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Court of Appeals rejects assisted suicide

But Judge Rivera’s concurrence says state interest is ‘not absolute’

The New York State Court of Appeals has ruled unanimously that citizens have no right to assisted suicide.

The plaintiffs sought a declaration confirming the constitutional right of a mentally competent, terminally ill person to get a prescription for a lethal dose of drugs from a physician without legal consequences for the doctor.

In February 2015, when the underlying complaint was filed, the plaintiffs included three terminally ill patients. Two of the plaintiffs have died, and the third is now in remission.

The plaintiffs also include medical providers who said the fear of prosecution has prevented them from exercising their best professional judgment in counseling and treating patients.

A peaceful death

The controversial case attracted third-party briefs from an assortment of interested organizations, such as: New York State Catholic Conference; New York Civil Liberties Union; New York Chapter of the National Academy of Elder Law Attorneys; American Medical Student Association; National Association of Criminal Defense Lawyers; and Unitarian Universalist Association.

The case was dismissed in state Supreme Court on a motion from New York Attorney General Eric T. Schneiderman. In May 2016, the decision was affirmed by the Appellate Division of state Supreme Court, First Department.

That decision was appealed to the Court of Appeals, which released a 59-page decision Thursday.

“We are very disappointed by the Court’s decision,” said Edwin G. Schallert, a partner at Debevoise & Plimpton in New York City, an attorney for the plaintiffs.

“It will prevent terminally ill New Yorkers from exercising an important option to achieve a peaceful death,” he said.

In an emailed statement, Jason J. McGuire, executive director of New Yorkers for Constitutional Freedoms, said the court “has done the right thing in declining the plaintiffs’ invitation to legislate from the bench.”

“Today’s decision from the Court of Appeals will save lives,” McGuire wrote.

The plaintiffs argued that the court should interpret the state’s assisted-suicide statutes to exclude physicians.

“Such a reading would run counter to our fundamental tenets of statutory construction, and would require that we read into the statutes words and meaning wholly absent from their text,” the court wrote in the decision.

“The assisted suicide statutes apply to anyone who assists an attempted or completed suicide. There are no exceptions, and the statutes are unqualified in scope,” the panel wrote.

Mistake and abuse

Plaintiffs also claimed terminally ill patients have a right to control their medical treatment, including the right to choose assisted suicide.

“We have consistently adopted the well-established distinction between refusing life-sustaining treatment and assisted suicide,” the court wrote.

“In the case of the terminally ill, refusing treatment involves declining life sustaining techniques that intervene to delay death. Aid-in-dying, by contrast, involves a physician actively prescribing lethal drugs for the purpose of directly causing the patient’s death,” the panel wrote.

The court wrote that the state has a “legitimate purpose in guarding against the risks of mistake and abuse.”

“The state also has a significant interest in preserving life and preventing suicide, a serious public health problem,” they wrote.

But, in a concurring opinion, Judge Jenny Rivera wrote that state interest is “not absolute or unconditional.”

“The State’s interests in protecting and promoting life diminish when a mentally-competent, terminally-ill person approaches the final stage of the dying process that is agonizingly painful and debilitating,” she wrote.

In such a situation, she wrote, 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.”

In addition to Rivera, the panel included judges Leslie Stein, Eugene M. Fahey, Michael Garcia and Rowan D. Wilson.

Rivera, Fahey and Garcia wrote separate concurring opinions. Stein concurred in Garcia’s opinion.

Rivera envisioned a scenario that could justify physician-assisted suicide.

“In those limited circumstances in which a patient seeks access to medical treatment options that end pain and hasten death, with the consent of a treating physician acting on best professional judgment, the state’s interest is diminished and outweighed by the patient’s liberty interest in personal autonomy,” Rivera wrote.

Slippery slope

In her concurrence and during oral arguments Rivera pointed out that “terminal sedation” is legal in New York.

“A patient in excruciating pain can have drugs injected to put the person into a coma and then they withhold food and fluid and the person obviously dies,” Schallert said.

And patients can elect to stop life-preserving measures such ventilators, remove breathing tubes and intravenous nourishment and medications.

“As such, the state currently allows a physician, with a patient or a guardian’s informed consent, and in the exercise of the physician’s professional judgment, to affirmatively assist in bringing about a terminally-ill patient’s death,” she wrote.

In his concurrence, Fahey emphasized the risks of allowing assisted suicide.

“To permit the practice would open the door to voluntary and non-voluntary euthanasia,” he wrote.

“It would place New York on a slippery slope toward legalizing non-voluntary euthanasia,” Fahey wrote.

And he suggested it would eventually grow to include people who are not terminally ill.

In his concurrence, Garcia drew a distinction between refusing treatment and assisted suicide.

“When a patient refuses life-sustaining treatment and succumbs to illness, the cause of death is the underlying disease. By contrast, when a lethal medication is ingested, the cause of death is not the pre-existing illness, but rather, the prescribed medication,” he wrote.