New York Legislature (Re)Considers “Death with Dignity”

in Analysis, News, State Legislation
July 21st, 2016

The New York legislature have become the latest lawmakers to consider whether terminally ill patients have a right to end their own lives with lethal medications prescribed by doctors. The bill, titled the New York End-of-Life Options Act, states that its goal is to make “aid in dying an open, legitimate option for terminally ill individuals.” As science and technology have converged to allow human lives to be prolonged well beyond the point at which biology alone would have ceased their existence, society has been forced to consider whether human beings have a right to die. Both courts and legislatures across the country have been forced to confront this arguably unanswerable question, with differing results. In 1997, the Supreme Court famously upheld a Washington prohibition against physician-assisted suicide, with Chief Justice Rehnquist writing, “Whether acting from compassion or under some other influence, a physician who would provide a drug for a patient to administer might well go the further step of administering the drug himself; so, the barrier between assisted suicide and euthanasia could become porous, and the line between voluntary and involuntary euthanasia as well.” Though the question is not a new one, it continues to prove just as controversial as ever.

New York State Capitol Albany 1899

New York State Capitol
Albany 1899

The New York bill would allow mentally competent patients with terminal illnesses—defined as diagnosed, incurable, and irreversible diseases that will result in death within six months—to receive a prescription for “aid-in-dying” medication. It establishes a strict procedural framework through which the medication must be obtained. The patient must submit a formal, written, and voluntary request, witnessed by two separate individuals; two physicians must certify that the patient is suffering from a terminal illness and is competent and fully informed; the physicians may choose to refer the patient to a mental health professional if they suspect impaired judgment; and the patient will have the right to rescind the request at any time, no matter the patient’s mental state. It provides safeguards against coercion—for example, one of the witnesses to the patient’s request must not be related to or have a financial interest in the patient’s death—and establishes felony penalties for coercing or forging a request. Participation in this program would be entirely voluntary for physicians. These strict procedures are typical of legislation of this sort. For example, New Jersey established similarly strict guidelines by which to evaluate an incompetent patient’s right to die in In re Conroy.

The New York End-of-Life Options Act was first introduced in 2015, but has received renewed attention this year, particularly after the husband of Brittany Maynard lobbied lawmakers in Albany on February 25. Ms. Maynard made headlines in 2014 when, after being diagnosed with a terminal brain tumor, she moved from California to Oregon to legally end her life under the latter’s Death with Dignity law. Since Ms. Maynard’s death, her husband, Dan Diaz, has been spearheading a movement across the country to encourage lawmakers to pass death with dignity bills. Working with the right to die advocacy group Compassion and Choices, their push has seen twenty-seven states consider aid-in-dying bills in 2015 alone.

Shortly after the bill was first introduced, it’s main sponsor, Sen. Diane Savino, met with Dan Diaz in New York. She said at the time, “The option to end one’s suffering when facing the final stages of a terminal illness should be a basic human right, and not dependent upon one’s zip code.” Assembly Health Committee Chairman Richard Gottfried recently echoed this sentiment, saying that there is no cogent distinction between the choice to end life-sustaining treatment (a right that has been recognized in New York for many years) and the choice to take medication that will hasten and ease death.

Such a view, however, is far from universally accepted. The question of whether terminal patients have a right to aid in dying has been hotly contested. The bill’s opponents, and opponents of such a right in general, cite fears that this legislation could allow patients, particularly the elderly or otherwise at-risk patients, to be coerced into choosing death. Opponents are also concerned about misdiagnosis of terminal illnesses and the role of patient depression. Kathleen M. Gallagher, director of pro-life activities for the New York State Catholic Conference, cites a moral distinction between allowing death to take its course and hastening it through lethal medication. Ms. Gallagher also named fears that legalizing assisted suicide would indelibly alter the “physician’s role as healer” and lead to decisions about death focus on the most “financially expedient option.”

Because these issues take so long to be decided by legislatures, and time is not always a given for terminally patients, they often turn to the courts in search of a swifter resolution. Indeed, advocates of the right to die took the issue to court in New York in 2015, but to no avail. The plaintiffs, including doctors and terminally ill patients, argued that physician-assisted suicide does not fall under New York’s prohibition on causing or aiding another to commit suicide. In a slip opinion, Judge Joan Kennedy granted the defendants’ motion to dismiss, finding that the lawsuit was indistinguishable from Vacco v. Quill. In Vacco, a group of physicians and terminally ill patients argued that New York’s ban on physician-assisted suicide violated the 14th Amendment’s Equal Protection Clause by allowing competent terminally ill patients to withdraw their own treatment, but denying the same right to those who needed a physician to do so for them. The U.S. Supreme Court, however, ruled that the state’s prohibition was constitutional because of the state’s interest in promoting medical ethics, protecting the disabled and the terminally ill from coercion, and protecting human life generally.

The bill’s supporters hope that the legislature will act to allow New York’s terminally ill to have access to aid in dying. However, Senate President John Flanagan told reporters that his “visceral reaction” is against the bill because of its literal “life and death” implications. Given his sentiment, and the general reticence of the legislature to address this issue, Senate Minority Leader Andrea Stewart-Cousins cautions that the bill likely will not pass during the current legislative session. Indeed, it has been sitting in committee since February 13th. Even if this is true, however, the rate at which legislatures around the country have been discussing the right to physician-assisted suicide suggests that this bill will not be forgotten any time soon.

Rebecca Beyer