concurring in the result.
The Court today strikes down the New York statutes prohibiting assisted suicide insofar as they apply to “terminally ill, mentally competent patients, who would self-administer drugs.” It does so because it finds these statutes to be in violation of the Equal Protection Clause of the Fourteenth Amendment since they are not “rationally related to a legitimate state interest.” Ante at 725 (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985)). At the same time, the Court declines to hold that these statutes violate the Due Process Clause of the Fourteenth Amendment, because “[t]he right to assisted suicide finds no cognizable basis in the Constitution’s language or design.” Ante at 724.
Recently the Ninth Circuit, sitting en banc, held that analogous laws violated the *732fundamental Due Process rights of terminally ill patients. Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir.1996) (en banc). The Ninth Circuit recognized that Equal Protection arguments for invalidity were “not insubstantial,” but did not discuss them in view of its Due Process holding. Id. at 838 n. 139.
I agree with the Court that these statutes cannot stand. But I do not believe that the history of the statutes, and of New York’s approach toward assisted suicide, requires us to make a final judgment under either Due Process or Equal Protection as to the validity of statutes prohibiting assisted suicide. What is not ready for decision ought not to be decided. I would therefore leave open the question of whether, if the state of New York were to enact new laws prohibiting assisted suicide (laws that either are less absolute in their application or are identical to those before us), such laws would stand or fall.
Accordingly, I join the Court’s result, but write separately to explain my unwillingness to reach the ultimate Due Process and Equal Protection questions.
I. A Bit of History
There once was a time when the law and its judges were not called upon to make choices for human beings lying in the twilight between life and death. In the past, many of these decisions were left to individual doctors and their patients. Sometimes, easing of pain melded, not quite imperceptibly, into more. While doctors did not advertise then-availability, there often was an understanding (perhaps unspoken), as patients entered into what usually were long-term relationships with physicians, that when the time came doctors would do what was expected of them. Laws prohibiting assisted suicide were on the books. But whether they were ever meant to apply to a treating physician, or whether such doctors were even slightly concerned about them, is unclear and lost in the shadows of time.1 And despite a web of statutes, and doctors who, understandably, have become increasingly averse to taking risks and responsibilities, that tradition undoubtedly continues today. As the majority demonstrates, however, this fact is not a prescription for judicial silence. Ante at 722-23. We must, therefore, address petitioners’ claim that New York’s laws are invalid.
The statutes at issue were born in another age. New York enacted its first prohibition of assisted suicide in 1828. The statute punished any individual who assisted another in committing “self-murder” for first-degree manslaughter. Act of Dec. 10,1828, ch. 20, 4 1828 N.Y. Laws 19 (codified at N.Y.Rev.Stat. pt. 4, ch. 1, tit. 2, art. 1, § 7 (1829)). This prohibition was tied to the crime of suicide, described by one contemporary New York Court as a “criminal act of self-destruction.” Breasted v. Farmers’ Loan & Trust Co., 4 Hill 73, 75 (Sup.Ct.1843), aff'd, 8 N.Y. 299 (1853).
English authorities had long declared suicide to be murder. See 3 EdwaRD Coke, Institutes of the Laws of England 54 (London, E. & R. Brooke 1797) (1644); 1 Matthew Hale, Pleas of the Ceown 411-18 (London, E. & R. Nutt 1736) (1680); 4 William BLACKSTONE, COMMENTARIES ON THE Laws of England *189 (1769); 3 James FlTZJAMES STEPHEN, HISTORY OF THE CRIMINAL Law of England 104 (1869); William E. Mikell, Is Suicide Murder?, 3 Colum. L. Rev. 379, 391 (1903) (“[WJhatever may have been the law before Braeton’s time ... sui*733cide is murder in English law.”)- And the leading American case echoed these English authorities. See Commonwealth v. Bowen, 13 Mass. 356 (1816). In that case, Chief Justice Parker instructed the jury: “Self-destruction is doubtless a crime of awful turpitude; it is considered in the eye of the law of equal heinousness with the murder of one by another. In this offence, it is true the actual murderer escapes punishment; for the very commission of the crime, which the the [sic] law would otherwise punish with its utmost rigor, puts the offender beyond the reach of its infliction. And in this he is distinguished from other murderers. But his punishment is as severe as the nature of the case will admit; his body is buried in infamy, and in England his property is forfeited to the King.” Commonwealth v. Mink, 123 Mass. 422, 428 (1877) (reprinting Parker’s jury instructions in Bowen). Mink itself, written by Chief Justice Gray, found that “any attempt to commit” suicide is “unlawful and criminal.” Id. at 429.
Four years after Mink, however, the New York Legislature revised the Penal Code. The new code provided that an intentional attempt to commit suicide was a felony with a maximum penalty of two years’ imprisonment. Act of July 26, 1881, ch. 676, §§ 174, 178, 3 1881 N.Y. Laws 42-43. But while the Code declared suicide itself to be “a grave public wrong,” it imposed no forfeiture because of “the impossibility of reaching the successful perpetrator.” Id. § 173. The 1881 statute, echoing the earlier 1828 provision, punished assisting a successful suicide as manslaughter in the first degree. Id. § 175. The Code also punished assistance in attempted suicide as an unspecified felony. Id. § 176.
