People v. Kevorkian

527 N.W.2d 714, 447 Mich. 436

• Court: Michigan Supreme Court
• Decided: December 13, 1994
• Docket: Docket Nos. 99591, 99674, 99752, 99758, 99759, (Calendar No. 1)
• Status: Published

Opinions

Memorandum Opinion. These cases raise three issues with regard to the state’s imposition of criminal responsibility on persons who assist others in committing suicide. Two questions are presented by the appeals in Docket Nos. 99591, 99752, 99758, and 99759: (1) whether the Michigan assisted suicide statute, MCL 752.1027; MSA 28.547(127), was enacted in violation of Const 1963, art 4, § 24; (2) whether the criminal provisions of MCL 752.1027; MSA 28.547(127) violate the United States Constitution. In Docket No. 99674, a case predating the assisted suicide statute, the question presented is: (3) whether the circuit court erred in quashing the information charging the defendant with murder.

A majority of the justices is of the opinion that:

1) The assisted suicide provisions of the statute were validly enacted and do not violate the Title-Object Clause of the Michigan Constitution. (Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, Griffin, and Mallett, JJ.)

2) 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.)

3) In the murder case, People v Roberts, 211 Mich 187; 178 NW 690 (1920), is overruled to the extent that it can be read to support the view that the common-law definition of murder encompasses the act of intentionally providing the means by which a person commits suicide. Only where there is probable cause to believe that death was the direct and natural result of a defendant’s act can the defendant be properly bound over on a charge of murder. Where a defendant merely is involved in the events leading up to the death, such as providing the means, the proper charge is assisting in a suicide, which may be prosecuted as a common-law felony under the saving clause, MCL 750.505; MSA 28.773, in the absence of a statute that specifically prohibits assisting in a suicide. (Cavanagh, C.J., and Levin, Brickley, Griffin, and Mallett, JJ.)

4) The motion to quash must be reconsidered by the circuit court to determine whether the evidence produced at the preliminary examination was sufficient to. bind the defendant over for trial. (Cavanagh, C.J., and Brickley, Griffin, and Mallett, JJ.)

We reverse the judgment of the Court of Appeals in People v Kevorkian, Docket No. 99591, and People v Kevorkian, Docket No. 99759, and remand the cases to the respective circuit courts for further proceedings. In Hobbins v Attorney General, Docket Nos. 99752 and 99758, we reverse the judgment of the Court of Appeals with regard to the claimed violation of Const 1963, art 4, § 24, and affirm in all other respects. Finally, in People v Kevorkian, Docket No. 99674, we vacate the judgment of the Court of Appeals, and remand the case to the circuit court for further proceedings.

This memorandum opinion is signed by the seven justices. There are separate concurring and dissenting opinions. However, at least four justices concur in every holding, statement, and disposition of this memorandum opinion.

Cavanagh, C.J., and Brickley and Griffin, JJ. These cases raise three issues with regard to the state’s imposition of criminal responsibility on persons who assist others in committing suicide. Two questions are presented by the appeals in Docket Nos. 99591, 99752, 99758, and 99759: (1) Whether the Michigan assisted suicide statute, MCL 752.1027; MSA 28.547(127), was enacted in violation of Const 1963, art 4, § 24. (2) Whether the criminal provisions of MCL 752.1027; MSA 28.547(127) violate the United States Constitution. In Docket No. 99674, a case predating the assisted suicide statute, the question presented is: (3) Whether the circuit court erred in quashing the information charging the defendant with murder.

We conclude: (1) the assisted suicide provisions of the statute were validly enacted and do not violate the Title-Object Clause of the Michigan Constitution; (2) the United States Constitution does not prohibit a state from imposing criminal penalties on one who assists another in committing suicide; (3) in the murder case, the motion to quash must be reconsidered by the circuit court to determine if the evidence produced at the preliminary examination was sufficient to bind the defendant over for trial.

I

HOBBINS v ATTORNEY GENERAL

(DOCKET NOS. 99752, 99758)

THE "DECLARATORY JUDGMENT ACTION”

Shortly after the Legislature enacted the assisted suicide statute, a group of plaintiffs, two of whom are alleged to be suffering from terminal cancer, a friend of one of them, and seven medical care professionals, brought an action in Wayne Circuit Court, seeking a declaration that the statute was unconstitutional. The parties moved for summary judgment and the plaintiffs sought a preliminary injunction against enforcement of the statute. The circuit court found the statute to be unconstitutional.¹ First, it concluded that there were two violations of Const 1963, art 4, § 24: the statute did not have a single object, and there was a change in the purpose of the bill during its passage through the Legislature. Second, the court found a due process right to commit suicide. However, it declined to issue a preliminary injunction, concluding that hearings would be needed to determine whether the statute placed an undue burden on that right. The Attorney General filed a claim of appeal in the Court of Appeals.

PEOPLE v KEVORKIAN

(DOCKET NO. 99591)

THE "WAYNE COUNTY ASSISTED SUICIDE CASE”

Also after the enactment of the assisted suicide statute, defendant Kevorkian is alleged to have assisted in the death of Donald O’Keefe. The defendant was charged under the statute and bound over after preliminary examination. He moved to dismiss, and the circuit court granted the motion. The court rejected the art 4, § 24 challenges to the statute, but found a due process interest in the decision to end one’s life, and that the law impermissibly burdened that interest.

The court held an evidentiary hearing to determine if the facts satisfied the four-part test that it had set forth in its opinion.² Following the hearing, the court issued an order concluding that the facts of the case met the standard and dismissed the charge. The prosecutor appealed to the Court of Appeals.

(DOCKET NO. 99759)

THE "OAKLAND COUNTY ASSISTED SUICIDE CASE”

Defendant Kevorkian was charged in two separate files with assisting in the suicides of Merion Frederick and Ali Khalili. The defendant was bound over after a preliminary examination in one case and waived examination in the other. The circuit court granted the defendant’s motion to dismiss. The court discussed the potential privacy and liberty interests in ending one’s life, concluding that a person does have the right to commit suicide. However, it further concluded that defendant Kevorkian lacked standing to challenge the statute.³ The court also found that the statute was unconstitutional because it had more than one object and because its purpose was changed during its passage through the Legislature. The prosecuting attorney appealed.

(DOCKET NO. 99674)

THE "OAKLAND COUNTY MURDER CASE”

Before the statute was enacted, defendant Kevorkian allegedly assisted in the deaths of Sherry Miller and Marjorie Wantz on October 23, 1991. He was indicted by a citizens’ grand jury on two counts of murder.⁴ After a preliminary examination, the defendant was bound over for trial.⁵ In the circuit court, the defendant moved to dismiss, and the circuit judge granted the motion, concluding that assisting in suicide does not fall within the crime of murder. The prosecutor appealed.

ii

The Court of Appeals issued its decisions in two sets of opinions on May 10, 1994. One decision dealt with the cases involving the assisted suicide statute.⁶ The majority concluded that the assisted suicide statute was unconstitutional because the act had more than one object, in violation of art 4, § 24. Though recognizing that it arguably was not necessary to deal with the remaining issue, the majority went on to consider whether the statute violated the United States Constitution. The majority concluded that there was no violation, and that the state was free to make it a criminal offense to assist another in committing suicide.⁷

The appeal regarding the murder case was decided separately.⁸ The majority⁹ concluded that the circuit court erred in quashing the information.

hi

The prosecuting authorities in each of the assisted suicide cases appealed the conclusion that the assisted suicide statute was enacted in violation of Const 1963, art 4, § 24. Defendant Kevorkian filed a cross appeal with regard to the United States constitutional issue in the Wayne County assisted suicide case, and the plaintiffs in the declaratory judgment action filed their own application for leave to appeal on that issue. In the murder case, defendant Kevorkian filed an application for leave to appeal. On June 6, 1994, we granted the applications, 445 Mich 920, and the cases were argued on October 4, 1994.

IV

A

During 1991, several bills were introduced in the Legislature regarding the subject of assisting in suicide. The bill that ultimately became 1992 PA 270 was introduced on March 7, 1991, as HB 4501. As originally introduced, it would have created the Michigan Commission on Death and Dying that was to study "voluntary self-termination of life” and related subjects and report its recommendations to the Legislature.¹⁰ It was referred to the Judiciary Committee, and there were public hearings in December 1991. The committee reported a substitute bill to the House on November 12, 1992.

On November 24, the House amended the substitute bill by adding a section that would make it a crime to assist another in committing suicide,¹¹ and the bill passed the House on that date.¹² The Senate passed the bill on December 3, 1992, and it was signed by the Governor on December 15. 1992 PA 270. It was to be effective March 31, 1993, ninety days after the legislative session, as provided by Const 1963, art 4, § 27._

On January 26, 1993, SB 211 was introduced to amend § 7 of 1992 PA 270, which contained the criminal penalties.¹³ It passed the Senate on February 11. On February 25, the House approved a substitute, which, among other things, provided that the act, including both the commission and criminal provisions, would be effective on February 25, 1993. The Senate concurred in the substitute, and the Governor signed the bill that same day. 1993 PA 3.¹⁴

Each house had voted to give the act immediate effect, and thus the act was effective on February 25, 1993. The enrolled bill¹⁵ sets forth the full text of each section of the act as required by Const 1963, art 4, § 25. Pursuant to the statute, the Commission on Death and Dying was constituted and prepared its final report to the Legislature.

B

Const 1963, art 4, § 24 provides as follows:

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.[¹⁶]

Three kinds of challenges may be brought against statutes on the basis of Const 1963, art 4, §24: (1) a "title-body” challenge, (2) a multiple-object challenge, and (3) a change of purpose challenge. No "title-body” challenge, claiming that the title of the act does not adequately express the content of the law, is before us. However, the other two bases for contesting the statute are presented.

The circuit court in both the declaratory judgment action and the Oakland County assisted suicide case held that the statute had more than one object and that the purpose of HB 4501 was changed during its passage through the Legislature.

The Court of Appeals majority reached only the multiple-object challenge and affirmed the circuit court decisions.¹⁷

We would hold that both art 4, § 24 challenges of the statute are without merit, and reverse.

MULTIPLE-OBJECT CHALLENGE

The purpose of the constitutional provision now found in art 4, § 24 was stated by Justice Cooley fifteen years after such language was included in the Constitution of 1850:

The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by which, through dexterous management, clauses were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware of their intention and effect. There was no design by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number; but the framers of the constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon the public, and to require that in every case the proposed measure should stand upon its own merits, and that the legislature should be fairly notified of its design when required to pass upon it. [People ex rel Drake v Mahaney, 13 Mich 481, 494-495 (1865).]

