THE MASSACHUSETTS CONSTITUTION does not protect a right to physician-assisted suicide, the Supreme Judicial Court ruled Monday, leaving it up to the Legislature to decide a controversial end-of-life issue that has spawned more than a decade of impassioned debate and years of litigation.
“Although we recognize the paramount importance and profound significance of all end-of-life decisions, after careful consideration, we conclude that the Massachusetts Declaration of Rights does not reach so far as to protect physician-assisted suicide,” Justice Frank Gaziano wrote in a 64-page decision on behalf of a majority of the court
Gaziano said only lawmakers have authority to make that decision. “The desirability and practicality of physician-assisted suicide raises not only weighty philosophical questions about the nature of life and death, but also difficult technical questions about the regulation of the medical field,” Gaziano wrote. “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.”
Yet the narrow line between physician-assisted suicide and the legal practice of sedating a terminally ill patient into unconsciousness at the very end of their life gave several justices pause. Justice Dalila Wendlandt and Chief Justice Kimberly Budd partially dissented from the decision, arguing that for a small subset of patients who are suffering unbearably at the end of their life and would otherwise undergo palliative sedation, the state has virtually no interest in preventing physician-assisted suicide. Justice Elspeth Cypher also indicated in a concurring opinion that she might be open to allowing physician-assisted suicide in a future case that raises those issues.
“In this scenario, depriving the patient of a legal path to bring about a death in line with his or her wishes also injures surviving family members, who must watch helplessly as their loved one suffers through the final moments of his or her life,” Wendlandt wrote. “Allowing this subset of patients to choose to die with dignity as their final act while death is looming and inevitable would not result in harm to the public welfare.”
The question of whether to allow a physician to prescribe life-ending medication to a terminally ill patient at the patient’s request has been hotly debated for years. Ten states and Washington, DC, allow the practice, but Massachusetts does not. In 2012, voters narrowly rejected a ballot question that would have allowed physician-assisted suicide, also referred to as medical aid in dying. Since then, bills have regularly been introduced in the Legislature but never passed.
Supporters have said they plan to introduce legislation again in the new session that begins in January to permit physician-assisted suicide, and Gov.-elect Maura Healey has indicated she would support such legislation if it included adequate safeguards.
Roger Kligler, a retired physician with advanced stage prostate cancer, and Dr. Alan Steinbach, a doctor who treats terminally ill patients, filed a civil lawsuit in Suffolk Superior Court in 2016, arguing that it is unconstitutional to charge a physician with manslaughter for prescribing a lethal dose of medication to a terminally ill patient. A judge ruled against them, and the Supreme Judicial Court took the case on appeal.
“After a six-year legal battle, words cannot express my disappointment about this ruling, but I will continue urging lawmakers to respect the bodily autonomy of dying Massachusetts residents by passing the End of Life Options Act,” Kligler said in a statement. “I believe that the government should not have any interest in telling mentally capable, terminally ill adults that we have to die with intolerable suffering.”
Chris Schandevel, an attorney with Alliance Defending Freedom, which argued before the court in favor of upholding the current law, said physician assisted suicide “radically degrades the practice of medicine.” “Every human life—regardless of disability or illness—has immeasurable value, and the government must do all it can to protect life, especially for the most vulnerable who cannot advocate for themselves,” Schandevel said. “We’re pleased the Massachusetts Supreme Judicial Court upheld the commonwealth’s long established legal tradition of protecting the dignity of every human life until natural death.”
Currently, a charge of involuntary manslaughter – defined legally as “unintentional, unlawful killing caused by wanton or reckless conduct” – can be used to prosecute physician-assisted suicide. Kligler and Steinbach argued that the doctor’s conduct in such cases should not be considered “wanton or reckless,” because it is done deliberately in accordance with medical standards to ease a patient’s suffering. They also argued that the doctor writing the prescription is not the proximate cause of death, since the patient decides to take the medicine.
But the court ruled that an involuntary manslaughter charge can legally be applied to physician-assisted suicide. “Our case law demonstrates that knowingly providing someone who has expressed an interest in ending his or her life with the means to do so may be considered wanton or reckless behavior,” Gaziano wrote. The court ruled that writing the prescription can be considered a cause of death, even if the patient’s decision also plays a role, noting, “That conduct is not inevitable does not mean that it is not foreseeable.”
Steinbach and Kligler argued that a person has a fundamental right, under the Massachusetts Declaration of Rights, to physician-assisted suicide.
In a lengthy discourse, the SJC disagreed. “There is little question that, throughout history, American society has not regarded suicide, in any form, as an individual right,” Gaziano wrote. “To the contrary, both the Commonwealth and the nation at large have long treated suicide as a social problem to be prevented and remedied.” Assisting someone’s suicide “largely has been, and continues to be, regarded as a serious crime.”
The court acknowledged that physician-assisted suicide of a terminally ill patient has engendered more dispute – and throughout history, physicians have assisted patients in hastening their death, often in secret. But no court has upheld a constitutional right to physician-assisted suicide.
“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,” Gaziano wrote.
The court wrote that applying the manslaughter law “passes constitutional muster because the law is reasonably related to the State’s legitimate interests in preserving life; preventing suicide; protecting the integrity of the medical profession; ensuring that all end-of-life decisions are informed, voluntary, and rational; and ‘protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives.’”
However, an argument that swayed several justices related to palliative sedation, a legal, last-resort practice in which a patient suffering at the end of their life is made unconscious, then nutrition and hydration are withdrawn until the patient dies.
Cypher wrote in a concurring opinion that she agrees with the court’s reasoning that there is no constitutional right to physician-assisted suicide. But she opened the door to ruling otherwise if a future court case pits criminal law against patient freedom, citing the very narrow line between physician-assisted suicide and other legal medical scenarios that hasten someone’s death – if a terminally ill patient refuses all food and drink or a doctor administers palliative sedation.
“The usual reasons used to deny these patients access to physician-assisted suicide (e.g., reverence for life, archaic proscriptions against suicide, incorrect prognoses) do not carry the same weight when the patient’s choices are limited to either inadequate pain management or terminal sedation, a practice that differs from physician-assisted suicide in degree and not in kind,” Cypher wrote.
Cypher wrote that previous court decisions on these issues indicate that “the paternalism of the State in matters involving health care must yield, on occasion, to the personal autonomy of patients facing outcomes that vary only in their respective degrees of bleakness.”
Wendlandt, in a partial dissent that was joined by Budd, said she agrees with the court that there is no fundamental constitutional right to physician-assisted suicide. But she wrote that the application of criminal law to physician-assisted suicide will not always pass constitutional muster either.
In a case when a terminally ill patient is dying “accompanied by unbearable pain that cannot be alleviated by palliative care short of sedation to unconsciousness,” Wendlendt wrote, “the Commonwealth’s interests reduce to a nullity, as the 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.’” Wendlendt said at that moment, “there is no meaningful distinction” between physician-assisted suicide and palliative sedation.