New York's highest court, the Court of Appeals, ruled on September 7 that there is no state constitutional "right" to what supporters call "aid in dying" for the terminally ill. News media reported this as a defeat for the physician-assisted suicide lobby. Less widely understood is what a complete defeat this ruling was - and what it suggests for the future.
The basic facts are these. Plaintiffs first filed suit in a trial court, a division of what is called the Supreme Court in New York. In 2015, the trial judge approved a motion by the state attorney general to dismiss the suit. Plaintiffs appealed their case to the state Appellate Division, where a panel of four judges in 2016 unanimously affirmed the trial court's ruling and added explicitly that the state law against assisting a suicide can "prohibit a licensed physician from providing aid-in-dying" without violating the state constitution. Finally, plaintiffs brought their case to the Court of Appeals, where a five-judge panel, again unanimously, concluded: "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 noted that claims of a state constitutional right to assisted suicide have lost everywhere else they have been tried - in Alaska, California, Florida, Michigan, and New Mexico. (In 2009, the Montana Supreme Court issued an odd interpretation of that state's ban on assisted suicide that makes it difficult to enforce, but it has not addressed the constitutional issue; bills to legalize the practice outright have failed in the legislature there ever since.)
But this new defeat in New York is especially devastating to the assisted suicide cause. New York is considered a bellwether "progressive" state. Eleven of its distinguished legal officials - ten judges and the Attorney General - have unanimously rejected an aggressive effort by "Compassion & Choices" (C&C) and its allies to establish a constitutional "right" for their agenda. And all eleven were appointed by liberal "pro-choice" Democrats: current governor Andrew Cuomo (who named all the judges on the Court of Appeals), his father Mario Cuomo, or the state's first African-American governor, David Paterson. This confounds C&C's talking point that only benighted religious believers and right-wing politicians stand in its way.
All eleven legal officials also firmly rejected a central claim of C&C's public campaign - namely, that what it calls "aid in dying" for the terminally ill is not suicide or assisted suicide. To plaintiffs' claim that the state law, passed in 1965, could not have intended to foreclose C&C's new and compassionate agenda, the trial court briskly stated that this law "is clear and concise, therefore analysis of the legislative intent is irrelevant." Both higher courts pointed out that giving patients a lethal overdose of drugs to help them take their own lives is exactly what dictionaries mean by assisting a suicide. As the Court of Appeals said: "Aid-in-dying falls squarely within the ordinary meaning of the statutory prohibition on assisting a suicide." C&C's claim was dismissed as what it is: an effort to obfuscate the issue by substituting euphemism for reality. This agenda is about doctors intentionally giving people the means to kill themselves.
It may be worth nothing here that the Court of Appeals has seven judges. But chief judge Janet DiFiore recused herself because, as district attorney for Westchester County, she was a defendant in the original lawsuit. And Judge Paul Feinman could not join in the court's decision because he was appointed too recently to take part in the briefing and oral argument in the case. He was named this summer because his predecessor had died , apparently from suicide. It is possible that this judge's untimely death helped to concentrate the other judges' minds on the tragic reality of suicide. In any case, the fact that five judges on the seven-judge Court of Appeals signed the same opinion in this case, and have terms that extend for the next four to fourteen years, suggests there is no point in renewing this kind of legal challenge any time soon.
Having established that this suit involves helping people to actively cause their deaths, the Court of Appeals had no problem rejecting the plaintiffs' "equal protection" claim. That claim argues that some patients have a right to end their lives by rejecting life-sustaining treatment, while others are deprived of that right because they need a more active means to achieve the same goal. But as the US Supreme Court said when it rejected a federal claim of this kind in Vacco v. Quill in 1997, the right to refuse treatment is not a right to kill yourself. Rather, it is a right to be free of unwanted bodily invasions, especially where the treatment may be of limited benefit and cause physical or psychological hardships. New York courts, like federal courts, have never accepted the implausible idea that refusing a life-sustaining procedure - or accepting aggressive medication aimed at relieving pain rather than causing death - is suicide.
The court also rejected the claim that a right to assisted suicide is a fundamental constitutional freedom. The judges found no reason to think that New York's Due Process clause provides any greater protection for assisted suicide than the US Constitution's similar clause, which the U.S. Supreme Court unanimously found not to support such a claim in the 1997 case of Washington v. Glucksberg .
Having rejected these constitutional claims, which would have required an exacting standard of review for any law limiting "aid in dying," the Court of Appeals only had to find that the state's current law is rationally related to legitimate governmental interests. Here the court could draw not only on the U.S. Supreme Court's review of these interests, but also on the state's own New York State Task Force on Life and the Law - a diverse panel of experts in law, medicine and ethics appointed in 1985 by then-Gov. Mario Cuomo to study such issues.
