought to be allowed to commit assisted suicide is likewise one of the most difficult, divisive and heart-wrenching issues facing American society. The former is a constitutional issue for the courts; the latter is a moral question for society as a whole.
The two issues are not the same. The latter requires us — all of us, not just judges — to engage in a soul-searching dialogue about our collective morals. Given the tremendous advances in twentieth-century medical technology and public health, it is now possible to live much longer than at any time in recorded history. We have controlled most of the swift and merciful diseases that caused most deaths in the past. In their place are a host of diseases that cause a slow deterioration of the human condition: cancer, Alzheimer’s disease, and AIDS are but a few. This change has forced us to step back and reexamine the historic presumption that all human lives are equally and intrinsically valuable. Viewed most charitably, this reexamination may be interpreted as our struggle with the question whether we as a society are willing to excuse the terminally ill for deciding that their lives *857are no longer worth living. Viewed less charitably, the reexamination may be interpreted as a mere rationalization for housecleaning, cost-cutting and burden-shifting — a way to get rid of those whose lives we deem worthless. Whether the charitable or uncharitable characterization ultimately prevails is a question that must be resolved by the people through deliberative decisionmak-ing in the voting booth, as in Washington in 1991, California in 1992 and Oregon in 1994, or in the legislatures, as recently undertaken in Michigan and New York. This issue we, the courts, need not — and should not — decide.
Instead, we should restrict our decision to the former issue: whether mentally competent, terminally ill adults have a constitutionally protected liberty interest in committing physician-assisted suicide. This is the first federal appellate case in our nation’s history to address the issue of physician-assisted suicide. To declare a constitutional right to physician-assisted suicide would be to impose upon the nation a repeal of local laws. Such a declaration would also usurp states’ rights to regulate and further the practice of medicine, insofar as a right to physician-assisted suicide flies in the face of well-established state laws governing the medical profession. Finally, the rationales under which we are asked to create this right fail adequately to distinguish physician-assisted suicide as a unique category. If physician-assisted suicide for mentally competent, terminally ill adults is made a constitutional right, voluntary euthanasia for weaker patients, unable to self-terminate, will soon follow. After voluntary euthanasia, it is but a short step to a “substituted judgment” or “best interests” analysis for terminally ill patients who have not yet expressed their constitutionally sanctioned desire to be dispatched from this world. This is the sure and inevitable path, as the Dutch experience has amply demonstrated. It is not a path I would start down.
I would hold that the four state interests discussed above are sufficiently strong to sustain the constitutionality of RCW 9A.36.060 as applied to plaintiffs’ asserted liberty interest.
I dissent.
. Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (assuming the existence of a constitutional right to be free from unwanted life-sustaining medical treatment, but implying the constitutionality of prohibitions of assisted suicide).
. Compare RCW 9A.36.060 (prohibiting the promotion of a suicide attempt) with RCW 70.122.010 et seq. (authorizing people to give directives to withhold or withdraw life-sustaining medical treatment).
. American Medical Association, Code of Medical Ethics and Current Opinions of the Council on Ethical and Judicial Affairs 2.20 (withholding or withdrawing life-sustaining medical treatment), 2.21 (euthanasia), 2.211 (physician-assisted suicide). See also American College of Physicians, Ethics Manual, 117 Annals of Internal Medicine (Dec. 1992) (reprinted in Codes of Professional Responsibility 237, 252 (Rena A. Gorlin, ed., 3d. ed. 1994)).
. See, e.g. Yale Kamisar, "Against Assisted Suicide-Even a Very Limited Form," 72 U.Det.Mercy L.Rev. 735, 757 (1995) ("I share the view of the New York State Task Force on Life and the Law that it is ‘this right against intrusion — not a general right to control the timing and manner of death — that forms the basis of the constitutional right to refuse life-sustaining treatment.' ").
. The appeal in this case was heard on September 1, 1995 under the name Quill v. Vacco, 80 F.3d 716 (2d Cir.1996).
