Question Before New York’s Highest Court: Can the State of New York Put Your Physician In Jail for Acting Upon Your Decision to End Your Life?

New York’s highest court recently heard arguments in a challenge to the state’s physician-assisted suicide ban. The Court of Appeals case is Myers v. Schneiderman.

The challenge, which follows two lower-court findings against plaintiffs on a motion to dismiss, seeks to overturn two separate provisions of the Penal Law.  First, it challenges a provision of Penal Law §125.15, the state’s second-degree manslaughter statute, that finds any person, including a physician, guilty of manslaughter in the second degree who “intentionally causes or aids another person to commit suicide. Also challenged is Penal Law § 120.30, which states “[a] person is guilty of promoting a suicide attempt when he intentionally causes or aids another person to attempt suicide.

Twenty years ago, the U.S. Supreme Court in Vacco v. Quill held that New York’s ban on physician-assisted suicide was constitutional.

Plaintiffs argue the laws violate their equal protection and due process constitutional rights.

Plaintiffs include Sara Myers, who is terminally ill and was  diagnosed in 2010 with amyotrophic lateral sclerosis (“ALS), a terminal neurodegenerative condition that causes paralysis and has no cure; Eric Seiff, a former attorney who has been diagnosed with cancer; medical professionals who regularly treat terminally ill patients; and End of Life Choices New York, an advocacy organization. Attorney General Eric Schneiderman is the named defendant, as the state’s highest law enforcement officer.

The Plaintiffs brought the lawsuit seeking a declaration that physicians who provide aid-in-dying to a mentally competent, terminally ill patient upon the request of that patient are not subject to criminal prosecution under New York’s Penal Law.  Aid-in-dying is the recognized term of providing a mentally competent, terminally ill patient with a prescription for medication that the patient may choose to take in order to allow the person with terminal illness to have a peaceful death when their dying process is unbearable.  This concept recognizes the patient’s right to choose medically and ethically appropriate medical treatment and that what is causing death is the underlying terminal illness.  Plaintiffs are challenging New York’s assisted suicide statute on the premise that it does not provide a valid basis to prosecute physicians for providing aid-in-dying because aid-in-dying is another reasonable medical alternative that honors and respects the choice of a mentally competent, terminally ill individual for a peaceful death and does not constitute suicide within the meaning of the Penal Law.

Plaintiffs further argue that these patients – for whom there is no hope of recovery – should have a right to be prescribed a lethal drug, given the long-recognized fundamental right to self-determination. But Plaintiffs argue that the law currently deters physicians from doing so, since violations of Penal Law § 125.15 and § 120.30 are both felonies.

Opponents, which include some religious and disability rights groups, argue that legalized assisted suicide could be abused and put vulnerable persons at risk.

Other states such as Oregon, Washington and Vermont have laws to allow for aid-in-dying, with Oregon having a voter-enacted law since 1998.  Montana has established this precedent through the case Baxter v. Montana. California has also recently adopted a statutory provision giving permission for aid-in-dying, with a particular push following the news of Brittany Maynard, a terminally ill 29-year old who left her home in San Francisco and moved to Oregon to be able to have all medical options to her as she dealt with terminal brain cancer.

Separately, a bill before the New York State Legislature, the Medical Aid in Dying Act, would permit mentally competent, terminally ill patients to request that medication be administered to hasten the patient’s death. The bill has not received a floor vote in either chamber.

This article was written by David R. Ross, who is a Senior Shareholder of the firm, and Danielle E. Holley, an associate.

Prior to joining the firm, and under former Governors Pataki and Spitzer, Mr. Ross served as the Acting Medicaid Inspector General for New York State. He also served as General Counsel, Deputy Medicaid Inspector General, and Director of Audits and Investigations for the Office of the Medicaid Inspector General. Prior to his service at the Office of the Medicaid Inspector General, Mr. Ross held several positions at the New York State Office of Alcoholism and Substance Abuse Services (OASAS), including Acting General Counsel, Deputy Counsel, and Associate Counsel. Mr. Ross also handles Medicaid compliance matters of all kinds, as well as both Medicare and Medicaid audits and investigations for providers of all types and sizes. He can be reached at (518) 462-5601 or via e-mail at dross@oalaw.com.

 Law Clerk Patrick Duprey contributed to this article.