That panel unanimously concluded in 1994 that legalizing assisted suicide for terminally ill patients would endanger far more vulnerable people than it would help. In a 1997 supplement, the Task Force reaffirmed that "legalized physician-assisted suicide would be profoundly dangerous for large segments of the population," and found especially grave implications in the argument that this practice is comparable to withdrawal of life support or the administration of pain medications. That argument threatened to undermine the acceptance and availability of these legitimate practices that many patients urgently need.
In 1997, the US Supreme Court summarized the interests served by laws like New York's that forbid assisted suicide without exception: "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 New York judges cited this summary, and highlighted their own concern about preventing suicide, which they called "a serious public health problem" (possibly remembering the fate of their esteemed colleague), and about "guarding against the risks of mistake and abuse" (especially when many lethal overdoses in states like Oregon are never used by the patient but released into the population).
Four judges on the Court of Appeals showed special interest in the assisted suicide issue by signing concurring opinions in the case.
Judge Fahey reiterated the distinction between assisted suicide and other practices, such as palliative sedation intended to ease a patient's suffering near the end of life rather than to cause death. He also focused on the grave risk of a "slippery slope" from assisted suicide to euthanasia (in which the patient is killed directly by another person). He noted that the two have advanced side by side in Canada, Luxembourg, Belgium, and the Netherlands. In the last two of these, he showed, this has led to documented cases of non-voluntary euthanasia, as well as to the expansion of euthanasia to non-terminal patients, people suffering from mental illness, seniors who say they are "tired of life," and young children. He observed that the slide to euthanasia has begun in Oregon, where slipping the lethal overdose into a patient's feeding tube is seen as a form of "aid in dying."
Judge Fahey said these trends pose special dangers to the poor and the debilitated elderly, for whom assisted suicide and euthanasia could become the "cheaper" alternative to medical treatment, and to people with disabilities: "Legalizing physician-assisted suicide would convey a societal value judgment that such 'indignities' as physical vulnerability and dependence mean that life no longer has any intrinsic value . . ." Changing the law to convey this message, he said, "would be a profound mistake."
If Judge Fahey presented a compelling argument for retaining New York's legal ban, Judge Rivera's concurrence at times sounded like a dissent. She was less sure that assisted suicide is clearly distinct from other end-of-life practices, and would have entertained a narrower claim that personal autonomy outweighs the government's interests in preventing assisted suicide for patients who face "certain, imminent, excruciating death," meaning patients who would certainly die within hours or days. Acknowledging that palliative sedation to unconsciousness is also available in these rare cases, she argued that assisted suicide could be a "less intrusive" option that would free families from having to wait for death from natural causes.
However, Judge Garcia, joined by Judge Stein, filed a concurring opinion expressly to reject Judge Rivera's "more particularized" version of a right to assisted suicide. These judges were skeptical that the amorphous standards cited by Rivera - How imminent is imminent? How much pain is intolerable? How inconvenient do other options have to be? - could effectively be defined or regulated. As noted by the U.S. Supreme Court, they argued, it is eminently rational to conclude that only an absolute ban effectively serves the government's important interests - and some of those interests, such as protecting "the integrity of the medical profession" by ensuring that doctors will never accept the role of helping to kill their patients, are equally valid at every "stage of the dying process."
On one point, the justices had inadequate data. Judge Rivera claimed, and Judge Fahey conceded, that the Oregon law had not yet shown many of the "slippery slope" abuses demonstrated in other countries. Unfortunately, both judges relied on a decade-old article by assisted suicide supporter Margaret Battin. Later studies show a trend in Oregon toward financial coercion, the inclusion of chronically ill patients and those suffering from dementia or clinical depression, and a reduced commitment to palliative care .
So five judges on this seven-judge court have rejected the claims of assisted suicide proponents, and a four-judge majority has done so absolutely, with three judges being especially forceful and eloquent on the issue. Two judges' views on the issue are unknown, but they would not change this result. In effect, New York's entire judicial system has said to the assisted suicide lobby: "What is it about the word 'No' that you don't understand?"
That leaves of course the state legislature, where legalization bills have been rejected before but may be considered again in 2018. As they did after suffering their 9-to-0 loss in the Supreme Court in 1997, assisted suicide groups have tried to make these lemons into lemonade, implying that the courts have invited the legislature to act.
It is true that, having forcefully cited the grave dangers of this agenda, the Court of Appeals said: "The Legislature may conclude that those dangers can be effectively regulated and specify the conditions under which it will permit aid-in-dying." But it immediately added: "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." The court has also effectively stated that the 1994 arguments and conclusions of the state's Task Force have continued validity - and those arguments were raised not only against constitutionalizing physician-assisted suicide, but against legalizing it at all.
Already this year, legislatures in twenty-three other states have considered the arguments on both sides and defeated assisted suicide proposals or allowed them to expire without action. Having declared that the assisted suicide agenda poses "dangers," and that these are addressed by the state's current law, New York's highest court has now placed the burden of proof on those pursuing legalization to show how those dangers would equally well be prevented by a regime of "limited" assisted suicide. It is a burden they will find difficult or impossible to meet.