Whatever may have been the case in other jurisdictions,2 the 1828 and 1881 statutes prohibited all attempts to assist in a suicide on the theory that such behavior created accessory liability. Thus, because attempted suicide was a crime, assisting in the commission of suicide was also a crime. And the titles of the sections of the 1881 statute manifest these derivative origins; section 175 prohibited “Aiding suicide” and section 176 prohibited “Abetting an attempt at suicide.” Id. (emphasis added).3 Whether these laws applied to a doctor who eased or hastened the death of a terminally ill patient is, of course, quite another matter, and one on which the evidence is scant.4
The 1881 scheme was altered in 1919 when the prohibition against attempted suicide (originally found in sections 174 and 178) was removed. Act of May 5,1919, ch. 414, § 1, 2 1919 N.Y. Laws 1193. The Legislature, nevertheless, left in place the declaration of suicide as a “grave public wrong.” See Hundert v. Commercial Travelers’ Mut. Accident Ass’n of Am., 244 A.D. 459, 460, 279 N.Y.S. 555, 556 (1st Dep’t 1935) (per curiam) (“[S]ui-cide, although recognized as a grave public wrong, is not a crime.”). And the prohibition of assisting suicide also remained on the books. But we have found no case in which a physician aiding a person who wished to commit suicide was, in fact, penalized in New York after 1919.
In 1965, the Legislature took the next step and deleted the declaration that suicide was a “grave public wrong.”5 It, however, left in place redrafted versions of sections 175 and *734176 of the 1881 Code, stating: “A person is guilty of manslaughter in the second degree when ... [h]e intentionally causes or aids another person to commit suicide,” § 125.15(3), and, “[a] person is guilty of promoting a suicide attempt when he intentionally causes or aids another person to attempt^ suicide,” § 120.30.6
The years since 1965 have brought further erosion in the bases for prohibiting assisted suicide with respect to terminally ill persons. Thus, in 1981, the New York Court of Appeals declared that “a doctor cannot be held to have violated his legal or professional responsibilities when he honors the right of a competent adult patient to decline medical treatment.” In re Storar, 52 N.Y.2d 363, 377, 420 N.E.2d 64, 71, 438 N.Y.S.2d 266, 273, cert. denied, 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153 (1981). The court applied this principle both to the withdrawal of life-support and to the refusal of blood transfusions. Id. at 379-80, 438 N.Y.S.2d 266, 420 N.E.2d 64. Furthermore, in 1986, the court stated: “In our system of a free government, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in respect to decisions regarding his medical treatment....” Rivers v. Katz, 67 N.Y.2d 485, 493, 495 N.E.2d 337, 341, 504 N.Y.S.2d 74, 78 (1986). Lower courts, understandably, followed suit. See Delio v. Westchester County Medical Ctr., 129 A.D.2d 1, 516 N.Y.S.2d 677 (2d Dep’t 1987) (“[T]he common-law right of self determination with respect to one’s body also ,forms the foundation for a competent adult patient’s right to refuse life-sustaining treatment even if the effect is to hasten death_”).
The New York Legislature itself acted accordingly. In the 1987 Orders Not to Resuscitate Act, it provided that an “adult with capacity” may create an “order not to resuscitate” in the event the patient “suffers cardiac or respiratory arrest.” Act of Aug. 7, 1987, ch. 818, § 1, 1987 N.Y. Laws 3140 (codified as amended at N.Y. Pub. Health Law, §§ 2960-2979 (McKinney 1993 & Supp. 1996)). In the 1990 Health Care Agents and Proxies Act, it went further and permitted a competent person to designate an agent who has “authority to make any and all health care decisions on the principal’s behalf that the principal could make.” Act of July 22, 1990, ch. 752, § 2, 1990 N.Y. Laws 1538 (codified as amended at N.Y. Pub. Health Law § 2982(1) (McKinney 1993)). The statute explicitly stated that choices regarding the withdrawal of artificial nutrition and hydration are within the purview of a health care agent when the wishes of the principal are reasonably known to the agent. N.Y. Pub. Health Law § 2982(2).7
Later, in 1994, the New York Task Force on Life and the Law, a group organized in 1985 at the request of Governor Cuomo and composed of doctors, bioethicists, and religious leaders, among others, prepared a report on the question. The report, in effect, *735said leave things as they are: permit suicide and attempted suicide, recognize the right of competent terminally ill patients — either on their own or through agents — to order the ceasing of nutrition and hydration and the withdrawal of life support systems, but do not alter the law to permit what petitioners seek today. New York State Task Foroe on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medioal Context 142-46 (1994). The Legislature received the report and, not surprisingly, took no action, then or since.
From this historical survey, I conclude that 1) what petitioners seek is nominally still forbidden by New York statutes; 2) the bases of these statutes have been deeply eroded over the last hundred and fifty years; and 3) few of their foundations remain in place today.
Specifically:
• The original reason for the statutes— criminalizing conduct that aided or abetted other crimes — is long since gone.
• The distinction that has evolved over the years between conduct currently permitted (suicide, and aiding someone who wishes to die to do so by removing hydration, feeding, and life support systems) and conduct still prohibited (giving a competent, terminally ill patient lethal drugs, which he or she can self-administer) is tenuous at best.8
• The Legislature — for many, many years — has not taken any recognizably affirmative step reaffirming the prohibition of what petitioners seek.
