Welcome and Opening Remarks; Keynote Address; Panel Discussion.

• Position: Albany Law Review Spring 2018 Symposium: Reconsidering the Right to Die: The Debate over Assisted Suicide

ALBANY LAW SCHOOL

Dean Alexander Moot Courtroom

Thursday, November 9, 2017, 5:30pm

Keynote Address: Honorable Eugene M. Fahey, Court of Appeals, N.Y.

Introduction: Dean Alicia Ouellette, President and Dean of Albany Law School

Moderator: Professor Vincent M. Bonventre, Justice Robert H. Jackson Distinguished Professor of Law

Panelists: Edward Mechmann, Director, Public Policy at Archdiocese of New York

Peter Strauss, Of Counsel, Drinker, Biddle & Reath LLP; Board of Directors member, End of Life Choices of New York

David Levin, Executive Director Emeritus and Senior Consultant for End of Life Choices New York

Stephanie Woodward, Director of Advocacy, Center for Disability Rights

1. WELCOME & OPENING REMARKS

   Charlotte Rehfuss: Good evening everyone. Thank you for coming out. My name is Charlotte Rehfuss and I'm the Executive Editor for State Constitutional Commentary on the Albany Law Review. On behalf of the Albany Law Review, I would like to welcome all of you to the 12th Annual Chief Judge Lawrence H. Cooke State Constitutional Commentary Symposium. Over the years, the Cooke symposium has provided a forum to discuss the history and background of state courts and judges. We are honored to add to this tradition by having Judge Fahey and our four panelists here with us tonight.

   I would like to introduce our moderator, Albany Law School's own Professor Bonventre, the Justice, Robert H. Jackson, Distinguished Professor of Law. This symposium would not be possible over the years without Professor Bonventre, who has worked tirelessly to support the Albany Law Review, and we are so lucky to have him as our faculty advisor. I would next like to introduce Dean Ouellette. Dean Ouellette is the 18th President and Dean of Albany Law School. She is a graduate of Albany Law and was the Editor-in-Chief of the Albany Law Review. We are grateful for her continued contributions to the Albany Law Review and I am pleased to introduce her to start off tonight's discussion.

   Dean Alicia Ouellette: Thank you, Charlotte, and welcome to all of you. Tonight should be a very special evening where we have some really good conversation about a very important topic. For those of you who have never been here before, you're sitting in a building built in 1928. This room used to be, for sixty years, a two-story library, so it's been transformed over time. The law school has been teaching law students continuously since 1851, so we've been at this a long time. I want to thank all of our panelists for being here tonight, and I also want to congratulate Charlotte Rehfuss, who is the Executive Editor for the State Constitutional Commentary.

   You've done an extraordinary job putting together a great panel. Can you all join me in congratulating Charlotte? The topic of tonight's symposium is one that I care deeply about, both professionally and personally. I've spent much of my scholarly career exploring how choices in medicine affect our ability to have a good life, what it means to have a good death, and how laws that affect choice and dying affect persons with disabilities. All of those issues are relevant to tonight's discussion. The issues have also affected me on a personal level. Two years ago, my beloved father-in-law, Pete, ended a rousing and painful battle with terminal cancer on his own terms.

   Pete was a great man, a Harvard-educated physician, and he had the help of another physician in obtaining lethal cocktail. At that time, he was in California, and physician aid in dying was not legal. It was actually legalized by the legislature in California two weeks after he died. Pete's experience brought home, in a very personal way for family, the issues that we're going to talk about tonight--and they are complex both legally, ethically, morally, and they're not easy answers, so we're going to talk about them, and I congratulate the Law Review for picking this as a topic.

   To start our discussion, we have with us a wonderful keynote speaker, the Honorable Eugene M. Fahey. Judge Fahey is an Associate Judge on New York's Court of Appeals, New York's highest court. Judge Fahey was appointed in 2006 to the Appellate Division, Fourth Department by Governor George Pataki, and then he was appointed in 2015. He was nominated in 2015 to the Court of Appeals by Governor Andrew Cuomo. He was confirmed unanimously by the New York State Senate. When Judge Fahey was appointed to the Court of Appeals, Governor Cuomo predicted that he would be a formidable judge.

