(concurring in part and dissenting in part). I agree with the lead opinion that § 7 of 1993 PA 3,1 enacting that a person, who provides the "physical means” or "participates in a physical act” by which another person attempts or commits suicide, is guilty of criminal assistance to suicide,2 *512does not violate the Title-Object Clause of the Michigan Constitution.3
I further agree with the lead opinion that the common-law offense of murder should be redefined to preclude conviction for murder on evidence that the accused was merely involved in the events leading up to the death, such as providing the means, and that in such a case the proper charge is assisted suicide under the saving clause of the Penal Code providing that it is a five-year felony to commit a common-law offense for which no provision is made by statute.4
I also agree that § 7 of act 3 does not violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution5 insofar as it bars assisting suicide by a physically healthy but mentally disturbed or incompetent person.6
*513I would hold, however, that § 7 of act 3 violates the Due Process Clause insofar as it bars a competent, terminally ill person facing imminent, agonizing death from obtaining medical assistance to commit suicide.
I would accordingly direct, in the three criminal cases (numbers 99591, 99674, and 99759), that if the circuit court determines on remand that the evidence produced at the preliminary examinations shows that the persons who committed suicide were competent, terminally ill, facing an imminent, agonizing death, the motion to quash should be granted with regard to assisted suicide as well as murder, and, if the preliminary examination records are inadequate for that purpose, the matters should be remanded by the circuit court for a further preliminary examination to determine whether the persons who committed suicide were competent, terminally ill, and facing an imminent, agonizing death.
i
1993 PA 3 does not violate the Title-Object Clause of the Michigan Constitution because
• Act 3 embraces but one object, namely, issues related to death and dying, including assistance of suicide, and_
*514• Act 3, in contrast with 1992 PA 270, was not altered or amended on its passage through either house.
ii
Dr. Kevorkian is not a murderer. The evidence in the instant People v Kevorkian cases, in contrast with the record in People v Roberts, 211 Mich 187; 178 NW 690 (1920), which depended substantially on the possibly self-serving testimony of the defendant, who had pleaded guilty, establishes that Dr. Kevorkian did no more than provide the physical means by which the decedents took their own lives. That evidence establishes no more than criminal assistance of suicide or a common-law assisted suicide oifense for which no provision is made by statute.7
I agree with the lead opinion that Roberts should be overruled insofar as it can be read as holding that a person who does no more than assist another in committing suicide has acted with the requisite malice to establish that element of the crime of murder.8
Because the evidence adduced in the murder prosecutions showed no more than criminal assistance to suicide or such a common-law assisted suicide oifense, I see no need for a remand to determine whether Dr. Kevorkian should be bound over on a charge of murder. I join in part vi of the lead opinion to join in overruling Roberts to the extent that it can be read to support the view that the common-law definition of murder encompasses *515intentionally providing the means by which a person commits suicide.9
in
The Attorney General and the prosecutors contend that in no circumstance does a person have a liberty interest under the Due Process Clause in obtaining medical assistance to commit suicide. Dr. Kevorkian contends that any terminally ill person has such a liberty interest. I do not agree with either of those absolute positions.
I have signed the opinion of a colleague10 that would recognize a right in some circumstances to physician-assisted suicide because I agree with him that a person who is terminally ill may have a liberty interest in obtaining a physician’s assistance to commit suicide, and that § 7 of act 3 may be violative of the Due Process Clause as applied to a particular terminally ill person.
Absent legislation providing a means, with legislatively prescribed safeguards, by which a terminally ill person may obtain such medical assistance, I would hold that a terminally ill person may apply to the circuit court for an order declaring entitlement to seek medical assistance, and that § 7 of act 3 is violative of the Due Process Clause as applied to that person.
The developing law 11 concerning the withholding of medical treatment12 would assist a circuit judge in deciding whether it is appropriate under all the *516circumstances to conclude that the person is entitled to seek medical assistance to commit suicide. Such a case should, of course, be expedited, and preliminary phases of such litigation could precede the time when the terminally ill person actually faces imminent, agonizing death.
