AN UNFORTUNATE MISSTEP: THE NEW YORK COURT OF APPEALS' REJECTION OF AID-IN-DYING IN MYERS V. SCHNEIDERMAN.

• Author: Schallert, Edwin G.
• Position: Albany Law Review Spring 2018 Symposium: Reconsidering the Right to Die: The Debate over Assisted Suicide

INTRODUCTION

The New York Court of Appeals recently considered a challenge to the validity and constitutionality of New York's Assisted Suicide Statute as applied to aid-in-dying--the medical practice of providing a mentally-competent, terminally-ill patient with a prescription for lethal medication that the patient may choose to take in order to bring about a peaceful death if the patient finds his or her dying process unbearable. In considering this important issue, the court had an opportunity to be at the forefront of the tide of change in public policy and opinion concerning aid-in-dying. Instead, the court declined to uphold the fundamental liberties enshrined in the New York Constitution. Without the benefit of a factual record, the court held that the New York Constitution does not protect a dying patient's right to control the course of his or her medical treatment through aid-in-dying. (1) It affirmed dismissal of the case in a decision "that future generations will look back on... as an unfortunate misstep." (2)

Plaintiffs in this case were patients who sought aid-in-dying and physicians and medical professionals whose ability to practice medicine and exercise professional judgment was hampered by the Assisted Suicide Statute. (3) Together they sought an affirmative judicial declaration that the Assisted Suicide Statute does not apply to aid-in-dying because (i) the term "suicide" in the Assisted Suicide Statute does not, as a matter of statutory construction, encompass aid-in-dying; and (ii) in the alternative, criminal proscription of aid-in-dying violates the New York State Constitution's guarantees of equal protection and due process. (4)

Shortly after the complaint was filed, the State filed a pre-answer motion to dismiss for failure to state a claim, arguing that aid-in-dying, by its nature and as a matter of law, constituted "assisted suicide" and that none of the complaint's allegations provided any reason to stray from New York's longstanding opposition to "assisted suicide." (5) The motion court, the New York Supreme Court of New York County, agreed, holding that plaintiffs had failed to state a claim, and rejected the state constitutional claims. (6)

The Appellate Division for the First Department affirmed the trial court dismissal, holding that the Assisted Suicide Statue provides a valid statutory basis to prosecute physicians offering aid-in-dying and that such a prosecution would not violate the New York State Constitution. (7) The Appellate Division flatly rejected the possibility of a distinction between aid-in-dying and suicide and found no violation of equal protection or due process. (8)

In a per curiam opinion, the Court of Appeals affirmed the Appellate Division, by flatly rejecting the possibility of a distinction between aid-in-dying and suicide and reiterating that, as a matter of law, aid-in-dying could be lawfully prosecuted under the Assisted Suicide Statute. (9)

The New York Court of Appeals erred for three reasons. First, the court applied the incorrect standard of review at the motion to dismiss stage. Second, the court mischaracterized the fundamental right at issue in the case. Finally, the court failed to recognize changing circumstances and shifting public attitudes towards aid-in-dying. In doing so, the court not only disregarded well-established precedent, (10) but ignored unique aspects of the New York State Constitution critical to the resolution of this case and failed to honor New York's "proud tradition" of protecting fundamental liberties. (11)

1. A BRIEF EXPLANATION OF AID-IN-DYING

   1. What Is Aid-In-Dying?

      Aid-in-dying is a recognized term of art for the medical practice of providing a mentally-competent, terminally-ill patient with a prescription for medication that the patient may choose to take in order to bring about a peaceful death if the patient finds his or her dying process unbearable. (12) Aid-in-dying is a medically and an ethically appropriate treatment option for patients facing unbearable suffering in the final stages of the dying process, one governed by professional practice standards and by the medical standard of care. (13) A patient who requests aid-in-dying must first be determined to be mentally competent, as assessed through a number of established medical tests, and certified to be terminally ill. (14) Once determined to be mentally competent and terminally ill, the patient receives a prescription for a medication that, if ingested, will enable the patient to achieve a peaceful death at the time of his or her choosing. (15) Whether the patient ultimately decides to ingest the medication is a decision and act of autonomy left to the patient. (16)

