New York Court of Appeals building.
New York Court of Appeals building. (Photo: Rick Kopstein/ALM)

ALBANY – New York’s highest court rejected the argument Thursday that mentally competent, terminally ill patients have a constitutional right to physician-assisted suicide, upholding lower court rulings.

The plaintiffs in the case,Myers v. Schneiderman, 77, had asked the Court of Appeals to declare a constitutional right to so-called aid-in-dying, which they 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 hasten death.

“Although New York has long recognized a competent adult’s right to forgo life-saving medical care, we reject the plaintiffs’ argument that an individual has a fundamental constitutional right to aid-in-dying as they define it. We also reject plaintiffs’ assertion that the state’s prohibition on assisted suicide is not rationally related to legitimate state interests,” the Court of Appeals said in the 5-0 ruling. Chief Judge Janet DiFiore and Judge Paul Feinman did not take part. “Our Legislature has a rational basis for criminalizing assisted suicide, and plaintiffs have no constitutional right to the relief they seek herein,” the Court of Appeals, affirming the ruling by the Appellate Division, First Department, (NYLJ, May 4, 2016) and acting Manhattan Supreme Court Justice Joan Kenney (NYLJ, Oct. 21, 2015).

The 81-page Court of Appeals decision states the Legislature “may conclude that those dangers can be effectively regulated and specify the conditions under which it will permit aid-in-dying,” and states that jurisdictions that have permitted assisted suicide have done so only through legislation.

In May 2016, the Appellate Division, First Department, unanimously rejected the plaintiffs argument that the equal protection and due process clauses of the state constitution guarantee a right to administer aid-in-dying. The holding affirmed the dismissal of the case by Kenney.

The case was brought by three terminally ill patients—Steve Goldenberg, who has since died of AIDS-related illnesses; Sara Myers, who has since died of ALS; and Eric Seiff, who is in remission for cancer, according to court documents—and advocates who have argued that mentally competent and terminally ill individuals should be able to end their suffering.

In oral arguments in May (NYLJ, May 31), the plaintiffs’ attorney Edwin Schallert, a litigation partner at Debevoise & Plimpton, told the court that his clients didn’t view their actions as suicide, but rather a “medically and ethically” appropriate course of treatment.

Deputy Solicitor General Anisha Dasgupta, representing Attorney General Eric Schneiderman’s office, argued before the court that it is incumbent on the Legislature to decide on whether terminally ill individuals are able to obtain lethal doses of medication.

In an email to the New York Law Journal Thursday, Schallert said the plaintiffs intend to move for reconsideration by the Court of Appeals.”We are very disappointed by the court’s decision. It will prevent terminally ill New Yorkers from exercising an important option to achieve a peaceful death,” Schallert said.

Kathryn Tucker, executive director of The End of Life Liberty Project, an advocacy group based in California, and co-counsel in the case, said the organization was disappointed in the outcome but that the case raised important issues about the rights of dying patients.

“We know that if we had been allowed the opportunity to put on our case the evidence would have shown that when competent terminally ill patients are empowered to choose a more peaceful death via aid-in-dying they benefit, and no harm is caused. We were prepared to bring the case to trial to introduce such evidence, but were denied the opportunity to do so,” she said in a statement.

Court of Appeals Judge Jenny Rivera concurred with the other judges on the panel that the broad right defined by the plaintiffs isn’t guaranteed under the state constitution, and that the state has a “compelling and legitimate interest in prohibiting unlimited and unconditional access to physician-assisted suicide.”

“These interests, however, are not absolute or unconditional,” she wrote, noting that the state cannot prevent inevitable death.

“[The state's] 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,” Rivera wrote.

The state may not “unduly burden a terminally ill patient’s access to physician-prescribed medication that allows the patient in the last painful stages of life to achieve a peaceful death as the end draws near,” she added.

Expanding on the risks separately, Judge Eugene Fahey wrote that permitting the practice of physician-assisted suicide would “open the door to voluntary and nonvoluntary euthanasia.”

“To use the familiar metaphor, it would place New York on a slippery slope toward legalizing nonvoluntary euthanasia. Second, the Legislature may reasonably criminalize physician-assisted suicide because a right to assisted suicide by the terminally ill in circumscribed last resort situations would inevitably expand to include persons who are not terminally ill.”

Fahey disagreed with Rivera’s opinion that the difference between palliative sedation and physician-assisted suicide “is not meaningful in the constitutional sense.” He also argued that the practice of physician-assisted suicide could be regarded as a cheaper alternative to medical treatment, especially for those who are uninsured or socioeconomically disadvantaged.

Judge Michael Garcia, in his decision, argued that the Court of Appeals should go further and reject the claims by the plaintiffs. Physicians, he said, are unable to accurately determine how much time a terminally ill individual has to live, or could misdiagnose an illness as terminal. Similar to Fahey’s argument, Garcia writes that assisted suicide presents a risk to the elderly, poor, socially disadvantaged and uninsured.

“In any event, the state may permissibly conclude that an absolute ban on assisted suicide is the most reliable, effective and administrable means of protecting against its inherent dangers,” Garcia said in his opinion.

Oregon, Colorado, Washington, California and Vermont have legalized a role for physicians to aid patients in suicide either by voter-approved referenda or state laws. In Montana, a court ruling protects from prosecution physicians in the state who assist dying patients.

The Court of Appeals ruling doesn’t mark the end of the battle. Efforts in New York have been underway for the last several years to pass a bill allowing terminally ill, mentally competent individuals access to lethal doses of drugs to hasten death, but have yet to gain any traction.

Assemblyman Richard Gottfried, D-Manhattan, who chairs the chamber’s health committee and co-sponsors the Medical Aid in Dying Act, which would allow terminally ill individuals access to lethal doses of medication, said in an email Thursday he was working with his legislative colleagues to pass the legislation.

“The court has made it clear: Authorizing medical aid in dying for terminally ill New Yorkers is a job for the Legislature. I am working with Assembly member Amy Paulin and Sen. Diane Savino to pass the Medical Aid in Dying Act, a bill that would ensure that terminally ill patients in New York have access to the same end-of-life choices that residents in six other states now have. The bill recognizes and protects the concerns the court raised. Two decades of experience with aid in dying in other states has shown that this is a policy that improves end-of-life care for everyone, no matter what they choose.” Gottfried said in an email.