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Right to assisted suicide gets favorable argument in Massachusetts

With several justices dismissive of the idea that the state has a legitimate interest in making terminally ill patients suffer, Wednesday’s hearing could lead to a landmark ruling.

BOSTON (CN) — The Massachusetts Supreme Court seemed receptive Wednesday to becoming the first court in the country to establish a constitutional right to assisted suicide.

“We’re moving forward,” said Justice Dalila Wendlandt. “Why isn’t it time to recognize that patients … have a right to decide in their own way, on their own terms, how they want to die as opposed to waiting?”

Justice Elspeth Cypher asked, “What in the Massachusetts Constitution would prevent us from saying this is a fundamental right?”

And Justice Serge Georges Jr. noted that “we have these newer and more humane ways of addressing the end of life. … A hundred years ago … we didn’t have all this. But facts evolve and the common law evolves.”

Assisted suicide is legal by statute in the District of Columbia as well as nine states: California, Colorado, Hawaii, Maine, New Jersey, New Mexico, Oregon, Vermont and Washington. The Montana Supreme Court also held in 2009 that there is no state law that prohibits it.

But no state high court has ever held that assisted suicide is constitutionally protected.

The Massachusetts case was brought by two doctors: Alan Steinbach, who wants to write prescriptions for terminally ill patients, and Roger Kligler, a retired physician with stage 4 prostate cancer who wants the right to kill himself to alleviate possible suffering at the end of life.

The state attorney general took the position that a physician who prescribes fatal drugs can be charged with manslaughter. So the doctors argued that the right to assisted suicide is protected by the state constitution’s guarantees of liberty and privacy.

At oral argument, both Assistant District Attorney Maria Granik and Christopher Schandevel of Euthanasia Prevention Coalition USA claimed that such a right must be “deeply rooted in history and tradition,” which assisted suicide isn’t. But a number of the justices pushed back.

“Ten jurisdictions have addressed this and given their citizens this right,” Justice Wendlandt said. “How do you account for that? Are we limited to the history of Massachusetts? Common law is an evolving thing.”

More pointedly, Cypher noted that, “under tradition and history, women didn’t have rights. How did they get them? How did that happen if someone didn’t make a change?”

Georges was also dismissive. “You have your argument down pat and that’s great,” he told Schandevel. “But do you not see the paternalistic part of this?” He demanded, “What interest does the government have in Dr. Kligler’s suffering?”

Granik replied that “the state has the right to protect the lives of all its citizens.” But she didn’t seem to persuade anyone.

“What interest does the government have in telling him, ‘We won’t let you end your life on your terms; we’re going to make you end it on ours’?” Georges asked. And Cypher added, “What interest does the government have in making sure this doctor has a painful death?”

Cypher repeatedly suggested that the state’s only interest was nothing more than a religious preference. And Georges commented that “the only interest that seems to be articulated here is, ‘We feel better if you can’t do that.’”

Justice David Lowy wondered why the court had to wait for assisted suicide to become deeply rooted. “If we might get there at some point, why are you saying that … it will exist in three years but it doesn’t exist now? If this is an organic document we’re interpreting, why can’t we say that there’s a liberty interest now?”

Granik and Schandevel then backpedaled and said that if the state were going to allow assisted suicide, it should be left up to the legislature to come up with a comprehensive regulatory scheme. Wendlandt seemed to like that idea. But Georges observed that, “if we were the first domino” and recognized a constitutional right, the legislature could still pass a law to regulate it. He said that’s exactly what had happened with abortion.

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“You’d have to resolve a lot of complex issues” in future cases, Schandevel warned.

“Don’t we do that all the time?” Georges asked.

If assisted living expands, "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," said Dean Browne Lewis of North Carolina Central University School of Law.

The doctors in the case are being 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 and most of them opposed the practice. A brief for local Catholic bishops said it violated 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.

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

A bill likely to pass soon 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. She 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 a task force in the state recently opposed it, Lewis said. 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 in order to reduce the enormous cost of end-of-life care, added Popik. 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.”

The fact that technology now exists to keep people alive longer, but at great expense and with a reduced quality of life, is what is driving the interest in the practice, Lewis said. 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 after 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.

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