Court of Appeals Deals Blow to Right to Die Movement in New York

Four states have legalized the right to aid-in-dying, which is generally defined as the right of a mentally competent and terminally ill person to obtain a prescription for a lethal dosage of drugs from a physician, to be taken at some point to cause death—Oregon, Washington, Vermont, and California.  New York, on the other hand, has criminalized physician assisted suicide.  Penal Law §§ 120.30 and 125.15(3) make it a felony, either promoting a suicide attempt or second degree manslaughter, for anyone to cause another to commit suicide.

In Myers v Schneiderman (No. 77), which I previewed here, physicians, terminally ill patients, and an advocacy group brought a declaratory judgment action against State Attorney General Eric Schneiderman, asking the courts to declare that aid-in-dying is distinct from suicide and, thus, not subject to the Penal Law.  In the alternative, the plaintiffs argued, even if the Penal Law applies to aid-in-dying practices, the assisted suicide provisions violate the Due Process and Equal Protection Clauses of the New York Constitution.

After the Court took the summer to think it over, an unusual holdover from June Decision Days, the Court held, in a per curiam opinion with three separate concurrences, that the New York State Constitution does not contain a fundamental right to aid-in-dying.  Although New York law has long recognized an individual’s right to forgo life-saving medical treatment, that recognition does not equate to a right to have a doctor assist in a competent adult’s suicide.

The Court first rejected the plaintiff’s statutory interpretation claims that would have exempted physicians providing aid-in-dying from the Penal Law.  As the Court recognized, the “assisted suicide statutes apply to anyone who assists an attempted or completed suicide. There are no exceptions, and the statutes are unqualified in scope, creating an ‘irrefutable inference . . . that what is omitted or not included was intended to be omitted or excluded'” (Opn, at 6).  To construe the Penal Law as Plaintiffs suggested, the Court held, would be to read into it an exception that just doesn’t exist.

The Court also rejected the plaintiff’s Equal Protection and Due Process Clause claims because the United Supreme Court previously held, in Vacco v Quill (521 US 793 [1997]), that New York’s assisted suicide laws apply equally to everyone and do not violate the Equal Protection Clause, and the State Due Process Clause does not provide a fundamental right to aid-in-dying.  New York law has long distinguished between the right to refuse medical treatment and assisted suicide, the Court noted, and a rational basis exists for the Penal Law provisions criminalizing the latter.

New York has many legitimate interests it serves by criminalizing assisted suicide.  The Court held:

As to the right asserted here, the State pursues a legitimate purpose in guarding against the risks of mistake and abuse. The State may rationally seek to prevent the distribution of prescriptions for lethal dosages of drugs that could, upon fulfillment, be deliberately or accidentally misused. The State also has a significant interest in preserving life and preventing suicide, a serious public health problem. As summarized by the Supreme Court, the State’s interests in prohibiting assisted suicide include: prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians’ role as their patients’ healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia. These legitimate and important State interests further satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end.

(Opn, at 12 [cleaned up]).

In a long concurrence, Judge Rivera wrote separately to draw a line where the State’s interest in protecting and promoting life, she believe, must yield to an mentally competent, terminally ill individual’s liberty to choose to die.  She wrote:

I concur with the Court that this broad right as defined by plaintiffs is not guaranteed under the New York State Constitution, and that the State has compelling and legitimate interests in prohibiting unlimited and unconditional access to physician-assisted suicide. These interests, however, are not absolute or unconditional. In particular, the State’s interests in protecting and promoting life diminish when a mentally-competent, terminally-ill person approaches the final stage of the dying process that is agonizingly painful and debilitating. In such a situation, the State cannot prevent the inevitable, and its interests do not outweigh either the individual’s right to self-determination or the freedom to choose a death that comports with the individual’s values and sense of dignity. Given that the State already permits a physician to take affirmative steps to  comply with a patient’s request to hasten death, and that the State concedes that the Legislature could permit the practice sought by plaintiffs, the State’s interests lack constitutional force for this specific sub-group of patients. Considering the State’s sanctioning of terminal sedation in particular, the statute does not survive rational basis review. Therefore, in my view, the State may not unduly burden a terminally-ill patient’s access to physician-prescribed medication that allows the patient in the last painful stage of life to achieve a peaceful death as the end draws near.

