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Myers v. Schneiderman

New York Court of Appeals

September 7, 2017

Sara Myers et al., Plaintiffs,
Eric Schneiderman, & c., Respondent, et al., Defendants. Eric A. Seiff, et al., Appellants,

         Michael R. Aiello, et al.; New York State Catholic Conference; Not Dead Yet, et al.; New York Civil Liberties Union; Alan A. Pfeffer et al.; Agudath Israel of America; New York Chapter of the National Academy of Elder Law Attorneys; American Medical Student Association, et al.; Richard N. Gottfried, et al.; Betty Rollin, et al.; National Association of Criminal Defense Lawyers; Vincent Bonventre, et al.; Unitarian Universalist Association, et al.; Compassion & Choices, amici curiae.

          Edwin G. Schallert, for appellants.

          Anisha S. Dasgupta, for respondent.


          PER CURIAM.

         Plaintiffs ask us to declare a constitutional right to "aid-in-dying, " which they define (and we refer to herein) 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. We also reject plaintiffs' assertion that the State's prohibition on assisted suicide is not rationally related to legitimate state interests.


         Plaintiffs filed the instant action against New York State's Attorney General and several District Attorneys, [1] requesting declaratory and injunctive relief to permit "aid-in-dying, " whereby a mentally competent, terminally ill patient may obtain a prescription from a physician to cause death. Plaintiffs request a declaratory judgment that physicians who provide aid-in-dying in this manner are not criminally liable under the State's assisted suicide statutes - Penal Law § 120.30 and § 125.15 (3) [2]. They further request an injunction prohibiting the prosecution of physicians who issue such prescriptions to terminally ill, mentally competent patients.

         When the complaint was filed, plaintiffs included three mentally competent, terminally ill patients. Two of those plaintiffs have died, and the third is in remission. Plaintiffs also include individual medical providers who assert that fear of prosecution has prevented them from exercising their best professional judgment when counseling and treating their patients. They are joined by organizational plaintiff End of Life Choices, which sued on its own behalf and on behalf of its clients, for whom it provides "information and counseling on informed choices in end of-of-life decisionmaking."

         The Attorney General moved to dismiss the complaint on the grounds that plaintiffs failed to state a cause of action and did not present a justiciable controversy (see CPLR 3211 [a] [7], [2]). Supreme Court granted the motion, and plaintiffs appealed. The Appellate Division modified on the law, declaring that the assisted suicide statutes provide a valid statutory basis to prosecute physicians who provide aid-in-dying and that the statutes do not violate the State Constitution, and as so modified, affirmed (140 A.D.3d 51, 65 [1st Dept 2016]). Plaintiffs appealed to this Court as of right, pursuant to CPLR 5601 (b) (1).

         On appeal, plaintiffs argue that the State's assisted suicide statutes do not prohibit aid-in-dying as a matter of law, and that the Appellate Division's "literal" interpretation of the statutes is flawed. Alternatively, plaintiffs contend that application of the assisted suicide statutes to aid-in-dying violates their equal protection and due process rights under the State Constitution.


         "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994], citing CPLR 3026). "We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (id.). "However, 'allegations consisting of bare legal conclusions, as well as factual claims inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration'" (Simkin v Blank, 19 N.Y.3d 46, 52 [2012], quoting Maas v Cornell Univ., 94 N.Y.2d 87, 91 [1999]; see Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142-143 [2017]).

         We reject plaintiffs' argument that the lower courts improperly resolved numerous factual issues. This case involves questions of law, including: whether aid-in-dying constitutes assisted suicide within the meaning of the Penal Law; whether a competent terminally ill person has a fundamental right to physician-assisted suicide; and whether denying a competent, terminally ill patient aid-in-dying violates that patient's right to equal treatment under the law. As there are no countervailing reasonable interpretations, these questions can be decided without any factual development.


         Plaintiffs initially assert that we should interpret the assisted suicide statutes to exclude physicians who provide aid-in-dying. Such a reading would run counter to our fundamental tenets of statutory construction, and would require that we read into the statutes words and meaning wholly absent from their text (see Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 583 [1998]).

         "The governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used" (People v Finnegan, 85 N.Y.2d 53, 58 [1995] [internal quotation omitted]). "[C]ourts may not reject a literal construction [of a statute] unless it is evident that a literal construction does not correctly reflect the legislative intent" (Matter of Schinasi, 277 NY 252, 259 [1938]).