The provision is not meant to be applied restrictively. Kuhn v Treasury Dep’t, 384 Mich 378, 387-388; 183 NW2d 796 (1971). See also Local No 644 v Oakwood Hosp Corp, 367 Mich 79, 91; 116 NW2d 314 (1962):

Numerous cases have held that the "object” of a statute is the general purpose or aim of the enactment. The legislature may empower a body created by it to do everything requisite, necessary, or expedient to carry out the principal objective to be attained. Legislation, if it has a primary object, is not invalid because it embraces more than 1 means of attaining its primary object. In re Brewster Street Housing Site, 291 Mich 313 [289 NW 493 (1939)].

With all but the simplest of statutes, it would be possible to select one section, describe the "object” of that section, and be able to reason, as the Court of Appeals majority did in this case, that the remaining sections have different objects. The flaw in this approach is in defining the object of 1992 PA 270 as being limited to the content of the bill as originally introduced. The Court of Appeals said:

The original purpose of HB 4501, as expressed in both the title and body of the bill, was to create a new public act to study certain issues related to death and dying. This bill had no regulatory authority. When HB 4501 was amended to add the substance of SB 32, the additional provisions had another and different objective—to amend the Penal Code to create the crime of criminal assistance to suicide. [205 Mich App 194, 201-202; 518 NW2d 487 (1994).]

In so reasoning, the Court of Appeals majority confused the analysis to be used in multiple-object cases with that appropriate in assessing a challenge based on a change of purpose theory. The object of the legislation must be determined by examining the law as enacted, not as originally introduced.

We would find the instant statute clearly to embrace only one object.¹⁸ While the cases cited by the parties involving multiple-object challenges concern quite different statutes, an examination of those cases that have found multiple-object violations¹⁹ and those that have not²⁰ demonstrates that the instant case falls squarely within the category of permissible joining of statutory provisions.

The Court of Appeals majority sought to distinguish People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980), on which the prosecutors relied, on the ground that the statute in question in that case (the Public Health Code)²¹ involved a legislative enactment constituting a "code.”²² However, there is no "code exception” in art 4, § 24. Rather, the cases upholding codes against multiple-object challenges are at most an extension of the liberality with which such challenges are reviewed.

The Court of Appeals majority suggested that the Legislature could have included the provisions regarding the commission and the criminal penalties in the same bill if it had used a more general title:

Had the Legislature intended to codify or regulate the general "subject” of assisted suicide, it could have notified the public of this intention by declaring a single broad purpose and by joining the object contained in HB 4501 with the object contained in SB 32 together in one bill. This the Legislature did not do. This failure resulted in the body of the act containing two distinct objects. The fact that the title was amended to reflect the addition of § 7 does not cure the constitutional infirmity. The one-object provision may not be circumvented by creating a title that includes different legislative objects. Hildebrand v Revco Discount Drug Centers, 137 Mich App 1, 11; 357 NW2d 778 (1984). [205 Mich App 202-203.]

This emphasis on the title is misplaced. It cannot be said that a statute has two objects if its title specifically describes its content, but only one if the title is general. Insofar as one of the purposes of the Title-Object Clause is to provide notice of the content of a bill to the Legislature and the public, a more specific title better achieves that purpose, particularly regarding a fairly short bill like the one in this case. Elsewhere in its opinion, the Court of Appeals majority itself recognized that one looks to the body of the act, not the title, to determine whether it has a single object:

While the object must be expressed in the title, the body of the law must be examined to determine whether it embraces more than one object. Kent Co ex rel Bd of Supervisors of Kent Co v Reed, 243 Mich 120, 122; 219 NW 656 (1928). [205 Mich App 199.]

The Hobbins plaintiffs and defendant Kevorkian also argue that there was a multiple-object violation because the provisions could have been enacted in separate bills. They rely on Advisory Opinion on Constitutionality of 1975 PA 227 (Question 1), 396 Mich 123, 129; 240 NW2d 193 (1976):

"The provisions in these two sections might have been enacted in separate laws without either of them in any way referring to or affecting the other.” [Quoting Kent Co ex rel Bd of Supervisors v Reed, supra at 122.]

This principle is unsound. There is virtually no statute that could not be subdivided and enacted as several bills. It is precisely that kind of "multiplying” of legislation that we séek to avoid with the liberal construction given to art 4, § 24.²³

Accordingly, we would hold that the assisted suicide statute embraces only one object and thus was validly enacted._

2

CHANGE IN PURPOSE CHALLENGE²⁴

The Hobbins plaintiffs also challenge the statute on the ground that its purpose was changed during its passage through the Legislature. They point to Anderson v Oakland Co Clerk, 419 Mich 313, 329; 353 NW2d 448 (1984), as establishing that the objectives of that provision are to "preclude last-minute, hasty legislation and to provide notice to the public of legislation under consideration . . . .” The provision is integrally related to the "five-day rule” of art 4, § 26, which states that no bill can be passed until it has been printed or reproduced and in the possession of each house for at least five days. They maintain that those principles have been violated in this statute. After the bill was introduced, the Legislature amended HB 4501 to add a provision criminalizing assisted suicide. The Hobbins plaintiffs say that this amendment dramatically changed the purpose of the original bill, which was to create a study commission. Thus, it is argued, the Legislature was able to enact a law making assisted suicide a criminal offense without giving the people an opportunity to be heard on this highly charged and emotional issue. Looking at the legislative calendar for the day on which the amendment was made, the Hob-bins plaintiffs find reference only to an act to create the Commission on Death and Dying.

In response to the prosecuting authorities’ argument that the later enactment of 1993 PA 3 cured the defect, the plaintiffs maintain that the argument is "structurally unsound” and misstates the effect of the reenactment of an amended law. They contend that the constitutional violation was complete when 1992 PA 270 was enacted, and that 1993 PA 3 merely amended the former act in minor respects and gave it immediate effect.

The argument by the plaintiffs fails to take into account that the criminal penalties for assistance to suicide were an interim measure tied to the Legislature’s continuing consideration of issues related to death and dying, including those to be covered in the report of the commission. Thus, the penalties can be viewed as simply providing a stable environment while the Commission on Death and Dying, the Legislature, and the citizenry studied these questions further.

Moreover, cases interpreting the change of purpose clause indicate that the test for determining if an amendment or substitute changes a purpose of the bill is whether the subject matter of the amendment or substitute is germane to the original purpose.²⁵ The test of germaneness is much like the standard for determining whether a bill is limited to a single object. As we held above, the creation of the commission and the provision of criminal penalties were appropriately placed in the same bill.

We also agree with the prosecuting authorities that any problems with the enactment of 1992 PA 270 were eliminated with the enactment of 1993 PA 3. The plaintiffs do not claim that the later act is independently subject to attack on a change of purpose ground. It is a basic principle of statutory construction that an amending statute replaces the former provisions. As we explained in Lahti v Fosterling, 357 Mich 578, 587-588; 99 NW2d 490 (1959):

This Court in People v Lowell, 250 Mich 349, 354-356 [230 NW 202] (1930), said:

"An amendatory act has a repealing force, by the mechanics of legislation, different from that of an independent statute. Repugnancy is not the essential element of implied repeal of specifically amended sections. The rule is:

" 'Where a section of a statute is amended, the original ceases to exist, and the section as amended supersedes it and becomes a part of the statute for all intents and purposes as if the amendments had always been there.’ 25 RCL [Statutes § 159], p 907. . . .

"Nevertheless, the old section is deemed stricken from the law, and the provisions carried over have their force from the new act, not from the former. 1 Lewis, Sutherland Statutory Construction (2d ed), § 237.

"It is plain from the authorities in this State and elsewhere that the effect of an act amending a specific section of a former act, in the absence of a saving clause, is to .strike the former section from the law, obliterate it entirely and substitute the new section in its place. This effect is not an arbitrary rule adopted by the courts. It is the natural and logical effect of an amendment 'to read as follows.’ It accomplishes precisely what the words import. Any other construction would do violence to the plain language of the legislature.”

1993 PA 3 amended each section of 1992 PA 270, and the entire text was reprinted and reenacted. The enacting clause stated that those sections were "amended to read as follows . . . .”

Further, it is clear that an amending statute can remedy a constitutional defect in the original act. As noted in 1A Singer, Sutherland Statutory Construction (5th ed), § 22.04, p 182, "[s]ome courts have indicated that an unconstitutional act is legally nonexistent and cannot be given effect by an attempt to amend it.” However, as the treatise goes on to explain:

A majority of courts seem to have rejected the theory that an unconstitutional act has no existence, at least for the purpose of amendment. The unconstitutional act physically exists in the official statutes of the state and is available for reference, and as it is only unenforceable, the purported amendment is given effect. . . .

This escape from the legal fiction that an unconstitutional act does not exist is sound. That fiction serves only as a convenient method of stating that an unconstitutional act gives no rights or imposes no duties. . . . Amendment offers a convenient method of curing a defect in an unconstitutional act. [Id. at 183.]

This principle has been followed in Michigan cases,²⁶ and is fully applicable here. The statute under which defendant Kevorkian has been charged is MCL 752.1027; MSA 28.547(127), as amended by 1993 PA 3, which was not enacted in violation of the change of purpose clause.

Accordingly, we would hold that the assisted suicide provisions of MCL 752.1027; MSA 28.547(127) are not void by reason of violation of Const 1963, art 4, § 24.

v

Having found that Michigan’s assisted suicide statute does not violate Const 1963, art 4, § 24, we now address whether the statute runs afoul of the United States Constitution. In its opinion of May 10, 1994, the Court of Appeals rejected this argument. So do we.

The Due Process Clause of US Const, Am XIV commands the states not to "deprive any person of life, liberty, or property, without due process of law . . . .” Thus, the threshold question in this case is whether the clause encompasses a fundamental right to commit suicide and, if so, whether it includes a right to assistance.

Those who assert that there is such a right rely heavily on decisions of the United States Supreme Court in abortion and so-called "right to die” cases. Focusing especially on Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833; 112 S Ct 2791; 120 L Ed 2d 674 (1992), and Cruzan v Director, Missouri Dep’t of Health, 497 US 261; 110 S Ct 2841; 111 L Ed 2d 224 (1990), these advocates argue that the right to end one’s own life is a fundamental liberty interest, grounded in the notion of personal autonomy and springing from common-law concepts of bodily integrity and informed consent. They further contend that an integral part of this protected interest is the right to assistance, hence the term "assisted suicide.”²⁷_

We do not discern in Cruzan and its historic roots an indication that the federal constitution protects a right more expansive than the right to refuse to begin or to continue life-sustaining medical treatment. Neither do we find in Casey or in the precedent from which it evolved an intent to expand the liberty interests identified by the Court in such a manner.

c

Cruzan was the first case to present to the United States Supreme Court the issue whether the federal constitution grants a so-called "right to die.”²⁸ 497 US 277. The Court was asked in Cruzan to decide the validity of a state statute that prohibited a Missouri couple from halting the artificial nutrition and hydration of their brain-damaged daughter, absent clear and convincing evidence of her wishes.