• The enforcement of the laws themselves has fallen into virtual desuetude — not so much as to render the ease before us nonjus-ticiable, but enough to cast doubt on whether, in a case like that which the petitioners present, a prosecutor would prosecute or a jury would convict. And this fact by itself inevitably raises doubts about the current support for these laws.9
II. Constihitional Doubts
In the case of ordinary legislation none of this would matter much. We regularly uphold laws whose original reason has vanished, whose fit with the rest of the legal system is dubious, whose enforcement is virtually nil, and whose continued presence on the books seems as much due to the strong inertial force that the framers of our constitutions gave to the status quo as to any current majoritarian support. In a different context, I have argued that courts have used subterfuges and aggressive interpretations to rid the system of such laws. See Guido Calabresi, A Common Law for the Age of Statutes 163-66, 172-77 (1982). But I. have also criticized such judicial action, at least in the absence of express legislative sanction. See id.; Taber v. Maine, 67 F.3d 1029, 1039 (2d Cir.1995).
When legislation comes close to violating fundamental substantive constitutional rights or to running counter to the requirements of Equal Protection, however, there is, as I hope to demonstrate, a long tradition of constitutional holdings that inertia will not do. In such instances, courts have asserted the right to strike down statutes and, before ruling on the ultimate validity of that legislation, to demand a present and positive acknowledgment of the values that the legislators wish to further through the legislation in issue. And so it is to an examination of the substantive constitutional dubiety of the laws before us that I now turn.
There can be no doubt that the statutes at issue come close — at the very least — to infringing fundamental Due Process rights and to doing so in ways that are also suspect under the antidiscrimination principles of the *736Equal Protection Clause. While differing in emphasis, the various opinions of the Supreme Court in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), and in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), as well as the ere banc opinion of the Ninth Circuit in Companion in Dying, and the strongly argued majority opinion in this case, make that abundantly clear.
In Cruzan, the Court examined whether guardians could order withdrawal of an incompetent patient’s life support when, contrary to the requirements of the State of Missouri, there was not clear and convincing proof of the patient’s wish to have life support withdrawn. In deciding that the guardians could not so order, the majority opinion noted that “[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.” 497 U.S. at 278, 110 S.Ct. at 2851. It went on to describe the decision to withdraw life support as “deeply personal” and noted that “[i]t cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment.” Id. at 281, 110 S.Ct. at 2853.
Various Justices expanded on this theme. Justice O’Connor, concurring, wrote, “I agree that a protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions, see ante, at 278-79 [110 S.Ct. at 2851-52], and that the refusal of artificially delivered food and water is encompassed within that liberty interest. See ante, at 279 [110 S.Ct. at 2851-52].” Id. at 287, 110 S.Ct. at 2856. She then added, “Requiring a competent adult to endure such procedures against her will burdens the patient’s liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.” Id. at 289, 110 S.Ct. at 2857. Justice Brennan, joined by Justices Marshall and Blackmun, dissenting, made a similar point: “Dying is personal. And it is profound. For many, the thought of an ignoble end, steeped in decay, is abhorrent. A quiet, proud death, bodily integrity intact, is a matter of extreme consequence.” Id. at 310-11, 110 S.Ct. at 2868. In turn, Justice Stevens, also dissenting, powerfully noted: “Choices about death touch the core of liberty. Our duty, and the concomitant freedom, to come to terms with the conditions of our own mortality are undoubtedly ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental....’” Id. at 343,110 S.Ct. at 2885.
Even Justice Scalia, who was the only member of the Court to find that no liberty interest was implicated, recognized that such issues touch the essence of our humanity. He argued that the Constitution was silent on the question of whether one had a liberty interest in refusing life support, and that such a right could not be found in our history and tradition. Id. at 293-96, 110 S.Ct. at 2859-61 (Scalia, J., concurring). He then went on to say: “Are there, then, no reasonable and humane limits that ought not to be exceeded in requiring an individual to preserve his own life? There obviously are, but they are not set forth in the Due Process Clause. What assures us that those limits will not be exceeded is the same constitutional guarantee that is the source of most of our protection — what protects us, for example, from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day, none of which horribles are categorically prohibited by the Constitution. Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” Id. at BOO, 110 S.Ct. at 2863. Significantly, as the majority today points out, Justice Scalia also made clear that he recognized no sensible difference between assisted suicide (of the sort involved in the case before us) and assisted removal of life support and feeding tubes. “[T]he cause of death in both cases is the suicide’s conscious decision to ‘pu[t] an *737end to his own existence.’” Id. at 295-97, 110 S.Ct. at 2860-61 (Scalia, J., concurring).
Although the Court in Cruzan did not ultimately decide whether a patient had a constitutionally protected right to die, the majority opinion clearly recognized that any infringement of such a liberty interest was at least constitutionally suspect.10 It said, “Petitioners insist that under the general holdings of our eases, the forced administration of life-sustaining medical treatment, and even of artificially delivered food and water essential to life, would implicate a competent person’s liberty interest. Although we think the logic of the cases discussed above would embrace such a liberty interest, the dramatic consequences involved in refusal of such treatment would inform the inquiry as to whether the deprivation of that interest is constitutionally permissible. But for purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.” Id. at 279, 110 S.Ct. at 2852.