         "Suicide" is not defined in the Penal Law, and therefore "we must give the term its ordinary and commonly understood meaning" (People v Ocasio, 28 N.Y.3d 178');">28 N.Y.3d 178, 181 [2016] [internal quotations omitted]). Suicide has long been understood as "the act or an instance of taking one's own life voluntarily and intentionally" (Webster's Collegiate Dictionary [11th ed 2003]; see Webster's American Dictionary of the English Language [ed 1828]). Black's Law Dictionary defines "suicide" as "[t]he act of taking one's own life, " and "assisted suicide" as "[t]he intentional act of providing a person with the medical means or the medical knowledge to commit suicide" (10th ed 2014). Aid-in-dying falls squarely within the ordinary meaning of the statutory prohibition on assisting a suicide.

         The assisted suicide statutes apply to anyone who assists an attempted or completed suicide. There are no exceptions, and the statutes are unqualified in scope, creating an "irrefutable inference... that what is omitted or not included was intended to be omitted or excluded" (People v Jackson, 87 N.Y.2d 782, 788 [1996] [internal quotation omitted]). Furthermore, this Court previously resolved any doubt as to the scope of the ban on assisted suicide. In People v Duffy, we explained that "section 125.15 (3)'s proscription against intentionally causing or aiding a suicide applies even where the defendant is motivated by 'sympathetic' concerns, such as the desire to relieve a terminally ill person from the agony of a painful disease" (79 N.Y.2d 611, 615 [1992], citing Staff Notes of the Commission on Revision of the Penal Law, Proposed New York Penal Law, McKinney's Spec. Pamph. [1964], at 339).

         As written, the assisted suicide statutes apply to a physician who intentionally prescribes a lethal dosage of a drug because such act constitutes "promoting a suicide attempt" (Penal Law § 120.30) or "aid[ing] another person to commit suicide" (Penal Law § 125.15 [3]). We therefore reject plaintiffs' statutory construction claim.


         Alternatively, plaintiffs claim that the assisted suicide statutes, if applied to aid-in-dying, would violate their rights under the Equal Protection and Due Process Clauses of our State Constitution. We reject those claims.

         A. Equal Protection

         Plaintiffs allege that the assisted suicide statutes violate the State Equal Protection Clause because some, but not all, patients may hasten death by directing the withdrawal or withholding of life-sustaining medical assistance. Plaintiffs therefore contend that the criminalization of aid-in-dying discriminates unlawfully between those terminally ill patients who can choose to die by declining life-sustaining medical assistance, and those who cannot.

         Our State's equal protection guarantees are coextensive with the rights protected under the federal Equal Protection Clause (see People v Aviles, 28 N.Y.3d 497, 502 [2016]; Esler v Walters, 56 N.Y.2d 306, 313-314 [1982]). In Vacco v Quill, the United States Supreme Court held that New York State's laws banning assisted suicide do not unconstitutionally distinguish between individuals (521 U.S. 793');">521 U.S. 793, 797 [1997]). As the Court explained, " [e]veryone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally, laws that apply evenhandedly to all unquestionably comply with equal protection" (id. at 800 [emphasis in original]). The Supreme Court has not retreated from that conclusion, and we see no reason to hold otherwise.

         B. Due Process

         In support of their due process argument, plaintiffs assert that their fundamental right to self-determination and to control the course of their medical treatment encompasses the right to choose aid-in-dying. They further assert that the assisted suicide statutes unconstitutionally burden that fundamental right.

         In Washington v Glucksberg, the United States Supreme Court "examin[ed] our Nation's history, legal traditions, and practices, " and concluded that "the asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause" of the Federal Constitution (521 U.S. 702');">521 U.S. 702');">521 U.S. 702');">521 U.S. 702, 710, 728 [1997]). We have, at times, held that our State Due Process Clause provides greater protections than its federal counterpart (see Aviles, 28 N.Y.3d at 505), and therefore Supreme Court precedent rejecting plaintiffs' claim as a matter of federal constitutional due process is not dispositive. Accordingly, we turn to whether the right claimed here falls within the ambit of that broader State protection.

         Contrary to plaintiffs' claim, we have never defined one's right to choose among medical treatments, or to refuse life-saving medical treatments, to include any broader "right to die" or still broader right to obtain assistance from another to end one's life. In Schloendorff v Society of New York Hospital, we held that a surgeon who performed an operation without the patient's consent committed an assault and, in that context, we noted that "[e]very human being of adult years and sound mind has a right to determine what shall be done with [such person's] own body" (211 NY 125, 129-130 [1914]). Matter of Storar likewise concerned the right to refuse life-sustaining medical treatment when the patients were not mentally competent (52 N.Y.2d 363, 377 [1981]). In Rivers v Katz, holding that involuntarily committed mental patients have a fundamental right to refuse antipsychotic medication, we concluded that a patient's right "to refuse medical treatment must be honored, even though the recommended treatment may be beneficial or even necessary to preserve the patient's life" (67 N.Y.2d 485, 492 [1986]).

