WHEN ROGER KLIGLER was a practicing physician, he had terminally ill patients ask him to end their suffering. “As a physician, I felt I could not do that. I could not help in the way I should have helped them, which is to help them die peacefully on their own terms,” Kligler said.
Now Kligler, who is retired and living in Falmouth, has stage 4 metastatic prostate cancer. Despite being told twice that he was at the end stage of his disease, he has continued to hang on. But if his suffering gets intolerable, he wants to be able to take medication to end his life. “I watched my mother and father-in-law die horrendous deaths and I wouldn’t want to die the way they died,” Kligler said in a phone interview.
The Supreme Judicial Court will hear oral arguments Wednesday in a case brought by Kligler that asks the court to decriminalize medical aid in dying in Massachusetts, a massive change in policy that the Legislature and voters have previously refused to adopt.
The case is attracting broad attention from state and national disability rights groups and religious figures.
Several groups filing briefs in the case argue that it is not the court’s place to decide the question. “It’s a public health issue, it’s an ethical issue, it’s a medical issue, it’s a disability rights issue, and [the Legislature] is the place where the people debate in our democracy, not through a court ruling,” said John B. Kelly, director of Second Thoughts Massachusetts, the state affiliate of a national disability rights group opposed to assisted suicide.
The case was brought by Kligler and Dr. Alan Steinbach against Attorney General Maura Healey and Cape and Islands District Attorney Michael O’Keefe. Kligler wants to obtain a prescription that will allow him to end his life, should he choose to do so. Kligler also leads Compassion & Choices, an advocacy group that supports medical aid in dying. Steinbach is a doctor who has treated terminally ill patients and wants the ability to prescribe medication to aid dying for patients who wish that.
Kligler and Steinbach are arguing that it is unconstitutional to apply criminal manslaughter charges to physicians who prescribe a terminally ill patient medication that the patient can use to end their life. They make several arguments related to their rights to privacy, liberty, and equal protection, while suggesting that the current law is “impermissibly vague.”
A Superior Court judge dismissed their lawsuit in December 2019, concluding that the issue of medical aid in dying should be decided by the Legislature. Medical assistance in dying “raises difficult moral, societal, and government questions, the resolution of which require the type of robust public debate the courts are ill-suited to accommodate,” wrote Superior Court Judge Mary Ames. Kligler and Steinbach appealed, and the Supreme Judicial Court took the case from the Appeals Court.
Today, 10 states and Washington, DC, allow physicians to prescribe drugs that will end a terminally ill patient’s life. Oregon was the first to allow the practice, which was legalized via a ballot question that went into effect in 1997. Only one state – Montana – legalized medical aid in dying through a judicial ruling rather than through legislation or the ballot.
In Massachusetts, voters narrowly defeated a “death with dignity” ballot question in 2012, with 49 percent voting to allow medical aid in dying and 51 percent opposing it. The Legislature has consistently refused to bring similar measures up for a vote, although hearings have drawn passionate testimony. Another bill is pending this session.
The case raises a host of ethical, moral, and legal issues surrounding end-of-life care.
Attorneys for Kligler and Steinbach write in their brief that a doctor should not be found guilty of manslaughter for prescribing life-ending medication, which the patient chooses to take. “The patient causes their own death,” they wrote.
Kligler and Steinbach’s brief says 25 percent of end-of-life patients die with pain that cannot be controlled by narcotics. In some cases, doctors perform a legal and accepted practice called “palliative sedation” in which a terminally ill patient with uncontrolled pain is sedated into unconsciousness, then nutrition is withheld until the patient dies. This is not deemed “suicide,” and physicians who follow a patient’s directions to withhold treatment cannot be prosecuted.
Kligler and Steinbach argue that prescribing life-ending medication is not harming a patient. “Patients interested in [medical aid in dying] seek to avoid intolerable pain or unbearable suffering, and seek the peace of mind that MAID offers,” their attorneys wrote in a brief.
Healey and O’Keefe argue in their brief that the law prohibits physician-assisted suicide, the term commonly used by opponents of the practice, and unless the Legislature or voters change the law, they cannot commit to not prosecuting a physician who prescribes life-ending medication. They write that although the patient causes their own death, the doctor writing the prescription knows death is the likely outcome and can be held responsible.
They argue that there are many rational reasons the Legislature could choose to maintain the prohibition: the difficulty of determining a patient’s competence or prognosis; the availability of palliative care; the possibility of external pressures influencing a patient’s decision; views about maintaining the integrity of the medical profession; and the absence of standards of care for prescribing fatal medication.
Massachusetts’s four Roman Catholic bishops weighed in supporting the current law. They wrote that Kligler and Steinbach “are asking the Court to drastically alter the common law, which is a source of law that serves a prominent role in forming and influencing societal behaviors, morals, and norms.” Any change, they say, should be made by the Legislature after a “robust public debate over the competing values, morality, and worldviews,” not by judicial ruling.
The religious leaders argue that any effort to equate physician-assisted suicide with a right to refuse life-saving medical treatment, which is legal, “does not accord with the law or with the ethical norms applied in the healthcare field.”
Other organizations also weighed in, with Massachusetts Citizens or Life arguing that physician-assisted suicide “rejects society’s most foundational commitments,” devalues human life, fosters discrimination, and “will lead to euthanasia.”
A group of 20 disability rights groups filed a brief opposing a change in law. They wrote that there is already bias against people with disabilities in medical settings. They worry that legalizing assisted suicide “sends the false and harmful message that the lives of disabled people are intrinsically less valuable and worthwhile than the lives of people without disabilities, and that it is logical for them to want to end their lives.”
The disability rights groups argue that people who want to end their lives often have reasons intertwined with social stigma, isolation, or lack of access to disability-related services, and many of them would be better served by supportive care or treatment. They worry that patients would become subject to external or financial pressures – for example, if an insurer denies coverage for a life-sustaining treatment and a drug to aid in dying is cheaper.
The Massachusetts Medical Society and the Hospice and Palliative Care Federation of Massachusetts submitted a brief that did not take a position on whether medical aid in dying should be legalized but raised a range of complex issues that will need to be resolved if it is legalized.