In upholding the Missouri statute, the majority observed that the constitutional right of a competent person to refuse unwanted medical treatment could be inferred from prior Supreme Court decisions.²⁹ 497 US 278. For purposes of analysis, the Court "assumed” that there also was a constitutional right to halt lifesaving hydration and nutrition. However, the Court emphasized that such a liberty interest would have to be balanced against relevant state interests. The interests advanced in Cruzan—the preservation of life³⁰ and the safeguarding of an incompetent person’s wishes against potential abuses—were found sufficient to sustain the evidentiary requirement.³¹

Casey was decided two years after Cruzan. There, the Court was asked to decide the validity of a Pennsylvania abortion statute that included an "informed consent” requirement, a waiting period, and a "spousal notification” provision. In upholding all but the notification provision,³² the Court reaffirmed the essential tenet of Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), reh den 410 US 959 (1973), which includes recognition of a woman’s right under the Due Process Clause to terminate a pregnancy in its early stages, without undue interference from the state. That right is protected by "a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” 120 L Ed 2d 695.

The Casey Court explained that Roe "stands at the intersection of two lines of decisions . . . .” 120 L Ed 2d 701. Although this holding of Roe was grounded in a liberty interest relating to intimate relationships, the family, and childbearing, Roe also may be seen as a rule "of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection.” 120 L Ed 2d 702. The choice of doctrinal category made no difference to the result in Casey, the Court said. It added that Roe also could be classified as sui generis. Id. at 701-702.

Drawing from Cruzan and Casey, the Hobbins plaintiffs³³ and defendant Kevorkian advance several theories why this Court should find that there is a protected liberty interest in assisted suicide, at least with regard to the terminally ill.³⁴ All the theories, of course, assume a fundamental liberty interest in suicide itself.³⁵

The parties contend that the right to assistance in ending one’s life is an integral part of "personal autonomy.”³⁶ They emphasize that the Casey Court rejected a "formula” approach to deciding which rights are protected by the Fourteenth Amendment, and also the notion that new rights cannot emerge. Instead, the Court described the characteristics that are shared by protected "liberty” interests:

These matters [marriage, procreation, contraception, family relationships, child rearing, and education], involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. [120 L Ed 2d 698.]

The proponents of assisted suicide further argue that the right to commit suicide is analogous to the right to refuse unwanted medical treatment, to discontinue life support, to use contraception, and to choose abortion. They submit that the decision to end one’s life is the ultimate right of self-determination, and that the state cannot abridge the right unless it can articulate a compelling interest.³⁷

The advocates of assisted suicide ask us to adopt the reasoning of a recent federal decision that invalidated the State of Washington’s criminal prohibition against assisted suicide. The court held in Compassion in Dying v Washington, 850 F Supp 1454, 1461 (WD Wash, 1994),³⁸ that the right of a terminally ill person to the assistance of a physician in committing suicide is analogous to the right of abortion because both fall within the " 'realm of personal liberty which the government may not enter.’ ”³⁹_

The federal court found that the rationale in Casey was "almost prescriptive” of the right to end one’s life. The court held that, under Casey, the state cannot proscribe assisted suicide if such a ban would unduly burden the right to commit suicide, i.e., if the purpose of the ban is to place a substantial obstacle in the path of the person seeking to exercise the right.

The federal court also found that the right of a terminally ill person to commit suicide with assistance does not differ in a constitutional sense from the right recognized in Cruzan to refuse life-sustaining medical treatment.⁴⁰ The essential premise of the court’s holding was that, in each instance, the liberty interest is "the freedom to make choices according to one’s individual conscience about those matters which are essential to personal autonomy and basic human dignity.” Id. at 1461.⁴¹

We disagree with the federal court that either Cruzan or Casey preordains that the Supreme Court would find that any persons, including the terminally ill, have a liberty interest in suicide that is protected by the Fourteenth Amendment. Those who assert such a right misapprehend the nature of the holdings in those cases._

D

In Cruzan, the Court was able to "assume” a protected liberty interest in the withdrawal of life-sustaining medical treatment because it was able to distinguish between acts that artificially sustain life and acts that artificially curtail life. Although some suggest that this is a distinction without constitutional significance—a meaningless exercise in semantic gymnastics—the Cruzan majority disagreed⁴² and so do we.

Indeed, the notion that there is a difference between action and inaction is not unfamiliar to the law. For example, the distinction between "misfeasance” and "nonfeasance” (the distinction between active misconduct and passive inaction) is deeply rooted in the law of negligence. The reason for the distinction is said to lie in the fact that a defendant creates a new risk of harm by misfeasance, but merely fails to benefit another by nonfeasance. As Dean Prosser explains, the duty to do no wrong is a legal duty, while the duty to. protect against wrong is, for the most part, a moral obligation. Prosser & Keeton, Torts (5th ed), § 56, pp 373-374.⁴³

Similarly, whereas suicide involves an affirmative act to end a life, the refusal or cessation of life-sustaining medical treatment simply permits life to run its course, unencumbered by contrived intervention. Put another way, suicide frustrates the natural course by introducing an outside agent to accelerate death, whereas the refusal or withdrawal of life-sustaining medical treatment allows nature to proceed, i.e., death occurs because of the underlying condition.⁴⁴

The distinction between the withdrawal of life-sustaining medical treatment and suicide is recognized in the Guidelines for State Court Decision Making In Life-Sustaining Medical Treatment, National Center for State Courts (2d ed), pp 143-145 (1992). The guidelines include the following:

There are significant moral and legal distinctions between letting die (including the use of medications to relieve suffering during the dying process) and killing (assisted suicide/euthanasia). In letting die, the cause of death is seen as the underlying disease process or trauma. In assisted suicide/euthanasia, the cause of death is seen as the inherently lethal action itself.

We agree that persons who opt to discontinue life-sustaining medical treatment are not, in effect, committing suicide. There is a difference between choosing a natural death summoned by an uninvited illness or calamity, and deliberately seeking to terminate one’s life by resorting to death-inducing measures unrelated to the natural process of dying. McKay v Bergstedt, 106 Nev 808, 820; 801 P2d 617 (1990).

In affirming a lower court decision to discontinue artificial sustenance for a profoundly retarded woman who was in a persistent vegetative state, the Supreme Judicial Court of Massachusetts similarly emphasized the "well-settled” principle that withdrawing or refusing life-sustaining medical treatment is not equivalent to attempting suicide. Guardianship of Jane Doe, 411 Mass 512, 521; 583 NE2d 1263 (1992), cert den sub nom Doe v Gross, 503 US 950 (1992). The vigorous dissents in Doe were not offered in support of a broader right to die, but rather in recognition of the state’s paramount interest in protecting life.⁴⁵_

in its first case involving the cessation of life-sustaining medical treatment, the Kentucky Supreme Court found that withdrawal of nutrition and hydration from a person in a persistent vegetative state, and with irreversible brain damage, fits the medical definition of "permit[ting] the natural process of dying.” DeGrella v Elston, 858 SW2d 698, 707 (Ky, 1993). The court cautioned that it was not engaging in "an objective inquiry into the quality of life, but a subjective inquiry into whether the patient wishes the continuation of medical procedures to interdict 'the natural process of dying.’ ”

At the point where the withdrawal of life-prolonging medical treatment becomes solely another person’s decision about the patient’s quality of life, the individual’s "inalienable right to life,” as so declared in the United States Declaration of Independence and protected by Section One (1) of our Kentucky Constitution, outweighs any consideration of the quality of the life, or the value of the life, at stake. [Id. at 702.]

These and other recent decisions of the highest courts of other states bolster our conclusion that Cruzan does not portend that the United States Supreme Court would find a fundamental liberty interest in suicide, let alone assisted suicide, that is protected by the Due Process Clause of the Fourteenth Amendment.

E

Neither does Casey provide support for the position that the Due Process Clause encompasses a fundamental right to commit suicide. In Casey, the Court was not directly concerned with the establishment of a new right, but rather with whether the Court should retreat from the right previously recognized in Roe v Wade. In declining to overrule Roe, and relying heavily on the doctrine of stare decisis, the Court emphasized that abortion cases are unique. 120 L Ed 2d 698.

Although the Court in Casey was not called upon to determine the merits of a newly asserted due process right, it is well settled that the Due Process Clause shelters both procedural and substantive rights. Casey, 120 L Ed 2d 695. The latter includes those rights that have been selectively incorporated from the Bill of Rights, and those that have been found to be "fundamental.”

The state argues that in determining those fundamental rights not expressly identified in, but nonetheless protected by, the Due Process Clause, the analysis must be guided by a search for whether the asserted right is implicit in the concept of ordered liberty or deeply rooted in our nation’s history and traditions. See Palko v Connecticut, 302 US 319, 325-326; 58 S Ct 149; 82 L Ed 288 (1937), and Snyder v Massachusetts, 291 US 97, 105; 54 S Ct 330; 78 L Ed 674 (1934).⁴⁶

Those who urge this Court to find a fundamental liberty interest in suicide under the Due Process Clause challenge the traditional analysis, arguing that the United States Supreme Court articulated in Casey a new, broader inquiry to be employed in the adjudication of substantive due process claims. They submit that even if such a right cannot be inferred from Casey, it nonetheless exists as a rational extension of those liberty interests previously recognized under a principled application of the proper test for determining whether an asserted right is protected by the Due Process Clause.⁴⁷

We acknowledge that the United States Supreme Court said in Casey that courts are to exercise reasoned judgment in assessing claims of substantive due process, and that the analysis is "not susceptible of expression as a simple rule.” 120 L Ed 2d 697. However, we need not resolve the debate over whether the Court established a new test because further examination of the principles discussed in Casey reveals that the constitutional inquiry described in that case does not fall so far outside the "implicit in the concept of ordered liberty” and "deeply rooted in history and tradition” analysis as to lead to a different conclusion here.