. Research reveals that suicide-assisters were sometimes charged with involuntary manslaughter, or even murder, rather than with assisting suicide. All the cited cases involve the prosecution of someone else when the decedent actually caused his or her own death. City of Akron v. Head, 73 Ohio Misc.2d 67, 657 N.E.2d 1389 (Ohio Mun.1995); People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714 (1994), cert. denied, - U.S. -, 115 S.Ct. 1795, 131 L.Ed.2d 723 (1995) (holding that Dr. Kevorkian may be prosecuted either under a Michigan statute — held to be constitutional — or under the common-law felony of assisting suicide); People v. Duffy, 185 A.D.2d 371, 586 N.Y.S.2d 150 (N.Y.App.Div.1992); State v. Bauer, 471 N.W.2d 363 (Minn.App.1991); People v. Cleaves, 229 Cal.App.3d 367, 280 Cal.Rptr. 146 (Cal.App.1991); Hinson v. State, 18 Ark.App. 14, 709 S.W.2d 106 (1986); Chanslor v. State, 697 S.W.2d 393 (Tex.Cr.App. 1985); People v. Campbell, 124 Mich.App. 333, 335 N.W.2d 27 (1983); State v. Marti, 290 N.W.2d 570 (Iowa 1980); State v. Bier, 181 Mont. 27, 591 P.2d 1115 (1979); Commonwealth v. Swartzentruver, 256 Pa.Super. 546, 389 A.2d 181 (Pa.Super.Ct.1978); Persampieri v. Commonwealth, 343 Mass. 19, 175 N.E.2d 387 (1961).
. Edinburgh v. State, 896 P.2d 1176 (Okla.Crim.App.1995); State v. Sexson, 117 N.M. 113, 869 P.2d 301 (N.M.App.), cert. denied, 117 N.M. 215, 870 P.2d 753 (N.M.1994); Gentry v. State, 625 N.E.2d 1268 (Ind.App.1993); Goodin v. State, 726 S.W.2d 956 (Tex.App.1987); People v. Thomas C., 183 Cal.App.3d 786, 228 Cal.Rptr. 430 (Cal.App.1986); Forden v. Joseph G., 34 Cal.3d 429, 194 Cal.Rptr. 163, 667 P.2d 1176 (Cal.1983); State v. Fuller, 203 Neb. 233, 278 N.W.2d 756 (1979).
. Washington Laws, 1862, p. 83, § 1 provide: "[T]he common law of England, so far as it is not repugnant to, or inconsistent with the constitution and laws of the United States and the organic act, and laws of Washington territoiy, shall be the rule of decision in all the courts of this territory.” This statute was amended to its current form by Washington Laws, 1891, ch. 17, § 1. It is now codified at RCW 4.04.010.
. "Every person deliberately assisting another in the commission of self-murder, shall be deemed guilty of manslaughter." Terr.Laws 1854, p. 78, § 17 (1st Sess.1854).
. ALASKA STAT. § 11.41.120 (1989); ARIZ. REV.STAT.ANN. § 13-1103 (1989); ARK.CODE ANN. § 5-10-104 (Michie 1987); CAL.PENAL CODE § 401 (Westlaw 1996); COLO.REV.STAT. § 18-3-104(1)(b) (Westlaw 1996); CONN.GEN.STAT. §§ 53a-54a, -56 (Westlaw 1996); DEL.CODE.ANN. tit. 11 §§ 632, 645 (1987 & Supp.1990); FLA.STAT.ANN. § 782.08 (West 1986); GA.CODE ANN. § 16-5-5 (Westlaw 1996); HAW.REV.STAT. § 707-702 (Westlaw 1996); ILL.REV.STAT. ch. 720, ¶ 5/12-31 (Westlaw 1996); IND.CODE §§ 35-42-1-2, -2.5 (Westlaw 1996); KAN.STAT.ANN. § 21-3406 (1971); KY.REV.STAT. § 216.302 et seq. (Westlaw 1996); ME.REV.STAT.ANN. tit. 17-A, § 204 (West 1965); MICH.COMP.LAWS § 752.1027 (Westlaw 1996); MINN.STAT.ANN. § 609.215 (West 1987 & Supp.1993); MISS.CODE § 97-3-49 (Westlaw 1996); MO.REV.STAT. § 565.023(1)(2) (Westlaw 1996); MONT.CODE ANN. § 45-5-105 (Westlaw 1996); NEB.REV.STAT. § 28-307 (1989); N.H.REV.STAT.ANN. § 630:4 (1986); N.J.STAT.ANN. § 2C:11-6 (West 1982); N.M.STAT.ANN. § 30-2-4 (Michie 1984); N.Y.PENAL LAW §§ 120.30, 120.35, 