New Lawsuit Could Make N.Y. 6th State Where Doctors Can ‘Aid in Dying’

Sara Myers isn’t suicidal, but she wants to choose when to die. Four years ago, doctors diagnosed Myers, 60, with amyotrophic lateral sclerosis, better known as ALS or Lou Gehrig’s disease, which typically kills those who have it in three to five years.

“Each day I become more and more dependent on the assistance of others,” Myers told reporters gathered around a conference table at a midtown Manhattan law office Wednesday. Largely paralyzed, she cannot feed herself, and she expects to soon lose the ability to speak and breathe without a machine. What she wants, Myers said, is “a peaceful and dignified death, at the time and place of my choosing.”

Myers is one in a group of patients and doctors challenging the New York penal code’s so-called “Assisted Suicide Statute” in a lawsuit filed Wednesday against New York state. The nine plaintiffs argue that a doctor who provides life-ending medication to a terminally ill, mentally competent patient should not face manslaughter charges, as the penal code currently mandates.

Lawyers at the firm Debevoise & Plimpton LLP and advocates with the groups Disability Rights Legal Center and End of Life Choices New York (EOLCNY), which is listed as a plaintiff, announced Wednesday morning that they had filed the suit in New York State Supreme Court. “No dying person should have to endure more suffering than he or she is willing to endure,” EOLCNY Executive Director David Leven said at the press conference.

Under the existing statute, said lawyer Kathryn L. Tucker, patients “find themselves trapped in a dying process that they find unbearable.”

Another plaintiff, New York City resident Steve Goldenberg, 55, has been living with AIDS for two decades and is now dying from complications. “I have fought the debilitating disease with all my strength,” he said. “I’m not ready to die yet...but I do see the day coming when I will no longer have the strength to fight my numerous ailments.” When that time comes, Goldenberg says, he wants the choice to be in control of his death.

The defendants in the case are New York State Attorney General Eric Schneiderman and district attorneys in Westchester, Monroe, Saratoga, Bronx and New York counties, where the plaintiffs reside or practice.

End-of-life advocates and other health professionals prefer the term “aid in dying” to “assisted suicide” because, they argue, terminally ill patients do not necessarily want to die and are not suicidal.

Should the state supreme court decide in favor of the plaintiffs, New York could become the sixth state where doctors can prescribe medication to qualifying patients in order to induce death, joining Oregon, Washington, Montana, Vermont and New Mexico. It may not stay this way, however. In New Mexico last week, lawyers began the appeals process to overturn a 2014 decision there to legalize a doctor’s right to help patients in this way.

Oregon was the first state to legalize the practice, in 1994. Some 700 people there have chosen to end their lives with a doctor’s help. The 2011 documentary How to Die in Oregon chronicles a patient in the state as she goes through the process of deciding to end her life.

At the federal level, a 1997 Supreme Court case, in which Dr. Timothy Quill was the lead plaintiff and Tucker was counsel, left the decision up to the states. Quill is now a plaintiff in the New York case.

The “Assisted Suicide Statute”—officially New York Penal Law 120.30 and 125.15—states that intentionally causing or aiding someone to “attempt” suicide or “commit” suicide is a crime. The plaintiffs in this case are challenging that law on the grounds that the term suicide should not apply to a doctor aiding in a terminally ill patient’s death and that such equating denies the patient’s right to equal protection and privacy.

Tucker argues that lawmakers never intended for the statute to include doctors treating patients as they do today, when treatments sometimes prolong the dying process. “I hope the court will say, ‘We’re not going to stretch the statute to apply to something that’s not mentioned,’” Tucker told Newsweek following the press conference.

The plaintiffs also argue that the right to administer “aid in dying” would be exercised only sparingly. At the press conference, Leven, the EOLCNY executive director, said that when adjusted for New York’s population, data from Oregon suggest that some 200 to 300 New Yorkers per year would likely choose to end their lives with the help of a doctor.

On the legislative side, last month New York State Assemblywoman Linda Rosenthal introduced the Death With Dignity Act, which has been referred to the Health Committee.

“Each state has a somewhat different constitution,” Tucker told Newsweek, adding, “I hope [the jury] will look to the New Mexico and Montana decisions. We will certainly be citing them and talking about them.”

“Aid in dying” advocates have previously challenged state and federal laws. In 2005, disabled protesters gathered outside the U.S. Supreme Court during one such case.REUTERS

Tucker served as lead counsel for the patients and physicians in the 1997 U.S. Supreme Court case and participated in the New Mexico and Oregon cases that resulted in changes to statutes there. She also helped develop aid in dying campaigns in Washington and Vermont, where permission for doctors came through legislation, not court cases.

According to the group Compassion and Choices—the New York chapter of which became EOLCNY—the debate over aid in dying dates back to 1967, when end-of-life advocates tried to introduce legislation in Florida but were unsuccessful. The issue returned to the headlines last November, after a terminally ill woman named Brittany Maynard had to move from California to Oregon in order to end her life. She had become an activist for end-of-life choices.

One frequent critic of the end-of-life choice movement, University of Chicago medicine and ethics professor Daniel Sulmasy, says the new case is unsurprising given the previous campaigns, many of which have “the same cast of characters” recycling arguments. “This has been a political strategy on the part of Compassion and Choices since the U.S. Supreme Court decided there was no federal constitutional right to assisted suicide,” Sulmasy says. “The basis for it I think, from my view, is very weak.”

Sulmasy and other critics often point to a line in the Hippocratic Oath that states, “I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect.”

According to the complaint that lawyers filed Wednesday, Myers, the plaintiff, “feels trapped in a torture chamber of her own deteriorating body” and is “functionally paralyzed.” While reading her statement from her motorized wheelchair, Myers alternated between making lighthearted comments and holding back tears. “I hate this,” she said, becoming choked up while speaking about loved ones. A moment later she joked, “I should have taken a Xanax.”

Myers later told Newsweek that she hasn’t thought of where, given the opportunity, she wants to be when ending her life. But she said she had “a handful of people” in mind whom she would like to be present.

Goldenberg, who spoke with physical difficulty and, according to the court complaint, takes more than 24 medications and sleeps about19 hours per day, told Newsweek he wants his sister, partner and dog with him in his final moments.