Con Law: Individual Rights (Kmiec)
I. Religious Freedom A. Historical Origins 1. The Founders perceived religion as necessary to the civil order. a. Religion forms the basis of governing conduct that laws can‟t reach. b. Because religion looks to the source of rights and laws, it is one of the most important rights. (1) Rights are not privileges granted by the govt. (2) True rights derive from natural law. 2. The Founders feared the establishment of a national religion. a. National religion would mean coercion and legal enforcement. (1) But they feared creating antireligious sentiment, or reducing the significance of religion in society. (2) Some thought the establishment clause could be used to abolish religion altogether. b. Madison thought the nat‟l govt had no power to touch upon religion. (1) He feared (correctly) that enumerating rights would mean that rights not listed would not be protected. (2) At the founding, states could establish religions. (a) Religious freedom could be exercised by moving to another state. (b) But debate over “national” meant the 1st Amend didn‟t include it. 3. Tocqueville saw a multitude of religions, in which every person chose their own exercise as the best path. a. But religion and politics make dangerous allies, and sullies religion. b. Thus, separation of church and state increases the importance of religious freedom. B. Early Developments 1. The establishment clause does not prohibit a religious entity from providing a secular service. Bradfield v. Roberts. 2. The establishment clause means no concert or dependency of govt and religion. Zorach v. Clauson. a. The alternative would be to deny police/fire protection to churches. b. This case made the 1st Amend applicable to the states, through the 14th. C. The Modern Court 1. There are 4 modern theories of the Establishment Clause. 2. The exclusionary rule is designed to keep religious references out of govt. a. There may be no general support for religious ends. Everson v. BOE. b. There may be aid to religious groups, but for secular purposes. 3. The noncoercion rule holds that no person may be forced to entertain religious practices. Lee v. Weisman. a. Unlike legislatures and courts, children are impressionable. Kennedy. b. School attendance is coerced, and that atmosphere extends to graduation and other official school activities. (1) Choosing not to attend is not a real choice. (2) School-designed or sanctioned prayers are excessive entanglement. c. Souter: School-approved prayer aids all religions, so follow Everson. d. Scalia: pledge of allegiance says it, so why can‟t school?
No endorsement holds that govt may not show preference, or treat non-adherents as outsiders. Capitol Square v. Pinette. a. There is a 3 part test for open forum displays: (1) There must be no direct state sponsorship. (2) Any benefits to the religious group must be incidental. (3) Access to the forum must be public and non-discriminatory. b. O‟Connor: Use TARP standard to distinguish state endorsement from a purely open forum. c. Ginsburg: The Establishment Clause is a negative bar against religion, creating a secular public order free of religion. 5. Under equal protection, no religion is singled out; religion may participate within secular society. Rosenburger v. Rector. a. Thomas: You can‟t exclude religious viewpoints while permitting political. b. O‟Connor: Hostility toward religion violates neutrality. c. Souter: Providing funds is more than providing access. D. School Funding 1. Where the funds go is important, but the distinction is difficult to make. a. But many states have anti-religion clauses in their constitutions. 2. The Lemon test: a. Laws must have a secular purpose. b. The primary effect must be to enhance or inhibit religion. c. There must not be excessive entanglement with religion. 3. Support for religious schools works only so long as the community is homogeneous. a. Historically, states stopped funding religious schools when new religions became prevalent. b. Any school system has a coercive aspect. 4. Aid to students is allowed, but aid to schools is not. a. Financial aid follows the student, so it is allowed even if it ends up at a religious school. Witters v. Services for the Blind. b. A benefit provided neutrally to a broad range of applicants, defined without reference to religion, is allowed. Zobrest v. Catalina Foothills. c. Aid directed at the school or the teachers is not allowed, especially if the level of funding is „massive.‟ Meek v. Pittenger. d. But aid may be directed at the school if the teachers are under public (state) supervision. Agostini v. Feldman. (1) O‟Connor: There must be no „symbolic union.‟ (2) Blackmun: Isolated aid v. core services of school? E. School Prayer 1. There need be no showing of coercion to prove an Est. Clause violation. 2. The govt may not impose a „moment of reflection,‟ nor establish a prescribed, suggested prayer. Wallace v. Jaffree. a. Souter: The „crucible of litigation‟ recognizes the value of belief as the product of free choice. b. Rehnquist: Religion is necessary for public order. (1) Neutrality between religions okay, but neutrality toward all religion not. (2) Jefferson didn‟t mean what he said about church and state. F. Free Exercise
4.
