Issue link: https://viewer.e-digitaledition.com/i/982001
Updates on AID-IN-DYING in New York BY TAMMY R. LAWLOR, ESQ. Tammy R. Lawlor, Esq. THE UNITED STATES Supreme Court defers to states to pass laws regarding the health and safety of its citizens. The Supreme Court says that although there is no constitutional right to aid- in-dying, states may pass legislation allowing it, if properly regulated by reasonable precautions intended to prevent abuse of the process. New York's highest Court ruled in Sara Myers, Eric A. Seiff v. Eric Schneiderman (Sept. 2017), that terminally ill people do not have a state constitutional right to physician-assisted suicide. The decision made it clear that state law prohibits anyone, including doctors, from assisting in suicide. The plainti€s in the case were three terminally ill patients, along with several physicians, and end of life choices. The plainti€s sought the authority to allow doctors to prescribe lethal doses of drugs to mentally competent and terminally ill patients. The case was filed against the New York Attorney General and sought an injunction to ban the prosecution of physicians who wrote prescriptions for life ending drugs to terminal patients. The plainti€s claimed that the prohibition of physicians prescribing such medication denied them their constitutional rights. They further clarified that this law denied them their Due Process and Equal Protection rights. The Court's response to the plainti€s' Equal Protection claim was that, "no one is permitted to assist in a suicide." Since this prohibition applies equally to all, the Court determined that there was no Equal Protection violation. The plainti€'s due process argument claimed that the prohibition against physician-assisted suicide interfered with their "funda- mental right to self-determination and to control the course of their medical treatment encompasses the right to choose aid-in-dying." The plainti€s likened their request to the long-standing right to refuse medical treatment, even when such refusal would certainly result in death. The Court distinguished between the existing right to withdraw or refuse medical treatment and the plainti€'s asserted right to a®rmatively seek out life-ending medication. In light of this most recent decision from New York's highest Court, the only way aid-in-dying will move forward in New York is through legislation. There is proposed legislation currently pending (Senate Bill S3151 A) that wa s recently a mended and recommitted to the Committee on Hea lth. The proposed legislation outlines that the physician's role in the process is to consult with a termina l patient and counsel the patient about their options. Then, if the patient wishes to proceed with the process, the physician's role is to write a prescription for medications that the patient must self-administer. Under the proposed leg islation, the role of the physicia n is to determine that the patient ha s a termina l illness, has capacity a nd is acting volunta rily. The patient must ma ke a n ora l a nd written request to the physicia n. The patient a nd two witnesses must sig n the written request. The physicia n ca n not act a s a w itness to t he request . The physicia n is responsible for ver i f y i n g t hat t he choice is f ree a nd not coerced, a nd therefore willful a nd volunta r y. The physicia n writes the prescription, but does not provide the medication nor does he administer the dose. W here a id-in-dying is lega l, physicia ns a re not required to pa r ticipate in the process a nd ca n decline involvement. In the United States, seven jurisdictions currently permit a id-in-dying. These jurisdictions include Oregon, Washing ton, Montana, Vermont, Ca lifornia, Colorado and most recently Washing ton D.C. Ma ny a nticipate that New York may be one of the nex t states to adopt a id-in-dying leg islation. Tammy R . Lawlor, Esq., is a Partner at the Law Fir m of Miller & Milone, P.C. Ms. Lawlor is a graduate of the Hofstra University School of Law and was admitted to the New York S tate B ar in 19 97. S h e al so h ol d s a Ma ste rs of B u s in ess Administration , specializing in Finance. She is currently the Secretary for NY NA EL A , and is Vice Chair of the Legislation Committee for the Elder Law Section of the N YSBA . ■ 2 4❱❱❱❱❱ M E D I C A L L E G I S L A T I O N 2 4