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Deciding Death: New York state is the latest train wreck for doctor-aided death

The latest locomotive of so-called constitutional inevitability, physician-assisted suicide, has been derailed at least temporarily in the last two state supreme court decisions addressing that asserted “fundamental right.” This month, the New York Court of Appeals – New York’s high court – unanimously rejected an effort by activists to impose the practice there by judicial fiat. That decision from New York echoes a similar 2016 ruling by New Mexico’s Supreme Court that no “fundamental right to die” exists. The results in these two cases have certainly dealt a serious strategic setback to death-by-doctor efforts nationally, but the reasons the courts have given for refusing to accept doctor-aided death after having closely examined the arguments have been even more telling.

The U.S. Supreme Court addressed the contention that there is a “fundamental right to die” 20 years ago in a pair of cases, one of which, Vacco v. Quill, upheld New York’s ban on assisted suicide. The court refused to go down the road of death by doctor, with the court’s late chief justice, William Rehnquist, stating flatly that state prohibitions on assisted suicide “are longstanding expressions of the States’ commitment to the protection and preservation of all human life.”

This month, New York’s highest court echoed Chief Justice Rehnquist in declaring, “[W]e have never defined one’s right to choose among medical treatments, or to refuse life-saving medical treatments, to include any broader ‘right to die’ or still broader right to obtain assistance from another to end one’s life.” There is an important and clear distinction, the New York court said, between the well-recognized right to decline medical intervention and a purported right to have a physician actively prescribe lethal drugs to end one’s life. It quoted the U.S. Supreme Court’s Vacco decision in affirming that the distinction between assisting suicide and withdrawing life-sustaining treatment is “a distinction widely recognized and endorsed in the medical profession and in our legal traditions.”

Just as importantly, the New York court warned against the abuses that follow in the wake of assisted suicide, joining the U.S. Supreme Court in citing the work of New York’s Task Force on Life and the Law convened in 1984, which carefully studied issues surrounding physician-assisted suicide and “unanimously concluded that [l]egalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable” and that the “potential danger[s] of this dramatic change in public policy would outweigh any benefit that might be achieved.”

Further cause for reflection should be found in the New Mexico Supreme Court decision that soundly rejected assisted suicide. (I wrote an amicus brief for the court on behalf of Alliance Defending Freedom, state legislators and the Christian Medical & Dental Associations.) “The recent advances in life-prolonging medical care and the public acceptance of aid in dying in some states has not diminished the other longstanding societal principles and concerns regarding intentional killing, the dying process, the preservation of life, and the basic life saving principles embedded in the medical profession,” the court stated. “At its core, aid in dying challenges the longstanding and historic interest in the protection of life until its natural end as well as the equally longstanding prohibition against assisting another in hastening that process. … This treasured right to life is not only considered sacred under the common law but is also recognized as an inalienable right, even for those condemned to death.”

But there was an even greater problem with the activists’ argument, the court held. Although recognizing that New Mexico has displayed an “enhanced commitment to patient autonomy at the end of life,” the court strongly disagreed with the activists’ contention that an apparently mentally competent person diagnosed as terminally ill and with a specified expected prognosis has a fundamental right, in consultation and agreement with his doctor, to request a prescription for drugs that will end his life. The state supreme court was “troubled” by the argument that a “fundamental right,” as articulated by assisted-death advocates, could be held by a small segment of the population. No constitutional interest is of greater consequence than the right to life, the court observed. The argument that intractable pain and suffering are a basis for the assertion of a right to kill oneself is a non sequitur, the court said: “The leap from a general societal concern about pain, suffering, and/or loss of autonomy and dignity during the final months of a terminally ill person’s life into the creation of [a] fundamental constitutional right to protect physicians who practice aid in dying is unprecedented.”

Both states’ high courts concluded by noting that physician-assisted suicide had been considered and rejected multiple times by the legislature bodies of those states, thereby reminding members of the elected branches of those states – and others – that as the U.S. Supreme Court as well as courts in California, Connecticut and other states have held, this debate should take place in the halls and chambers of state houses rather than in courtrooms. Here’s hoping members of legislatures throughout the country will carefully consider these state high courts’ thoughtful examination of the arguments assisted suicide advocates make in its defense.

Catherine Glenn Foster is President and CEO of Americans United for Life.

Originally published in U.S. News & World Report, October 2, 2017.