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. Continue reading