(Aaron Couture)

Advocates of “aid-in-dying” lost a bid to exempt the practice from state laws banning assisted suicide when the Appellate Division, First Department, unanimously rejected their claims Tuesday.

The plaintiffs in Myers v. Schneiderman, 151162/15, included five physicians who sought to legalize prescribing lethal medications for terminally ill patients in unbearable physical pain who are seeking to end their lives. They argued the Equal Protection and Due Process clauses of the state constitution guarantees a right to administer aid-in-dying measures.

In an opinion signed by Justice Angela Mazzarelli, the panel said the U.S. Supreme Court ruling in Vacco v. Quill, 521 U.S. 793 (1997), finding New York’s application of criminal penalties to anyone who assists a suicide did not violate the U.S. Constitution’s Equal Protection Clause, was controlling, along with the state’s legislative history on the issue and Court of Appeals cases.

“Plaintiffs offer nothing other than conclusory arguments for why, unlike the United States Constitution, the New York State Constitution should be construed to extend the right to refuse treatment, and let nature take its course, to a fundamental right to receive treatment that does the opposite,” Mazzarelli said.

The ruling rejected claims that there had been “a societal evolution on the question of aid-in-dying such that, if the ban is upheld, we would be paying blind adherence to outmoded thinking.”

The plaintiffs sought to distinguish aid-in-dying from assisted suicide, arguing prescribing lethal medications was similar to the constitutionally protected right to refuse life-saving treatments, or food and water, in order to hasten death. They argued that aid-in-dying is akin to other medical practices recognized as not constituting assisted suicide, such as terminal sedation, in which a patient is placed in a deep sedation while food and fluids are withheld.

Mazzarelli said that “whatever label one puts on the act that plaintiffs are asking us to permit, it unquestionably fits the literal description [of suicide], since there is a direct causative link between the medication proposed to be administered by plaintiff physicians and their patients’ demise.”

Joining in the opinion were Justices Dianne Renwick, Sallie Manzanet-Daniels and Barbara Kapnick.

The holding affirmed the dismissal of the case by Justice Joan Kenney (NYLJ, Oct. 21, 2015), but modified it to declare that “NY Penal Law §§120.30 and 125.15 provide a valid statutory basis to prosecute licensed physicians who provide aid-in-dying.”

Penal Law §120.30 makes it a class E felony, punishable by up to four years in prison, to “promote a suicide attempt,” which is defined as intentionally causing or aiding another person to commit suicide, where the person does not die.

Under §125.15, the act of intentionally causing or aiding another person to commit suicide, in which the person dies, is classified as second-degree manslaughter, a class C felony carrying a maximum prison sentence of 15 years.

Justice Mazzarelli

Mazzarelli said the ruling “should not be viewed as reflecting a lack of sympathy for those suffering as death approaches, or even our opinion that aid-in-dying should never be introduced in New York as a viable option so long as appropriate safeguards are in place.”

Edwin Schallert, a partner at Debevoise & Plimpton, which represents the plaintiffs pro bono, said: “We are disappointed the court reached the ruling it did on a motion to dismiss, without any factual record.”

Schallert said he would have presented the illness of the lead plaintiff, Sara Myers, a 61-year-old New Yorker suffering from ALS, known as Lou Gehrig’s Disease, which is an invariably fatal neurological disease that attacks the nerve cells responsible for controlling voluntary muscles.

“At her deposition she was asked why she wanted the option of aid-in-dying,” Schallert said. “She said ‘it would give me peace of mind, that I can make the decision at my own convenience; and if I knew that were available, just the peace of mind involved is so powerful.’”

Schallert said the plaintiffs would appeal the ruling. Debevoise associates Jared Kagan, Xiyun Yang and Lucila Hemmingsen assisted in the case.

The defendant, New York State Attorney General Eric Schneiderman, was represented by Anisha Dasgupta, Holly Thomas and Steven Wu of the attorney general’s office. The office did not respond to a request for comment.

The New York Catholic Conference, represented by its director of policy, Edward Mechmann, and Kelley Drye & Warren partner Neil Merkl, filed an amicus curiae brief.

Mechmann said, “the court got some fundamental things right. Aid-in-dying really is assisted suicide, and they adopted the plain reading of the statute saying it’s forbidden. There is not a constitutional right to unlimited autonomy in everything we want to do. The law can impose appropriate limits.”

Ten other organizations opposed to assisted suicide filed an amicus brief authored by Michael Gilberg, Granite Springs, and Stephen Gold.

Gilberg said his clients were “enormously gratified by the court’s ruling.”