The record in Hobbins v Attorney General does not establish that the persons alleging terminal illness in that litigation have now reached the threshold where it would be appropriate to conclude that they are entitled to seek medical assistance to commit suicide, nor do they claim that they have an immediate desire to do so. They should be allowed to commence an action at any time to establish a record so that if and when they approach the threshold where it is appropriate to conclude that they are entitled to medical assistance to commit suicide, the preliminary phases of such litigation will have been concluded and the circuit court can, on a proper showing, expeditiously enter an order providing the relief that they seek so that they can die, if they choose, less convulsively, less painfully, and with as much dignity as may be possible.
iv
I turn to the meritorious question, whether § 7 of act 3 violates the Due Process Clause.
The lead opinion states that "the threshold question in this case is whether the [Due Process CJlause encompasses a fundamental right to commit suicide and, if so, whether it includes a right to assistance.”13_
*517By framing the question in this manner, the lead opinion foreordains the answer.
There is a long history of laws prohibiting suicide. The state has the power, indeed the obligation, to protect life. But laws prohibiting suicide and assisted suicide evolved to address situations different from those here at issue. Those laws assume that persons seeking to terminate their lives are emotionally disturbed or mentally ill. This is so in the vast majority of cases.
The real issue is not whether the state can generally prohibit suicide. The real issue is whether the state may deny a competent, terminally ill person, facing imminent, agonizing death, medical assistance to commit suicide.
I agree with the lead opinion that assisted suicide can be distinguished from other conduct protected by the Due Process Clause, such as abortion and the withdrawal of life-sustaining medical treatment. The absence of controlling precedent precisely addressing the issue does not, however, end the inquiry, as the lead opinion presupposes when it states, "[w]e disagree . . . that either Cruzan [v Director, Missouri Dep’t of Health, 497 US 261; 110 S Ct 2841; 111 L Ed 2d 224 (1990)] or [Planned Parenthood of Southeastern Pennsylvania v] Casey [, 505 US 833; 112 S Ct 2791; 120 L Ed 2d 674 (1992),] preordains that the Supreme Court would find that any persons, including the terminally ill, have a liberty interest in suicide that is *518protected by the Fourteenth Amendment.”14 (Emphasis added.)
If the issue were preordained, these cases would not be so troubling. The real issue facing the Court is not whether suicide or assisting suicide can be proscribed by law, but whether the Due Process Clause bars a state from depriving a competent, terminally ill person, facing imminent death, and increasing agony, from obtaining medical assistance to avoid suffering such a bitter end of life.
The lead opinion distinguishes at length the instant cases from Cruzan and Casey, and stresses the obvious: there is a long history of laws outlawing suicide.
Abortion and withdrawal of life-sustaining measures are indeed different from assisted suicide. Nevertheless, a reasoned application of the principles stated in Casey and Cruzan persuades me that state law restrictions on a person’s ability to end his life implicates the interest in personal liberty. Whether a competent, terminally ill person has a right to medical assistance to commit suicide cannot be decided without balancing the state’s interest against the person’s interest. I conclude that the United States Supreme Court, as presently composed, if constrained to decide the question, would hold that the person’s interest outweighs the state’s interest when the person is competent, terminally ill and facing an imminent and agonizing death.
I thus so conclude, not from any explicit command of precedent, but by applying the approach suggested by the United States Supreme Court in Casey, "reasoned judgment”15 to the imperfect analogies of Casey and Cruzan.16_
*519V
The lead opinion dismisses Casey, arguing that it was decided on the basis of stare decisis, rather than the merits, and that abortion is sui generis. Casey, however, reaffirmed the doctrinal support for earlier abortion rights decisions of the United States Supreme Court, stating:
[T]he reservations any of us may have in reaffirming the central holding of Roe [v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973)] are outweighed by the explication of individual liberty we have given combined with the force of stare decisis.” [Id., 112 S Ct 2808. Emphasis added.]
The Casey plurality clarified the analytic method for deciding substantive due process issues, and said:
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. [Id., 112 S Ct 2806 (opinion *520of O’Connor, Kennedy, and Souter, JJ.). Emphasis added.]
