ALBANY — New York’s highest court will hear arguments Tuesday in a lawsuit that seeks to effectively undo the state’s statute against physician-assisted suicide.
An advocacy group, “End of Life Choice New York,” along with some terminally ill patients, and physicians, lawyers and the New York Civil Liberties Union, will ask the Court of Appeals 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.”
The advocates are pressing the lawsuit at the same time they are intensely lobbying state legislators to change the law this year to allow physician-assisted suicide.
On the other side, Attorney General Eric T. Schneiderman’s office will defend state law that makes “promoting a suicide attempt” — defined in part as intentionally causing or aiding another person to attempt suicide — a felony. The New York State Catholic Conference and “Not Dead Yet,” a group of disability activists, are among those that have filed legal briefs in the case supporting the current state ban.
Two lower courts have upheld the state law. The courts said that the “straightforward meaning” of the word “suicide” applies to “aid in dying.”
“Whatever label one puts on the act that plaintiffs are asking us to permit, it unquestionably fits that literal description, since there is a direct causative link between the medication proposed to be administered by plaintiff physicians and their patients’ demise,” the Appellate Division, New York’s midlevel appeals court ruled.
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 being treated for cancer.
The group also includes three doctors who were the plaintiffs in a 1997 U.S. Supreme Court case that unsuccessfully challenged New York’s ban. The nation’s top court ruled the prohibition didn’t violate federal equal protection or due process rights. Six states have approved physician-assisted suicide, including neighboring Vermont.
Proponents use the phrase “aid in dying” and say that it is different from suicide, which they view as “cutting short a life of uncertain duration.”
“This is a case about mentally competent, terminally-ill New Yorkers. They are not making a choice between continuing to live or die,” Kathryn Tucker, executive director of End of Life Choices, New York, said in an interview. “It’s really a privacy-liberty-autonomy argument first.”
The Catholic Conference calls the attempt by advocates to reframe the debate “verbal engineering.” In briefs submitted to the court, the conference said the state law couldn’t be any clearer in outlawing the act of “intentionally . . . aids another person to commit suicide.” Further, it noted that advocates’ definition of “aid in dying” underscores that “the physician is directly in the line of causation that brings about a patient’s death.”
Not Dead Yet contends, among other arguments, that terminal prognoses for patients can be mistaken and that overturning the ban could erode “long-standing protections of old, ill and disabled people.”
The case will be argued before a shorthanded Court of Appeals, which will have just five judges hearing the case. Chief Judge Janet DiFiore must recuse herself because the original lawsuit, besides naming the state, named her in her former capacity as Westchester County district attorney (along with four other prosecutors). Further, the court has one vacancy following the April death of Judge Sheila Abdus-Salaam.