         We have consistently adopted the well-established distinction between refusing life-sustaining treatment and assisted suicide (see Matter of Bezio v Dorsey, 21 N.Y.3d 93, 103 [2013]; Matter of Fosmire v Nicoleau, 75 N.Y.2d 218, 227 [1990]; Storar, 52 N.Y.2d at 377 n 6). The right to refuse medical intervention is at least partially rooted in notions of bodily integrity, as the right to refuse treatment is a consequence of a person's right to resist unwanted bodily invasions (see Cruzan v Director, Mo. Dept. of Health, 497 U.S. 261, 269-270 [1990]; Schloendorff, 211 NY at 130). In the case of the terminally ill, refusing treatment involves declining life-sustaining techniques that intervene to delay death. Aid-in-dying, by contrast, involves a physician actively prescribing lethal drugs for the purpose of directly causing the patient's death. As the Court stated in Matter of Fosmire v Nicoleau, "[i]n many if not most instances the State stays its hand and permits fully competent adults to engage in conduct or make personal decisions which pose risks to their lives or health, " however, "[t]he State will intervene to prevent suicide" (75 N.Y.2d at 227).

         "[M]erely declining medical care, even essential treatment, is not considered a suicidal act" (id.). Although we do not reach the issue addressed by Judge Rivera's concurrence on this appeal, the Supreme Court has noted that "the distinction between assisting suicide and withdrawing life-sustaining treatment, a distinction widely recognized and endorsed in the medical profession and in our legal traditions, is both important and logical; it is certainly rational, " and it turns on "fundamental legal principles of causation and intent" (Vacco, 521 U.S. at 801). As a general matter, the law has "long used actors' intent or purpose to distinguish between two acts that may have the same result" (id. at 802; see also Bezio, 21 N.Y.3d at 103, quoting Von Holden v Chapman, 87 A.D.2d 66, 70 [4th Dept 1982]).

         The right asserted by plaintiffs is not fundamental, and therefore the assisted suicide statutes need only be rationally related to a legitimate government interest (see People v Knox, 12 N.Y.3d 60, 67 [2009]). "The rational basis test is not a demanding one" (id. at 69); rather, it is "the most relaxed and tolerant form of judicial scrutiny" (Dallas v Stanglin, 490 U.S. 19, 26 [1989]). Rational basis involves a "strong presumption" that the challenged legislation is valid, and "a party contending otherwise bears the heavy burden of showing that a statute is so unrelated to the achievement of any combination of legitimate purposes as to be irrational" (id. at 69). A challenged statute will survive rational basis review so long as it is "rationally related to any conceivable legitimate State purpose" (People v Walker, 81 N.Y.2d 661, 668 [1993] [citation omitted]). "Indeed, courts may even hypothesize the Legislature's motivation or possible legitimate purpose" (Affronti v Crosson, 95 N.Y.2d 713, 719 [2001] [citation omitted]). At bottom, "[t]he rational basis standard is a paradigm of judicial restraint" (id. [citation omitted]).

         As to the right asserted here, the State pursues a legitimate purpose in guarding against the risks of mistake and abuse. The State may rationally seek to prevent the distribution of prescriptions for lethal dosages of drugs that could, upon fulfillment, be deliberately or accidentally misused. The State also has a significant interest in preserving life and preventing suicide, a serious public health problem (see Bezio, 21 N.Y.3d at 104; Storar, 52 N.Y.2d at 377; see also Glucksberg, 521 U.S. at 729). As summarized by the Supreme Court, the State's interests in prohibiting assisted suicide include: "prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians' role as their patients' healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia" (Vacco, 521 U.S. at 808-809). These legitimate and important State interests further "satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end" (id. at 809).

         These interests are long-standing. As the Supreme Court observed, "[t]he earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828" (Glucksberg, 521 U.S. at 715 [citation omitted]). New York's Task Force on Life and the Law, which was first convened in 1984, carefully studied issues surrounding physician-assisted suicide and "unanimously concluded that [l]egalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable" and that the "potential danger[s] of this dramatic change in public policy would outweigh any benefit that might be achieved" (id. at 719 [citation omitted]). The Legislature has periodically examined that ban - including in recent years - and has repeatedly rejected attempts to legalize physician-assisted suicide in New York.

