On March 22, I had the honor of participating a symposium at Albany Law School entitled "Reconsidering the Right to Die: The Debate over Assisted Suicide". This presentation was jointly written by me and my associate Alexis Carra, and it's more or less what I actually presented at the event. It's long but I wanted to share it because I think it presents a useful summary of the legal case against assisted suicide and the holding of the Court of Appeals in the Myers v. Schneiderman case. A more detailed version will be published later this year in the Albany Law Review
If we were at a trial, I would object to the title of this symposium because it assumes a fact not in evidence—namely, that there is a "right to die" that exists and is now under reconsideration. The reality is that there is no such right
The Supreme Court specifically rejected a "right to die" in its assisted suicide cases ( Glucksberg and Vacco) and its case involving declining medical care ( Cruzan). Our own Court of Appeals specifically rejected it in Myers, saying "Contrary to plaintiffs' claim, we have never defined one's right to choose among medical treatments, or to refuse life-saving medical treatments, to include any broader 'right to die' or still broader right to obtain assistance from another to end one's life." No other state high court has recognized such a right. There is no established "right to die" that needs to be "reconsidered"
Even if there were such a right, it does not entail a right to have another person assist you in exercising it. In a certain sense, the Myers case was never really about inventing a "right to die." Instead, any effort to legalize assisted suicide is best understood as being about whether to grant doctors immunity from prosecution if they assist someone in committing suicide
We have to remember that the precise meaning of words matter. Clear definitions are the indispensable prerequisite for clear reasoning. And we also have to remember that the issue we're talking about involves two people in the room — the patient and the doctor. The discussion of assisted suicide frequently confuses this fact. But it's vital to remember that there are two actors in the room, and we have to look at their separate intentions and their separate roles in the line of causality to understand what is really going on. We do this all the time in the law, and we have to do it here as well
Suicide is Still Really Suicide
Physician-assisted suicide ("PAS") advocates rely heavily on an argument that the word "suicide" does not encompass what they define as "medical aid in dying". Instead of inventing new terminology, we have to look instead at the normal meaning of words
The standard meaning of "suicide" is to take one's own life, and the ordinary meaning of "assisted suicide" certainly encompasses physicians who knowingly and intentionally provide patients with lethal doses of medication to end their lives. 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." There is no definition in that statute because everyone knows what the ordinary meaning of the word "suicide" is. The five judges on the Court of Appeals understood that we are talking about suicide here. The four judges at the Appellate Division First Department unanimously understood that we are talking about suicide here. And the judge at the Supreme Court understood that we are talking about suicide here
We also have to pay attention to the rules of statutory construction. Whether one uses the theory of original public meaning or legislative intent, it is clear. 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)."n
So it's perfectly clear here. We're talking about suicide
Assisted Suicide is Not the Same As Permissible Palliative Care
One of the central arguments offered by the Plaintiffs before each court was that a procedure they called "terminal sedation" was a lawful form of medical treatment. They defined this term as "the administration of drugs to keep the patient continuously in deep sedation, with food and fluid withheld until death arrives" — in other words, sedating a person so that they may die of starvation or dehydration. They relied on this definition to try argue that if "terminal sedation" is acceptable, then PAS should be
But this analogy does not work when you pay attention to the two separate actors in the room, and consider the differences in their intent and their role in the line of causality. When you do that, it is clear that there are major differences between palliative sedation and PAS
The American Medical Association's Code of Ethics uses the more accurate term "sedation to unconsciousness", and states that while it may be ethical under certain circumstances, it "must never be used to intentionally cause a patient's death." The AMA goes on to say that "Physicians may offer palliative sedation to unconsciousness to address refractory clinical symptoms, not to respond to existential suffering arising from such issues as death anxiety, isolation, or loss of control."n
Thus, the relevant distinction is between (a) sedation to unconsciousness with the intent to cause death and (b) sedation to unconsciousness without the intent to cause death but with an intent to relieve clinical symptoms. The doctor who prescribes sedation without the intent to cause death is acting entirely within medical ethics and the law. The doctor who does so to deliberately cause death is not
There is also a critical difference in causation. In the case of ethical palliative sedation, it is understood that death will happen due to other causes, such as the underlying illness. The sedation may indirectly contribute to the timing of the patient's death, but it is not the direct cause of death. In contrast, with palliative sedation with intent to cause death, the patient's demise is directly and unequivocally caused by the medicine provided by the doctor for that purpose
The analogy between "terminal sedation" and PAS thus fails, even on its own terms
Suicide is Not the Same As Declining Medical Treatment
Although they both may result in death, PAS and declining unwanted medical treatment are not the same and cannot be treated as such. Again, when we look at the two actors in the room, we can see that there are key distinctions in terms of causality and intent. These distinctions have been recognized by the Court of Appeals prior to Myers and were a significant factor in the Supreme Court's decisions in Glucksberg and Vacco.