125.15(3), 125.25(1)(b) (McKinney 1987); N.D.CENT.CODE § 12.1-16-04 (Supp.1991); OKLA.STAT.ANN., tit. 21, §§ 813 et seq. (West 1983); OR.REV.STAT. § 163.125(1)(b) (1991); 18 PA.CONS.STAT.ANN. § 2505 (1983 & Supp.1992); P.R.LAWS ANN. tit. 33, § 4009 (1983); S.D.CODIFIED LAWS ANN. § 22-16-37 (1988); TENN.CODE ANN. § 39-13-216 (Westlaw 1996); TEX.PENAL CODE ANN. § 22.08 (West 1989); V.I.CODE ANN. tit. 14, § 2141 (1964); WASH.REV.CODE.ANN. § 9A.36.060 (West 1988); WIS.STAT.ANN. § 940.12 (West 1982).
. D.C.CODE ANN. § 6-2428 (Westlaw 1996); IDAHO CODE § 39-152 (Westlaw 1996); NEV. REV.STAT. § 449.670 (Westlaw 1996); W.VA. CODE § 16-30-8(a) (Westlaw 1996).
. ALA.CODE § 13A-6-1 (Westlaw 1996); IOWA CODE § 707.5 (Westlaw 1996); WYO. STAT. § 6-2-107 (Westlaw 1996).
. Commonwealth v. Mink, 123 Mass. 422, 428-29 (Mass.1877); Blackburn v. State, 23 Ohio St. 146, 163 (Ohio 1872); State v. Jones, 86 S.C. 17, 67 S.E. 160, 165 (S.C.1910); State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961).
. Research indicates that the last prosecution in the U.S. for attempted suicide probably occurred in 1961. The North Carolina Supreme Court relied on the English common law to determine that attempted suicide was punishable as a misdemeanor. State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961).
. Washington subscribes to this view, and provides that attempts or threats to commit suicide can constitute a "likelihood of serious harm” to oneself sufficient to justify commitment. See RCW 71.05.020(3), RCW 71.05.240.
. A recent computer search revealed 83 news stories with this phrase, including the famous 1984 statement by Colorado Governor Lamm.
. Physician-assisted suicide and euthanasia are prohibited by the Penal Code of the Netherlands, art. 293-294. See John Keown, “Euthanasia in The Netherlands: Sliding Down the Slippery Slope?" 9 Notre Dame J.Law, Ethics & Pub. Pol. 407, 409-410 (1995). The courts have allowed physicians who participate in euthanasia to go unpunished since 1973. Nederlandse Jur-isprudentie (1973), no. 183, District Court of Leeuwarden, February 21, 1973; trans., Walter Lagerway, 3 Issues in Law and Med. 429, 439-442 (1988).
. Keown, supra note 17, at 419.
. See RCW 11.84.010 et seq. The applicability of this statute to cases of assisted suicide has not yet been decided in Washington courts. However, RCW 11.84.900 provides: "This chapter ... shall be construed broadly to effect the policy of this state that no person shall be allowed to profit by his own wrong, wherever committed.”
. A review of the legislative history and the state archives reveals that the repeal was enacted without comment from the legislature.
. The Supreme Court has occasionally appeared to employ a straight balancing test instead of the strict scrutiny-versus-rational relationship dichotomy. E.g., Cruzan, 497 U.S. at 278-279, 110 S.Ct. at 2851-2852 (“whether [the individual's] constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests”). Even under such a balancing test, I would hold that the state's four interests — -in preserving life, protecting the interests of innocent third parties, preventing suicide, and maintaining the ethical integrity of the medical profession — outweigh the plaintiffs’ autonomy-based liberty interest in committing physician-assisted suicide.