1.
Religious practice is subordinated to the public order. a. But there is no „public order‟ exception in the Free Exercise Clause. b. The court distinguishes conduct and belief. Reynolds. (1) Even if a practice is religiously rooted, it may be prohibited if it was illegal at common law. (2) But this may really be just a license to persecute some faiths. c. A practice which benefits society is acceptable. (1) If the exercise of religion has minimal impact at all, then it will be allowed. Wisc. v. Yoder. (2) Extraconstitutional, parental rights may trump children‟s freedom. 2. The law will only look to sincerity of belief, not truth of dogma. a. The law knows no heresy. US v. Ballard. b. Jud. proof cannot extend to faith, which by defn cannot be proved. (1) Sincerity is a subjective standard, based on the individual. (2) Yet fraud, involving proof of knowledge of falsity, is actionable in anything but matters of faith. c. There is an objective test as to whether a claimed belief rises to the level of religious belief. Seeger. (1) Religious belief is defined as belief in transcendant realties. (2) This may even extend to personal philosophy. 3. Generally applicable burdens on religious conduct require a compelling interest. Sherbert v. Verner. a. Mandatory sundary closures are allowed (general day of rest), but state may not hinge unemployment benefits on giving up sabbath. b. Ballard prohibits interest in avoiding fraud, where program favors one religious group. c. Drug laws, as general prohibitions, are a compelling interest. Emp. Div. v. Smith. (1) Scalia & hybrid cases: Free exercise may prevail if there is another fundamental right implicated. (2) O‟Connor: Neutrally applied statutes are allowed. 4. Congress may not interpret free exercise. Boerne v. Flores. II. Fairness A. Contracts 1. The Framers were concerned with ex post facto laws and bills of attainder. a. The Contract Clause prohibits state impairments. b. They feared that clever legislators would sneak such laws in. c. Story defined a contract as giving up part of one‟s free will, giving rise to a moral obligation founded upon positive law to give it effect. 2. Impairment is any deviation from contract terms or change of parties‟ intent. a. No state may change an obligation retrospectively. Sturges. (1) Debtors may be discharged, but not the debt. (2) Marshall: Prospective (future) laws are part of the backdrop of public law, incorporated into every contract. (3) Construction is still necessary when terms contradict or are immoral. b. The Contract Clause is general, and applies to states as well as people. (1) Even if a grant is fraudulent, the state cannot undo it. Fletcher v. Peck.
(2) Modernly, public contracts receive greater scrutiny. 3. The state may not bargain away the police power. a. Govt may set aside immoral contracts. Stone v. Miss. b. Intermediate scrutiny: where there is substantial impairment, there must be a significant and legitimate public purpose. (1) An act may be valid where the remedy is proportional to the emergency it seeks to alleviate. Home Bldg. & Loan v. Blaisdell. (2) Bare attempts to redistribute wealth are invalid. (3) Look for broad economic problems and preexisting regulation. 4. Due Process acts as a limited check on impairment. a. The Contract Clause only applies to the states. b. Nevertheless, the govt must bear the costs of regulatory changes that impair contracts. B. Property 1. One of the ends of govt is the creation and preservation of prop. a. There is a correlation between private prop and industriousness. b. Prop is theoretically limited by the ability to use and enjoy, but the invention of money changed that. c. Citizen prop. relationships are governed by trespass and nuisance. d. Prop is an absolute right, but dependent on the positive law. 2. Prop rights are protected by the Takings Clause. a. An action is a taking if it goes too far. Penn Coal v. Mahon. (1) Destruction of a separately recognized estate goes too far. (2) Holmes: There must be average reciprocity of advantage (all parties must share burdens; quasi-equal protection). (3) Brandeis: Compare lost value to value of entire estate. b. A permanent physical invasion is a per se taking. (1) Excessive regulation having the effect of an invasion is a taking. (2) Compensation is measured from the date of enactment. 1st English. c. Where there is no invasion, the Penn Central factors apply: (1) Economic impact: Does the action go too far? (2) Investment backed expectations: There are no undeveloped “air” rights. (3) Character of the govt action: Not void simply because a few prop. owners are burdened. 3. Regulatory takings are governed by the Nollan/Dolan dual nexus. a. There must be continuity with the legis. end and the means to achieve it. b. There must be rough proportionality between the benefit to the public and the burden imposed on the landowner. c. A total economic wipeout (total diminution) is a taking. Lucas. d. Takings claims must be ripe: The regulation must be definitively applied, the owner must present a credible development proposal, and compensation must be sought in state ct. 4. The jud has no authority to define prop. rights. a. Scalia: Prop. is defined by antecedent inquiry into common law to the time of initial investment. b. Stevens: Common law is evolving, and varies from place to place. C. Procedural Due Process
1.