(Rivera Concurring Opn, at 2-3).

Judge Fahey wrote the second concurrence in the case, disagreeing with Judge Rivera’s position that a line should be drawn where the state’s interest in criminalizing assisted suicide ends.  But that wasn’t the only purpose of his concurrence.  He also wrote separately to argue why legalization would be a mistake.  Drawing on experiences from Europe, Judge Fahey used the familiar slippery slope argument to assert that if assisted suicide is legalized, it could be extended not only to voluntary assisted suicide where mentally-competent patients choose to die for themselves, but also to involuntary assisted suicide where mentally-incompetent patients have that decision made for them.  I’m not sure I see how that risk couldn’t be sufficiently regulated by the State, but that is Judge Fahey’s fear.

Finally, Judge Garcia concurred separately because he would have gone further to reach, and reject, a “more particularized” challenge to New York’s assisted suicide laws that may have been left open by the United States Supreme Court’s decision in Washington v Glucksberg (521 US 702 [1997]). As Judge Garcia noted, in Glucksberg, Justice Stevens, concurring in the Supreme Court’s judgment that assisted suicide statutes do not violate the Federal Due Process Clause, asserted that the Court’s holding, which it viewed as rejecting a facial challenge, left open “the possibility that some applications of the statute might well be invalid” as applied to particular terminally-ill individuals (id. at 739 [Stevens, J., concurring]).

To the extent that the plaintiffs in Myers, which included at least one still living terminally-ill individual, presented that more particularized challenge to New York’s assisted suicide laws, Judge Garcia would have rejected them.  Judge Garcia would have held:

The legitimate interests advanced by the State support the assisted suicide statutes irrespective of a patient’s proximity to death or eligibility for terminal sedation. For instance, the State may permissibly conclude that its interest in preserving life does not “diminish” merely because a patient’s death may be “certain” or “imminent” (J. Rivera concurring op at 2, 27). Rather, research demonstrates that “suicidal feelings in terminally ill people” are often “remediable through other means, including pain management, hospice services and counseling,” notwithstanding the patient’s impending or imminent death (Brief of Disability Rights Amici, at 21). In the State’s view, this data may undermine any assurance that, in the “last stage of life,” a patient’s “choice is not motivated by depression and helplessness, but by the desire to exercise autonomy to achieve a peaceful death” (J. Rivera concurring op at 22-23).

The risk of misuse similarly persists regardless of a  patient’s “stage of the dying process” (J. Rivera concurring op at 2). Indeed, “many patients prescribed [lethal] drugs do not ultimately take them” (J. Rivera concurring op at 15 n 5), creating a substantial danger that the dosage will be deliberately or accidentally misused. While that risk may be “no more” than with other dangerous drugs (J. Rivera concurring op at 26), the State’s legitimate interest does not fail merely because the assisted suicide statutes do not “cover every evil that might conceivably have been attacked” (McDonald v Board of Election Commissioners of Chicago, 394 US 802, 809 [1969]). Moreover, given the lethal repercussions of misuse — the dosage is deliberately designed to cause death — the Legislature’s targeted effort to address this uniquely acute risk is certainly rational

(Garcia Concurring Opn, at 14-15 [cleaned up]).

Thus, without a fundamental right to aid-in-dying under the New York State Constitution, the plaintiffs and the aid-in-dying movement are left to lobby the Legislature to gain what mentally competent, terminally ill patients have in Oregon, Washington, Vermont, and California, legalization of physician assisted suicide.

The Court of Appeals’ opinion can be found here.


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