   The Governor's prediction was spot-on. Judge Fahey is a strong, principled writer, and a tough, if sometimes funny presence on a bench. Appearing before Judge Fahey can be quite a challenge. As a jurist, Judge Fahey is not afraid to stand his ground. Professor Bonventre has written that Judge Fahey, "Apparently feels no overriding need to just go along with his colleagues when he thinks they are mistaken." In fact, Bonventre notes that Judge Fahey has issued over fifty dissents. He often sides with the rights of the accused, except when the accused are officials or people doing harm to children, so an interesting observation by Professor Bonventre.

   In Myers v. Schneider man, (1) the case that gave rise to tonight's symposium, Judge Fahey concurred with the court's per curiam opinion, which rejected the plaintiff's arguments for right to physician aid in dying, or in the court's words, "physician-assisted suicide." I'm going to urge all of you, especially the students, to take note of the use of language tonight. People refer to the practice that we're talking about now in different ways. Some people will talk about death with dignity. Some people will talk about physician aid in dying, and some people will talk about physician-assisted suicide.

   Think about what the words mean and how they're being used, and what it means to our arguments. In his concurrence, Judge Fahey expressed concern that permitting the practice, whatever we call it, would place New York on a slippery slope toward legalizing nonvoluntary euthanasia, because a right to assisted suicide by the terminally ill in circumscribed last resort situations would inevitably lead to expand, to include, persons who are not terminally ill. I'm sure that we're about to hear more of the thinking behind these words and Judge Fahey, we are incredibly honored to have you here tonight at Albany Law School. You all join me in welcoming Judge Eugene Fahey.

2. KEYNOTE ADDRESS

   Hon. Eugene Fahey: I have to give judge... not judge, who wants to be a judge, Professor Bonventre, credit. He does pay attention and I think sometimes he even gets it right, which I have to give him credit for. First, I want to say that I'm honored to be here this evening. I think I have been asked to give the opening remarks. In the case of Myers v. Schneider man, which was a 2017 Court of Appeals decision concerning physician-assisted suicide and the statutes under New York penal law, whether or not those statutes outlying their practice are constitutional. I felt that the legal questions in that case were relatively straightforward, but that the moral questions underlying the decisions were both difficult and profound.

   That's of course why it makes it such a compelling case. Immanuel Kant, I don't get to quote Immanuel Kant very often, but Immanuel Kant said, "The difficult decisions are not choosing between what's right and wrong, but choosing between two different rights, what's right on one hand, and then what's right on the other hand." This case, in many ways, embodies a difficult choice between two very arguable rights, and I don't take an absolutist position, and my personal concurrence is really a reflection of my thinking of the historical realities of this decision in the world that we live in. Anyway, let me just talk a little bit about the procedural posture. How did this suit end up in front of the Court of Appeals?

   A lot of law students I'm assuming are here, so this is a minor test for you. This originated in the plaintiff's request for a declaratory judgment that physicians who apply aid in dying are not violating the state's assisted suicide statutes which are penal law 120.30 and 125.15(3). The Attorney General moved to dismiss under CPLR 3211(a)(7), which means failure to state a cause of action, and the Supreme Court granted that motion to dismiss. The appellate division modified, but still dismissed. The appellate division modified in the analysis saying that the statutes do not violate the state constitution.

   Now, as you may know, those of you who, and particularly the students here, the appeal itself generated four opinions, a per curiam opinion which we all agreed with, and then three concurrences. Now, a per curiam opinion, and per curiam simply means by the court, is an opinion that an appellate court decision makes it. It does not identify the individual judges who authored the opinion. It need not be unanimous to what was unanimous in this case. Now, why an opinion is done per curiam in any particular case is one of those secrets of appellate practice that the judges are bound never to speak of and really keeps people like Bonventre in business, and really any law professors throughout the auditorium in business really because they can really dig.

   They can speculate on why we did what we did. Here, Judges Rivera, Stein Garcia, Wilson and myself, joined the unanimous per curiam willing, and then Judges Rivera, Garcia and myself wrote separate concurring opinions expanding on, or parting from the per curiam in certain respects. Two of the judges on the court, Judge DiFiore and Judge Feinman, took no part in the decision. Judge DiFiore had been Westchester County DA and been involved in a lower court ruling on the case, and Judge Feinman was from the first department where the case from, so that's why they were recused in those cases.

   Now, the per curiam opinion held that the state constitution does not encompass a broad fundamental right...