In his concurrence in Myers, Judge Garcia explained this clearly in terms of the differences in causation. He wrote that when "a patient refuses life-sustaining treatment and succumbs to illness, the cause of death is the underlying disease." The doctor is not doing anything to cause the patient's death, but is rather respecting the patient's wishes about continued treatment — a respect that the doctor is required under the law to show, lest he be prosecuted for battery. In contrast, when "lethal medication is ingested, the cause of death is not the pre-existing illness, but rather, the prescribed medication.
" The commission of assisted suicide and the declining of medical treatment are also distinguished with regards to intent, as discussed previously
The Constitutional Analysis
To determine whether the current ban on PAS is constitutional, the Court of Appeals evaluated the statute under the rational basis standard. That test gives great weight to the judgment of the legislature, and will invalidate a statute only if it bears no rational relationship to a legitimate government purpose. As the Court of Appeals found, the current ban on PAS easily passes the rational basis test
In the per curiam opinion, the Court summarized many policy reasons underlying the current ban on PAS. These include "prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians' role as their patients' healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia." The Court concluded that "the Legislature of this State has permissibly concluded that an absolute ban on assisted suicide is the most reliable, effective, and administrable means of protecting against its dangers."n
Because those policy reasons and the dangers are so important, I want to spend a few minutes discussing several of them
The PAS Ban Supports Current Efforts to Prevent Suicides
Suicide is a serious public health concern. It is it is the second leading non-disease cause of death for whites and for all those ages 10 and above; it kills as many people as homicides and motor vehicle accidents combined; and the number of deaths from suicide has increased over 26% over the previous decade. In response, clear messages to discourage suicide are ubiquitous in New York, such as billboards, signs on bridges, and posters on mass transit urging people who are contemplating suicide that "life is worth living." Legalization of PAS, even for a small class of persons, would contradict and undermine efforts to prevent suicide
Legalization, and the inevitable publicity surrounding cases of PAS, would also likely lead to an increase in suicides in general. Studies have shown that when assisted suicide is legalized, overall suicide rates are higher than in the general population. In Oregon, for example, the overall suicide rate is 42% higher than the national average. The phenomena of "suicide contagion" and "suicide clusters", in which one suicide leads to others within a social group, is well recognized as a substantial danger. Even popular culture is aware of it, for example in the increase in suicides after a prominent suicide of a celebrity. The current ban on assisted suicide is thus a way to prevent an increased suicide rate, which would be undermined by legalizing PAS
PAS Cannot Be Limited
Judge Fahey grounded his concurrence on the fact that a right to PAS would inevitably expand beyond the terminally ill who face imminent death to those who experience what they consider "unbearable suffering". In countries where it has been legalized, PAS has extended to those who simply feel old, isolated, or experience various forms of psychiatric suffering. Belgium and the Netherlands have even gone so far as allowing involuntary euthanasia — killing people who did not even ask for death, including children. Oregon regularly reports that the great majority of people who request deadly medicine are not doing so because of imminent death or intractable pain, but rather "the three most frequently reported end-of-life concerns were decreasing ability to participate in activities that made life enjoyable (88.1%), loss of autonomy (87.4%), and loss of dignity (67.1%)."n
There is also no limiting principle that will contain PAS. I believe we have to show respect to the advocates for PAS and listen to what they are saying. Advocates for PAS have openly and repeatedly stated that their ultimate goal is to permit assisted suicide for anyone who desires it, regardless of their medical condition, and they have also expressed support for removing any legal restrictions on PAS such as age restrictions, the requirement of a terminal illness, and so on
