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Assisted suicide rejected in Massachusetts, but court leaves room to revisit it

The commonwealth's top court was unanimous in saying no, generally, to euthanasia, but a few of the justices voiced inclination to see further litigation over a constitutional right to die.

BOSTON (CN) — Declining to become the first in the country to recognize a constitutional right to assisted suicide, the Supreme Judicial Court of Massachusetts fractured badly Monday as it left open the possibility to potentially recognize such a right in a future case where the facts are better developed.

A doctor who contended that he has a general due-process right to prescribe lethal drugs to terminally ill patients brought the case at hand. With the court declining to recognize such a right in the abstract, it said that a doctor who prescribed such drugs could in theory be prosecuted for manslaughter.

But three of the six justices said they might hold differently if a particular patient’s situation was compelling enough.

“When a terminally ill, mentally competent patient approaches the final stage of the dying process, accompanied by unbearable pain,” the calculus is different, Justice Dalila Wendlandt wrote for herself and Chief Justice Kimberly Budd.

Allowing such patents “to choose to die with dignity as their final act … would not result in harm to the public welfare," the justices continued. “In such a case, application of the criminal laws to … physician-assisted suicide would be irrational and thus proscribed by substantive due process."

Justice Elspeth Cypher wrote separately with a similar message. “I do not foreclose the possibility that some applications of our criminal statutes may impose an intolerable intrusion on patient freedom. … We must be ready to extend our state constitutional protections to terminally ill patients seeking to exercise what remains of their bodily autonomy.”

So while the ruling is at least a temporary victory for anti-euthanasia groups, the issue is likely to come up again soon. A seventh justice, Scott Kafker, didn’t participate in the case and it’s not clear what his views are.

Had the court found a due-process right to assisted suicide, it would have been the first in the country to do so. The U.S. Supreme Court rejected such a right under the U.S. Constitution in 1997, and state courts have refused to recognize such a right under state constitutions in Alaska, California, Florida, Michigan, New Mexico and New York.

On the other hand, nine states and the District of Columbia have permitted assisted suicide by statute, and a Montana court found that there is no state law against it. (The nine states are California, Colorado, Hawaii, Maine, New Jersey, New Mexico, Oregon, Vermont and Washington.)

The Massachusetts court’s 89-page decision relied heavily on historical analysis showing that a right to die wasn’t part of the common law.

“Throughout history, American society has not regarded suicide, in any form, as an individual right,” Justice Frank Gaziano wrote. “To the contrary, both the commonwealth and the nation at large have long treated suicide as a social problem to be prevented and remedied.”

Gaziano also noted that “no medical professional society in the United States has adopted an official stance in favor of physician-assisted suicide.”

He drew a key distinction between the right to reject life-prolonging treatment and the right to assisted suicide, saying the former was simply allowing nature to take its course as opposed to hurrying it along. But the three female justices suggested that such a distinction breaks down in practice, and there is little practical difference between assisted suicide and terminal sedation or withdrawing a feeding tube.

“There is no meaningful distinction between physician-assisted suicide and palliative sedation to unconsciousness followed by withdrawal of nutrients so as to cause dehydration and starvation,” Wendlandt wrote.

The case produced a lively oral argument in early March, with a number of the justices questioning a blanket ban on euthanasia.

Roger Kligler, the doctor who brought the case, was supported by Compassion and Choices, the country’s leading organization in favor of assisted suicide. But the case drew amicus briefs from more than two dozen organizations, most of which opposed the practice. A brief for local Catholic bishops said it ignored the “sanctity of life," and a disability rights organization claimed that assisted suicide “violates the spirit and letter of the Americans with Disabilities Act by … conveying the message that disabled lives are less worthy.”

The state medical society didn’t take a position on the issue but warned the justices that allowing assisted suicide would raise numerous thorny questions about how to define a terminal illness and how to make sure that patients are competent and fully informed and are acting voluntarily.

Lucia Silecchia, a professor at the Columbus School of Law in Washington, D.C., notes that more than a dozen states are considering legislation to expand assisted suicide.

A bill in Delaware would allow not just doctors but also nurses to write fatal prescriptions, noted Browne Lewis, dean of the North Carolina Central University School of Law. Lewis said the reason that legislators want to include nurses is that many doctors refuse to participate in assisted suicide because they see it as contrary to their role as healers.

A similar bill failed in Washington state recently, according to Jennifer Popik, a legislative director at National Right to Life. That bill would also have reduced the waiting period and allowed delivery of fatal medication by mail.

Groups such as Compassion and Choices have long targeted New York for legislation, but Lewis said a task force in the state recently opposed it. She noted that most states that have approved assisted suicide are “heavily white,” but, in a state like New York, “the fear is that the people who are on the chopping block, so to speak, will be Black and brown people because of the disparities that already exist in the health care system.”

Insurance companies have a strong incentive to steer people toward assisted suicide, Popik added, to reduce the enormous cost of end-of-life care. In fact a bipartisan resolution introduced in Congress opposes medically assisted death in part because “insurers have denied or delayed coverage for life-saving care while offering to cover assisted suicide.”

One reality driving interest in the practice, Lewis said, is the existence of technology to keep people alive longer, but at great expense and with a reduced quality of life. She pointed to focus groups findings that elderly people’s main fear is of having to live with dementia rather than physical disability. The fear “is mental, not physical,” she said.

Not all states that allow assisted suicide keep statistics on it, but, in the decade since Washington state legalized it in 2009, some 1,622 people killed themselves, according to a state report. In Oregon, more than 1,900 people have committed suicide since the practice was legalized in 1997. In California, 337 people died of medically assisted suicide in 2018 alone.

Ten years ago Massachusetts voters narrowly rejected a ballot question in that would have legalized assisted suicide in the state; the measure lost 51%–49%.

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