PHYSICIAN-ASSISTED SUICIDE AND THE NEW YORK STATE CONSTITUTION.

• Author: Mechmann, Edward T.
• Position: Albany Law Review Spring 2018 Symposium: Reconsidering the Right to Die: The Debate over Assisted Suicide

On September 7, 2017, the New York State Court of Appeals ruled on the most significant state constitutional case that it had been presented in several years. In Myers v. Schneiderman, (1) the Court unanimously rejected a request to legalize physician-assisted suicide ("PAS"). This article will examine the background and the legal grounds of that historic ruling, as well as some reflections on our involvement in the case.

1. THE BACK STORY

   For decades, advocates have been campaigning for the legalization of PAS. (2) In the early 1990s, this gained considerable public attention due to the activities of Dr. Jack Kevorkian. (3) Oregon legalized assisted suicide by legislation in 1994, and was the first state to do so. (4) Other legislative efforts failed, however, most prominently in unsuccessful ballot initiatives in Washington in 1991 and California in 1992. (5)

   In New York, the legalization effort was stymied in the legislative arena thanks to a report by the New York State Task Force on Life and the Law in 1994. (6) The Task Force is an advisory body with medical, legal, and ethical experts appointed by the Governor "who assist the State in developing public policy on issues related to medicine, law, and ethics." (7) After substantial consultation and deliberation, the Task Force came to a very strong unanimous conclusion:

   [T]he Task Force members unanimously recommend that existing law should not be changed to permit assisted suicide or euthanasia. Legalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable. The Task Force members concluded that the potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved. (8) PAS advocates also pursued a litigation strategy. In 1994, lawsuits were filed in Washington and New York seeking to convince the federal courts that PAS was a protected right under the United States Constitution. (9) This was decisively defeated in 1997 when a unanimous Supreme Court rejected the federal constitutional arguments in Washington v. Glucksberg (10) and Vacco v. Quill. (11)

   Undaunted, advocates returned to the legislative arena. Helped by the publicity surrounding the assisted suicide of Brittany Maynard in 2014, (12) they have been met with some successes. (13) They have so far made no progress in New York--their principal bill has only made minimal progress in the Assembly and none in the Senate. (14)

   The bill is supported in New York primarily by End of Life Choices, a local advocacy group, and the New York chapter of Compassion & Choices, the leading national advocate for legalization of PAS. (15) There is a coalition in opposition that operates under the name New York Alliance Against Assisted Suicide, which includes disabilities rights groups such as Not Dead Yet, the Center for Disability Rights, and the New York Association on Independent Living; religious institutions like the New York State Catholic Conference, New Yorkers for Constitutional Freedoms (an evangelical Christian organization), and Agudath Israel (which represents Orthodox Jewish concerns); as well as secular groups like Democrats for Life of New York. (16) On the national level, leading medical organizations are opposed to legalizing PAS, such as the American Medical Association, the National Hospice & Palliative Care Organization, and the American Nurses Association, as well as disabilities rights and religious organizations. (17)

2. THE MYERS LITIGATION

   The advocates have also turned to the courts to seek legalization under state constitutions, but their arguments have been uniformly rejected by state high courts. (18) In 2015, End of Life Choices New York, along with several doctors and patients, filed suit in state court seeking to overturn New York's ban on assisted suicide. (19) The case essentially argued that the word "suicide" in the Penal Law did not encompass PAS and, in the alternative, the ban violated the rights of terminally-ill patients under the New York State Constitution's Due Process (20) and Equal Protection Clauses. (21)

   Initially, we were concerned about whether the Attorney General would defend the current law. (22) In a series of same-sex marriage cases, the United States and state attorney generals declined to defend their laws, (23) which suggested the possibility that New York's progressive Attorney General might follow suit. However, the Attorney General's staff defended the state law vigorously and with great skill throughout the litigation. The plaintiffs, too, were very well represented.

   The plaintiffs met with defeat from the start. Ruling on a motion to dismiss, the Supreme Court rejected all the plaintiffs' arguments. (24) The plaintiffs appealed, again presenting their constitutional and statutory arguments. (25) The Appellate Division also rejected all the plaintiffs' arguments and unanimously affirmed the judgment of the trial court. (26) At that point, it appeared that the case was at an end.