Thus, in the present context, consistent with the observations of Justice Harlan⁴⁸ quoted approvingly and expanded upon in Casey, 120 L Ed 2d 697-698, we must determine whether the asserted right to commit suicide arises from a rational evolution of tradition, or whether recognition of such a right would be a radical departure from historical precepts. We conclude that the principles that guide analysis of substantive due process do not support the recognition of a right to commit suicide.

Although acts of suicide are documented throughout the recorded history of England and this nation, we find no indication of widespread societal approval. To the contrary, suicide was a criminal offense, with significant stigmatizing consequences.⁴⁹ As a policy matter, and for practical reasons, suicide was not criminalized in most states. 2 LaFave & Scott, Substantive Criminal Law, § 7.8, pp 246-251. Lawmakers recognized the futility of punishment and the harshness of property forfeiture and other consequences. Id.

Also, it was assumed that one who committed suicide was suffering from a mental frailty of one sort or another, and thus lacked the necessary mens rea to commit a crime. Marzen, O’Dowd, Crone & Balch, Suicide: A constitutional right?, 24 Duq L R 1, 63, 69, 85-86, 88-89 (1985).

One who assisted a suicide was accorded no such concession, however.⁵⁰ At the time the Fourteenth Amendment was ratified, at least twenty-one of the thirty-seven existing states (including eighteen of the thirty ratifying states) proscribed assisted suicide either by statute or as a common-law offense. Id. at 76.

Presently, a substantial number of jurisdictions have specific statutes that criminalize assisted suicide,⁵¹ and the Model Penal Code also provides for criminal penalties.⁵² Further, nearly all states expressly disapprove of suicide and assisted suicide either in statutes dealing with durable powers of attorney in health-care situations,⁵³ or in "living will” statutes.⁵⁴ In addition, all states provide for the involuntary commitment of persons who may harm themselves as the result of mental illness,⁵⁵ and a number of states allow the use of nondeadly force to thwart suicide attempts.⁵⁶

It is thus incorrect to conclude, on the basis of the absence of criminal penalties for an act of suicide itself and the existence of a pragmatic capacity to commit suicide, that there is a constitutional right to commit suicide.⁵⁷ Such a right is not expressly recognized anywhere in the United States Constitution or in the decisions of the United States Supreme Court, and cannot be reasonably inferred.⁵⁸ In fact, as we observed earlier in this opinion, those courts that have found a right to refuse to begin or to continue life-sustaining medical treatment have done so only after concluding that such refusal is wholly different from an act of suicide.⁵⁹

Indeed, the United States Supreme Court repeatedly and unequivocally has affirmed the sanctity of human life and rejected the notion that there is a right of self-destruction inherent in any common-law doctrine or constitutional phrase. In Cruzan, the majority observed:

As a general matter, the States—indeed, all civilized nations—demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide. We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death. [497 US 280.]

On the basis of the foregoing analysis, we would hold that the right to commit suicide is neither implicit in the concept of ordered liberty nor deeply rooted in this nation’s history and tradition. It would be an impermissibly radical departure from existing tradition, and from the principles that underlie that tradition, to declare that there is such a fundamental right protected by the Due Process Clause.

F

We are keenly aware of the intense emotions and competing moral philosophies that characterize the present debate about suicide in general, and assisted suicide in particular. The issues do not lend themselves to simple answers. However, while the complexity of the matter does not permit us to avoid the critical constitutional questions, neither does it, under the guise of constitutional interpretation, permit us to expand the judicial powers of this Court, especially where the question clearly is a policy one that is appropriately left to the citizenry for resolution, either through its elected representatives or through a ballot initiative under Const 1963, art 2, § 9.⁶⁰

We would hold that the Due Process Clause of the federal constitution does not encompass a fundamental right to commit suicide, with or without assistance, and regardless of whether the would-be assistant is a physician.

vi

Finally, we turn to the issue presented in the Oakland County case involving the deaths of Sherry Miller and Marjorie Wantz. Their deaths occurred before the enactment of Michigan’s ban on assisted suicide, and the question is whether defendant Kevorkian can be prosecuted for his role in the deaths.

Each woman was said to be suffering from a condition that caused her great pain or was severely disabling. Each separately had sought defendant Kevorkian’s assistance in ending her life. The women and several friends and relatives met the defendant at a cabin in Oakland County on October 23, 1991.

According to the testimony presented at the defendant’s preliminary examination, the plan was to use his "suicide machine.” The device consisted of a board to which one’s arm is strapped to prevent movement, a needle to be inserted into a blood vessel and attached to iv tubing, and containers of various chemicals that are to be released through the needle into the bloodstream. Strings are tied to two of the fingers of the person who intends to die. The strings are attached to clips on the iv tubing that control the flow of the chemicals. As explained by one witness, the person raises that hand, releasing a drug called methohexital, which was described by expert witnesses as a fast-acting barbiturate that is used under controlled circumstances to administer anesthesia rapidly.⁶¹ When the person falls asleep, the hand drops, pulling the other string, which releases another clip and allows potassium chloride to flow into the body in concentrations sufficient to cause death.

The defendant tried several times, without success, to insert the suicide-machine needle into Ms. Miller’s arm and hand. He then left the cabin, returning several hours later with a cylinder of carbon monoxide gas and a mask apparatus. He attached a screw driver to the cylinder, and showed Ms. Miller how to use the tool as a lever to open the gas valve.

The defendant then turned his attention to Ms. Wantz. He was successful in inserting the suicide-machine needle into her arm. The defendant explained to Ms. Wantz how to activate the device so as to allow the drugs to enter her bloodstream. The device was activated,⁶² and Ms. Wantz died.⁶³

The defendant then placed the mask apparatus on Ms. Miller. The only witness at the preliminary examination who was present at the time said that Ms. Miller opened the gas valve by pulling on the screw driver. The cause of her death was determined to be carbon-monoxide poisoning.

The defendant was indicted on two counts of open murder. He was bound over for trial following a preliminary examination. However, in circuit court, the defendant moved to quash the information and dismiss the charges, and the court granted the motion.

A divided Court of Appeals reversed. People v Kevorkian No 1, 205 Mich App 180; 517 NW2d 293 (1994). The Court of Appeals majority relied principally on People v Roberts, 211 Mich 187; 178 NW 690 (1920).

In Roberts, the defendant’s wife was suffering from advanced multiple sclerosis and in great pain. She previously had attempted suicide and, according to the defendant’s statements at the plea proceeding, requested that he provide her with poison. He agreed, and placed a glass of poison within her reach. She drank the mixture and died. The defendant was charged with murder. He pleaded guilty, and the trial court determined the crime to be murder in the first degree.

The defendant appealed. He argued, among other things, that because suicide is not a crime in Michigan, and his wife thus committed no offense, he committed none in acting as an accessory before the fact. The Court rejected that argument, explaining:

If we were living in a purely common-law atmosphere with a strictly common-law practice, and defendant were charged with being guilty as an accessory of the offense of suicide, counsel’s argument would be more persuasive than it is. But defendant is not charged with that offense. He is charged with murder and the theory of the people was that he committed the crime by means of poison. He has come into court and confessed that he mixed poison with water and placed it within her reach, but at her request. The important question, therefore, arises as to whether what defendant did constitutes murder by means of poison. [211 Mich 195.]

After discussing a similar Ohio case, Blackburn v State, 23 Ohio St 146 (1872), the Roberts Court concluded:

We are of the opinion that when defendant mixed the paris green with water and placed it within reach of his wife to enable her to put an end to her suffering by putting an end to her life, he was guilty of murder by means of poison within the meaning of the statute, even though she requested him to do so. By this act he deliberately placed within her reach the means of taking her own life, which she could have obtained in no other way by reason of her helpless condition. [211 Mich 198]

In the instant case, defendant Kevorkian had argued that the discussion of this issue in Roberts was dicta because the defendant in that case had pleaded guilty of murder, and thus the controlling authority was People v Campbell, 124 Mich App 333; 335 NW2d 27 (1983).⁶⁴ The Court of Appeals majority rejected that view and said thht Roberts controlled the issue presented in the instant case.

We agree with the Court of Appeals that the holding in Roberts was not dicta.⁶⁵ While it is true that defendant Roberts pleaded guilty of placing a poisonous mixture at the bedside of his sick wife, knowing that she intended to use it to commit suicide, nothing in the opinion indicates that this Court based its affirmance of the conviction of first-degree murder on the fact that the conviction stemmed from a guilty plea.

However, it is not sufficient in the instant case to decide simply that the holding in Roberts was not dicta. We must determine further whether Roberts remains viable, because, as noted in People v Stevenson, 416 Mich 383, 390; 331 NW2d 143 (1982):

This Court has often recognized its authority, and indeed its duty, to change the common law when change is required[⁶⁶]

The crime of murder has been classified and categorized by the Legislature, see MCL 750.316; MSA 28.548 and MCL 750.317; MSA 28.549, but the definition of murder has been left to the common law. People v Aaron, 409 Mich 672; 299 NW2d 304 (1980); People v Scott, 6 Mich 287 (1859). Unless abrogated by the constitution, the Legislature, or this Court, the common law applies. Const 1963, art 3, § 7; Aaron, supra at 722-723.

Under the common-law definition, " '[m]urder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in peace of the state, with malice prepense or aforethought, either express or implied.’ ” Aaron, supra at 713, quoting People v Potter, 5 Mich 1 (1858). Implicit in this definition is a finding that the defendant performed an act that caused the death of another. To convict a defendant of criminal homicide, it must be proven that death occurred as a direct and natural result of the defendant’s act. People v Barnes, 182 Mich 179, 196; 148 NW 400 (1914). See also People v Flenon, 42 Mich App 457, 460; 202 NW2d 471 (1972) ("a defendant’s [first-degree murder] conviction should only be sustained where there is a reasonable and direct causal connection between the injury and death”).

Early decisions indicate that a murder conviction may be based on merely providing the means by which another commits suicide.⁶⁷ However, few jurisdictions, if any, have retained the early common-law view that assisting in a suicide is murder. The modern statutory scheme in the majority of states treats assisted suicide as a separate crime, with penalties less onerous than those for murder. See, e.g., 1993 PA 3, which was enacted by our own Legislature.⁶⁸

Recent decisions draw a distinction between active participation in a suicide and involvement in the events leading up to the suicide, such as providing the means. Frequently, these cases arise in the context of a claim by the defendant that the prosecution should have been brought under an assisted suicide statute. The courts generally have held that a person may be prosecuted for murder if the person’s acts went beyond the conduct that the assisted suicide statute was intended to cover.