Although the lead opinion would limit the inquiry solely to historical practices and precedent, Casey calls on us to engage in a more thoughtful, less formulaic approach.17
VI
Another line of cases, beginning with In re Quinlan, 70 NJ 10; 355 A2d 647 (1976), and, more recently Cruzan, supra, addresses the question whether life-sustaining medical treatment may be withdrawn from an incompetent person. Cruzan said that recognition of a right to refuse life-sustaining support was implicit in the Court’s earlier decisions construing the Due Process Clause. The Court on that basis assumed that "the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.” Id. at 279.18 The Court said that competing interests were *521involved, especially where, as in Cruzan,19 the life of an incompetent person was involved.20 The Court ruled in conclusion that a Missouri statute requiring that there be clear and convincing evidence of the incompetent person’s intent before authorizing the withdrawal of life-sustaining treatment struck a constitutionally permissible balance between the competing interests.21
The lead opinion contends that withdrawal of life support can be distinguished from assisted suicide. I generally agree.
A rule allowing a person to have his respirator disconnected, but to take no other steps to end his life, condemns him to choke to death on his own sputum. Similarly, if the law bars a person who can only take nourishment through a feeding tube from taking steps in addition to ordering the tube removed to end his life, he is required to suffer death by starvation and dehydration. Barring such persons from taking other steps to end their lives would, I think, constitute an undue burden on the right implicitly recognized in Cruzan.22 Cruzan should not be read as limiting a person to a half step when that would result in greater suffering.
The legitimate concerns about involuntary euthanasia apply with at least as much force to the withdrawal of life support where the person is incompetent, yet the United States Supreme Court in Cruzan held that a state statute permitting the withdrawal of life support on proof of the incompetent’s wishes by clear and convincing evidence was consistent with due process._
*522VII
The Casey plurality resolved the conflict between the state’s interest in the life of the fetus and the woman’s interest in bodily integrity and self-determination by drawing a line at fetal viability.23 Before viability, the state may not place an "undue burden” on the woman’s right to an abortion.24
In Cruzan, the Court struck a balance between the state’s interest in life and preventing euthanasia, and the incompetent person’s interest in being free of unwelcome bodily intrusions. The Court found that a "clear and convincing” evidentiary standard provided a permissible balance of the competing interests.25
In the suicide context, legitimate state interests generally outweigh a person’s interest in ending his life. The vast majority of suicides are "irrational” efforts by the depressed or mentally disturbed. Society can reasonably assume that a person’s mental problems have clouded his perception. Where an otherwise healthy person is depressed or mentally disturbed, the personal liberty interest is weak, and the state has a strong interest in protecting the person’s interests in life.
In contrast, where the person involved is competent, terminally ill, and facing imminent, agonizing death, the interest of the state in preserving life is weak, and the interest of the terminally ill person in ending suffering is strong._
*523The state asserts two interests.26 First, the state’s general interest in preserving life.27 In most situations where a person might seek to commit suicide, the person, even if handicapped or emotionally disturbed, has years of life remaining for the state to protect. That possibility has been largely foreclosed for a terminally ill person. The choice that remains is not between life and death, but over the terms of death.
The principal argument against assisted suicide is the second interest asserted by the state: assuring that persons who desire to live are not coerced into committing suicide. While this is clearly a concern of great importance, adequate procedures can and have been developed to assure that a terminally ill person’s choice to end life is not coerced.28
Restrictions on medical assistance to commit suicide for the terminally ill should be evaluated according to the undue burden standard enunciated in Casey.29 The undue burden standard permits the state to regulate the process of medically assisted suicide to assure that the person truly (a) is terminally ill, (b) is competent, (c) is suffering agonizing pain, (d) faces imminent death, (e) de*524sires to commit suicide, and (f) needs or desires help to do so.
The lead opinion contends that "[n]o clear definition of 'terminal illness’ is medically or legally possible, since only in hindsight is it known with certainty when someone is going to die.”30 There is, to be sure, difficulty in defining "terminal illness.” That does not justify avoiding the issue.31
With appropriate regulation and safeguards, the state may account for the differences in medical opinion in determining whether a competent, terminally ill person faces an imminent agonizing death.
Mallett, J., concurred with Levin, J.MCL 752.1021 et seq.; MSA 28.547(121) et seq.
(1) A person who has knowledge that another person intends to commit or attempt to commit suicide and who intentionally does either of the following is guilty of criminal assistance to suicide, a felony punishable by imprisonment for not more than 4 years or by a fine of not more than $2,000.00, or both:
(a) Provides the physical means by which the other person attempts or commits suicide.
(b) Participates in a physical act by which the other person attempts or commits suicide.
(2) Subsection (1) shall not apply to withholding or withdrawing medical treatment.
