Last rights

Doctors aren’t judges. Judges base their decisions on legal precedent.

Doctors who treat individual patients decide on a case-by-case basis what treatment, what course of action would best serve the patient.

We were struck last week by the profiles our reporter Elizabeth Floyd Mair wrote of two local doctors who are fighting for legislation that would let terminally ill patients have more control over how and when they die.

Margaret Craven Snowden of New Scotland, a retired obstetrician and gynecologist, believes that birth and death are part of one natural cycle. When a terminally ill patient determines his suffering is “simply unacceptable,” he should have a way out when all else fails, she said.

Dr. Mary Applegate of Delmar, with a career in public health, described the death of a close friend with amyotrophic lateral sclerosis, or ALS. As he steadily declined and was aware of the worse to come, he brought on his own death in the only way legally open to him in New York. “He starved himself to death,” said Applegate, which was “awful for him and even more awful, I think, for his family.”

We’ve written in this space for years about the need for legislation in New York that would allow doctors to prescribe for their terminally ill, mentally competent patients the relief they seek when life becomes intolerable.

Based on a New York State case, Vacco v. Quill, which the United States Supreme Court ruled on in 1997, as a matter of law, there is no constitutional guarantee of a “right to die.” This is why states have to make their own laws.

In the 1990s, a number of New York doctors had challenged the New York’s law that makes it a crime for a doctor to administer lethal medication to end a patient’s life, even a patient who is terminally ill, mentally competent, and wants to die.

The Supreme Court’s decision was based on the legal tradition of looking to a person’s intent to distinguish between two acts with the same consequence. The court determined that a doctor who withdraws life support lets a person die, while a doctor who prescribes lethal medication kills a patient.

Last year, New York’s top court, the Court of Appeals, heard another important case on the issue, Myers v. Schneiderman. Three patients — two of them terminally ill who have since died and the third who was undergoing cancer treatment and is currently in remission — wanted the court to declare a constitutional right to “aid-in-dying,” which they defined as the right of a mentally competent and terminally ill person to obtain a prescription for a lethal dosage of drugs from a physician, to be taken at some point to cause death.

“Although New York has long recognized a competent adult’s right to forgo life-saving medical care, we reject plaintiffs’ argument that an individual has a fundamental constitutional right to aid-in-dying as they define it,” the court decided. “We also reject plaintiff’s assertion that the State’s prohibition on assisted suicide is not rationally related to legitimate State interests.”

Five of the Court of Appeals judges concurred and two took no part. Of the five concurring judges, three wrote opinions. We found Judge Jenny Rivera’s opinion compelling. She believes that for terminally ill patients wanting to die, the state’s interest lacks constitutional force. She notes that New York sanctions terminal sedation in which dying patients are drugged to control pain, hastening their death.

Rivera also writes about the plaintiffs as individuals, looking at them, for a moment, the way a doctor might. One of the plaintiffs, she writes, was 60 years old and suffered from ALS, a neurodegenerative condition without a cure. “As the disease took hold, she was in constant pain and ‘fe[lt] trapped in a torture chamber of her own deteriorating body,’ fully aware of all that was transpiring to her physically and, worse yet, that the agonizing pain would persist for the rest of her days. She sought relief in the form of prescription medications that she could ingest ‘to achieve a peaceful death.”

Another patient, at 55, was terminally ill with AIDS. Rivera details his many ailments, and notes he took more than two dozen medications whether through his feeding tube or by injection, sleeping 19 hours a day, and spending most of his five waking hours “cleaning and maintaining his feeding and oxygen tubes, and taking his daily medications and injections.” He, too, sought a “peaceful death.”

The third plaintiff, Eric Seiff, in his 80s and undergoing cancer treatment, she wrote, “states he want ‘to be sure that if the cancer progresses to a terminal state, and he finds himself in a dying process he determines to be unbearable, he has available to him the option of aid-in-dying.’”

“I arrived at this fairly early,” Seiff, a lawyer, told Floyd Mair of his view. “When I was in college, my mother went through an excruciating experience, and I know that I’m not alone in having viewed this kind of awful, lingering death. And it just seemed to me that, at the end of the day, this is the most important human decision that one can make, and therefore should be entitled to make.”

Rivera writes in her six-page opinion that while, according to prior case law, the right of a patient, in general, does not “encompass an unrestricted right to assisted suicide,” the state’s position that its interests are always superior to and outweigh the rights of the terminally ill may not predominate when “patients are facing an impending painful death.”

She also writes that the state’s argument that “a dichotomy between active and passive physician conduct differentiating aid-in-dying from other sanctioned end-of-life  treatments” is unpersuasive. Rivera quotes a doctor saying, “[T]here is nothing psychologically or physically passive about taking someone off a mechanical ventilator who is incapable of breathing on his or her own.”

She goes on, “Second, the withdrawal of nourishment is anything but passive, as patients without an underlying disease die if they are prevented from eating and drinking. Third, and in contrast, the physician’s role in aid-in-dying is ‘passive’ in a practical sense, for it is the patient who administers the lethal medication, often spatially and temporally distant from the moment the physician provided the prescription.”

Rivera also disagrees with her colleagues’ citing of Vacco v. Quill that intent or purpose distinguishes between the two acts, letting a patient die as opposed to killing a patient. “This is irrelevant,” she writes, “because in every case involving individual liberty, the constitutional question turns on the nature and expanse of the patient’s right to autonomy and bodily integrity as weighed against the State’s interest, not the intent of a third party who assists the patient in receiving the proper medical treatment.”

Finally, Rivera writes, “The State’s other argument, that aid-in-dying undermines the integrity and ethics of the medical profession as it is incompatible with the physician’s role as a healer, is not uniformly accepted and is contradicted by the experiences of some medical professionals.” She goes on to cite supportive briefs submitted by various medical organizations.

Her opinion concludes, “Our State constitution protects the rights of these terminally-ill patients to make the deeply personal choice of how they define and experience their final moments.”

We believe Judge Rivera is right. That is why we support the bills our story outlined last week.

A doctor can see the pain and suffering of her individual patients and understands that the Hippocratic Oath says, “First, do no harm.” It can be harmful to allow people who are going to die to continue to suffer, to not be allowed “to make the deeply personal choice” of how and when and with whom they want to die.

New York can and should join the other six states and the District of Columbia in allowing its doctors not to be criminalized for helping their terminally ill patients.

A poll last month showed that nearly two-thirds of New Yorkers support medical aid-in-dying.

The growing hospice movement and the decade-old Medical Orders for Life-Sustaining Treatment form, known as MOLST, which allows New Yorkers to specify, with their doctors, what medical intervention they do or do not want, are steps in the right direction.

But anyone who has watched someone they love refuse medication and refuse food and drink until they are dead knows the state needs this law.

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