A recent post on this blog previewed the issues raised in the case of Govatos v. Murphy related to the residency requirement in the New Jersey Medical Aid in Dying for the Terminally Ill Act. 

On September 18, 2024, the Honorable Renée Marie Bumb, the Chief Judge for the U.S. District Court for the District of New Jersey, filed a 59-page opinion along with an Order dismissing the complaint in Govatos challenging the constitutionality of the Act’s residency requirement. Judge Bumb rejected the claim that the State’s requirement that a person be a resident of New Jersey to receive medical aid in dying violates three provisions of the United States Constitution: (1) the Privileges and Immunities Clause of Article IV, § 2; (2) the dormant Commerce Clause of Article I, § 8; and (3) the Equal Protection Clause of the Fourteenth Amendment.

Judge Bumb framed the issue before her as whether the Constitution requires a state to extend to non-residents a non-fundamental privilege to access medical aid in dying that it affords to its own residents pursuant to the New Jersey statute. The opinion analyzes the contention that the Privileges and Immunities Clause is violated by the statutory residents-only provision because it burdens the fundamental right to interstate travel with the denial of the medical aid in dying services to non-residents. The court’s examination of this issue sensibly begins by formulating what the Privileges and Immunities Clause covers. It reviewed interpretations of the clause dating back to 1823. It concluded that the court must engage in a two-step process in evaluating a claim that a state law unjustifiably discriminated against non-residents. The first was a determination of whether the non-resident’s claimed interest was “sufficiently fundamental” to be within the purview of the Clause. If the discriminatory law did affect a fundamental privilege, it was necessary to consider whether there was a substantial reason for the difference in treatment and whether the discriminatory action bore a substantial relationship to the state’s objective.

In concluding that there was no fundamental right to medical aid in dying, the court found the Supreme Court’s 1997 decision in Washington v. Glucksberg to be dispositive in concluding that there was no right to assistance in committing suicide under the Due Process Clause. It also referred to the companion case of Vacco v. Quill decided the same day, which rejected a challenge under the Equal Protection Clause to a statute making assisting someone to commit or attempt suicide a crime as reaching the same conclusion. In Vacco, the court distinguished its 1990 decision in Cruzan v. Director, Missouri Department of Health in which it had assumed that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment but emphasized that a right to refuse treatment was not grounded in a general and abstract “right to hasten death” as an exercise of personal autonomy, but rather was premised on well-established, traditional rights to bodily integrity and freedom from unwanted touching. The right to refuse treatment does not necessarily transform into a right to demand a particular treatment.

The Govatos court followed that reasoning in ruling that the “right” to medical aid in dying in New Jersey statute was a qualified right subject to conditions, such as the confirmed presence of a terminal condition with a life expectancy of less than six months. This “right” was derived entirely from statutory authorization, not constitutional protection. It also observed the comment in Kligler v. Attorney General that no state supreme court “has concluded that physician-assisted suicide constitutes a fundamental right” as a matter of state constitutional law. The Kligler decision was the subject of commentary in a January 2023 post on this blog.   

The Govatos court further rebuffed the plaintiffs’ argument that the residency requirement burdened their fundamental right to travel within the United States that had been recognized in Shapiro v. Thompson. It did not accept the attempt to bootstrap the non-fundamental privilege of medical aid in dying to the fundamental right of interstate travel. It rejected the analogy to Doe v. Bolton in which the Supreme Court struck down a Georgia statute criminalizing abortion unless several conditions were met. Among those conditions was that the procedure could only be performed on a woman who resided in Georgia. In distinguishing Doe, the court noted that the Supreme Court had found no basis for this residency requirement. In contrast, the State of New Jersey had several justifications beginning with its observation that medical aid in dying was “legally indistinguishable from the criminal act of suicide” and was not general medical care. Next, the two plaintiff-patients sought to obtain medication that they could self-administer to end their lives in their home states of Delaware and Pennsylvania. Assisting suicide was a criminal act in both Delaware and Pennsylvania. The State had a legitimate interest in protecting New Jersey healthcare providers from liability in another state for conduct that would be a crime there. Moreover, the State had a justifiable interest in ensuring that the self-administration of the lethal medication was completely voluntary and that the provisions of the Medical Aid in Dying Act that provided additional safeguards were followed. The situation before the court was unlike the circumstances of laws such as in Texas that aimed to prevent its citizens from traveling to another state to obtain an abortion legal in that other state but not in Texas and could adversely affect its own citizens’ ability to return to their own state after seeking access to abortion services.

The court found that the Govatos plaintiffs did not have a cognizable Dormant Commerce Clause claim. This Clause provided protection against economic protectionism from measuring benefiting in-state interests and burdening out-of-state competitors. The court concluded that the New Jersey Medical Aid in Dying Act did not discriminate or burden interstate commerce. It also quickly disposed of the Equal Protection Clause challenge because the residency requirement did not target a suspect class and did not infringe on a fundamental right. Thus, it was subject to review under the rational basis test. The residency requirement was rationally related to legitimate governmental objectives. The protection of healthcare providers from either criminal or civil liability in another state based on having provided a person with lethal medication to end their life was a legitimate purpose. The New Jersey Medical Aid in Dying Act provided physicians with broad criminal and civil immunity but only if the terms of the statute were complied with. Otherwise, assisting suicide is still a crime in New Jersey. It was also a criminal offense in both Delaware and Pennsylvania with statutes that punished conduct outside the state where the result occurred within the state.

The Govatos ruling, in combination with the Massachusetts decision in Kligler, illustrates the limits of attempts to establish a right to physician assistance in dying through a constitutional adjudication. Govatos documents the widespread opposition to physician aid in dying with the court repeatedly making the observation that this medical practice is “indistinguishable from the criminal act of assisting suicide.” Only a few states have enacted legislation to permit the practice and eliminate the risk of criminal exposure. The practice of medical tourism by individuals living in states that do not permit medical aid in dying is a matter of continuing risk. While the ethical justification is well-established for accepting and acting on a patient’s right to refuse care whether it involves withholding or withdrawing care, the same cannot be said of physician assistance in dying.