What is more, the Court in Cruzan did not merely “assume” that a liberty interest in refusing life-sustaining medical treatment existed. It found that a prohibition of life-support termination would deprive a patient of that liberty interest. In doing so, the Court noted that “determining that a person has a ‘liberty interest’ under the Due Process Clause does not end the inquiry,” and that “whether respondent’s constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.” Id. at 279, 110 S.Ct. at 2851-52 (internal quotation marks and citation omitted). It then “assumed” that when a patient’s liberty interest was balanced against Missouri’s interest in life, the balance would come out in favor of the patient.
Cruzan never actually struck this balance, of course, because the Court found that Missouri could insist on strong evidentiary requirements to ensure that Cruzan wanted to die, since “the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment,” id. at 281, 110 S.Ct. at 2853. But this in no way undermines Cruzan’s holding that in determining whether a patient has a constitutional right to die, we are required to “balance” the consequences of the state’s prohibition of life-support termination against the state’s interest in preserving life. Id. at 279, 110 S.Ct. at 2851-52.
Cruzan, therefore, teaches us that statutes that interfere with an individual’s decision to terminate life are suspect under the Due Process Clause. The right to act on that decision is one that may or may not receive ultimate constitutional protection, however, depending on the power of the state’s interests and the clarity with which those interests are expressed. Moreover, as Justice Scalia in his concurrence points out, the Equal Protection Clause also requires courts to examine whether such statutes apply equally to “you and me” — regardless of whether the prohibited activity interferes with a fundamental right or disadvantages a suspect class.
Like Cruzan, Casey suggests that New York’s assisted suicide statutes are of doubtful constitutionality. In Casey, the Court noted that “[o]ur law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” and that “the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about ... bodily integrity.” 505 U.S. at 851, 849, 112 S.Ct. at 2806-07, 2806. In this respect, Casey borrowed from Justice Harlan’s formulation in Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1776-77, 6 L.Ed.2d 989 (1961) (Harlan, J., dissent*738ing), 505 U.S. at 848-49, 112 S.Ct. at 2805-06, and defined liberty interests to include choices at the core of human existence. Following Harlan, it stated: “These matters, 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.... Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Id. at 851, 112 S.Ct. at 2807.
Today’s majority and the Ninth Circuit, en banc, in Compassion in Dying, go further than the Supreme Court did in Cruzan and Casey. These circuits — the first to rule on the matter — hold that laws prohibiting physicians from assisting suicide in some circumstances actually violate the Constitution. The majority does so because it can see no valid Equal Protection difference between the so-called “passive” assistance that New York allows and the “active” assistance that New York purports to forbid. The Ninth Circuit, instead, finds a violation of a fundamental Due Process right.11
In light of these opinions, I believe that it cannot be denied that the laws here involved, whether tested by Due Process or by Equal Protection, are highly suspect. It is also the case, however, that neither Cruzan, nor Casey, nor the language of our Constitution, nor our constitutional tradition clearly makes these laws invalid. What, then, should be done?
III. The Constitutional Remand
I contend that when a law is neither plainly unconstitutional (because in derogation of one of the express clauses of our fundamental charter or, for that matter, of the more general clauses, as these have been interpreted in our constitutional history and traditions), nor plainly constitutional, the courts ought not to decide the ultimate validity of that law without current and clearly expressed statements, by the people or by their elected officials, of the state interests involved. It is my further contention, that, absent such statements, the courts have frequently struck down such laws, while leaving open the possibility of reconsideration if appropriate statements were subsequently made.
Thus, in Kent v. Dulles, 357 U.S. 116, 129, 78 S.Ct. 1113, 1119-20, 2 L.Ed.2d 1204 (1958), in striking down a State Department directive limiting citizens’ passport rights, the Supreme Court, said: “Where activities or enjoyment, natural and often necessary to the well-being of an American citizen, such as travel, are involved, we will construe narrowly all delegated powers that curtail or dilute them. We hesitate to find in this broad generalized power an authority to trench so heavily on the rights of the citizen.... Thus we do not reach the question of constitutionality. We only conclude that § 1185 and § 211a do not delegate to the Secretary the kind of authority exercised here.” And in Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), in voiding a loyalty-security program that did not provide for confrontation of witnesses, the Court stated: “[Legislative and executive decisions] must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized, but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws.” Id. at 507, 79 S.Ct. at 1419 (citation omitted)
The same view was expressed even by the great constitutional absolutist, Justice Hugo L. Black. In Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959), in dissent, he argued that the authori*739ty of the House UnAmerican Activities Committee to investigate communism in education should be limited, “[flor we are dealing here with governmental procedures which the Court itself admits reach to the very fringes of congressional power. In such cases more is required of legislatures than a vague delegation to be filled in later by mute acquiescence.” Id. at 139-40, 79 S.Ct. at 1100 (footnote omitted).12
While these earlier eases leaned in part on statutory interpretation or on broad readings of doctrines such as delegation and vagueness, more recent opinions have applied constitutional remands directly.13 In Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977), for example, Justice Stevens provided the swing vote in the Court’s five-to-four decision that the Social Security Act’s grant of special benefits to widows was in violation of Equal Protection. He found that the law discriminated “against a group of males [and] is merely the accidental byproduct of a traditional way of thinking about females.” Id. at 233, 97 S.Ct. at 1040 (Stevens, J., concurring). Significantly, he went on to say that “[pjerhaps an actual, considered legislative choice would be sufficient to allow this statute to be upheld, but that is a question I would reserve until such a choice has been made.” Id. at 223 n. 9, 97 S.Ct. at 1035 n. 9.14
The powerful, and telling, concurring opinion by Justice O’Connor in Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), which provided the fifth vote to strike down state death penalty laws applicable to minors less than sixteen years of age, did the same thing. The fact that such laws were on the books in many states did not suffice to meet the strictures of the Cruel and Unusual Punishment Clause. The laws may have been there inadvertently or as a result of inertia, and many state legislatures seemed not to have realized that children could be executed under their statutes. Such laws, moreover, were virtually never enforced against minors under sixteen. Hence, the Justice reasoned, they were invalid. But if states reenacted them, consciously and clearly, the Court would then have to consider whether the statutes could actually meet the Clause’s requirements. Id. at 857, 108 S.Ct. at 2710-11 (O’Connor, J., concurring in the judgment).