For example, in People v Cleaves, 229 Cal App 3d 367; 280 Cal Rptr 146 (1991), the defendant was charged with first-degree murder in the strangulation death of another man. The trial court had refused a defense request to instruct the jury on the statutory offense of aiding and abetting a suicide, and the jury convicted him of second-degree murder.

In deciding whether an instruction on the statutory offense of aiding and abetting suicide should have been given, the appellate court accepted the defendant’s detailed version of the events. The decedent in Cleaves was suffering from aids and wanted the defendant’s assistance in strangling himself. With the defendant’s help, the decedent trussed his body in an arched position, with his face down on a pillow. The defendant’s role, when the decedent "pulled down” on the truss to effect strangulation, was to put his hand on the decedent’s back to steady him. At one point, when the sash slipped from the decedent’s neck, the defendant rewrapped it at the decedent’s request and retied it to the decedent’s hands. By straightening out his body with his feet, the decedent was in sole control of how tight the sash was around his neck. In holding that the trial judge properly refused to instruct the jury under the assisted suicide statute, the appeals court said:

[The statute] provides: "Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony.” As explained by our Supreme Court, the "key to distinguishing between the crimes of murder and of assisting suicide is the active or passive role of the defendant in the suicide. If the defendant merely furnishes the means, he is guilty of aiding a suicide; if he actively participates in the death of the suicide victim, he is guilty of murder.” [In re Joseph G, 34 Cal 3d 429, 436; 194 Cal Rptr 163; 667 P2d 1176; 40 ALR4th 690 (1983).] The statute providing for a crime less than murder " 'does not contemplate active participation by one in the overt act directly' causing death. It contemplates some participation in the events leading up to the commission of the final overt act, such as furnishing the means for bringing about death, the gun, the knife, the poison, or providing the water, for the use of the person who himself commits the act of self-murder. But where a person actually performs, or actively assists in performing, the overt act resulting in death, such as shooting or stabbing the victim, administering the poison, or holding, one under water until death takes place by drowning, his act constitutes murder, and it is wholly immaterial whether this act is committed pursuant to an agreement with the victim [People v Matlock, 51 Cal 2d 682, 694; 336 P2d 505; 71 ALR2d 605 (1959).] [229 Cal App 3d 375.]

In Cleaves, viewing the evidence most favorably for the defense, the court said there were no facts to support the requested instruction on aiding and abetting an assisted suicide. Although the defendant may not have applied pressure to the ligature itself, he admitted that his act of holding the decedent to keep him from falling off the bed was designed to assist the decedent in completing an act of strangulation. "This factual scenario indisputably shows active assistance in the overt act of strangulation,” the court said. Id. at 376.

Similarly, in State v Sexson, 117 NM 113; 869 P2d 301 (NM App, 1994), cert den 117 NM 215 (1994), the defendant was charged with first-degree murder in connection with the fatal shooting of his wife. He was convicted of second-degree murder following a bench trial, and argued on appeal that he should have been prosecuted under the state’s assisted suicide statute.

The only fact in dispute in Sexson was whether it was the defendant or the decedent who actually pulled the trigger of the rifle that killed her. It was not disputed that there was a suicide agreement between the two, and that the pact was genuine. The defendant claimed simply to have held the rifle in position while the decedent pulled the trigger, and that he had failed to then kill himself because he "freaked out” when the decedent continued to breathe after being shot.

The appellate court rejected the defendant’s argument that he could not be prosecuted under the more general murder statute because of the specific assisted suicide statute. In so doing, the court emphasized that the two statutes proscribed different conduct:

The wrongful act triggering criminal liability for the offense of assisting suicide is "aiding another” in the taking of his or her own life. It is well accepted that "aiding,” in the context of determining whether one is criminally liable for. their involvement in the suicide of another, is intended to mean providing the means to commit suicide, not actively performing the act which results in death. . . .

There are three different views about the criminal liability of one who, whether pursuant to a suicide pact or not, solicits (by talk) or aids (as by providing the means of self-destruction) another to commit suicide. Occasionally aiding or soliciting suicide has been held to be no crime at all on the ground that suicide is not criminal. That view is most certainly unsound. At one time many jurisdictions held it to be murder, but a great many states now deal specifically with causing or aiding suicide by statute, treating it either as a form of manslaughter or as a separate crime. Such statutes typically do "not contemplate active participation by one in the overt act directly causing death,” and thus their existence is not barrier to a murder conviction in such circumstances.

In contrast, the wrongful act triggering criminal liability for second degree murder is "kill[ing]” or "caus[ing] the death” of another. In the context of the instant case, the second degree murder statute is aimed at preventing an individual from actively causing the death of someone contemplating suicide, whereas the assisting suicide statute is aimed at preventing an individual from providing someone contemplating suicide with the means to commit suicide. Thus, the two statutes do not condemn the same offense. . . . [117 NM —; 869 P2d 304. Citations omitted.]

Turning to the evidence presented in Sexson, the court reiterated that the distinction accepted in other jurisdictions between murder and aiding suicide "generally hinges upon whether the defendant actively participates in the overt act directly causing death, or whether he merely provides the means of committing suicide.” 869 P2d 304-305. This distinction applies even where the decedent has given consent or requested that actual assistance be provided. In Sexson,. the defendant admitted holding the rifle in a position calculated to assure the decedent’s death. The court concluded: "That action transcends merely providing Victim a means to kill herself and becomes active participation in the death of another.” 869 P2d 305.

In the years since 1920, when Roberts was decided, interpretation of causation in criminal cases has evolved in Michigan to require a closer nexus between an act and a death than was required in Roberts. See, e.g., People v Flenon, supra; People v Scott, 29 Mich App 549, 558; 185 NW2d 576 (1971). The United States Supreme Court also has addressed the importance of relating culpability to criminal liability. See Tison v Arizona, 481 US 137; 107 S Ct 1676; 95 L Ed 2d 127 (1987); Mullaney v Wilbur, 421 US 684, 697-698; 95 S Ct 1881; 44 L Ed 2d 508 (1975).

In the context of participation in a suicide, the distinction recognized in In re Joseph G, supra at 436, constitutes the view most consistent with the overwhelming trend of modern authority. There, the California Supreme Court explained that a conviction of murder is proper if a defendant participates in the final overt act that causes death, such as firing a gun or pushing the plunger on a hypodermic needle. However, where a defendant is involved merely "in the events leading up to the commission of the final overt act, such as furnishing the means . . .,” a conviction of assisted suicide is proper. Id.

As noted, this Court has modified the common law when it perceives a need to tailor culpability to fit the crime more precisely than is achieved through application of existing interpretations of the common law. See, e.g., Stevenson, supra; Aaron, supra. For the reasons given, we perceive such a need here. Accordingly, we would overrule Roberts to the extent that it can be read to support the view that the common-law definition of murder encompasses the act of intentionally providing the means by which a person commits suicide.⁶⁹ Only where there is probable cause to believe that death was the direct and natural result of a defendant’s act can the defendant be properly bound over on a charge of murder.⁷⁰ Where a defendant merely is involved in the events leading up to the death, such as providing the means, the proper charge is assisting in a suicide.

However, even absent a statute that specifically proscribes assisted suicide, prosecution and punishment for assisting in a suicide would not be precluded. Rather, such conduct may be prosecuted as a separate common-law offense under the saving clause of MCL 750.505; MSA 28.773:⁷¹

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.[⁷²]

Our reinterpretation of the common law does not enlarge the scope of criminal liability for assisted suicide, but rather reduces liability where a defendant merely is involved in the events leading up to the suicide, such as providing the means. Therefore, there is no violation of the prohibition on ex post facto laws. US Const, art I, §9; Const 1963, art 1, § 10. See Stevenson, supra at 399-400.

D

The decision regarding whether an examining magistrate erred in binding a defendant over for trial is one that should be made in the first instance by the trial court. In this case, the lower courts did not have the benefit of the analysis set forth in this opinion for evaluating the degree of participation by defendant Kevorkian in the events leading to the deaths of Ms. Wantz and Ms. Miller.⁷³ Accordingly, we remand this matter to the circuit court for reconsideration of the defendant’s motion to quash in light of the principles discussed in this opinion.⁷⁴.

VII

For the reasons given, we would reverse the judgment of the Court of Appeals in Docket Nos. 99591 and 99759, and remand the cases to the respective circuit courts for further proceedings. In Docket Nos. 99752 and 99758, we would reverse the judgment of the Court of Appeals with regard to the claimed violation of Const 1963, art 4, § 24, and affirm in all other respects. Finally, in Docket No. 99674, we would vacate the judgment of the Court of Appeals, and remand the case to the circuit court for further proceedings in accordance with this opinion.

Cavanagh, C.J., and Brickley and Griffin, JJ., concurred.

1 The circuit court found that the two patients, a psychiatrist, and a pharmacist had standing to challenge the statute, but that the other plaintiffs did not. The Court of Appeals did not discuss the standing question, and it has not been raised here.

2 The standard that the trial court had announced was the following:

[TJhis Court finds that when a person’s quality of life is significantly impaired by a medical condition and the medical condition is extremely unlikely to improve, and that person’s decision to commit suicide is a reasonable response to the condition causing the quality of life to be significantly impaired, and the decision to end one’s life is freely made without undue influence, such a person has a constitutionally protected right to commit suicide.

3 The Court of Appeals did not discuss the question of standing, and it has not been raised in this Court.

4 As permitted by statute, the indictment did not specify the degree of murder. See MCL 750.318; MSA 28.550, MCL 767.71; MSA 28.1011.

5 The defendant also had been indicted on one count of delivering a controlled substance for other than legitimate and professionally recognized purposes. MCL 333.7401(1); MSA 14.15(7401X1). However, the district judge dismissed the drug count.

6 Hobbins v Attorney General, 205 Mich App 194; 518 NW2d 487 (1994).

7 The majority opinion was written by Judge E. Thomas Fitzgerald. The other judges on the panel, Clifford W. Taylor, and Washtenaw Circuit Judge Donald E. Shelton, sitting by assignment, wrote separate opinions. Judge Shelton concurred with regard to the art 4, § 24 issue, but dissented with regard to the United States constitutional violation. Judge Taylor concurred that the statute did not violate the United States Constitution, but would have found no art 4, § 24 violation.

8 People v Kevorkian No 1, 205 Mich App 180; 517 NW2d 293 (1994).

9 The opinion was written by Judge Fitzgerald, and concurred in by Judge Taylor. Judge Shelton dissented.

10 The title of the bill read:

A bill to create the Michigan commission on death and dying; to prescribe its membership, powers, and duties; and to provide for the development of legislative recommendations concerning certain issues related to death and dying.