Kathryn Tucker, who co-wrote the Plaintiff's brief in the Court of Appeals herself wrote an article a few years ago in an online journal that rejected any legislative protections (which she called "burdens and restrictions") and argued that the medical community should be allowed to self-regulate. Prof. Thaddeus Mason Pope, a law professor from Minnesota wrote for an online journal for oncologists an article entitled "Medical Aid in Dying: When Legal Safeguards Become Burdensome Obstacles". The professor advocated expanding PAS to "mature minors", to those who lack contemporaneous decision-making capacity, from a requirement of terminal illness to those whose death is 'reasonably predictable', and from the patient self-ingesting to having a physician administer the deadly drugs
That would essentially eliminate all protections and take us from assisted suicide to euthanasia. We have already seen this same trend to erode procedural and substantive protections in Europe, Canada, and other states, and there is no reason to expect it will be any different here in New York
The PAS Ban Upholds the State's Duty to Protect Vulnerable People
This debate about limiting principles is particularly important, given the state interest in protecting vulnerable persons. Studies consistently show that disparities exist in access to and quality of healthcare across demographic categories, particularly race, sex, socioeconomic status, and geographic location. These inequities are exacerbated by the economic pressures of the current medical system, where cost containment is a priority. In this environment, pressure will inevitably be felt by low-income patients to choose suicide rather than putting an economic burden on their families. In his concurrence, Judge Fahey pointed "to a particular risk of non-voluntary euthanasia when a patient's socioeconomic disadvantages, uninsured status, and/or dementia or mental incompetence make it impossible for the patient to advocate vigorously for his or her health care."n
Likewise, the risks presented by assisted suicide present a special danger for the elderly, people with mental illness, and disabled people. The widespread and under-reported problem of elder abuse highlights the risk of undue influence in end-of-life decisions. People with mental illness are also at a higher risk. A large number of people who request assisted suicide are suffering from treatable depression. Indeed, legalized assisted suicide in the Netherlands has "already descended to the level of condoning the suicide or killing of people whose primary suffering is not physical pain, but chronic depression." And it is clear that depressed people who request suicide drugs are not likely to be treated for depression. In Oregon, only 3.5% of those who request the drugs are referred for psychiatric evaluation — and that evaluation is only to determine decision-making capacity, not to screen and treat for mental illness
People with disabilities are especially vulnerable, which is why disabilities rights groups are particularly strong in their opposition to PAS. Again, Judge Fahey pointed out that legalization would "convey a societal value judgment" that indignities such as "physical vulnerability and dependence mean that life no longer has any intrinsic value." That is precisely the message that is being received, since the vast majority of requests for lethal drugs in Oregon are due to concerns about losing life functions — essentially, a fear of becoming disabled
The Court's per curiam opinion in Myers was brief and unequivocal, and was strengthened by two very strong concurrences. Together with the lower courts, every New York judge who considered Plaintiffs' arguments rejected them. That is not just a New York phenomenon — in the twenty years since Glucksberg and Vacco, every other state's highest court that has been asked to has refused to recognize PAS as a constitutional right.
The decision in Myers was a decisive defeat for PAS as a constitutional issue. The Court of Appeals wisely held that the debate over assisted suicide belongs in the legislative arena based on policy arguments, and that debate should not be terminated by the courts.