(3) Subsection (1) does not apply to prescribing, dispensing, or administering medications or procedures if the intent is to relieve pain or discomfort and not to cause death, even if the medication or procedure may hasten or increase the risk of death.
(4) This section shall take effect February 25, 1993.
*512(5) This section is repealed effective 6 months after the date the commission makes its recommendations to the legislature pursuant to section 4. [MCL 752.1027; MSA 28.547(127).]
The Michigan Constitution provides:
No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title. [Const 1963, art 4, § 24.]
Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court. [MCL 750.505; MSA 28.773.]
The Fourteenth Amendment provides in part:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law ....
The memorandum opinion states:
*5132) The United States Constitution does not prohibit a state from imposing criminal penalties on one who assists another in committing suicide. (Cavanagh, C.J., and Brickley, Boyle, Riley, and Griffin, JJ.) [Ante, p 445.]
I join in that statement insofar as such penalties are imposed on one who assists a physically healthy but mentally disturbed or incompetent person to commit suicide, but do not join insofar as such penalties are imposed for providing medical assistance to commit suicide to a competent, terminally ill person facing an imminent agonizing death.
See n 4 and accompanying text, and the lead opinion, ante, pp 494-495.
A person who purposely causes another to commit suicide by force, duress or deception may be prosecuted for murder. See ALI, Model Penal Code, § 210.5(1), pp 91 if.
Ante, p 494.
See opinion of Mallett, J. (concurring in part and dissenting in part).
Guidelines for State Court Decision Making In Life-Sustaining Medical Treatment, National Center for State Courts (2d ed) (1992).
See subsection 2 of § 7 of act 3, n 2 supra, which provides that subsection 1 of § 7 of act 3 "shall not apply to withholding or withdrawing medical treatment.”
Ante, p 464.
The lead opinion similarly states:
All the theories, of course, assume a fundamental liberty interest in suicide itself. [Ante, p 468.]
*517The lead opinion reasons in an accompanying footnote:
An attempt to find a liberty interest in assisted suicide independent of a liberty interest in suicide itself cannot succeed. If the Due Process Clause does not encompass a fundamental right to end one’s life, it cannot encompass a right to assistance in ending one’s life. [Ante, p 468, n 35.]
See also second paragraph of n 47 on p 476.
Ante, p 470.
Casey, supra, 112 S Ct 2806, opinion of O’Connor, Kennedy, and Souter.
In Cruzan, the Court said:
*519Petitioners insist that under the general holdings of our cases, 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. [497 US 279.]
The Casey plurality reaffirmed the following view of the Due Process Clause:
"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. . . . The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.” [Id., 112 S Ct 2806 (quoting Poe v Ullman, 367 US 497, 542; 81 S Ct 1752; 6 L Ed 2d 989 [1961] [Harlan, J., dissenting from dismissal on jurisdictional grounds]).]
As the lead opinion observes, the United States Supreme Court premised this right on the right to refuse medical treatment. Ante, p 465, n 29. This right was derived as a corollary to the common-law notion of informed consent. Cruzan, supra at 269-272. In addition, this *521right was framed in terms of a protected "liberty” interest, rather than under the right to privacy. Id. at 279, n 7.
And in Quinlan.
Id. at 280-281.
Id. at 283.
See part vii.
Id, 112 S Ct 2817.
Id., 112 S Ct 2820.
The plurality stated that "[a] finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id., 112 S Ct 2820.
Id. at 283.
The state and amici assert other interests, such as preserving the integrity of the medical profession and protecting friends and family of the suicide from emotional harm as balancing against the liberty interest recognized here. Whether these interests weigh in favor or against permitting a terminally ill person to end his own life depends on the particular circumstances of a given case. It is by no means clear that these interests would always be in opposition to the terminally ill person’s liberty interest.
It has been said that it is questionable why such an interest is legitimate, "completely abstracted from the interest of the person living that life . . . .” Cruzan, supra at 313. (Brennan, J., dissenting). But the Cruzan majority decided that government "may properly decline to make judgments about the "quality” of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life . . . .” Id. at 282.
See n 10.
See Casey, 112 S Ct 2820.
Ante, p 468, n 34.
As stated in Casey:
Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw. And there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, . . . but this is an imprecision within tolerable limits given that the medical community and all those who must apply its discoveries will continue to explore the matter. [Id., 112 S Ct 2817.]