         The Legislature may conclude that those dangers can be effectively regulated and specify the conditions under which it will permit aid-in-dying. Indeed, the jurisdictions that have permitted the practice have done so only through considered legislative action (see Or Rev Stat Ann §§ 127.800 - 127.897 [enacted in 1997]; Wash Rev Code §§ 70.245.010 - 70.245.904 [enacted in 2008]; 18 Vt Stat Ann ch 113 [enacted in 2013]; California End of Life Option Act, Cal. Health & Safety Code pt 1.85 [enacted in 2015]; Colorado Rev Stat §§ 25-48-101 - 25-48-123 [enacted in 2016]; D.C. Act 21-577 [enacted in 2016]), and those courts to have considered this issue with respect to their own State Constitutions have rejected similar constitutional arguments (see Morris v Brandenburg, 2016-NMSC-027, 376 P.3d 836, 843 [2016]; Sampson v State of Alaska, 31 P.3d 88');">31 P.3d 88 [Alaska 2001]; Krischer v McIver, 697 So.2d 97, 104 [Fla 1997]; People v Kevorkian, 447 Mich. 436, 446, 527 N.W.2d 714, 717 [1994]; see also Donaldson v Lungren, 2 Cal.App.4th 1614, 1622, 4 Cal.Rptr.2d 59, 63 [Cal Ct App 1992]) [3]. At present, the Legislature of this State has permissibly concluded that an absolute ban on assisted suicide is the most reliable, effective, and administrable means of protecting against its dangers (see Glucksberg, 521 U.S. at 731-733).

         V. CONCLUSION

         Our Legislature has a rational basis for criminalizing assisted suicide, and plaintiffs have no constitutional right to the relief they seek herein. Accordingly, the order of the Appellate Division should be affirmed, without costs.

          RIVERA, J. (concurring):

         Our state and federal constitutions guarantee heightened due process protections against unjustified government interference with the liberty of all persons to make certain deeply personal choices (NY Const, art I, § 6; U.S. Const, 14th Amend; see also Rivers v Katz, 67 N.Y.2d 485, 492-493 [1986]; Obergefell v Hodges, 135 S.Ct. 2584, 2597 [2015]). This conception of liberty is grounded in notions of individual freedom, personal autonomy, dignity, and self-determination (see Rivers, 67 N.Y.2d at 493; Planned Parenthood of Southeastern Pa. v Casey, 505 U.S. 833, 857 [1992]; Lawrence v Texas, 539 U.S. 558, 562 [2003] ["Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."]; John P. Safranek, M.D. & Stephen J. Safranek, Can the Right to Autonomy Be Resuscitated After Glucksberg?, 69 U Colo L Rev 731, 733-742 [1998]) [1]. "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" (Casey, 505 U.S. at 851).

         On this appeal, the plaintiffs essentially seek a declaration that mentally competent, terminally-ill patients have an unrestricted State constitutional right to physician-prescribed medications that hasten death. I concur with the Court that this broad right as defined by plaintiffs is not guaranteed under the New York State Constitution, and that the State has compelling and legitimate interests in prohibiting unlimited and unconditional access to physician-assisted suicide [2]. These interests, however, are not absolute or unconditional. In particular, the State's interests in protecting and promoting life diminish when a mentally-competent, terminally-ill person approaches the final stage of the dying process that is agonizingly painful and debilitating. In such a situation, the State cannot prevent the inevitable, and its interests do not outweigh either the individual's right to self-determination or the freedom to choose a death that comports with the individual's values and sense of dignity. Given that the State already permits a physician to take affirmative steps to comply with a patient's request to hasten death, and that the State concedes that the Legislature could permit the practice sought by plaintiffs, the State's interests lack constitutional force for this specific sub-group of patients. Considering the State's sanctioning of terminal sedation in particular, the statute does not survive rational basis review. Therefore, in my view, the State may not unduly burden a terminally-ill patient's access to physician-prescribed medication that allows the patient in the last painful stage of life to achieve a peaceful death as the end draws near. [3]


         "Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions. Some will seek medication to alleviate that pain and other symptoms" (Washington v Glucksberg, 521 U.S. 702');">521 U.S. 702');">521 U.S. 702');">521 U.S. 702, 736 [1997] [O'Connor, J. concurring]). Justice O'Connor's poignant description of the end of life is familiar to plaintiffs, who included, at the time the complaint was filed, three mentally competent, terminally-ill adults. These patient-plaintiffs expressed a desire for more than pain management; they sought to maintain a sense of dignity, autonomy, and personal integrity in the face of death, which they claimed had been compromised by both their respective illnesses and by the State's prohibition on assisted suicide. They requested judicial recognition of a right to decide how and when to die by accessing medication that would permit each of them to put an immediate end to their respective suffering.