11 Two other bills had been pending at the time of the introduction of HB 4501 that included criminal penalties for assisting suicide. HB 4038; SB 32. The language added to HB 4501 was very similar to that of SB 32.

12 The title was amended to reflect the presence of the new provisions:

A bill to create the Michigan commission on death and dying; to prescribe its membership, powers, and duties; to provide for the development of legislative recommendations concerning certain issues related to death and dying; to prohibit certain acts pertaining to the assistance of suicide; to prescribe penalties; and to repeal certain parts of this act on a speciñc date. [Emphasis added.]

13 MCL 752.1027; MSA 28.547(127). It also provided that the criminal provisions would expire six months after the commission reported to the Legislature.

14 Under 1993 PA 3, the provision that makes it illegal to assist in a suicide reads as follows:

(1) A person who has knowledge that another person intends to commit or attempt to commit suiqide and who intentionally does either of the following is guilty of criminal assistance to suicide, a felony punishable by imprisonment for not more them 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.

(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).]

15 As enacted, the title read as follows:

An act to prohibit certain acts pertaining to the assistance of suicide; to provide for the development of legislative recommendations concerning certain issues related to death and dying, including assistance of suicide; to create the Michigan commission on death and dying; to prescribe its membership, powers, and duties; to prescribe penalties; and to repeal certain parts of this act on a specific date.

16 Similar language has been in each Michigan Constitution since 1850. Const 1850, art 4, §§ 20, 25; Const 1908, art 5, §§ 21, 22.

17 As noted above, the circuit court in the Wayne County assisted suicide case rejected the art 4, § 24 challenge.

18 The Court of Appeals majority said that although the statute encompasses a single "subject,” it has two primary objectives. As noted earlier, the Court of Appeals reached that conclusion by artificially selecting as the object of the bill its content as originally introduced. Further, the terms "subject” and "object” are largely equivalent for the purpose of analyzing these issues, and are often used interchangeably by the courts, e.g., Livonia v Dep’t of Social Services, 423 Mich 466, 499; 378 NW2d 402 (1985); Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465-466; 208 NW2d 469 (1973). Even the Court of Appeals majority did so in the instant case:

The purpose of the one-object provision is to avoid bringing into one bill diverse subjects that have no necessary connection. Mooahesh [v Treasury Dep’t, 195 Mich App 551, 564; 492 NW2d 246 (1992)]. [205 Mich App 199.]

19 For example, in Advisory Opinion on Constitutionality of 1975 PA 227 (Question 1), 396 Mich 123; 240 NW2d 193 (1976), the statute (1) established a political ethics commission, (2) set forth requirements for candidate committees, (3) imposed filing statements with respect to contributions and expenditures, (4) placed limits on campaign expenditures, (5) established a state campaign fund, (6) regulated lobbying activities, and (7) repealed five existing laws.

In People v Carey, 382 Mich 285; 170 NW2d 145 (1969), this Court held that it was improper to include in the statute dealing with the supervision, regulation, and control of motor vehicles for hire, a provision purporting to give inspectors appointed by the Public Service Commission the same powers as police oificers.

In Hildebrand v Reveo Discount Drug Centers, 137 Mich App 1; 357 NW2d 778 (1984), the Court of Appeals found it unconstitutional to include in the Michigan Civil Rights Act a provision restricting the use of polygraph results in employment decisions.

20 In Builders Square v Agriculture Dep’t, 176 Mich App 494, 499; 440 NW2d 639 (1989), it was argued that the statute had two objects —regulation of pricing and regulation of deceptive advertising. However, the Court of Appeals rejected that contention and upheld the constitutionality of the act:

We do not believe the item pricing and deceptive advertising act violates the title-object clause of the Michigan Constitution. The purpose of [the] title-object clause, namely notice, was satisfied. Although dissimilar, the act’s two objectives, regulation of pricing and advertising, are not so diverse in nature as to be at odds with the constitution. Further, the objects are consistent with the overall purpose, consumer protection. Since the title of the act need not be an index of its provisions, it is inconsequential that the act fails to mention consumer protection. A fair reading of the title demonstrates its purpose.

Jacobson v Carlson, 302 Mich 448; 4 NW2d 721 (1942), involved an amendment of the motor vehicle statute that dealt solely with the subject of pedestrians and sidewalks. This Court found that statute not to be in violation of the Title-Object Clause.

In Kull v State Apple Comm, 296 Mich 262; 296 NW 250 (1941), this Court upheld an act that contained provisions ranging from promoting the consumption and sale of apples to taxing apple production, creating an apple commission, and providing penalties. While the act addressed four seemingly diverse matters, it was proper to join them because all related to the regulation of the apple industry.

21 The Public Health Code includes criminal penalties for controlled substance violations as well as many other provisions. MCL 333.1101 et seq.; MSA 14.15(1101) et seq.

22 The Trupiano Court said:

The Supreme Court has recognized a wide degree of discretion in reviewing legislative enactments which constitute a "code.” In Advisory Opinion re Constitutionality of 1972 PA 294, supra, the Court noted at 463:

"Emphasis is given to the fact that the subject matter constitutes a code, and that inherently the scope of a code must be broad enough to encompass the various facets necessary to the drafting of a unified law. If we fail to permit such a design codes may not be enacted in Michigan so long as the 'one-object’ limitation is present in the constitution.” [Trupiano at 420.]

23 In fact, the instant statute might well be upheld even if that principle were valid. The criminal penalties section provides that it "is repealed eifective 6 months after the date the commission makes its recommendations to the legislature pursuant to section 4.” Thus, it could not have been separately enacted without reference to the commission provisions.

24 As noted earlier, although the Court of Appeals majority did not address this issue, the circuit court in both the Oakland County assisted suicide case and the declaratory judgment action found a change of purpose challenge to be meritorious.

25 See, e.g., United States Gypsum Co v Dep’t of Revenue, 363 Mich 548; 110 NW2d 698 (1961); Commuter Tax Ass’n v Detroit, 109 Mich App 667; 311 NW2d 449 (1981); People v Clopton, 117 Mich App 673; 324 NW2d 128 (1982).

26 See, e.g., People v De Blaay, 137 Mich 402, 404-405; 100 NW 598 (1904), Briggs v Campbell, Wyant & Cannon Foundry Co, 2 Mich App 204, 218-219; 139 NW2d 336 (1966), and Kriger v South Oakland Co Mutual Aid Pact, 49 Mich App 7, 13-15; 211 NW2d 228 (1973) (amendment cured title-object defect), rev’d on other grounds 399 Mich 835 (1977).

27 The Hobbins plaintiffs object to the term "assisted suicide.” They concede that there is no right under the Due Process Clause to commit "ordinary” suicide, with or without assistance. They assert only the right of mentally competent, terminally ill persons "to make the choice to hasten inevitable death,” particularly by the use of lethal quantities of physician-prescribed medications. However, the common definition of "suicide” is the intentional killing of oneself by any means, and the temporal proximity of death is irrelevant to the threshold inquiry into whether the constitution encompasses such a right. We thus do not believe that it would be appropriate to use euphemistic language, even in the context of a challenge that purports to be limited to the plight of the terminally ill. We agree with the Attorney General that there is a risk that such phraseology will disguise the reality of the very sober questions that we must decide.

28 The case generally regarded as the landmark decision concerning the refusal of life-sustaining medical treatment is In re Quinlan, 70 NJ 10; 355 A2d 647 (1976), cert den sub nom Garger v New Jersey, 429 US 922 (1976). In Quinlan, the New Jersey Supreme Court reasoned that a comatose young woman had a privacy right grounded in the federal constitution to be free from bodily invasion by further treatment (a respirator), that the right was not diminished by her mental incompetency, and that her father could refuse such treatment on her behalf.

29 In tracing the history of cases involving the right to refuse medical treatment, the Court discussed the doctrine of informed consent that embraces the common-law notion of "bodily integrity,” i.e., "the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” 497 US 269, quoting Union Pacific R Co v Botsford, 141 US 250, 251; 11 S Ct 1000; 35 L Ed 734 (1891). The Cruzan Court said that the logical corollary of the doctrine of informed consent is that a patient generally has a right not to consent, i.e., a right to refuse treatment.

By footnote, the Court observed that although many state courts had found a right to refuse medical treatment in a generalized constitutional right of privacy, the Supreme Court had not. Rather, the Court had determined that the issue more properly is analyzed in terms of a Fourteenth Amendment liberty interest. See Cruzan, 497 US 279, n 7, citing Bowers v Hardwick, 478 US 186,194-195; 106 S Ct 2841; 92 L Ed 2d 140 (1986).

30 The Court said that the state could "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.

31 The Cruzan Court said that the "clear and convincing evidence” standard was appropriate not only because of the importance of the interests at issue, but also because the standard serves as a "societal judgment” about how the risk of error should be distributed between the litigants. "The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision.” In the case of an effort to terminate life-sustaining medical treatment for an incompetent person, an erroneous decision to continue treatment simply maintains the status quo. An erroneous decision to stop such treatment, however, is not susceptible to correction. 497 US 283.

32 With respect to the notification provision, the Court observed:

It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s. The effect of state regulation on a woman’s protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman. [120 L Ed 2d 727.]

33 The Attorney General contends that the Hobbins plaintiffs are presenting a facial challenge to the statute, and that their claim thus must fail if there is any set of circumstances under which the assisted suicide statute would be valid. United States v Salerno, 481 US 739, 745; 107 S Ct 2095; 95 L Ed 2d 697 (1987). The plaintiffs argue that Casey changed the analysis for a liberty interest, and that Salerno is not applicable. Both positions, however, assume too much. Before a facial challenge analysis can proceed, it first must be determined whether there is a constitutionally protected right. In light of our decision that there is no liberty interest in committing suicide, it is unnecessary for us to determine the proper analysis.

34 No 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. One definition that has been suggested is an illness so progressed that death is likely within twelve months. Note, A failed statute, Geoffrey Feiger, and the phrenetic physician: Physician-assisted suicide in Michigan and a patient-oriented alternative, 28 Val Univ L R 1415, 1434, n 121 (1994). Another definition appears in MCL 333.21417; MSA 14.15(21417), which concerns eligibility for admission to a hospice:

An individual shall be considered to have a disease or condition with a terminal prognosis if, in the opinion of a physician, the individual’s death is anticipated within 6 months after the date of admission to the hospice.

35 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.

36 One commentator points out that assertion of a right of personal autonomy begs the question, " '[a]utonomy to do what?’ ” Tsarouhas, The case against legal assisted suicide, 20 Ohio NU LR 793, 803 (1994).