      Aid-in-dying is largely indistinguishable from other medical practices that result in a patient's death but that are currently lawful in New York. For example, mentally competent patients who require life-prolonging intervention, such as a ventilator or feeding tube, can direct withdrawal of the intervention and provide a "Do Not Resuscitate" direction, thereby causing death by suffocation, starvation or dehydration. (17) Similarly, mentally competent, terminally ill patients can choose to engage in a practice known as VSED, "Voluntary Stopping Eating and Drinking," whereby nutrition and liquids are withheld until the patient dehydrates. (18) Patients with unmanageable pain can likewise request a therapy known as terminal or palliative sedation, whereby the patient is rendered unconscious by intravenously-administered sedation and is then deprived of nutrition and fluids until death invariably arrives. (19) Each of these practices is considered a lawful refusal of medical treatment rather than an act of suicide, despite the active measures taken at the patient's direction in order to precipitate the patient's death.

      Like these medical practices, aid-in-dying is considered by practitioners to be a form of hastening the patient's death at the hands of the terminal illness, not an act of suicide or assisted suicide. Whereas "[s]uicide precipitates a premature death of a life of otherwise indefinite duration," often as a result of mental illness, aid-in-dying allows individuals facing impending death to make a rational choice to succumb to their terminal illness sooner rather than later. (20) Thus, patients who choose aid-in-dying are not considered "suicidal," and the death of a person who chooses aid-in-dying is understood to be, and formally recognized as, caused by the patient's underlying terminal illness--not the medication the person ingests to achieve a peaceful death. (21) In each of the currently lawful medical practices, however, death is often painful, protracted, and wrenching. (22) By contrast, aid-in-dying provides patients with a peaceful death on their own terms.

   2. Legal Status of Aid-In-Dying

      Conversations about aid-in-dying have been going on in the United States for more than a century. The first attempt to legislate aid-in-dying in the United States was swiftly defeated by the Ohio legislature in 1906. (23) More than half a century later, in 1967, a right to die bill was introduced in the Florida legislature, despite sparking extensive debate, the bill was unsuccessful. (24)

      After a number of unsuccessful attempts, Oregon became the first state to legalize aid-in-dying by ballot initiative in 1994. (25) The legislation faced a number of challenges, including from the U.S. Attorney General, who ordered Federal Drug Enforcement Agents to prosecute physicians and pharmacists for practicing under Oregon's Death with Dignity law. (26) The law did not go in effect until 2006, after the U.S. Supreme Court held in a 6-3 decision in Gonzales v. Oregon (27) that the Controlled Substances Act did not give the federal government the authority to interfere with physicians obeying state law and to overrule state laws on the appropriate use of medications. (28)

      Prior to Gonzales, the Court considered, in a pair of companion cases, Washington v. Glucksberg and Vacco v. Quill, whether state laws banning aid-in-dying violated the Due Process and Equal Protection Clauses of the United States Constitution. (29) Although the Supreme Court refrained from finding federal constitutional protection at the time, (30) it left the matter open for states to determine for themselves the legality of aid-in-dying, carefully preserving the possibility that it would find constitutional protection in a future case. (31)

      Since Quill and Glucksberg were decided, aid-in-dying has been expressly permitted in Oregon, Washington, Vermont, California, Colorado, and Washington, D.C. through either legislation or ballot initiative. (32) In Montana, aid-in-dying is permitted through a state supreme court ruling. (33) Presently, there are legislative efforts to legalize aid-in-dying in states that include Massachusetts, New York, New Jersey, and Hawaii. (34)

      Public attitudes towards aid-in-dying have shifted significantly since Quill and Glucksberg were decided. In 2013, a pair of polls found significant public support for aid-in dying. (35) More recently, a two separate 2016 polls found that 69 percent of Americans support aid-in-dying, (36) as do 56 percent of doctors. (37)

2. MYERS V. SCHNEIDERMAN

   1. Theory of the Case

      Myers v. Schneiderman centered on a challenge to New York's Assisted Suicide Statute, which criminalizes "intentionally caus[ing] or aid[ing] another person to [commit or] attempt suicide. (38) Because the statute's broad terms can be read to apply to the medical practice of providing mentally-competent, terminally-ill patients with prescriptions for life-ending medication, (39) the statute has effectively deterred physicians in New York from providing aid-in-dying to patients who would seek it.

      A number of patients, doctors, and advocacy organizations consequently came together to challenge the validity and constitutionality of the statute as applied to aid-in-dying. (40) The plaintiffs...