New Jersey enacted the Medical Aid in Dying for the Terminally Ill Act (MAID) in 2019, becoming one of eleven jurisdictions including the District of Columbia to recognize a patient’s ability to obtain physician assistance for the purpose of obtaining medication to end a life burdened by terminal illness.
Massachusetts is not one of the jurisdictions adopting a statute permitting medical aid in dying. In 2012, a Death with Dignity Act proposed by ballot initiative was defeated at the polls. Other bills, including some as recent as the 2021-2022 legislative session, have not proceeded to a vote. On December 19, 2022, the Supreme Judicial Court of Massachusetts issued an opinion rejecting a claimed constitutional right to physician-assisted suicide for a terminally ill patient based on the state constitution. The case had been initiated by a patient with advanced prostate cancer and a physician willing to provide assistance with his dying but for the fear of criminal prosecution. While the patient’s claim was dismissed as not presenting an actual controversy since he had not received a terminal diagnosis and possibly would not for years, the court addressed the merits of the claims being made by the physician. In Kligler v. Attorney General, the court determined that under the Massachusetts Declaration of Rights physician-assisted suicide was not a fundamental right within the protections of substantive due process rights for liberty guaranteed in several articles of the state constitution. The court noted that “physician-assisted suicide” was a term of art equivalent to medical aid in dying. It chose to use that term rather than the more ambiguous terminology of aid in dying.
The court declined to follow the “narrow approach” taken by the United States Supreme Court in Dobbs v. Jackson Women’s Center for determining whether a right was “fundamental” and entitled to protection with more exacting judicial review of governmental action. It concluded that the Supreme Court’s narrow approach did not adequately protect the rights protected by the Massachusetts Declaration of Right. It chose instead to apply a more comprehensive approach utilizing “reasoned judgment” to determine whether a right is fundamental, even if it has not been recognized explicitly in the past, guided by history and precedent. It framed the issue before it as whether physician-suicide ranks among fundamental rights.
Starting with English common law in the days of Blackstone through the early colonies including Massachusetts, the court reviewed the history of suicide as a crime and the discontinuation of that characterization as an unnecessary punishment of the family without reaching the real perpetrator of the act. But even when suicide became not technically a crime, it was considered a “grave public wrong” and a “serious social ill that the State has a strong interest in preventing.” The court added that assisting another to commit suicide has largely been and continued to be a serious crime, with the fact that the decedent was close to death being legally irrelevant.
Focusing more specifically on the context of the case before it involving a patient with advanced cancer and a physician willing to provide assistance with his dying but for the fear of criminal prosecution, the court began its analysis with the observation that physician-assisted suicide had long been controversial but that “[t]hroughout history, physicians have assisted patients in hastening death, most often in secret.” It further noted that no American professional medical association had adopted an official stance in favor of physician-assisted suicide. The source of this somewhat misleading observation was a published review that had relied on a list of organizations that had been recognized by the American Medical Association – but which does not include such groups as the American Public Health Association or the American Women’s Medical Association, each of which has a position supporting physician assistance in dying. The list also did not include the relatively newly formed American Clinicians Academy on Medical Aid in Dying. The authors pointed out a limitation to their research arising from the limited number of professional societies that had issued position statements on this issue. Lastly, many of the position statements take a stance of “studied neutrality” leaving the decision as to whether to participate in providing medical aid in dying to the conscience and ethical judgment of individual physicians.
The court found no support in history for inclusion of physician-assisted suicide as an individual right protected by the Massachusetts constitution. It made the profound statement: “Of course, that something may have been unprotected, or even prohibited, throughout history is not determinative, as our Constitution evolves alongside newly discovered insights about the nature of liberty.” It rejected the contention that the right to physician-assisted suicide was a natural outgrowth of the right to refuse medical treatment that had been recognized in case law of the most recent 40 years. It found the analysis in that body of law did not extend to medical assistance in dying since it did not implicate either the common law right of bodily integrity to be free from unconsented intrusions or the right of privacy encompassing an individual’s ability to assert personal autonomy. It perceived an important distinction between the refusal of medical treatment and physician assistance in dying. Invoking the fundamental legal principle of cause and effect, the court stated that “whereas withdrawing or withholding medical care is not the primary cause of a patient’s death, physician-assisted suicide is.” The refusal of medical treatment, whether a withholding from the start or withdrawing so to discontinue the course of treatment, only allowed a disease or condition to takes it natural course rather than the death being the result of a self-inflicted injury. It further remarked that “although courts in other jurisdictions widely protect the right to refuse medical treatment, none has concluded that physician-assisted suicide constitutes a fundamental right.” (Emphasis added.) The court ended its analysis of this point as follows:
In sum, given our long-standing opposition to suicide in all its forms, and the absence of modern precedent supporting an affirmative right to medical intervention that causes death, we cannot conclude that physician-assisted suicide ranks among those fundamental rights protected by the Massachusetts Declaration of Rights. Thus, application of the law of manslaughter to physician-assisted suicide would not impinge on an individual’s right to substantive due process.