Perhaps the most dramatic instance of this constitutional remand, or second look, ap*740proach occurred in our own Circuit, in a case bearing many similarities to the one before us today. In Abele v. Markle, 342 F.Supp. 800 (D.Conn.1972) (“Abele I ”), a three-judge district court was asked to examine the constitutionality of a Connecticut statute that banned abortion. Circuit Judge J. Edward Lumbard found the statute to be unconstitutional for reasons later echoed by the Supreme Court in Roe v. Wade, 410 U.S. 118, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). District Judge T. Emmet Clarie found no violation of due process for reasons akin to those adverted to in today’s majority opinion. The key vote was by then-District Judge Jon Newman.
In his landmark opinion, now-Chief Judge .Newman found that the Connecticut statute had been passed in 1860 to protect the health of pregnant women, and that this aim was no longer applicable in 1972 because childbirth endangered a woman’s life more than abortion did. Id. at 807-09 (Newman, J., concurring). Yet he recognized that other valid grounds for the statute might exist, including, perhaps, the protection of unborn life (Roe v. Wade had not yet been decided). Newman pointed out, however, that the statute was not passed to protect unborn life. “If the Connecticut legislature had made [such] a judgment,” Newman mused, “the constitutionality of such laws would pose a legal question of extreme difficulty....” Id. at 810. Because “that legislative determination has not been shown to have been made,” Newman found it “inappropriate to decide the constitutional issue that would be posed” if the Legislature in fact passed a law designed to protect human life. Id. And since the statute before him, whatever its basis, raised strong constitutional doubts, Newman nullified the law while explicitly leaving the Legislature free to reconsider the issue.
Judge Newman’s opinion is, of course, not binding on us. But it remains an important beacon suggesting what is the correct approach in extremely difficult cases in which neither the Supreme Court, nor constitutional language or tradition, gives clear guidance. It tells us how to deal with situations in which the state interests that might support such statutes can only be inferred from legislative inaction or from long-abandoned legislative motives.
Today, Timothy Quill takes the place of Janice Abele in challenging another statute of nineteenth-century origin. As with the Connecticut abortion law, the rationale for the New York assisted-suicide prohibition has eroded with the passage of time. In the nineteenth century, both suicide and attempted suicide were crimes and assisting in those crimes was, derivatively, a crime as well. But suicide and attempted suicide are no longer crimes. Nevertheless, the prohibitions on assisted suicide might serve other valid ends. It is possible, for example, to imagine a state in which such statutes were part of an overall approach to the preservation of life that was so all-encompassing that the laws’ validity might be upheld despite their infringement of important libertarian individual rights. Our Constitution gives us no more complete dominion over our bodies than it does over our property. See, e.g., Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (holding that a state may, over a suspect’s protest, have a physician extract blood from a person suspected of drunk driving). In other words, our Constitution does not enact the bodily equivalent of Herbert Spencer’s Social Statics. Cf. Lochner v. New York, 198 U.S. 45, 75, 25 S.Ct. 539, 546-47, 49 L.Ed. 937 (1905) (Holmes, J., dissenting). But there is no sign that such an overall “culture of life” reigns in New York State — quite the contrary.
Well before Roe v. Wade, New York enacted one of the most permissive abortion laws in the country. See Roe, 410 U.S. 113, 147-48 & n. 41, 93 S.Ct. 705, 724 & n. 41, 35 L.Ed.2d 147 (1973). New York recently reenacted the death penalty. See Act of Mar. 7, 1995, ch. 1, § 2, 1995 N.Y. Laws 1 (McKinney’s) (codified at N.Y. Penal Law § 60.06 (McKinney’s Supp.1996)). As far as I know, no New York Legislature has seriously considered requiring individuals to give their blood, bone marrow or other organs, to keep those who need transplants alive. Indeed, such an idea would strike many as bizarre science fiction. Nearer to hand, the right to demand to die, as and when one wishes, has *741been recognized in New York for all those on feeding or hydration tubes or on other life support devices. All this the majority opinion demonstrates beyond peradventure.
Various amici for the respondents argue that the New York assisted suicide laws consciously adopt their particular vision of what life and death should be. Amicus United States Catholic Conference, for example, insists that suicide is antithetical to freedom, that it is not voluntary and that it is linked to psychiatric illness. But there is no reason to believe that New York has accepted these arguments. If it had, one would expect that New York would prohibit attempted suicide and that it would, for example, aggressively discourage suicide by the terminally ill, through legislative declarations defining it to be a “grave public wrong” or through some other means.