There is no guarantee of life, liberty, or prop. beyond due process. a. The 14th Amend defined US citizenship. b. The due process and equal protection guarantees of the 14th Amend apply to all persons, but privs. and immunities apply only to citizens. 2. The guarantees apply only to state action. a. The ct. originally held contract rights as trumping protections of civil liberty. Civil Rights Cases. (1) Civil rights claims were ineffective against private discrimination. (2) Harlan: But any denial of rights is a badge of slavery. b. But jud enforcement of private contracts is state action. Shelley v. Kramer. c. There are several tiers of state action: (1) Exec or legis action. (2) Cts and jud enforcement. (3) Delegating traditional state functions to private individuals (private towns and universities). (4) Symbiotic relationships between the private actor and the state (but not consistently applied: Burton v. Moose Lodge). d. Even where the action is purely private, if it‟s within a state process, there may be no discrimination. (1) Jury selection has meaning only within a courtroom, so it carries the imprimateur of state action. Edmonson. (2) O‟Connor: But if it‟s private litigants and historical peremptory challenges, then not really state action. (3) Scalia: Now, black crim has lost right to challenge all-white juries. e. There is no due process guarantee against state inaction. DeShaney. (1) There is no duty unless the state has total control over the person. (2) Due process is not a guarantee of life, liberty, prop, but that the state‟s power to take it away is limited. (3) Brennan: But if private neg is actionable, so should state neg. be. 3. The Constitution does not define life, liberty, or prop. a. State law defines prop. interests. Roth. b. Liberty is freedom from constraint, but the state may limit it. (1) There is no liberty to harm or destroy. (2) Natural law defines liberty as contributing to the orderly pursuit of happiness. c. Due process is not triggered until a protectible interest is found. (1) Statutory entitlements are a recognized prop. interest. Goldberg. (2) There is a 3 tiered approach to due process inquiry (Mathews): (a) How significant is the interest? Welfare is essential to life. (b) What is the risk of deprivation under existing procedures and the value of alternatives? (c) What is the essence of the govt function? There may be less process if the govt function is essential to public safety. 4. Limits on the power of the legis are substantive due process. a. Legis acts are valid if they rationally advance the state‟s interest. (1) Policy is not a proper jud question. (2) This is the rational basis standard. b. But the standard is applied in different ways (Haslip):
(1) Blackmun: Look for guidance and reasonableness. (2) Scalia: Look only to tradition and common law. (3) O‟Connor: Apply the 3-part Mathews test. c. The danger in subst. due process is jud.-created policy, tempered somewhat by judges as the embodiment of fairness. III. Individual Freedom A. Free Speech 1. The ct has no single 1st Amend test; cases are decided by context. 2. Prior restraints on speech are virtually per se invalid. NYT v. US. a. Common law punished speech critical of the govt, but the 1st Amend changed that idea. b. A prior showing of a threat to public safety justifies content controls. 3. A public forum is a place whose principal purpose is the free exchange of ideas and which is traditionally viewed as a place for public debate. ISKCON v. Lee. a. Prop. maintained for a specific purpose (airport) is not an open invitation. b. In the absence of finding a public forum, content-based restrictions may be reasonable. (1) Solicitation requires confrontation, so it may be prohibited. (2) Distribution bans effectively silence all speech. c. If a public forum is found, content regulation must be narrowly tailored to a compelling state interest. (1) The same standard applies to any viewpoint-based regulation. (2) If a public forum is limited (govt may close it), then the public forum rules apply so long as it is open. d. A public forum need not be a physical space. Rosenberger. (1) Religious viewpoint discrimination follows the compelling interest standard. (2) Trying not to advance religion is not compelling, as accomodation is not endorsement or establishment. (a) Souter: State interest in separating church and state. (b) O‟Connor: No endorsement from reas. observer‟s perspective. 4. Commercial speech is subject to less protection than viewpoint speech. a. Com. speech is defined as speech inviting a com. exchange (i.e. ads). b. There is a 4 part test for com speech regulation (Central Hudson): (1) The speech must concern a lawful activity (no fraud or misleading). (2) There must be a substantial govt interest (intermediate scrutiny). (3) The regulation must directly advance that interest (reg. nexus). (4) The regulation must be narrowly tailored to that interest. c. Validity of regulation depends on the nature of the restriction. (1) Content-based reg must be narrowly tailored to compelling interests. (2) Content-neutral reg may include time, place, and manner restrictions. (a) There must still be a substantial govt interest. (b) The reg must leave ample alternative means of communication. 5. Defamation is subject to qualified protection. a. Criticism of public officials is permitted absent actual malice. Sullivan. (1) Malice is knowledge of falsity or reckless disregard for the truth. (2) Otherwise, it would be too easy to restrict public criticism.
