MANHATTAN (CN) — Two years after challenging New York laws against physician-assisted suicide, only one of the three original plaintiffs lived to see the day that the lawsuit reached the Empire State’s highest court.
The late Sara Myers was the lead plaintiff before she lost her years-long battle against Lou Gehrig’s disease at the age of 61 last August.
“She died alone in an institution alone and in a stupor,” her attorney Edwin Schallert told a six-judge panel at the New York Court of Appeals on Tuesday. “That is what she was trying to avoid.”
Schallert, a partner at Debevoise & Plimpton, urged the court to revive the lawsuit that Myers and two other terminally ill plaintiffs filed in February 2015 with the advocacy group End of Life Choices New York, seeking to legalize what they call aid in dying.
New York considers aid in dying indistinguishable from assisted suicide, which is criminalized by two felony statutes.
Two lower courts have agreed with the state, including a ruling by an intermediate appeals court last year. In May 2016, the Manhattan-based First Department New York Appellate Division found the semantic quibble a distinction without a difference.
“Whatever label one puts on the act that plaintiffs are asking us to permit, it unquestionably fits that literal description, since there is a direct causative link between the medication proposed to be administered by plaintiff physicians and their patients’ demise,” Justice Angela Mazzarelli wrote at the time.
Steve Goldenberg, who joined the lawsuit while bedridden 19 hours a day from AIDS-related illnesses, died shortly before that ruling. Myers succumbed to her disease three months later.
As the final round of appeals kicked off, the last remaining plaintiff, former Manhattan prosecutor Eric Seiff, experienced remission in his bladder cancer, but he still wants aid in dying as an option in case his health takes a turn for the worse again.
Appellate Judge Leslie Stein asked whether this appeal hinges upon the same linguistic distinction as the others.
“Does this boil down into whether aid in dying is the same as assisted suicide?” she asked.
If the judges find that it does, they could rule it unnecessary to build a fact record, a position New York has taken.
Referring to this argument, Appellate Judge Eugene Fahey asked: “Why isn’t this necessarily a pure legal question?”
Schallert said that a more fully developed courtroom record would show why the two are different.
“Because we don’t view it as suicide, Your Honor,” he said. “We view it as completely different from suicide.”
Appellate Judge Michael Garcia wondered whether the courts were appropriate for the issue.
“It seems to me that it’s all for a record to be developed in a legislature,” he said.
Oregon and Montana have legalized physician-assisted suicide, and New York law permits terminal sedation: allowing a patient to die while being administered pain-relief drugs.
New York’s Deputy Solicitor General Anisha Dasgupta told the court it is up to the Legislature to draw the boundaries.
“That is a line-drawing exercise that is one that is fraught with ethical implications,” she said.
Not Dead Yet, a Rochester-based organization, led 10 other local and national advocacy groups in an amicus brief opposing legalization of physician-assisted suicide, fearing that it could result in deadly discrimination against people with disabilities.
“As long as people with disabilities are treated as unwelcome and costly burdens on society, assisted suicide is not voluntary,” their attorney Adam Prizio wrote in a 30-page brief filed in January.
Citing these groups’ arguments, Dasgupta said that patients could be pressured to commit suicide through mistakes and abuse if physician-assisted suicide is legalized.
Judge Stein replied: “Are you talking about a slippery slope argument?”
If so, Judge Fahey noted, states like Oregon, which passed its Death with Dignity Act in 1997, did not encounter this problem.
“If you could, could you address the experiences in other states?” Fahey asked.
The New York Times reported that Oregon’s most vulnerable people were not uniquely at risk for coerced suicide: More than 97 percent of Oregon patients who ended their lives by taking a lethal dose of medication were white and more than 98 percent had health insurance, the Times reported in October 2014.
Dasgupta said that medical error is always a risk.
“The state has a legitimate concern that if assisted suicide is available some patients will not get the care they need,” she said.
Appellate Judge Jenny Rivera pressed New York’s attorneys on the state’s interest when there is little care that can be given.
“Does that interest not fade toward the very end, when the person is, again, in agonizing pain?” she asked.
“Absolutely, there’s sanctity of life,” Rivera added later. “There’s no doubt about that.” But she said New York’s legalization of terminal sedation begs the question of why the state drew the line where it did.
While New York’s assisted-suicide laws do not specifically exempt physicians, Judge Stein noted that assault and battery laws do not either, and the state does not prosecute doctors for poking a patient with a needle or performing a necessary limb amputation.
“Where [in the statute] can a doctor not be charged with assault and battery for any one of those acts?” she asked.
With the only surviving plaintiff recovering from cancer, Rivera wondered what relief the man could seek if the court revives his case.
Schallert said that other terminally ill plaintiffs could step forward, but that losing them is in the nature of the relief they seek.
“They do die in this litigation precisely because they’re dying of terminal illnesses,” he said.
He added that his clients are arguing for a fundamental right.
“Is there a more personal decision that implicates autonomy and freedom?” he asked. “I can’t think of [one].”
The six-judge panel reserved decision on the matter.
An unoccupied seventh chair belonged to the late Appellate Judge Sheila Abdus-Salaam, who was found dead in the Hudson River last month in an apparent suicide.