37 While acknowledging that the state may regulate assistance in suicide, or even actively discourage one from committing suicide, in order to advance its interest in preserving life, the proponents of assisted suicide maintain that the state’s legitimate interest does not extend to prolonging suffering of the terminally ill by criminalizing suicide assistance. We find it unnecessary to consider the proper reach of the state’s regulatory interest because we disagree with the foundational premise that there exists a constitutionally protected liberty interest to commit suicide.

38 Appeal pending in the United States Court of Appeals for the Ninth Circuit (Docket No. 94-35534).

39 The federal court appears to have limited its ruling to situations in which the person who wants to die performs the final act that actually brings about death. The case concerned the right to commit suicide "by taking a lethal dose of physician-prescribed drugs.” Id. at 1456.

40 The court recognized that the Supreme Court only had "assumed” such an interest in Cruzan for purposes of analysis, but expressed confidence that if the issue was squarely presented, such a right would be found.

41 In this regard, we observe that a right of personal autonomy cannot exist independent of a recognition of human dignity, and that it would violate the concept of human dignity to measure the value of a person’s life by that person’s physical and mental condition. See Cruzan, 497 US 282. Further, because all persons possess a basic right to personal autonomy, regardless of their physical or mental condition, there would be no principled basis for restricting a right to commit suicide to the terminally ill. The inevitability of death adds nothing to the constitutional analysis.

42 Further, the Cruzan Court was careful not to extend its decision in that case even to other issues concerning medical treatment:

P]n 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.” [497 US 277-278.]

43 Professor Kamisar suggests that the distinction is based more on historical and pragmatic compromise than on logic. He reasons that what is at issue are what Dean Guido Calabresi of Yale Law School called "tragic choices,” i.e., choices that confront us when fundamental beliefs clash. The goal is to find "solutions that permit us to assert that we are cleaving to both beliefs in conflict.” Concerning the issue of refusing to begin or to continue life-sustaining medical treatment, the conflict is between (a) respecting a patient’s wishes, relieving suffering, and putting an end to seemingly futile medical treatment, and (b) affirming the supreme value of life and maintaining the salutary principle that the law protects all human life, no matter how poor the quality. The professor concludes that the distinction between assisted suicide and "letting die” is not perfectly neat and logical, then asks, "But what line is?” Kamisar, After assisted suicide, what next?, Texas Lawyer (June 13, 1994), pp 1-2.

44 A close examination of the medical-treatment cases suggests that they do not establish a right to choose "nonlife” at all, but rather a right to choose life’s natural progression—a progression that, without fail, includes for everyone the process of dying.

45 One dissenting justice, for instance, accused the court of deciding "to play God.” 411 Mass 525. He complained that the court had involved itself in the matter ostensibly to protect the interests of the vulnerable, but then had taken advantage of the patient’s vulnerability "to fashion an argument that she is a social, medical and familial burden and that her simple, fundamental needs should no longer be met.” 411 Mass 529. Two other dissenters said that the majority, in effect, had approved the notion of suicide. They wrote:

Society’s respect for the value of every human life without reference to its condition, the cornerstone of American law, is inconsistent with a State’s recognition of a legal right to commit suicide, assist suicide, or engage in voluntary euthanasia (mercy killing in accordance with the wishes of the suffering person). "The life of those to whom life has become a burden— of those who are hopelessly diseased or fatally wounded—nay, even the lives of criminals condemned to death, are under the protection of the law, equally as the lives of those who are in the full tide of life’s enjoyment, and anxious to continue to live.” Recognition of the dignity of human life demands resistance, rather than concession, to the real or imaginary death wishes of those who are afflicted with pain, depression, a sense of personal worthlessness, or a sense of burdensomeness to others. A humane society provides support of every kind, including moral support, to those who are burdened in order that they may live ....

Can it reasonably be doubted that legal acceptance of suicide, assisted suicide, and voluntary euthanasia presents a serious risk that acceptance of involuntary euthanasia (mercy killing not chosen by the affected individual) is soon to follow? [411 Mass 531-532. Citation omitted.]

46 See also Michael H v Gerald D, 491 US 110, 121-122; 109 S Ct 2333; 105 L Ed 2d 91 (1989).

47 As suggested by various amici curiae, it is important to the analysis of substantive due process that the asserted right be framed in a precise and neutral manner. This is critical in cases involving end-of-life questions, which are particularly susceptible to emotion-laden terminology and flawed syllogisms. The approach of the United States Supreme Court in assessing whether a proposed right is "fundamental” has been to narrow the threshold inquiry by applying three principles: (1) the focus should be on the specific activity that proponents argue is protected by the constitution, taking into account all relevant facts, (2) the formulation should not be so broad as to encompass activities that are logically distinct and involve separate considerations, and (3) the formulation should reasonably accommodate all of the interests at stake. Bopp & Coleson, Webster and the future of substantive due process, 28 Duq L R 271, 281-291 (1990). See Webster v Reproductive Health Services, 492 US 490; 109 S Ct 3040; 106 L Ed 2d 410 (1989).

The question presented in this case thus is not whether a person has a constitutional right of self-determination, or a right to define personal existence, or a right to make intimate and personal choices, or a right not to suffer. Rather, the question that we must decide is whether the constitution encompasses a right to commit suicide and, if so, whether it includes a right to assistance.

48 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).

49 At common law, suicide sometimes was referred to as "self murder.” Consequences included the forfeiture of property and an ignominious burial. Tsarouhas, n 36 supra at 795, citing Glanville, The Sanctity of Life and the Criminal Law, 261-262 (1957), and 4 Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1769), pp 189, 190.

50 There is no historical exception for physician-assisted suicide. To the contrary, such involvement traditionally has been regarded as contrary to the Hippocratic oath, which includes the following sentence: " 'To please no one will I prescribe a deadly drug, nor give advice which may cause his death.’ ” Steadman’s Medical Dictionary (5th Unabridged Lawyers’ Ed), p 650.

51 Alaska, Alas Stat 11.41.120(a)(2); Arizona, Ariz Rev Stat Ann 13-1103(A)(3); Arkansas, Ark Code Ann 5-10-104(a)(2); California, Cal Penal Code 401; Colorado, Colo Rev Stat 18-3-104(l)(b); Connecticut, Conn Gen Stat Ann 53a-56(a)(2); Delaware, Del Code Ann, tit 11, § 645; Florida, Fla Stat Ann 782.08; Georgia, Ga Code Ann 16-5-5(b); Hawaii, Hawaii Rev Stat 707-702(l)(b); Illinois, Ill Comp Stat Ann, ch 720, § 5/12-31; Indiana, Ind Stat Ann 35-42-1-2; Kansas, Kan Stat Ann 21-3406; Kentucky, Ky Rev Stat Ann 216.302; Maine, Me Rev Stat Ann, tit 17-A, § 204; Michigan, Act of December 15, 1992, 1992 PA 270 (creating Michigan commission on death and dying and prohibiting certain acts pertaining to suicide assistance); Minnesota, Minn Stat Ann 609.215; Mississippi, Miss Code Ann 97-3-49; Missouri, Mo Ann Stat 565.023; Montana, Mont Code Ann 45-5-105; Nebraska, Neb Rev Stat 28-307; New Hampshire, NH Rev Stat Ann 630:4; New Jersey, NJ Stat Ann 2C:ll-6; New Mexico, NM Stat Ann 30-2-4; New York, NY Penal Law 120.30; North Dakota, ND Cent Code 12.1-16-04; Oklahoma, Okla Stat Ann, tit 21, §§ 813 to 818; Pennsylvania, 18 Pa Cons Stat Ann 2505; Puerto Rico, PR Laws Ann, tit 33, § 4009; South Dakota, SD Cod Laws Ann 22-16-37; Tennessee, Tenn Code Ann 39-13-216; Texas, Tex Penal Code Ann 22.08; Virgin Island, VI Code, tit 14, § 2141; Washington, Wash Rev Code Ann 9A.36.060; and Wisconsin, Wis Stat Ann 940.12. The State of Oregon also has a statute that forbids assisted suicide. Or Rev Stat 163.125(l)(b). However, we note that Oregon voters passed a ballot initiative called the Death with Dignity Act on November 8, 1994. The act, which permits physicians, under certain circumstances, to prescribe lethal medication for terminally ill persons, was scheduled to take effect December 8, 1994. However, a federal district court has issued a temporary restraining order pending a hearing on the matter.

52 The Model Penal Code of the American Law Institute prohibits assisted suicide and grants a privilege to those who use force to prevent a suicide. Sections 210.5, p 91, and 3.07(5), pp 104-105.

53 See, for example, MCL 700.496; MSA 27.5496, which permits the appointment of a "patient advocate” to act on the patient’s behalf if the patient is not competent to do so. Subsection 20 of the statute states that designation of a patient advocate "shall not be construed to condone, allow, permit, authorize, or approve suicide or homicide.” MCL 700.496(20); MSA 27.5496(20). Other jurisdictions with similar provisions in statutes governing durable powers of attorney in healthcare situations include the District of Columbia, DC Code Ann 21-2212; Illinois, 111 Comp Stat Ann, ch 755, § 40/50; Indiana, Ind Code Ann 30-5-5-17(b); Iowa, Iowa Code Ann 144B.12.2; Massachusetts, Mass Ann Laws, ch 201D, § 12; New York, NY Pub Health 2989(3); North Dakota, ND Cent Code 23-06.5-01; and Rhode Island, RI Gen Laws 23-4.10-9®.