Other amici contend that the difference between what they call “active” assisted suicide (making lethal drugs available to those terminally ill who would self-administer them) and what they call “passive” behavior (actively removing life supports or feeding tubes, on demand, so that the patient may die) is fundamental. Even if I were to accept the distinction in the face of the powerful arguments made against it both by the majority today and by Justice Scalia in his Cruzan concurrence, there is no reason to believe that New York has consciously made such a judgment. Certainly New York has never enacted a law based on a reasoned defense of the difference.
The Attorney General of New York contends that its Legislature has, in fact, made just such a distinction by its inaction, by its failure to remove the prohibitions before us today. It left these in place after the prohibition on what could be called “passive” assisted suicide had been abrogated. Leaving aside the difficulties involved in arguing that legislative inaction should be given the same weight as legislative action in supporting the view that medical action and medical inaction are fundamentally different, the argument will not do. As the majority points out, we have not been given any clear statements of possible interests that the state actually believes would be served by the distinction. In their absence, how can we say that the distinction, which is anything but obvious, and which results in severe harm to the ability of some, but not all, individuals to determine crucial life and death choices for themselves, is mandated by the state’s fundamental needs? And if the state does not affirmatively tell us what it wishes to put on the other side of the scale, how can we make the balance required by Cruzan come out any way but in favor of an individual’s freedom to choose between life and death? Whether under Equal Protection, or Due Process, then, the absence of a recent, affirmative, lucid and unmistakable statement of why the state wishes to interfere with what has been held by the Supreme Court to be a significant individual right, dooms these statutes.
I take no position on what I would hold were such an affirmative statement forthcoming from the state of New York. In the wake of Furman v. Georgia, 408 U.S. 238, 239-40, 92 S.Ct. 2726, 2727, 33 L.Ed.2d 346 (1972) (per curiam), which in effect sent all of the then-existing death penalty laws back for a second look by the states, the Supreme Court (rightly or wrongly) upheld most of the somewhat modified and subsequently enacted death penalty laws. See Gregg v. Georgia, 428 U.S. 153, 179-81, 96 S.Ct. 2909, 2928-29, 49 L.Ed.2d 859 (1976) (plurality opinion). Conversely, one month after Judge Newman’s eonciu’rence in Abele I, Connecticut enacted a new anti-abortion law that was based on protecting the life of the fetus. Pub. Act No. 1, 1972 Conn. Acts 593 (May Spec.Sess.) (codified at Conn. Gen.Stat. § 53-30(a)-(b)). And the same panel that had decided Abele I (rightly or wrongly) declared the new law unconstitutional.15 Either result *742is possible after a second look in which the state affirms laws that it previously had allowed to remain in force through passivity or inertia.16 What I do say is that no court need or ought to make ultimate and immensely difficult constitutional decisions unless it knows that the state’s elected representatives and executives — having been made to go, as it were, before the people — assert through their actions (not them inactions) that they really want and are prepared to defend laws that are constitutionally suspect.
It is different when the Constitution speaks clearly. When a law violates the plain mandates of the text, history, or structure of the Constitution, no second look is warranted or appropriate. That law must fall. Laws that violate the core of the First Amendment and the core of the Takings Clause are but two examples. When that is not the case, when the Constitution and its history do not clearly render a statute invalid, when its validity depends instead, in part, on the strength of the state interests at stake, then a second look is not only appropriate, it is, in my view, usually required.
Without a second look by the people, courts are liable to err in either direction. They may uphold and thereby validate17 (as they all too often have 18) the infringement of rights upon which the states did not truly wish to encroach. Conversely, they may, ultimately and definitively, strike down laws, believing that the state interests involved are minor, when in fact these interests turn out to be highly significant.19
In the end, a constitutional remand does no more than this: It tells the legislatures and executives of the various states, and of the federal government as well, that if they wish to regulate conduct that, if not protected by our Constitution, is very close to being protected, they must do so clearly and openly. They must, in other words, face the consequences of their decision before the people.20 Unless they do this, they cannot *743expect courts to tell them whether what they may or may not actually wish to enact is constitutionally permitted.
IV. Conclusion
For all of the above reasons, I do not reach the merits in this case — merits that are, as Judge Newman said of those that he also did not reach in Abele v. Markle, “of extreme difficulty.” 342 F.Supp. at 810. What, after all, are we to make of Margaret Mead’s statement, cited in one of the amicus briefs, that we should beware of giving those who have the power to heal the right to kill, since anthropologically speaking the distinction between the two is relatively new in our cultures? It is certainly worth pondering. But how does it help us to distinguish between giving doctors the right to remove life support systems and the right of the terminally ill to demand lethal drugs from the same doctors? And how is one to weigh petitioners’ claim that if doctors are not allowed to give patients lethal drugs for self-administration, those patients will be forced to commit suicide, legally, in far more horrendous ways — by hanging, shooting, or gassing themselves? These methods, petitioners assert, are plausibly more dangerous to society and devastating to survivors. But is it really the case that terminally ill patients would take such measures? And which way would it cut, if they did not? These questions, moreover, hardly begin to approach the human tragedies, and the deeply held beliefs, that the issues we would have to decide would require us to explore. No. Unless New York forces us to face such choices head on, by asserting its interest in the prohibitions before us, we should not do so. And this New York has not done.