b. The protection extends to public figures, as well as officials. 6. Expresssive conduct is protected as speech. a. Symbolic speech is expression intended to convey a message that has a substantial likelihood of being understood. (1) Whether the conduct is expressive is a threshold inquiry. (2) If conduct is not expressive, then rational basis applies. O’Brien. (3) Just because conduct is intended to be expressive does not make it expressive conduct. Barnes v. Glen Theater. (a) Eroticism does not require nudity. i) Dancing is inherently expressive, but nudity is not. ii) Govt has substantial interest in promoting morality. But if it is condemned as immoral, it is communicating a message, and thus expressive. Equal protection concerns: no nude dancing, but some nudity allowed in plays (high art). (b) Obscenity is not protected. i) The general defn is appealing to prurient interest, offensively depicting sexual conduct, and lacking artistic, political, or scientific value. ii) Only the third element reflects national standards. iii) Pornography is not fully set as obscenity. b. There is a 4 part test for regulating expressive conduct: (1) The govt must have the constitutional power to regulate. (2) The regulation must further a substantial state interest. (3) That interest must be unrelated to suppressing free expression. (4) The incidental restriction must be no greater than necessary. c. There is no presumption that disagreeable speech leads to violence. (1) There must be imminent or actually occurring violent action. (a) The govt can‟t suppress speech based on fears of hypothetical riots. Texas v. Johnson. (b) There must be a clear and present danger. i) Fighting words must be personal as well as provocative. ii) Flag burning is too impersonal. (2) Once the govt recognizes that conduct is symbolic, compelling scrutiny applies. (a) But hate expressed in crim acts is punishable. Wisc. v. Mitchell. (b) There may not be distinctions between types of hate speech. RAV d. The govt, as speaker, may set standards for the use of its moneys. (1) The legis may set policy, subject to rational review. Rust v. Sullivan. (2) The govt has no duty to subsidize the exercise of any right. (3) As an employer, the state interest is efficiency, not debate. Waters. (a) But the employer must make reas inquiry before firing critics. (b) Scalia: No prop interest in at-will job, so no reas inquiry. e. Private associations may be private relationships or advocacy groups. (1) 1st Amend protects intimate personal relationships. (a) Business or public associations may be restricted. (b) Privacy factors include size, purpose, selectivity, policies, and congeniality. (2) Expressive associations provide a collective voice for advocacy. (a) There is a 3 part test for expressive associations:
There must be a compelling state interest. That interest must be unrelated to suppressing ideas. There must be no significantly less restrictive alternatives. (a) Gender discrimination is not a suspect class, but the state may view integration as compelling. Roberts v. Jaycees. (b) Associations are essential to the civic order, but to have meaning they must provide access to the civic body. B. Economic Liberty 1. The first economic protection was the priv and immunities clause (art iv). a. Its meaning has been held as a unifying force of comity and nondiscrimination against citizens from other states. (1) Some distinctions based on residency are allowed, because of the local tax burden. (2) There is a 3 part test for discrimination against nonresidents: (a) There must be a substantial reason for the differential treatment. (b) The discrimination must be substantially related to that interest. (c) There should be no less restrictive alternatives. b. Fundamental rights are protection for life, liberty, and prop.; travelling and settling; trade and professional liberty; habeas corpus; freedom from disproportionate tax; and voting. Corfield v. Coryell. (1) A citizen‟s profession is protected under priv and imm. Piper. (2) But where economic livelihood is not implicated, there is less protection. c. But privileges and immunities are inherently limited. (1) Slaughter-House Cases: 14th Amend only secures rights to freed slaves; legis has no limit to impugn economic liberty. (2) Butcher’s Union: Fundamental rights are inalienable, and the state may not bargain away the police power. 