THE STATE’S HIGHEST COURT on Wednesday heard oral arguments in an emotional and high-stakes case over whether a physician can prescribe lethal medication to a terminally ill patient. Several Supreme Judicial Court justices appeared skeptical of the claim that the judiciary, rather than the Legislature, is the proper forum to legalize medical aid in dying. But others suggested that maybe it is time for the judiciary to establish a new interpretation of the law – as the court did with gay marriage.
“Common law evolves,” said Justice Serge Georges while questioning Assistant Attorney General Maria Granik, who was defending the current prohibition. “One hundred years ago you were forced to die this painful death and that’s all we could expect for you. But we’ve advanced in medical care.” If a terminally ill patient wants to die on his own terms in his own home, Georges asked, “What interest does government have in telling him we’re not going to let you end your life on your terms, we want you to end it on ours?”
Six justices heard the case, with Justice Scott Kafker recusing himself.
The case was brought by Roger Kligler, a retired physician from Falmouth with stage 4 metastatic prostate cancer, and Dr. Alan Steinbach, a doctor who treats terminally ill patients. They are suing Attorney General Maura Healey and Cape and Islands District Attorney Michael O’Keefe.
Kligler wants to be allowed to obtain a prescription to end his life, and Steinbach wants to write lethal prescriptions for terminally ill patients. They argue that it is unconstitutional to apply criminal manslaughter charges to a physician who prescribes a terminally ill patient medication that the patient can use to end their life.
“Dr. Kligler faces the very real prospect he’ll experience an unbearably painful death when he reaches the final stage of his illness,” said Kligler’s attorney, John Kappos. “He wants a prescription for medical aid in dying that will allow him to peacefully and painlessly pass if his suffering becomes overwhelming.”
Healey and O’Keefe argue that the law is clear in prohibiting medical aid in dying, and absent a legislative change, they cannot commit to not prosecuting a doctor who prescribes life-ending medication to a terminally ill patient.
“The policy discussion about the pros and cons of legalization properly belongs in the Legislature, where it’s currently taking place,” Granik said.
Granik said there is no reason anyone should die a painful death. “In this state, excellent palliative care is available to many people,” she said. “Unfortunately, not all people and not all the time, but there are various ways in which patients at the end of life can access pain relief.”
Today, 10 states and Washington, DC, allow physicians to prescribe drugs that will end a terminally ill patient’s life. Only one – Montana – legalized the practice through a judicial ruling, rather than legislation or a ballot question.
A major question before the court is whether the SJC should sanction a major policy shift that both voters, in a 2012 ballot question, and the Legislature have not taken.
The standard used in other states where the practice is legal is that a terminally ill patient must have six months or less to live to obtain a lethal prescription. Justice Frank Gaziano questioned Kappos about how a doctor could be held liable for involuntary manslaughter for prescribing lethal medication to someone with eight months left to live, but not if they have six months to live. If the court were to make that ruling, Gaziano said, “This seems a lot like legislating to me.”
“The Legislature hasn’t spoken one way or another,” Kappos said, to which Gaziano replied, “That’s the problem.”
Justice Elspeth Cypher interjected that actually, the Legislature has spoken. “They rejected similar bills five times,” Cypher said.
Kappos said the Legislature could still act in the future, but in the meantime, “This court is best positioned to clarify what the law is on involuntary manslaughter.”
Some justices questioned whether this might be an issue where the law is evolving – similar to women’s rights or gay marriage, which the Supreme Judicial Court legalized before the Legislature. “How do you take into account that now 10 states recognize that right, that the history is changing?” Justice Dalila Wendlandt asked Christopher Schandevel, an attorney representing the Connecticut-based Euthanasia Prevention Coalition USA, who argued that bans against physician-assisted suicide, the term used by opponents of the practice, are “deeply rooted in our history and tradition.”
Schandevel said there is a difference between physician-assisted suicide and gay marriage, since the latter was about a fundamental right denied to a particular class of people, raising discrimination issues.
While a legislative debate would hinge on the merits and dangers of the policy, the arguments in court hinge on legal technicalities that can lead to uncomfortable analogies. In determining how the law treats someone who causes another person’s death, Gaziano quizzed Kappos on why the law would be different for a physician prescribing lethal medicine than a drug dealer selling heroin that causes an overdose – a case where the court ruled the drug dealer is guilty of involuntary manslaughter.
After Kappos noted that the intentions of the drug dealer and the doctor are different, Justice David Lowy said that is a public policy distinction, not a legal one. “It’s dramatically different, but we’re analyzing the elements of a common law crime, not whether the Legislature should take that difference into account,” Lowy said.
Several justices and attorneys also raised comparisons between medical aid in dying and abortion. Kappos suggested that court precedent on abortion established a right to medical care as a “fundamental liberty and privacy right.” Lowy responded that abortion is different because there is a constitutional right to abortion recognized by the Supreme Court, since a state cannot compel a woman to give birth. But Georges later raised the issue of abortion again, musing whether the court can establish a right to medical aid in dying and leave it to the Legislature to craft the details – as was done with abortion.
Arguments also delved into the moral issues. Cypher quizzed Granik whether the basis for prohibiting assisted suicide is religious. Granik said the state has an interest “in protecting the life of all its citizens.” “This isn’t grounded in a religious worldview or a moral or ethical judgment about suicide,” Granik said.
Cypher pressed the issue of the state’s interest further in questioning Schandevel. “What interest does government have in the doctor having a painful death?” Cypher asked.
Schandevel responded, “Government has an interest in making sure all human life is protected.”
The justices also questioned how prescribing lethal medication is different from existing palliative care practices, which can include sedating a terminally ill patient who is in uncontrollable pain, then denying them nutrition until they die. Lowy called the distinction “blurry.”
Granik said consent for medical treatment is required to avoid non-consensual invasion of a person’s bodily integrity. Withholding or stopping that treatment is different from writing a lethal prescription, which she called “a radical expansion of the privacy and liberty interest involved.”
Georges quizzed Schandevel about the humanity of not allowing the law to evolve so Kligler can control his own death and avoid being “in an opiate induced stupor in palliative care.” “Do you not see the paternalistic part of this?” Georges asked. “As he’s dying in a way he doesn’t want to, the only interest that seems to be articulated here is ‘because we feel better about the fact that you can’t do that.’”