54 Jurisdictions that have such provisions in "living will” statutes include Alabama, Ala Code 22-8A-10; Alaska, Alas Stat 18.12.080®; Arizona, ArizRevStat Ann36-3210; Arkansas, ArkCodeAnn20-17-210(g); California, Cal Health & Safety Code 7191.5(g); Colorado, Colo Rev Stat 15-18-112(1); District of Columbia, DC Code Ann 6-2430; Florida, Fla Stat Ann 765.309(1); Georgia, Ga Code Ann 88-4111(b); Hawaii, Hawaii Rev Stat 327D-13; Illinois, 111 Comp Stat Ann, ch 755, § 35/9®; Indiana, Ind Code Ann 16-36-4-19; Iowa, Iowa Code Ann 144A.11.6; Kansas, Kan Stat Ann 65-28, 109; Kentucky, Ky Rev Stat Ann 311.637; Louisiana, La Rev Stat Ann 40:1299.58.10.A; Maine, Me Rev Stat Ann, tit 18-A, § 5-711(g); Maryland, Md Health Gen Code Ann 5-611(c); Minnesota, Minn Stat Ann 145B.14; Mississippi, Miss Code Ann 41-41-117(2); Missouri, Mo Ann Stat 459.055(5); Montana, Mont Code Ann 50-9-205(7); Nebraska, Neb Rev Stat 20-412(7); Nevada, Nev Rev Stat Ann 449.670; New Hampshire, NH Rev Stat Ann 137-H:10(II); North Carolina, NC Gen Stat 90-320(b); North Dakota, ND Cent Code 23-06.4-01; Ohio, Ohio Rev Code Ann, tit 21, § 2133.12(D); Oklahoma, Okla Stat Ann, tit 63, § 3101.12(g); Oregon, Or Rev Stat 127.645(1); Pennsylvania, 20 Pa Cons Stat Ann 5402(b); Rhode Island, RI Gen Laws 23-4.11-10®; South Carolina, SC Cod Ann 44-77-130; South Dakota, SD Cod Laws Ann 34-12D-20; Texas, Tex Health & Safety Code Ann 672.020; Utah, Utah Code Ann 75-2-1118; Virginia, Va Code Ann 54.1-2990; Washington, Wash Rev Code Ann 70.122.100; West Virginia, W Va Code 16-30-10; and Wisconsin, Wis Stat Ann 154.11(6).

55 See, e.g., MCL 330.1401(a); MSA 14.800(401)(a).

56 Alas Stat 11.81.430(a)(4); Ark Code Ann 5-10-104(a)(2); Colo Rev Stat 18-l-703(l)(d); Hawaii Rev Stat 703-308(1); Ky Rev Stat Ann 503.100(l)(a); Mo Ann Stat 563.061(5); NH Rev Stat Ann 627:6(VI); NJ Stat Ann 2C:3-7(e); NY Penal Law 35.10(4); Or Rev Stat 161.209; 18 Pa Cons Stat Ann 508(d); Wis Stat Ann 939.48(5).

57 For reasons apparent in our analysis of the due process claims, we also reject the argument that Michigan’s assisted suicide statute is invalid because it denies equal protection to terminally ill persons who want help in ending their lives, i.e., it denies them a right enjoyed by terminally ill persons who opt to forgo or discontinue life-sustaining medical treatment. As we explained, the two situations are not the same for purposes of constitutional analysis.

58 The Supreme Court of Canada said in Rodriguez v British Columbia, 107 DLR4th 342, 401-404 (1993), that no western democracy expressly permits assisted suicide. To the contrary, the criminal codes of most countries include a blanket ban of such conduct, and such proscriptions have not been adjudged to be unconstitutional or contrary to fundamental human rights.

59 The right to refuse medical treatment meets the "ordered liberty” and the "historical underpinnings” tests because it is rooted in the common-law doctrine of informed consent, which embodies the notion of bodily integrity. A person may refuse life-sustaining medical treatment because the treatment itself is a violation of bodily integrity. Suicide enjoys no such foundational support, however. When one acts to end one’s life, it is the intrusion of the lethal agent that violates bodily integrity.

60 We are mindful of Justice Cardozo’s admonition nearly half a century ago:

"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.” [The Nature of the Judicial Process, quoted in In re President & Directors of Georgetown College, Inc, 118 US App DC 90, 97; 331 F2d 1010 (1964) (Burger, J„ concurring in dissent), cert den 377 US 978 (1964).]

61 A large enough dose can cause the recipient to stop breathing.

62 No one who testified at the preliminary examination actually witnessed the activation of the device. The only persons in the cabin at that time were the decedents, the defendant, and the defendant’s sister, who since has died. Ms. Wantz’ husband was walking away from the cabin. He testified as follows:

Q. You don’t know who pulled the string?

A. I have no idea. She knew that she had to pull the string when I left.

Q. You don’t know if she tried to pull the string and it didn’t work and Kevorkian pushed her hand at all, do you?

A. I can say this, when I left the room she was in the process of trying to pull the string.

Q. You don’t know who pulled the string? That’s what you’re telling me?

A. I can tell you she was in the process of trying to pull the string when I left the room, but I did not see her pull the string. The only thing I can take and tell you is once I left the room, Dr. Kevorkian did—I heard Dr. Kevorkian say, "Marj, you have to hold your hand up,” and that is the only thing I know.

63 The pathologist who performed the autopsy testified that there was a lethal level of methohexital in Ms. Wantz’ blood, but that because of the body’s release of potassium on death, no conclusions could be drawn regarding potassium chloride.

64 In Campbell, the decedent and the defendant had been drinking heavily at the decedent’s home. The decedent had been talking about suicide, and the fact that he did not have a gun. The defendant offered to sell the decedent a gun. At first, the decedent did not accept the offer. However, defendant Campbell persisted in alternately encouraging and ridiculing him. Eventually, the defendant provided the decedent with a gun and five shells. The defendant and the decedent’s girl friend left, and some time later, the decedent shot himself. The defendant was charged with open murder.

Although the defendant failed to persuade the circuit court to quash the information, the Court of Appeals reversed. Among other things, the Court said that more recent Supreme Court decisions had "cast doubt” that Roberts remained good law. The Court also noted that the trial judge in Roberts had "assumed that a murder had occurred and considered only the degree of that crime.” 124 Mich App 337.

The Campbell panel further found that the defendant did not have the required "present intention to kill.” He only "hoped” that the decedent would kill himself, and '.'hope” is not the degree of intent required to sustain a charge of murder. Id. at 339.

65 "When a court of last resort intentionally takes up, discusses and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.” Chase v American Cartage Co, Inc, 176 Wis 235, 238 (186 NW 598 [1922]). [Detroit v Public Utilities Comm, 288 Mich 267, 299-300; 286 NW 368 (1939).]

66 Citing People v Aaron, 409 Mich 672, 713; 299 NW2d 304 (1980); Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979); Serafin v Serafin, 401 Mich 629; 275 NW2d 461 (1977); Beech Grove Investment Co v Civil Rights Comm, 380 Mich 405; 157 NW2d 213 (1968); Myers v Genesee Auditor, 375 Mich 1; 133 NW2d 190 (1965).

67 See Marzen, supra at 79-81.

68 See also n 51. In addition, the Model Penal Code incorporates this view:

(1) Causing Suicide as Criminal Homicide. A person may be convicted of criminal homicide for causing another to commit suicide only if he purposely causes such suicide by force, duress or deception.

(2) Aiding or Soliciting Suicide as an Independent Offense. A person who purposely aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor. [Model Penal Code, § 210.5.]

In commentary to its provision detailing sanctions against suicide assistance, the drafters of the Model Penal Code discussed the rationale supporting its recommendations, as well as expressing concern over the severity of the penalty imposed in Roberts:

The fact that penal sanctions will prove ineffective to deter the suicide itself does not mean that the criminal law is equally powerless to influence the behavior of those who would aid or induce another to take his own life. Moreover, in principle it would seem that the interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another, even though the act may be, accomplished with the consent, or at the request, of the suicide victim. On the other hand, cases such as People v Roberts, where a husband yielded to the urging of his incurably sick wife to provide her with the means of self-destruction, sorely test the resiliency of a principle that completely fails to take account of the claim for mitigation that such a circumstance presents. [ALI, Model Penal Code, § 210.5, comment at 100.]

69 Because Roberts involved a guilty plea, the facts were not well developed. If in fact the defendant’s only act was to prepare the poison and leave it for his wife to drink, and she did so knowingly and voluntarily, we would not find that sufficient participation to constitute murder. In the suicide setting, it is not enough that the defendant merely provided the means of death to be convicted of murder, or participated in the events leading up to the act that directly caused death if the defendant did not participate in the act that did directly cause death.

70 However, there may be circumstances where one who recklessly or negligently provides the means by which another commits suicide could be found guilty of a lesser offense, such as involuntary manslaughter. There are a number of cases in which providing a gun to a person known to the defendant to be intoxicated and despondent or agitated has constituted sufficient recklessness to support such a conviction. For example, in People v Duffy, 79 NY2d 611, 613; 595 NE2d 814 (1992), the defendant provided a gun to the intoxicated and despondent decedent, who had said he wanted to kill himself, and urged him to "blow his head off.” The decedent proceeded to shoot himself. Duffy was indicted for two counts of manslaughter in the second degree. The first count alleged that he had intentionally caused or aided the deceased in committing suicide (NY Penal Law, § 125.15[3]), and the second alleged that he had recklessly caused the death (NY Penal Law, § 125.15[1]). After a jury trial, the defendant was acquitted of the first count, but convicted of the second. The New York Court of Appeals concluded:

[T]he conduct with which defendant was charged clearly fell within the scope of section 125.15(l)’s proscription against recklessly causing the death of another person. As the People aptly observe, a person who, knowing that another is contemplating immediate suicide, deliberately prods that person to go forward and furnishes the means of bringing about death may certainly be said to have "consciously disregarded] a substantial and unjustifiable risk” that his actions would result in the death of that person .... [79 NY2d 614.]

See also State v Bier, 181 Mont 27; 591 P2d 1115 (1979); Persampieri v Commonwealth, 343 Mass 19; 175 NE2d 387 (1961); State v Marti, 290 NW2d 570 (Iowa, 1980).

71 Suicide is, by definition, the killing of oneself. Our analysis recognizes a distinction between killing oneself and being killed by another. Because suicide is not murder and is no longer viewed' as criminal, see above at p 477, assisting suicide is its own species of crime.

Our opinion would leave undisturbed the law of aiding and abetting because aiding and abetting necessarily requires the commission of an offense by a principal. See People v Kelly, 423 Mich 261; 378 NW2d 365 (1985).

72 See State v Carney, 69 NJL 478, 480; 55 A 44 (1903) (concluding that a failed attempt at suicide was criminal under the New Jersey saving clause, which made all "offenses of an indictable nature at common law,” not otherwise provided for, misdemeanors); State v Willis, 255 NC 473; 121 SE2d 854 (1961) (finding an attempt to commit suicide to be an indictable misdemeanor under North Carolina’s saving clause).

73 A lower court’s ruling on a motion to quash involving factual matters is reviewed by an appellate court for an abuse of discretion, and rulings regarding issues of law are reversed if erroneous. People v Thomas, 438 Mich 448, 452; 475 NW2d 288 (1991).

74 Remanding to the circuit court for reconsideration of the motion to quash will not usurp the fact-finding function of the ultimate trier of fact. Bindover decisions by magistrates, and the review of those decisions by trial courts, necessarily involve preliminary factual determinations, although the standard to be employed is one of probable cause rather than guilt beyond a reasonable doubt. MCR 6.110(E).