2. There is no substantive economic due process. a. The legis has presumption on economic policy, subject to rational review. b. At first, jud could intervene when an activity was „affected with the public interest.‟ Loan Ass’n v. Topeka. c. Lochner: Legis must have a direct relation between its means and ends. (1) Only the ct has the power to make the decision. (2) This rule provides no check on jud. power. d. Carolene Products reversed this supposed strict scrutiny. (1) Only rational review (deference) applies to economic matters. (2) But fn.4 reserved the power to apply heightened scrutiny in cases of prejudice against discrete minorities. (3) Thus, the door was closed on subst. econ. due process, but opened on intermediate scrutiny. e. Rational basis means the legis could have had any rational reason; the reason they give is not dispositive. Nordlinger. IV. Equality A. Race 1. Citizenship did not extend to blacks. Scott v. Sanford. a. The constitution reserved rights to import slaves, and free states were required to
recognize the prop. interest in slavery. (1) But the constitution did not condemn slavery for political reasons. (2) There really is no express protection of slavery. b. The only real justification was prop. rights. 2. The 14th Amend created equality, but black equality was „separate.‟ a. The ct saw nothing inherently wrong with segregation. Plessy. b. The 13th Amend extends no further than actual involuntary servitude. c. Harlan: There is no caste in America, which should be color-blind. 3. But education cannot be measured, and thus equally segregated. a. Empirical studies showing inferior services proved that separate was not equal in the schools. Brown v. BOE. b. Schools not only had to stop segregating, they must make up for past discrimination. (1) Normally, remedies go to individuals. (2) Here was group remedy. c. If there is no de jure segregation, there is no equal protection concern. (1) Demographic shifts with the appearance of segregation are not the same as intentional discrimination. Freeman v. Pitts. (2) The goal of the 14th Amend. is racially equal access, not racially equal schools. (3) Schools may be released from ct. supervision when they make good faith progress on remedying segregation. 4. Where the discrimin. effect is incidental, there is no violation. Wa. v. Davis. a. Discriminatory effects would be a huge burden on jud. economy and separation of powers. b. If there is no identifiable racial animus, there is no legal inequality. (1) But under the com. clause, Congress may order racial impact as a factor in hiring (title VII). (2) If the racially neutral factors of a govt decision outweigh the racial imprimateur of the decision, the govt burden is satisfied. Arlington Heights. (a) Legitimate factors: consistent historical background, legis history, admin records, and discrim impact as ev. of discrim intent. (b) If race is a motivating factor, then there is a violation. 5. Racial classifications are subject to strict scrutiny. Adarand, Croson. a. Any classification (benign or invidious) must address 2 factors: (1) State discrim, or by private parties contracting with govt. (2) The remedial program must be narrowly tailored to that past discrim. b. Croson is the rule for states; Adarand extended it to the fed govt. c. The modern ct‟s approach: (1) Skepticism: Searching review for narrowly tailored programs. (2) Consistency: No unnecessary favoring of any racial group. (3) Congruence: between fed, state, and local govts. B. Voting 1. Race may not be the predominant factor in districting. Miller v. Johnson. a. Race may be a factor, but it can‟t be the only one. b. Other factors include communities, politics, and ethnicity. 2. One problem with community districting is malapportionment. a. Some political districts fail to maintain equal populations.