I would hold that, on the current legislative record, New York’s prohibitions on assisted suicide violate both the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution to the extent that these laws are interpreted to prohibit a physician from prescribing lethal drugs to be self-administered by a mentally competent, terminally ill person in the final stages of that terminal illness. I would, however, take no position on whether such prohibitions, or other more finely drawn ones, might be valid, under either or both clauses of the United States Constitution, were New York to reenact them while articulating the reasons for the distinctions it makes in the laws, and expressing the grounds for the prohibitions themselves. I therefore concur in the result reached by the Court.
. See New York State Task Force on Life and the Law, When Death is Sought. Assisted Suicide and Euthanasia in the Medical Context 57 (1994) ("No person has been convicted in New York State of manslaughter for intentionally aiding or causing a suicide.... The reluctance to bring such cases no doubt rests in part on the degree of public sympathy [such cases] often arouse, and the resulting difficulty of securing an indictment and conviction.”); Compassion in Dying, 79 F.3d at 811 (footnotes omitted) ("[T]he mere presence of statutes criminalizing assisting in a suicide does not necessarily indicate societal disapproval. That is especially true when such laws are seldom, if ever, enforced. There is no reported American case of criminal punishment being meted out to a doctor for helping a patient hasten his own death.... Running beneath the official history of legal condemnation of physician-assisted suicide is a strong undercurrent of a time-honored but hidden practice of physicians helping terminally ill patients to hasten their deaths.”).
. See Compassion in Dying, 79 F.3d at 846-47 (Beezer, J., dissenting).
. The 1937 New York Report of the Law Revision Commission explicitly found that "[t]he history of the [abetting and advising suicide] provision is traceable into the ancient common law when a suicide or felo de se was guilty of a crime punishable by forfeiture of his goods and chattels. One who encouraged or aided him was guilty as an accessory to the crime of 'self-murder' ...." State of New York, Report of the Law Revision Commission for 1937, at 830 (1937).
. See supra note 1.
.The 1965 Act did provide that "[a] person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical injury upon himself may use physical force upon such person to the extent that he reasonably believes it necessary to thwart such result." Act of July 20, 1965, ch. 1030, 1965 N.Y. Laws 2355 (codified at N.Y. Penal Law § 35.10(4)). See Von Holden v. Chapman, 87 A.D.2d 66, 68, 450 N.Y.S.2d 623, 626 (4th Dep’t 1982) (upholding order authorizing forced feeding of John Lennon’s murderer, Mark David Chapman, to prevent Chapman from starving himself to death because "[t]he preservation of life has a high social value in our culture”).
. Why the legislature left the prohibition of assisted suicide in the law, and whether it thought about the issue at all is hard to say. The 1937 Law Revision Report had, in a sense, presaged the event when it said that since New York had removed "all stigma [of suicide] as a crime” and that "[s]ince liability as an accessory could no longer hinge upon the crime of a principal, it was necessary to define it as a substantive offense." Report of the Law Revision Commission, supra note 3, at 831. The Commission seemed to have been concerned primarily with those who talked others into killing themselves. It noted the important difference between aiding someone who had a mind-set to commit suicide and the "more dangerous" person "working upon the mind of a susceptible person to induce suicide,” id. at 832.
. The 1990 Act provided the following caution: "This article is not intended to permit or promote suicide, assisted suicide, or euthanasia; accordingly, nothing herein shall be construed to permit an agent to consent to any act or omission to which the principal could not consent under law.” N.Y. Pub. Health Law § 2989(3). The full significance of this section is not clear. It understandably limited the agent to doing those acts to which the principal, on whose behalf the agent is acting, could consent. It also seemed to leave in place the status quo both as to those acts, like suicide, which were no longer crimes and those, like assisted suicide, which nominally were. But the section did not go further, as New York claims in a letter brief where it says, citing § 2989(3), that "New York's legislature expressly rejected permitting physician assisted suicide.” Section 2989(3) did not speak to this any more than it spoke to the legality of suicide.
. See ante at 728-31 (the majority opinion’s powerful discussion of the weakness of the distinction).
. We note in passing that a jury in Michigan recently acquitted Dr. Jack Kevorkian after he argued (despite his earlier, quite explicit, publicity and statements) that all he was doing was ending pain. See Todd Nissen, Kevorkian Found Not Guilty in Assisted Suicide Trial, Reuters, Mar. 8, 1996. We note also that Iowa has just enacted a law forbidding assisted suicide and that this law does not prohibit "the responsible actions of a licensed health professional to administer pain medication to a patient with a terminal illness.” See Gov. Branstad Signs Bill Outlawing Assisted Suicide, BNA Health Care Daily, Mar. 5, 1996.
. Both Justices O'Connor and Scalia joined Chief. Justice Rehnquist’s opinion, making it an opinion for the Court. Their own concurring opinions, however, gave significantly different glosses to the Court's opinion. See Cruzan, 497 U.S. at 287, 110 S.Ct. at 2856 (O’Connor, J., concurring) (“As the Court notes, the liberty interest in refusing medical treatment flows from decisions involving the State’s invasions into the body. See ante, at 278-279 [110 S.Ct. at 2851-52]”); id. at 293, 110 S.Ct. at 2859 (Scalia, J. concurring) (“While I agree with the Court’s analysis today, and therefore join in its opinion, I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field....”).
. And some distinguished scholars agree. See, e.g., Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737, 794-95 (1989) ("If the decision to live or die is said to be so fundamental to a person that the state may not make it for him, then it is difficult to see on what plausible ground the right to make this decision could be granted to those on life support but denied to all other individuals.”). There are, of course, distinguished scholars who disagree. See, e.g., Yale Kamisar, Against Assisted Suicide—Even a Very Limited Form, 72 Detroit Mercy L. Rev. 735, 753-60 (1995).
