Justice Cardozo, the legendary jurist from New York, would turn over in his grave upon reading the New York Court of Appeals’ per curiam (unsigned) opinion in Myers v. Schneiderman, 2017 WL 3897181 (9/17/17). The lawsuit was filed by several terminally ill patients (and physicians serving such patients) challenging New York’s ban on physician assistance to a competent, terminally ill medical patient seeking a lethal prescription. The deficiency that would upset Cardozo was not so much the Court’s conclusion that application of assisted suicide laws to a dying patient does not violate constitutional rights of liberty and equal protection, but rather the Court’s perfunctory, over-simplified handling of the constitutional issues.
The most plausible constitutional challenge in this context is equal protection – a claim that states act arbitrarily in allowing terminal patients certain means of hastening a grueling dying process (rejection of life-sustaining medical intervention, use of risky analgesics or sedatives to relieve suffering, and voluntarily stopping of eating and drinking (VSED)) while banning a physician’s provision of a more expeditious means of hastening death – a lethal medication. The per curiam opinion’s dismissive response to this equal protection claim was that New York’s laws don’t differentiate among persons. From the Court’s perspective, every competent patient is entitled to reject medical intervention and every person is forbidden to assist a suicide. There are no invidious “discriminations” present. This myopic formulation of the equal protection issue ducks the complex distinctions made by state laws in the context of dying medical patients.
The issue of controlling the time and manner of death derives from medical science’s newfound (mid-20th century) capacity to prolong a fatally stricken patient’s dying process – sometimes beyond the patient’s tolerance for suffering or indignity. Patient choice and some medical management of the dying process became an accepted norm in confronting irremediably fatal pathology. The initial accepted means of controlling the timing of unavoidable death was through patients’ control of life-sustaining medical intervention (including chemotherapy, respirators, dialysis, or artificial nutrition and hydration). A competent patient’s prerogative to reject medical life support has been recognized as a basic legal right in every jurisdiction.
The complainants in cases like Myers are fatally stricken people not yet dependent on medical machinery. They contend that denying them access to an expeditious means (a lethal medication) to hasten their unavoidable deaths is arbitrary, given the state’s acceptance of a terminal patient’s self-initiated demise by removal of life support, by risky palliative steps such as strong sedatives that produce unconsciousness (terminal sedation), and by VSED (including palliative medical assistance for fasting patients precipitating their own deaths by dehydration).
To the limited extent that the Myers per curiam addressed terminal patients’ arbitrariness claim, it relied on the simplistic analysis of then Chief Justice Rehnquist in Vacco v. Quill, 521 U.S. 793 (1997), a previous constitutional challenge to New York’s application of its assisted suicide ban to terminally ill patients. Rehnquist there asserted that recognized legal principles of “causation and intent” clearly support a distinction between removal of life support and provision of a poison.
Neither of Rehnquist’s assertions is persuasive. As to causation, Rehnquist argued in Vacco that while administration of a poison kills a patient, removal of life support merely lets the patient die from an underlying disease. Nature is merely allowed to run its fatal course. Yet the reality is that a physician’s withdrawal of life support does cause a patient’s death in the sense of hastening the death of a preservable person. For example, a physician who unilaterally detaches a life-sustaining respirator without consent from the patient or an authorized agent is surely committing a homicide. Such medical conduct causes the death of the patient no less plainly than a poison even if the law chooses to permit detachment of medical machinery at the behest of a competent patient. Similarly, if a fatally stricken person stops eating and drinking, thus precipitating death by hydration, the cause of death is the patient’s self-initiated destructive course and not an underlying disease process. Yet suicide by VSED is widely accepted as lawful for a grievously stricken person, as is physicians’ palliative assistance to the terminally fasting patient.[i]
As to intention to cause death as a differentiating element in death and dying jurisprudence, Rehnquist in Vacco hypothesized that a patient rejecting life support may only wish to be free of burdensome machinery (as opposed to wishing to die) so that a cooperating physician withdrawing life support may only be intending to respect the patient’s wishes (rather than seeking to cause death). 521 U.S. at 801. By contrast, he insisted, getting and taking a poison indubitably involves intention to end life.
This portrayal of relevant actors’ intent or state of mind is misleading. The frequent reality is that a stricken patient rejecting further life support is saying that the prospective existence is so dismal that the patient prefers to die. The patient’s intention is to end a life that has become unendurable because of the suffering and/or indignity and/or distressing dependence and/or fatigue associated with a particular natural affliction. A cooperating physician may well empathize with the patient’s despair and share the wish to hasten an end to the patient’s intolerable ordeal. In Myers, concurring judge Rivera acknowledged: “When a physician removes a patient from a life-sustaining apparatus, or declines to administer life-saving procedures, the physician’s intent, in accord with the wishes of the patient, is to precipitate the death of the patient.” See also Justice Stevens’ concurrence in Vacco v. Quill, 521 U.S. at 750. In short, reliance on the mindset of a physician does not really distinguish cessation of life support from provision of a lethal medication in the context of a competent, terminally ill patient seeking to hasten death.
