Massachusetts Supreme Judicial Court: Aid in dying not a protected constitutional right

By Chris Lisinski

DEC. 19, 2022…..The state’s high court ruled Monday that the Massachusetts Constitution does not protect a doctor providing medication to end the life of a terminally ill patient and that such an action could be prosecuted as manslaughter, offering a long-awaited decision that may ramp up pressure on lawmakers to take a definitive stance on the issue.

Six years after a patient with stage 4 cancer and a doctor sued seeking a declaration that physicians can legally prescribe medication to bring about a terminally ill patient’s death, justices on the Supreme Judicial Court said they could not conclude that such a practice “ranks among those fundamental rights protected by the Massachusetts Declaration of Rights.” The court found that “the Massachusetts Declaration of Rights does not reach so far as to protect physician-assisted suicide.”

The unanimous decision said case law indicates a doctor providing a patient with a prescription intended to bring about their death “may be considered wanton or reckless behavior,” meeting the definition of involuntary manslaughter, and judges called a physician’s intent to end suffering with such medication “irrelevant.”

Justices left an opening, however, for lawmakers to take action on the topic — which voters rejected at the ballot box a decade ago — after years of holding hearings without advancing a bill for a vote.

“We respect the immense magnitude of all end-of-life decisions and acknowledge the overwhelming importance of the desire to conclude one’s life in a way that is painless, peaceful, and consistent with one’s values,” Justice Frank Gaziano wrote in a 64-page ruling. “Our decision today does not diminish the critical nature of these interests, but rather recognizes the limits of our Constitution, and the proper role of the judiciary in a functioning democracy.”

“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 added. “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.”

Gov.-elect Maura Healey on Monday voiced support for legalizing some form of the practice without detailing any lines she would not cross or guardrails she sees as necessary.

“Maura supports legislative action to allow medical aid in dying, provided it includes sufficient safeguards for both patients and providers,” Healey spokesperson Karissa Hand said in a statement on Monday. “She will review any legislation that reaches her desk as Governor.”

Healey, who is currently attorney general, and outgoing Cape and Islands District Attorney Michael O’Keefe were named as defendants in the lawsuit prompting the case. The SJC’s ruling said both prosecutors have neither “expressed an affirmative intention to prosecute” the plaintiffs nor “declined to commit not to prosecute those who engage in physician-assisted suicide.”

The court declared that Roger Kligler, a former physician who has metastatic prostate cancer but has not yet received a “six-month prognosis,” should be dismissed as a party from the case. It upheld a Superior Court judge’s order finding that the criminalization of the practice did not violate the equal protection and due process rights of the other plaintiff, Dr. Alan Steinbach, who has said he would like to provide aid in dying to terminally ill patients but does not out of fear of legal consequences.

“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.”

The SJC in its ruling repeatedly used the term “physician-assisted suicide” to describe the practice. In a footnote, Gaziano noted that plaintiffs prefer “medical aid in dying,” and he wrote that the American Medical Association’s Council on Judicial and Ethical Affairs believes “physician-assisted suicide” better serves “ethical deliberation and debate.”

“The vast majority of cases and statutes to have addressed the issue to date in other jurisdictions also use the phrase ‘physician-assisted suicide,'” Gaziano wrote in a footnote.

Justice Scott Kafker did not take part in the decision. While the court’s six other judges were involved, some penned their own supplemental analyses that could fuel additional debate.

In a concurring 16-page opinion, Justice Elspeth Cypher said she agreed that the right the plaintiffs proposed “finds no support in the relevant provisions of our State Constitution” while pointing out that past cases upheld a patient’s right not to be kept alive by artificial means such as a feeding tube.

Cypher also noted that Massachusetts allows physicians to practice “terminal sedation” when a terminally ill patient is close to death and must be made unconscious to “provide complete relief.”

“I would go so far as to argue that, from a legal standpoint, terminal sedation requires more direct action on the part of the attending physician to facilitate patient death than does physician-assisted suicide,” Cypher wrote.

Justice Dalila Argaez Wendlandt wrote another nine-page opinion partially concurring and partially dissenting, which Chief Justice Kimberly Budd joined in part, in which she agreed with the court that there is no “fundamental right” for offering aid in dying.

But Wendlandt, with Budd’s support, also argued that “the application of criminal laws to physician-assisted suicide will not always pass constitutional muster.”

“In particular, when a terminally ill, mentally competent patient approaches the final stage of the dying process, accompanied by unbearable pain that cannot be alleviated by palliative care short of sedation to unconsciousness, the rational basis calculus necessarily changes,” she wrote, later adding that as a patient approaches death, there is “no meaningful distinction between physician-assisted suicide and palliative sedation to unconsciousness followed by withdrawal of nutrients so as to cause dehydration and starvation.”

“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.

Wendlandt also gestured at the lawmaking process as the proper arena for decisions about the practice.

“There is no disenfranchised group that needs constitutional protection by this court, or who cannot advocate zealously and fairly for the ability to die as they please,” she wrote. “Rather, every one of us is free to vote and encourage our legislators to enact laws, and to craft appropriate procedural safeguards, with respect to one of the only human experiences that will affect us all. As such, the asserted right ought to be left to the democratic process.”

Ten other states and Washington, D.C. have laws in place allowing doctors to provide life-ending medication to terminally ill patients, but repeated efforts to legalize the practice in Massachusetts have been unsuccessful.

In 2012, voters narrowly rejected a ballot question 51.1 percent to 48.9 percent that would have allowed licensed physicians to fulfill a patient’s request for prescription medicine to end the life of a mentally capable adult diagnosed with a terminal illness likely to cause their death within six months.

A version of a similar bill has been filed during every legislative session since 2008. Legislative committees have convened packed, emotionally charged hearings about the topic, but top Democrats have never brought a bill forward for a vote in either the House or Senate.

Spokespeople for House Speaker Ronald Mariano and Senate President Karen Spilka did not respond to requests for comment Monday.

Supporters of the reform said Monday they are disappointed in the high court’s decision but plan to continue advocating for action in the Legislature.

“This ruling is a very unfortunate but temporary setback for terminally ill adults in Massachusetts who desperately need this option now,” said Kevin Díaz, chief legal advocacy officer for Compassion & Choices, in a statement. “This paves the way for Massachusetts lawmakers to pass medical aid-in-dying laws because more than three-quarters of state residents (77%) support it, so we are very optimistic about the prospects of the law’s passage in the future.”

The Alliance Defending Freedom, a group that filed an amicus brief opposing aid in dying, cheered the ruling, saying that it “upheld the commonwealth’s long established legal tradition of protecting the dignity of every human life until natural death.”

“Physician-assisted suicide radically degrades the practice of medicine,” said ADF Senior Counsel Chris Schandevel. “Patients should be able to trust their doctors to support and care for them. Offering terminally ill or disabled patients a ‘quick exit’ through death-inducing drugs destroys that trust.”