(1) Each individual‟s voting strength is strengthened or diluted. (2) The goal is one person/one vote. Reynolds v. Sims. b. State legis seats must be apportioned on a population basis. (1) The fed senate model is inapplicable to states. (a) Counties are not quasi-sovereigns. (b) Unlike states, county lines can be redrawn at will. (c) Fed system was great compromise. (2) But the problem is with uncounted population. (a) Strict counting inevitably leaves out some people. (b) Realistic, mathematical sampling annoys dumb people who don‟t grasp ideas harder than 1+1=2 and are really just racists. (3) But districting is a political question, implying a disruption of powers. C. Gender 1. Before the 19th Amend, women were citizens, but still could not vote. a. Voting is not a fundamental privilege. Minor v. Happersett. b. 15th Amend would be redundant if 14th gave everyone franchise. 2. Voting was later viewed as a privilege under state law, not fed. law. a. National privs were of little consequence. US v. Anthony. b. Equal protection did not apply to gender. 3. Equal protection evolved intermediate scrutiny for gender. VMI. a. There must be important govt objectives and the classification must be related to achieving those objectives. b. Perpetuated stereotypes of female inferiority are invalid. (1) The rule is remedial, with something more. (2) There must be an „exceedingly persuasive justification.‟ (a) Same sex schools do not promote diversity. (b) Vague perceptions of general tendencies are too broad. c. Scalia: Is destroying the program worth eliminating the distinction? D. Sexual Orientation 1. There is no fundamental right to engage in homosexual conduct. Bowers. 2. Where there is no fundamental interest, the standard is rational review. a. Historical morality interests are a sufficient rational basis. b. When a liberty is not enumerated, it must have a historical basis to be protected. c. Blackmun: intimacy is a privacy concern. 3. A classification solely for the purpose of depriving a class of citizens of the right to petition their govt is irrational. Romer v. Evans. a. If access is not denied at the state level, the legis may be valid. b. But distinctions made by conduct, not status, are permissible. Equality Foundation. Implied Liberties A. Family 1. Children are not mere creatures of the state. a. Parents have the liberty to instruct in their native language. Meyer. b. Religious schools are an acceptable alternative to public. Pierce. 2. Marriage is a vital personal right, which cannot be subrogated to racial discrimination. Loving. 3. The fundamental idea is that the state can only go so far in impugning on rights with
immeasurable historical justification. 4. However, the state may uphold presumptions of parenthood that promote familial tranquility. Michael H. v. Gerald D. a. Thus, a child born to married parents may be presumed to be their child. b. Scalia: focus on the most specific level at which the traditional right may be identified (the most narrow defn of liberty). c. Brennan: define liberty broadly. d. O‟Connor: follow precedent, not theory of liberty. B. Privacy 1. The right of privacy is implicit in the 1st, 3rd, 4th, 5th, and 9th Amends. a. Madison was afraid that by enumerating some rights, any they failed to enumerate would be lost. b. Marriage is such a fundamental institution, the state has no business intruding into the bedroom. Griswold. 2. The privacy interest exists in the individual, not just the marital union. a. Married people are themselves still individuals. b. The reasons for anti-contraception laws applied to married people as much as to unmarried. Eisenstadt. Autonomy 1. Abortion was originally subject to a trimester analysis. Roe v. Wade. a. At common law, abortion was homicide. (1) The primary issue was when the fetus became a „person.‟ (2) Modernly, personhood was defined as live birth. b. The ct weighed the interests of choice, health, and fetal life: (1) First: Woman‟s personal interest prevails--unrestricted choice. (2) Second: State may regulate to extent needed to protect health. (3) Third: State may outlaw abortion except when mother‟s life at risk. 2. Abortion is a protected right, but subject to intermediate scrutiny. Casey. a. Instead of trimesters, the ct. adopts a viability standard. (1) Before viability, the woman‟s liberty interest prevails. There may be no undue burdens on the abortion right. Waiting periods and informed consent are reasonable. But spousal notice is unreasonable. (1) After viability, abortion may be prohibited except in emergencies. b. The Mystery clause: every person has the right to define their own existence and the mystery of human life. c. Scalia: flimsy stare decisis, unsubstantiated reliance, no real equality. 3. A person may refuse life-saving care. Cruzan. a. At common law, forced medical treatment was a battery. b. But no enunciated fundamental right to refuse treatment. 4. There is no „right‟ to suicide. Glucksberg. a. Suicide is no longer crim, but is viewed as a sign of mental illness. b. Since there is no suspect class or fundamental right: rational review. State has interest in preserving life, treating mental illness, and maintaining the integrity of the medical profession. Assisted suicide coul lead to abuse. The state has a substantial interest in protecting the most vulnerable.
a. Suicide is an autonomy issue, but it can‟t be outcome-determinative. b. Souter: There is no substitute for judgment and restraint. An active intent to kill cannot be the basis for any liberty. Vacco. The essential distinction between natural and assisted death is intent. The difference between untreatable pain with terminal sedation, and assisted suicide, is the intent to make life more bearable, and not to end it.