Any asserted distinction grounded on “intent” of the actors is also flimsy when a competent, terminally ill patient initiates VSED and a physician provides palliative support during the ensuing dying process. Again, both the despairing patient and the cooperating physician may be intending to hasten the patient’s demise. Yet law upholds the prerogative of a stricken patient to resort to VSED and to secure palliative assistance in the process despite the mortal toll.[ii]
The bottom line is that law does permit certain forms of physician assistance to suicide (or self-deliverance, to use the euphemistic terminology) in the context of competent, terminally ill patients. Accordingly, plaintiffs in Myers raised a legitimate query whether it is sensible and logical to continue, as does New York, to preclude access to lethal medication as a more expeditious, and perhaps more humane, means of self-deliverance.
To warrant judicial intervention based on equal protection grounds, a court would have to conclude that no rational basis exists for distinguishing between assisted suicide (via a lethal medication) and authorized forms of physician participation in hastening terminal patients’ deaths. The Myers Court readily accepted – as a rational basis – protection of vulnerable, fatally stricken patients from undue pressure or ill-considered decisions to end their lives. The soundness of that determination depends on whether physician provision of a poison is more prone to abuse than withdrawal of life-sustaining medical machinery or use of terminal sedation. Accumulating experience in states like Oregon, Washington, Vermont, Colorado, and California (which have legalized physician assistance to dying patients) tends to refute heightened concern about patient abuse in this setting. Physician-assisted dying in those states has ostensibly not exploited or abused terminally ill patients any more than other permitted modes of hastening death.
Of course, legislative legalization of physician-assisted suicide (PAS) has always been accompanied by elaborate safeguards to prevent undue influence or ill-considered judgments. Those safeguards include independent medical confirmation of a terminally ill patient’s prognosis, competency, and understanding of alternative options. Some would argue that erection of such a detailed regulatory framework for physician-assisted death (PAD) is an appropriate legislative rather than judicial task. They would contend then that concern about vulnerable stricken patients warrants judicial reluctance, as in Myers, to unilaterally authorize PAS.
Canada’s Supreme Court took an intermediate approach. It judicially declared in February 2015 that Canada’s absolute prohibition on PAD violated Canada’s Charter of Rights and Freedoms as applied to a competent patient who has an irremediable medical condition causing intolerable suffering and who seeks self-deliverance. Carter v. Canada (Attorney General), 2015 SCC 5 (S. Ct. Canada 2015). The Court then suspended its declaration of invalidity for 12 months (later extended to 16 months) to give the Canadian Parliament an opportunity to legislatively craft a regulatory regime safeguarding patients against abuse in the administration of physician-assisted death. Canada’s federal legislature fulfilled that delegated responsibility. See A.B. v. Canada (Attorney General), 2017 ONSC 3759 (Ontario S. Ct., June 19, 2017).
Myers v. Schneiderman reminds us that American judges are not likely to be prime movers in striking down barriers to physician assistance in dying. See also Morris v. Brandenburg, 376 P.3d 836 (N. Mex. 2016). Death with dignity advocates may therefore be relegated to the laborious forum of state legislatures in efforts to expand the options for fatally stricken people seeking to manage their own dying processes. On the other hand, the Canadian judges in Carter did initiate a considerable change in Canada’s former prohibition on physician assistance to competent patients coping with unavoidable dying processes. Despite the discouraging superficiality of the per curiam opinion in Myers, Americans can still hope for more Cardozo-like jurists to show insight and initiative similar to that of Canada’s highest court.
[i] As part of their assertion that New York’s end-of-life regulatory framework is arbitrary and irrational, the plaintiffs in Myers also pointed to the legality of “terminal sedation.” Their contention was that New York allows physicians to “cause” death via terminal sedation – meaning administration of sedatives rendering the stricken patient unconscious (while simultaneously withholding artificial nutrition and hydration) until an impending death occurs. Indeed, in a concurring opinion in Myers, Judge Rivera bought into the notion that legally permissible terminal sedation includes substances that are known to cause the patient’s demise. However, this depiction of terminal sedation does not conform with existing legal and ethical bounds. First, permissible terminal sedation is confined to patients assessed to be imminently dying — within days or weeks of death. Also, permissible terminal sedation involves careful titration of sedative dosage to ensure that an imminently dying patient is rendered unconscious but not killed. Even when cessation of nutrition and hydration accompanies sedation, the actual cause of death may well be the imminently dying patient’s underlying disease rather than a physician’s palliative intervention. See Report to the Harvard Ethics Leadership Group, “Palliative Sedation – Continuous Deep Sedation as Comfort Care until Death” (February 2011), p. 6 (accessible via the website medicalethicsandme.org)
[ii] T. Pope & L. Anderson, Voluntarily Stopping Eating and Drinking, 17 Widener L. Rev. 363 (2012); N. Cantor, Honing the Emerging Right to VSED,