ActivePaper Archive Ruling sets back assisted suicide - Albany Times Union, 9/8/2017

Ruling sets back assisted suicide

Court of Appeals says state legislature “has a rational basis for criminalizing” aid in dying

Albany

The state’s highest court has dismissed a case filed by three terminally ill patients who sought a court order protecting their doctors if they prescribed a lethal dose of medication to help them die.

The plaintiffs asked the court to declare a constitutional right to “aid in dying,” or as critics call it, assisted suicide. The three patients in the original lawsuit filed in February 2015 — two have since died — were mentally competent and terminally ill, and sought the right to end their lives without undue suffering.

Thursday’s 81-page decision from the Court of Appeals found that the state Legislature “has arational basis for criminalizing assisted suicide.” The Legislature has been reluctant to pass legislation to legalize aid in dying in recent years.

“Plaintiffs initially assert that we should interpret the assisted suicide statutes to exclude physicians who provide aid-in-dying,” the decision states. “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 judges wrote that in the case of terminally ill patients, refusing treatment means declining medical attention that delays death — an action that a competent adult can legally take. But aid in dying involves a doctor prescribing lethal drugs to directly cause a patient’s death, an illegal act that would expose a doctor to criminal prosecution, possibly for murder.

“The Legislature has periodically examined that ban — including in recent years — and has repeatedly rejected attempts to legalize physician-assisted suicide in New York,” the judges wrote. “At present, 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.”

Three judges have concurring opinions in the decision. Two judges — including Chief Judge Janet DiFiore, a defendant in the original lawsuit as then-Westchester County district attorney — did not take part.

In her concurring opinion, Judge Jenny Rivera agreed that there is no unrestricted constitutional right to physician-prescribed medication to speed up death. Yet she seemed to suggest that there may be cases in which such prescriptions could be appropriate.

She held that “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.”

As such, “the state may not unduly burden a terminally-ill patient’s access to physician-prescribed medication that allows the patient in the last painful stage of life to achieve a peaceful death as the end draws near,” Rivera wrote. She later noted that the practice of terminal sedation — administration of sedatives and pain medication often coupled with the withholding of nutrition and hydration — is considered appropriate for patients who face extreme pain near death.

Yet Judge Michael Garcia wrote in his concurring opinion that a physician who administers terminal sedation does not intend to kill the patient.

“Rather, the physician intends only to respect the patient’s right to die naturally and free from intrusion, and to alleviate any pain or discomfort that may accompany that decision,” he wrote. “A physician who provides aid-in-dying, however, indisputably intends for his or her actions to directly cause the patient’s death; that is the very purpose of the lethal prescription.”

Those who oppose aid in dying hailed the decision.

“The decision is a significant victory for those who would be most at risk of abuse and most susceptible to pressure to take their own lives, including the isolated elderly, persons with disabilities, and those who are depressed and overcome with hopelessness,” said Kathleen Gallagher, director of pro-life activities for the state Catholic Conference.

Corinne Carey, state campaign director for pro-aid in dying group Compassion and Choices, urged the Legislature and governor to act in 2018 to legalize the end-of-life choice.

“Our job is to educate them that while a very low percentage of terminally ill New Yorkers will utilize this option, similar laws in six other states have improved end-of-life care for many dying people by spurring conversations about all end-of-life care options, resulting in better utilization of hospice, pain control and palliative care,” Carey said in a statement.

mhamilton@ timesunion.com 518-454-5420 @matt_hamilton10

Corinne Carey, state campaign director for pro-aid in dying group Compassion and Choices, urged the Legislature and governor to act in 2018 to legalize the end-of-life choice.