In Final Exit Network, Inc. v. Georgia,1 the Georgia Supreme Court unanimously2 concluded that Georgia’s statutory prohibition on advertising or offering to assist in the commission of a suicide was an unconstitutional restriction on free speech protected by both the United States and Georgia Constitutions. The court suggested that the state could have prohibited all assisted suicides instead of just public offers of assistance, leaving a potential opening for the State Legislature to pass a different law.3
In 1994, prompted by the activities of Dr. Jack Kevorkian in Michigan, the Georgia Legislature enacted a statute which provides that any person who “publicly advertises, offers, or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of suicide and commits any overt act to further that purpose is guilty of a felony.”4 The statute does not affect laws that “may be applicable to the withholding or withdrawal of medical or health care treatment,” or laws related to “a living will, a durable power of attorney for health care, an advance directive for medical care, or a written order not to resuscitate.”5
Issues relating to natural death and the practice of assisted suicide have been the subject of many court decisions both before and after the Georgia Legislature acted in 1994. In 1990, for example, the United States Supreme Court held that the Due Process Clause of the Fifth and Fourteenth Amendments protects the right to refuse unwanted lifesaving medical treatment.6 The Michigan Supreme Court rejected challenges to the constitutionality of the Michigan assisted suicide law in 1994, opening the door to the prosecution of Dr. Kevorkian for assisting in three suicides.7 In 1997, the United States Supreme Court held that a Washington state statute that prohibited “caus[ing]” or “aid[ing]” in the commission of a suicide did not violate the Due Process Clause.8 Then, in 2006, the Court held that an interpretive rule promulgated by the Attorney General of the United States that made it a violation of the Controlled Substances Act for a physician to assist in a suicide by dispensing or prescribing drugs was not entitled to administrative law deference and, therefore, could not override the Oregon Death with Dignity Act.9
The Georgia case arose after the 2008 suicide of a fifty-eight-year-old Georgian named John Celmer. According to the indictment, the Final Exit Network is a Georgia corporation that offers “exit guide” services through an internet site and by mail. Celmer, who had cancer but was in remission, contacted the Network by telephone and sent them certain parts of his medical records and a written statement expressing his wish to die. After a review of his case, the Network agreed to assist him. Celmer bought an “exit hood” and, after meeting with one of the defendants, ordered two helium tanks. At the meeting the discussion included “security concerns relating to potential interference from Mr. Celmer’s wife with the suicide.”
On June 19, 2008, two of the defendants went to Celmer’s house, where the “exit hood” was connected to one of the helium tanks and the tank turned on. The defendants “held [Celmer’s] hands while he inhaled helium through the hood.” After Celmer died, the defendants left, taking the hood, the helium tanks, and Network documents. One of the defendants “disposed of the tanks and hood in a dumpster.”
A grand jury sitting in Forsyth County indicted four members of the Final Exit Network on charges of assisting in Celmer’s suicide, racketeering, and tampering with evidence. The defendants moved to dismiss the indictment, arguing that it violated their right to equal protection under the Fourteenth Amendment to the United States Constitution and the parallel provision of the 1983 Georgia Constitution. They also contended that the law was unconstitutionally vague.
The trial court denied motions to dismiss, rejecting the contention that the law regulated speech and, instead, finding that the law criminalized some combinations of speech and conduct. The trial court further concluded that the law served a compelling public purpose and that it was narrowly tailored.
The trial court then granted a certificate of immediate review. The Georgia Supreme Court allowed the interlocutory appeal.
In a unanimous decision10 written by Associate Justice Hugh Thompson, the court sustained a facial challenge to the assisted suicide statute, finding that it violated the free speech provisions of both the U.S. and Georgia Constitutions.11 The court concluded that because the statute prohibited advertisements and public offers to assist in suicide, but not all assisted suicides, it created a content-based restriction on speech. As such, the statute was subject to strict scrutiny, requiring the state to show that the statute serves a compelling interest and is narrowly drawn.
Acknowledging the state’s argument that its interest in preserving life is a compelling interest, the court nonetheless concluded that the statute was not narrowly tailored. In the court’s view the statute was “wildly underinclusive.”12 It did not prohibit all suicides or nonpublic advertisements or offers of assistance. “Many assisted suicides are either not prohibited or are expressly exempted from the ambit of § 16-5-5(b)’s criminal sanctions.”13 Targeting actors like Dr. Kevorkian, as the state tried to do, left others “free” to make such nonpublic offers.14
The court rejected the contention that the requirement for an overt act provided the necessary narrow tailoring. It explained that the state could have “imposed a ban on all assisted suicides with no restriction on protected speech whatsoever,” or it could have “sought to prohibit all offers to assist in suicide when accompanied by an overt act to accomplish that goal.”15 However, without an “explanation or evidence as to why a public advertisement or offer to assist in an otherwise legal activity is sufficiently problematic,” the necessary narrow tailoring was lacking.16
In the aftermath of the court’s ruling, the consensus was that new legislation was needed. The Forsyth County District Attorney announced that she would dismiss the entire case.17 In response, the Georgia General Assembly passed a stronger bill (H.B. 1114), which Governor Deal has signed.
* Jack Park is of counsel to the Atlanta law firm of Strickland Brockington Lewis LLP and chair of the Professional Responsibility Practice Group of the Federalist Society.
1 2012 WL 360523 (Ga. Feb. 6, 2012).
2 Judge Christopher Brasher from the Fulton County Superior Court participated in place of Associate Justice David Nahmias, who was disqualified.
3 The court did say that, in light of its holding, it would not consider the “other constitutional challenges” made by the appellants. 2012 WL 360523 at * 3. The court did not identify those other challenges.
4 OCGA § 16-5-5(b).
5 OCGA § 16-5-5(d).
6 Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261(1990).
7 Michigan v. Kevorkian, 527 N.W. 2d 714 (Mich. 1994).
8 Washington v. Glucksberg, 521 U.S. 702 (1997).
9 Gonzales v. Oregon, 546 U.S. 243 (2006).
10 See supra note 2.
11 Apart from quoting the free speech provision of the Georgia Constitution, 2012 WL 360523 at * 3 n.2, the court largely invoked decisions of the U.S. Supreme Court and cited parallel decisions of its own.
12 2102 WL 360523 at *2 (quoting Brown v. Entm’t Merchs. Ass’n USA, 131 S. Ct. 2729, 2740 (2011)).
13 2012 WL 360523 at *2.
17 See Law on Assisted Suicide Rejected, Atlanta Journal-Constitution, Feb. 7, 2012, A1, at A9.