Should New York Legalize Physician Aid in Dying?
Robert S. Olick, JD, PhD
California’s End of Life Option Act authorizing physician aid-in-dying (PAD) was signed into law June 9, 2015. The California law comes after two decades of intense legislative and public debate that included a failed ballot initiative and numerous bills introduced over the years. Core features of the law authorize physicians to write prescriptions at the request and with the informed consent of terminally ill patients (prognosis of dying within six months or less) who would then have the means and option to end their lives in a more humane and dignified manner. In these core respects the End of Life Option Act is modeled after the seminal Oregon law, enacted in 1997. Various opposition groups have brought legal challenges to the new law, but in August a California court rejected one such challenge, clearing the path for implementation of the law to move forward. The states of Washington and Vermont have also enacted Oregon-style laws, and Colorado just approved the measure at the ballot box in November. Together with Montana where courts have recognized a privacy right to PAD in that state’s constitution, there are now six states where PAD is legal.
Should New York join this small but growing chorus of voices in support of physician aid-in-dying?
Current New York law criminalizes the practice. New York’s “Assisted Suicide Statute” states that to intentionally cause or aid someone to attempt or commit suicide is a crime. This prohibition has been interpreted to apply to the physician or nurse practitioner who would write a prescription to be self-administered by the patient, thus putting health care providers at legal risk. It could also apply to family members who aid a dying loved one in this way.
Two paths to recognition of PAD have been pursued in the Empire state. In 2015, in an effort led by the Manhattan-based advocacy organization End of Life Choices New York, together with a group of patients and health care providers, a court case was brought seeking a judicial pronouncement that extant New York law that prohibits physician assisted suicide (PAS) does not apply to PAD. The second initiative, supported by this same group and others, is the “Medical Aid in Dying Act” (A10059; S07579) introduced in the state legislature with bipartisan support. At the time of this writing, neither initiative has been successful in changing the law, but both have made important inroads towards this goal.
The New York Court Case
At the heart of the lawsuit is the contention that a fundamental distinction must be made between assisted-suicide and aid-in-dying. Historically, and in much of the law, the practice has been referred to as assisted suicide. But for a number of reasons aid-in-dying has become the preferred, now widely accepted terminology. Central to this ethical and linguistic shift is the understanding that those who request a physician’s prescription do not want to die and are not suicidal, rather they want help to find release from the burdens of the terminal stage of an inexorable dying process. Further, the term suicide is value laden, not properly descriptive, casts negative connotations, and has potential adverse and improper legal implications as applied to the terminally ill. The lawsuit urges the court to embrace this shift in the eyes of the law and to rule that New York’s prohibition of assisted suicide does not apply to physician aid-in-dying. Both the trial court, and on May 3, 2016, the appellate division, have rejected this argument. In sum, these courts have thus far held that there is no meaningful distinction between physician-assisted suicide and medical aid-in-dying, and that the New York law was intended to prohibit the practice regardless of how the practice is described. However, the case is now on appeal to the New York Court of Appeals.
Constitutional challenges to the New York law, and to a similar law from the state of Washington, reached the US Supreme Court in 1997. The New York case argued that it violates fairness and equal protection to allow a patient with advanced illness to refuse unwanted interventions but to at the same time deny the right of autonomy and control to a patient whose very same inexorable disease process has yet to progress to the point of dependence on a respirator, feeding tube or other interventions. The Washington case argued that the established constitutional right to refuse unwanted life-sustaining interventions should be understood to include the right to choose the time and manner of one’s own death. In Vacco v. Quill and Washington v. Glucksberg the High Court unanimously rejected both contentions and upheld both statutes, ruling that there is an important distinction between the right to refuse treatment and an asserted right to assistance in dying. These very same arguments have been recited to no avail in the current New York lawsuit. Given these Supreme Court precedents, binding on the New York courts, the effort to establish an interpretation of New York statute that would allow medical aid in dying would seem a more promising path to legalization.
New York’s Medical Aid in Dying bill (A10059, May 10, 2016) allows a terminally ill patient with decisional capacity to make an informed decision to request that his or her attending physician write a prescription for a medication, to be self-administered by the patient with the understanding that doing so will bring about the patient’s death. Like the laws of other states that serve as a model, the bill requires a rigorous informed consent process, including confirmation by a second physician of the patient’s capacity, that the patient is making an informed request, and that the patient has a terminal disease or condition (defined as a prognosis of six months of life remaining or less). The patient’s request must be in writing in substantially the form as the model document in the bill, and the informed consent process, including that the request is made voluntarily and without coercion, is to be documented in the patient’s record. Patients must be informed that they may rescind this request at any time.
Out of respect for professional conscience, physicians, nurses, pharmacists and other health care providers are not obligated to honor the patient’s request, but the physician who refuses to do so should facilitate a transfer of care to another physician who does not hold the same principled objection. Health care providers are also granted immunity from liability if they comply with the law. Private, but not public, health care facilities are permitted to adopt policies expressing conscientious objection to medical aid-in-dying. These provisions balancing professional and institutional conscience with the primacy of respect for patients’ rights are common in the law governing end of life decisions; they can be found for example in advance directive laws across the country.
Consistent with the attention to both concept and language advanced in the court case, the bill expressly states that this practice shall be known as medical aid-in-dying, and that it shall not be construed as suicide, assisted suicide, attempted suicide, promoting suicide, mercy killing or homicide for any legal purpose, including with respect to life insurance or other legal contracts.
Whether New York should take this important step is as much an ethical issue as a legal one. When the US Supreme Court ruled that there is no constitutional right to physician-assisted suicide, it also stated that the constitution gives states room to adopt their own approaches based on their own values, at work in the “laboratory of the states.” The Medical Aid in Dying bill represents an effort to translate a sound ethical position into law. Advocates of legalization likely will continue to ground their arguments in respect for patient autonomy and the choice of a dignified dying process, and to frame the practice as medical aid-in-dying. Opponents likely will continue to cling to the assisted suicide frame, and to invoke the related mantra of some in organized medicine that writing the prescription is somehow outside the professional ethic of the physician. Recall that the judicious balancing of successful legislation in other states has permitted medical aid-in-dying only under narrow circumstances of terminal illness with rigorous attention to informed consent of the competent patient, These enactments at the same time respect the rights of individual physicians to say no.
Stay tuned ….
New York Penal Code §§ 125.15; 120.30.
Sara Myers, et al. v. Eric Schneiderman, Attorney General of New York, slip op. 03457 (NY, App. Div, 1st dept., May 3, 2016).
Vacco v. Quill, 521 US 793 (1997).
Washington v. Glucksberg, 521 US 702 (1997).