. The Court's opinion in Kent and Justice Black’s dissent in Barenblatt relied in part on a pair of delegation opinions by Chief Justice Hughes dating from the 1930s. These were treated as using a similar approach because, in the 1930s, the statutes at issue were at the fringes of congressional power under the Commerce Clause. See Kent, 357 U.S. at 129, 78 S.Ct. at 1119-20 (citing Panama Refining Co. v. Ryan, 293 U.S. 388, 420-30, 55 S.Ct. 241, 248-53, 79 L.Ed. 446 (1935)); Barenblatt, 360 U.S. at 140 n. 7, 79 S.Ct. at 1100 n. 7 (Black, J., dissenting) (citing Panama Refining and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935)).
. Interpretation to avoid constitutional questions and undue delegation have proven particularly useful to the Supreme Court as ways of sending back for a second look federal statutes that came close to infringing fundamental rights. These devices, however, are either not available or are problematic when the statute that skates close to a constitutional line is a state law, since both what can and cannot be delegated within a state and how a state statute should be interpreted are paradigmatic issues of state law. Compare Sweezy v. New Hampshire, 354 U.S. 234, 254, 77 S.Ct. 1203, 1213-14, 1 L.Ed.2d 1311 (1957) (plurality opinion applying a concept akin to undue delegation to find that "[t]he lack of any indications that the legislature wanted the information the Attorney General attempted to elicit from petitioner must be treated as the absence of authority. It follows that the use of the contempt power ... was not in accordance with ... due process”) with id. at 254-55, 77 S.Ct. at 1214 (Frankfurter, J., concurring in the result) (disagreeing with plurality on this issue because "whether the Attorney General of New Hampshire acted within the scope of. the authority given him by the state legislature is a matter for the decision of the courts of that State, as it is for the federal courts to determine whether an agency to which Congress has delegated power has acted within the confines of its mandate”). In such circumstances, a reconsideration can occur at the behest of a federal court only if that court is willing impose a constitutional remand directly. See infra (discussion of Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), and Abele v. Markle, 342 F.Supp. 800 (D.Conn.1972)).
.The other four votes in the majority held that the statute was an invalid discrimination against women. Califano, 430 U.S. at 217, 97 S.Ct. at 1032 (plurality opinion).
. See Abele v. Markle, 351 F.Supp. 224, 232 (D.Conn.1972) ("Abele II"). Then-District Judge Newman’s opinion noted that, "for the author of this opinion,” the Legislature’s new "statement of legislative purpose makes the issue posed ... quite different from the issue raised by the challenge to the prior statutes.... A statute of this sort, as I previously indicated [in Abele I ], 342 F.Supp. at 810 and 811 n. 18, poses a far more difficult question, one that I did not believe should be decided unless such a statute was enacted.” Id. at 226 n. 4. Judge Newman’s *742opinion was joined by Judge Lumbard, while Judge Clarie dissented. The Supreme Court subsequently vacated the decision in light of Roe, 410 U.S. 951, 93 S.Ct. 1417, 35 L.Ed.2d 683 (1973), and remanded the case to the district court. On remand, the same three judges declared the law unconstitutional. Abele v. Markle, 369 F.Supp. 807, 809 (D.Conn.1973) (per cu-riam).
. Sometimes, of course, a legislature will not reenact a statute that has been remanded to it, or will reenact it with modifications and limits sufficient to avoid any serious constitutional challenge.
. See Charles L. Black. Jr., The People and the Court: Judicial Review in a Democracy 52 (1960) C'[T]he Court, through its history, has acted as the Iegitimator of the government. In a very real sense, the Government of the United States is based on the opinions of the Supreme Court.”).
. See Guido Calabresi, The Supreme Court, 1990 Term — Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 Harv L. Rev. 80, 143-45 (1991).
. See Hariy Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83 Yale L.J. 221 (1973); Alexander Bickel & Harry Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv L. Rev. 1 (1957); Alexander Bickel, The Supreme Court, 1960 Term — Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961).
.In this respect, the notion of a constitutional remand may respond to some of the concerns expressed by the dissenters in Companion in Dying. See Compassion in Dying, 79 F.3d at 856 (Beezer, J. dissenting) ("Whether the charitable or uncharitable characterization [of physician-assisted suicide] ultimately prevails is a question that must be resolved by the people through deliberative decisionmaking in the voting booth ... This issue we, the courts, need not — and should not- — decide_ To declare a constitutional right to physician-assisted suicide would be to impose upon the nation a repeal of local laws.”); id. at 857 (Fernandez, J., dissenting) ("Like so many other issues, it is one 'for the people to decide.’ Our Constitution leaves it to them; it is they and their representatives who must grapple with the riddle and solve it.”) (citation omitted); id. at 857 (Kleinfeld, J., dissenting) ("The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia, while all great questions would be decided by the judiciary.... That an issue is important does not mean that the people, through their democratically elected representatives, do not have the power to decide it.”). See also 1 Bruce Ackerman, We The People: Foundations (1991); Can. Const. (Constitution Act, 1982), pt. I (Canadian Charter of Rights and Freedoms) § 33 (containing the Non-Obstante Clause that permits legislature to abrogate rights, but only if the legislature explicitly decides to do so).