   However, the Court of Appeals granted leave to appeal. (27) This was deeply concerning to PAS opponents. The conventional wisdom, at least with the U.S. Supreme Court, is that when a court of last resort takes a discretionary case, it is likely to reverse the lower court. (28) It indeed seemed strange that the Court of Appeals would take up a case that five lower court judges had found to be without merit. (29)

   The case attracted considerable attention once it reached the Court of Appeals. Fourteen amicus curiae briefs were filed by disabilities rights, religious, legal, and medical groups. (30) Some of the briefs in support of the plaintiffs were filed by parties that we expected to have great influence on the Court, including the New York Civil Liberties Union, leaders of the New York State Assembly, and Professor Vincent Bonventre. (31)

   The oral argument showed that the five judges of the Court (32) were deeply interested and engaged in the issue, and we were unable to discern a clear sense of where the Court might be leaning as a result of the arguments. It thus came as quite a surprise that the Court of Appeals also unanimously rejected all of the plaintiff's arguments. (33)

   This article will focus on the Court's per curiam opinion, fleshing out their analysis with our additional legal and factual observations.

3. ASSISTED SUICIDE AND THE CONSTITUTION

   Prior to Myers, the last major constitutional decision by the Court of Appeals was Hernandez v. Robles, (34) in which the Court declined to find a right to same-sex marriage. (35) In Hernandez, the Court began its analysis with an evaluation of the reasons underlying the law, and then went on to determine which constitutional standards to apply. (36) Although the per curiam opinion in Myers is organized differently, we consider it to be analytically clearer to follow the Hernandez outline.

   Clear Definitions Produce Clear Thinking and Clear Law

   Regardless of whether the Court was going to decide the case on Equal Protection or Due Process grounds, the critical question was the basis for the current law. In that analysis, clear definitions are the indispensable prerequisite for clear reasoning. This was particularly important, since the Myers plaintiffs relied heavily on confused and misleading definitions. (37)

4. SUICIDE IS STILL REALLY SUICIDE

   In their legislative efforts, as well as in both Myers and the New Mexico case, PAS advocates relied heavily on an argument that the word "suicide" does not encompass conduct that they define as "medical aid in dying." (38) All of the judges at every level who ruled on the Myers case flatly rejected this attempt of linguistic circumvention. (39)

   The standard meaning of "suicide" is to take one's own life, and the meaning of "assisted suicide" certainly encompasses physicians who provide patients with lethal doses of medication to end their lives. (40) The relevant section of the New York Penal Law is very clear in defining assisted suicide as when one "intentionally... aids another person to commit suicide." (41) The drafters of the Penal Law specifically envisioned that the statute would encompass those who gave assistance in "the more sympathetic cases (e.g., suicide pacts, assistance rendered at the request of a person tortured by painful disease, and the like)." (42) This logically includes physicians. Moreover, in Glucksberg, the Court even noted that "for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide." (43) Accordingly, "the prohibitions against assisting suicide never contained exceptions for those who were near death," including "those who [were] hopelessly diseased or fatally wounded." (44)

   However, plaintiffs argued that a physician prescribing lethal medication to patients for the purpose of ending their lives is not assisted suicide but instead is "[medical] aid-in-dying." (45) For example, in New York State, the bill seeking to legalize PAS uses this terminology, in which "medical aid in dying" is defined as "the medical practice of a physician prescribing medication to a qualified individual that the individual may choose to self-administer to bring about death." (46)

   Yet there is no reason for a physician to provide such medication in these circumstances, other than to assist patients in suicide. Based on the proposed legislation, the physician has to certify that he informed the patient of "the probable result of taking the medication" (47)--that is, the patient's death--and the patient has to make a specific request for "medication for the purpose of ending his or her life." (48) In other words, the physician is directly in the line of causality that brings about a patient's death. He is providing the patient with the instrumentality that he knows the patient will use to commit suicide. This process is explicitly within the standard meaning of assisted suicide as defined in the...