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Court of Appeals hears arguments on physician-assisted suicide

ALBANY — Judges on New York’s top court voiced skepticism Tuesday about establishing a right to physician-assisted suicide while questioning how the state can ban that but allow a person to refuse medical treatment.

In oral arguments before the Court of Appeals, an advocacy group, “End of Life Choice New York,” along with some terminally ill patients and physicians asked the judges to view “aid in dying,” as the groups call it, as different from “suicide.” They say lower courts — which have ruled against them — have erred in applying a “dictionary definition of suicide” and upholding a century-old New York law against assisted suicide.

Judges’ questions during oral arguments aren’t always an indication of how they will rule ultimately. However, time and again several judges cited a 1997 U.S. Supreme Court ruling that upheld New York’s ban, saying it didn’t violate federal equal protection or due process rights. When Edwin Schallert, attorney for the plaintiffs, said the case was about “autonomy, liberty and free choices,” Court of Appeals judges cast doubt.

“Those arguments have been rejected by the Supreme Court,” Judge Michael Garcia said. “I’m having some trouble seeing the state constitutional road to the end you are seeking.”

Schallert contended the 1997 case, Quill v. Vacco, wasn’t “controlling” in determining the outcome of the lawsuit against the state. That prompted Judge Eugene Fahey to say: “You’ve really got to show me where in New York jurisprudence there is a basis for what you are saying.”

But the attorney for the state was challenged, too, at times during the roughly 30-minute proceeding. Specifically, Judge Jenny Rivera repeatedly burrowed in about how the state can allow “terminal sedation” — that is, allowing a terminally ill person to refuse treatment meant to prevent death while accepting medication to ease pain — but outlaw assisted suicide.

“I find the state’s argument extremely compelling until we get to terminal sedation,” Rivera told deputy solicitor general Anisha Dasgupta. What is the state’s interest in outlawing one action when, in the end, a terminally ill person will die anyway, Rivera asked.

Dasgupta said there was a distinction between the two, that there was no “constitutional right” to suicide and that “this court would have to create it out of whole cloth” to upend the state ban.

In contrast to Rivera, Judge Leslie Stein wondered: “Haven’t we made a clear distinction between refusing treatment and aiding or assisting suicide?”

The lawsuit was filed by a coalition in 2015 led by three patients with terminal diagnoses. Steve Goldenberg, who has since died of HIV-related illness; Sara Myers, who has since died of amyotrophic lateral sclerosis, or Lou Gehrig’s disease, and Eric Sieff, who is still being treated for cancer.

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