The opinion has other aspects including discussion of standing, mootness, vagueness,
The court briefly discussed the argument that the criminalization of physician-assisted suicide resulted in a denial of equal protection by treating terminally ill adults who wish to avail themselves of the practice differently from individuals who wish to hasten death through other means, such as voluntarily stopping eating or drinking, withdrawing life support, or palliative sedation. The court rebuffed this assertion by pointing out that application of the law of manslaughter to physician-assisted suicide did not treat any person differently from any other. Because there was no fundamental right at issue, the court employed the usual rational basis standard and concluded that the law on manslaughter was reasonably related to the State’s legitimate interest in protecting life, the integrity of the medical profession, and vulnerable people from pressures to end their lives.
In concluding the opinion, the court acknowledged that the issues of the case presented both weighty philosophical questions and practical technical questions concerning regulation of the medical field. “These questions are best left to the democratic process, where their resolution can be informed by robust public debate and thoughtful research by experts in the field.”
While all six justices agreed with the decision that there was no fundamental right to prescribe medication to assist the terminally ill in ending their life, two separate opinions were filed.
The concurring opinion of one justice focused additional attention on the circumstances of patients presently experiencing the objective limitations of late-stage palliative care, a group faced “not with the choice of whether to live, only of how to die.” Reviewing a number of Massachusetts precedents, he commented that the case law was arcing close to encompassing a right to medical aid in dying. In particular, in Brophy v. New England Sinai Hospital, the court authorized removal of a noninvasive plastic tube that provided nourishment and hydration to a patient in a persistent vegetative state who was otherwise medically stable. Justice Cypher pointed out that other deliberate efforts by medical personnel to hasten a patient’s death were legal in Massachusetts. These included turning off ventilators, discontinuing intravenous life-sustaining medications, and the practice of palliative sedation, commonly known as “terminal sedation.” With some apparent irony, he questioned whether there was a difference between injecting a drug that sedates a patient to the point of unconscious and prescribing lethal medication. “What the State-sanctioned practice of terminal sedation makes clear, however, is that no one can really say just where that line is.”
The other separate opinion written by Justice Wendlandt was a concurrence with a partial dissent as to the dismissal of the patient’s claim. Chief Justice Budd joined in the concurring portion of the opinion but not the dissent as to the dismissal.
The legal status of palliative sedation was similarly a touchstone in this opinion. In the context of a patient who was mentally competent but terminally ill and approaching the final stage of the dying process, even using the lower rational basis standard of review to evaluate the nonfundamental right to physician-assisted suicide, the governmental interest in criminalizing physician-assisted suicide was reduced to a “nullity.”
[T]he individual’s liberty interest in choosing a peaceful death that comports with the individual’s values and dignity, specifically through physician-assisted suicide, strengthens to its zenith; death is looming and inevitable, and the question is no longer “whether to live, only of how to die.”
These justices also found no meaningful distinction physician-assisted suicide and palliative sedation to unconscious. Especially when followed by withdrawal of nutrients causing dehydration and starvation, palliative sedation did not have a compelling rationale or even a rational interest so as to exclude the less-intrusive option of access to physician-assisted suicide.
The Massachusetts decision in Kligler joins the New York Court of Appeals, which had rejected arguments for physician-assisted suicide as a right protected by state constitutional guarantees in its 2017 decision in Myers v. Schneidermen. A recent law review article notes that no appellate court has upheld the constitutionality of non-statutory physician-assisted dying measures.
However, the separate opinions of three justices raise questions as to the strength of the opposition to medical aid in dying in the context of a terminally ill patient considering palliative sedation. Only six justices of the Supreme Judicial Court had heard the case. With half of the court being inclined to recognize a right to medical aid in dying in this context, one can speculate as to the outcome of a case with an appropriate factual presentation which would necessarily be burdened by the likelihood of mootness given the time required for the initial litigation and the appellate process. It should be noted that in Myers, a similar reservation as to rejection of a right to medical aid in dying by Justice Rivera in what was labelled a concurring opinion but was referred to as a dissent in Justice Cypher’s concurring opinion in Kligler. While agreeing that the State had compelling and legitimate interests in prohibiting the broad claim of physician-assisted suicide, she wrote:
These interests, however, are not absolute or unconditional. In particular, the State’s interests in protecting and promoting life diminish when a mentally-competent, terminally-ill person approaches the final stage of the dying process that is agonizingly painful and debilitating. In such a situation, the State cannot prevent the inevitable, and its interests do not outweigh either the individual’s right to self-determination or the freedom to choose a death that comports with the individual’s values and sense of dignity. Given that the State already permits a physician to take affirmative steps to comply with a patient’s request to hasten death, and that the State concedes that the legislature could permit the practice sought by plaintiffs, the State’s interests lack constitutional force for this specific subgroup of patients. Considering the State’s sanctioning of terminal sedation in particular, the statute does not survive rational basis review. Therefore, in my view, the State may not unduly burden a terminally-ill patient’s access to physician-prescribed medication that allows the patient in the last painful stage of life to achieve a peaceful death as the end draws near.
Opponents of medical aid in dying defend and distinguish the use of palliative sedation on the basis of the supposed difference in the physician’s intent. With palliative sedation, the physician’s intent is to alleviate pain and provide comfort as the patient moves toward death from the underlying condition even though the physician knows that one of the consequences of the medication being used is respiratory depression and death. This justification is based on the ethical concept known as the Doctrine of Double Effect, which is derived from the justification for killing in self-defense, where the attacker is killed when the intention is to save oneself, not kill the attacker. The United States Supreme Court approved of the use of the Doctrine of Double Effect in connection with palliative sedation in Vacco v. Quill. However, its ethical validity continues to prompt debate.