Advocates of “aid-in-dying” lost a bid to exempt the practice from state laws banning assisted suicide when the Appellate Division, First Department, unanimously rejected their claims Tuesday.

The plaintiffs in Myers v. Schneiderman, 151162/15, included five physicians who sought to legalize prescribing lethal medications for terminally ill patients in unbearable physical pain who are seeking to end their lives. They argued the Equal Protection and Due Process clauses of the state constitution guarantees a right to administer aid-in-dying measures.

In an opinion signed by Justice Angela Mazzarelli, the panel said the U.S. Supreme Court ruling in Vacco v. Quill, 521 U.S. 793 ( 1997 ), finding New York ‘s application of criminal penalties to anyone who assists a suicide did not violate the U.S. Constitution’s Equal Protection Clause, was controlling, along with the state’s legislative history on the issue and Court of Appeals cases.

“Plaintiffs offer nothing other than conclusory arguments for why, unlike the United States Constitution, the New York State Constitution should be construed to extend the right to refuse treatment, and let nature take its course, to a fundamental right to receive treatment that does the opposite,” Mazzarelli said.

The ruling rejected claims that there had been “a societal evolution on the question of aid-in-dying such that, if the ban is upheld, we would be paying blind adherence to outmoded thinking.”

The plaintiffs sought to distinguish aid-in-dying from assisted suicide, arguing prescribing lethal medications was similar to the constitutionally protected right to refuse life-saving treatments, or food and water, in order to hasten death. They argued that aid-in-dying is akin to other medical practices recognized as not constituting assisted suicide, such as terminal sedation, in which a patient is placed in a deep sedation while food and fluids are withheld.

Mazzarelli said that “whatever label one puts on the act that plaintiffs are asking us to permit, it unquestionably fits the literal description [of suicide], since there is a direct causative link between the medication proposed to be administered by plaintiff physicians and their patients’ demise.”

Joining in the opinion were Justices Dianne Renwick, Sallie Manzanet-Daniels and Barbara Kapnick.

The holding affirmed the dismissal of the case by Justice Joan Kenney (NYLJ, Oct. 21, 2015), but modified it to declare that “NY Penal Law §§120.30 and 125.15 provide a valid statutory basis to prosecute licensed physicians who provide aid-in-dying.”

Penal Law §120.30 makes it a class E felony, punishable by up to four years in prison, to “promote a suicide attempt,” which is defined as intentionally causing or aiding another person to commit suicide, where the person does not die.

Under §125.15, the act of intentionally causing or aiding another person to commit suicide, in which the person dies, is classified as second-degree manslaughter, a class C felony carrying a maximum prison sentence of 15 years.

Justice Mazzarelli

Mazzarelli said the ruling “should not be viewed as reflecting a lack of sympathy for those suffering as death approaches, or even our opinion that aid-in-dying should never be introduced in New York as a viable option so long as appropriate safeguards are in place.”

Edwin Schallert, a partner at Debevoise & Plimpton , which represents the plaintiffs pro bono, said: “We are disappointed the court reached the ruling it did on a motion to dismiss, without any factual record.”

Schallert said he would have presented the illness of the lead plaintiff, Sara Myers, a 61-year-old New Yorker suffering from ALS, known as Lou Gehrig’s Disease, which is an invariably fatal neurological disease that attacks the nerve cells responsible for controlling voluntary muscles.

“At her deposition she was asked why she wanted the option of aid-in-dying,” Schallert said. “She said ‘it would give me peace of mind, that I can make the decision at my own convenience; and if I knew that were available, just the peace of mind involved is so powerful.’”

Schallert said the plaintiffs would appeal the ruling. Debevoise associates Jared Kagan, Xiyun Yang and Lucila Hemmingsen assisted in the case.

The defendant, New York State Attorney General Eric Schneiderman, was represented by Anisha Dasgupta, Holly Thomas and Steven Wu of the attorney general’s office. The office did not respond to a request for comment.

The New York Catholic Conference, represented by its director of policy, Edward Mechmann, and Kelley Drye & Warren partner Neil Merkl, filed an amicus curiae brief.

Mechmann said, “the court got some fundamental things right. Aid-in-dying really is assisted suicide, and they adopted the plain reading of the statute saying it’s forbidden. There is not a constitutional right to unlimited autonomy in everything we want to do. The law can impose appropriate limits.”

Ten other organizations opposed to assisted suicide filed an amicus brief authored by Michael Gilberg, Granite Springs, and Stephen Gold.

Gilberg said his clients were “enormously gratified by the court’s ruling.”