         Two of these patient-plaintiffs have since passed. When the complaint was filed, one plaintiff was 62 years old and suffered from Lou Gehrig's disease, 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."

         The other deceased patient-plaintiff was 57 years old and terminally ill with acquired immune deficiency syndrome (AIDS). A regimen of several medications kept him alive. He suffered from a variety of ailments and, as a consequence, had part of his foot amputated. He developed laryngeal carcinoma, which necessitated a tracheotomy that made it difficult for him to speak. He took more than 24 medications either through his feeding tube or by injection, and required morphine for pain management. He slept 19 hours a day and spent most of his five waking hours cleaning and maintaining his feeding and oxygen tubes, and taking his daily medications and injections. According to the complaint, he "wishe[d] to have the comfort of knowing that, if and when his suffering [became] unbearable, he [could] ingest medications prescribed by his doctor to achieve a peaceful death."

         The surviving patient-plaintiff is in his eighties. He developed cancer and, after surgery to remove his bladder, suffered a recurrence but is now in remission. The complaint states that he wants "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."

         These patient-plaintiffs, joined by a group of physicians practicing end-of-life care and the non-profit End of Life Choices New York, challenge the application of New York's Penal Law to physicians who are willing to provide mentally competent, terminally-ill patients, like the named patient-plaintiffs, with a prescription for medication that they could ingest to end their lives before they succumb to the ravages of their illnesses. These providers maintain that aid-in-dying is a medically and ethically appropriate treatment that should be legally available to patients. They are supported by several amici, including professional organizations such as the American Medical Student Association, American Medical Women's Association, American College of Legal Medicine, National Academy of Elder Law Attorneys, and amici representing several surviving family members who have witnessed the death of a loved one, and who describe the emotional impact and stress endured by the family caregivers.

         The stories retold by patient-plaintiffs and amici family survivors describe the painful and harrowing experiences many terminally-ill patients endure in the final stage of life. The dying process, candidly recounted, illustrates the struggle of the terminally ill to live and die on their own terms, and is a vivid reminder of the fragility of human existence. It also provides necessary context for the legal analysis.


         Constitutional limits on governmental interference with individual liberty have long included protection of the fundamental right to bodily integrity (Rivers, 67 N.Y.2d at 492; Matter of Bezio v Dorsey, 21 N.Y.3d 93, 119 [2013]; Glucksberg, 521 U.S. at 720; Vacco v Quill, 521 U.S. 793');">521 U.S. 793, 807 [1997]). Courts have recognized that decisions about what may or may not be done to one's body are "central to personal dignity and autonomy" and so are subject to heightened scrutiny (Casey, 505 U.S. at 851; Cruzan v Dir., Missouri Dep't of Health, 497 U.S. 261, 278 [1990]). While we have not defined its outer limit, "[t]his Court has repeatedly construed the State Constitution's Due Process Clause to provide greater protection than its federal counterpart as construed by the Supreme Court" (People v LaValle, 3 N.Y.3d 88, 127 [2004]; see also People v Scott, 79 N.Y.2d 474, 496 [1992]).

         Patients in New York State unquestionably have certain fundamental rights regarding medical treatment. In Rivers v Katz, this Court stated that "[i]t is a firmly established principle of the common law of New York that every individual of adult years and sound mind has a right to determine what shall be done with his own body" (67 N.Y.2d at 492). The Court continued,

"[i]n our system of a free government, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in respect to decisions regarding [his or her] medical treatment in order to insure that the greatest possible protection is accorded [his or her] autonomy and freedom from unwanted interference with the furtherance of [his or her] own desires" (id. at 493).

         A few years later, this Court noted that "the State rarely acts to protect individuals from themselves, indicating that the State's interest is less substantial when there is little or no risk of direct injury to the public. This is consistent with the primary function of the State to preserve and promote liberty and the personal autonomy of the individual" (Matter of Fosmire v Nicoleau, 75 N.Y.2d 218, 227 [1990]). As such, the "fundamental common-law right [of refusing medical treatment] is coextensive with the patient's liberty interest protected by the due process clause of our State Constitution" (Rivers, 67 N.Y.2d at 493).

         While this language may seem to countenance aid-in-dying, there are important caveats. First, the right to refuse medical treatment, while fundamental, "is not absolute and in some circumstances may have to yield to superior interests of the State" (Fosmire, 75 N.Y.2d at 226). If a challenged statute infringes on a fundamental right, "it must withstand strict scrutiny and is void unless necessary to promote a compelling State interest and narrowly tailored to achieve that purpose" (Golden v Clark, 76 N.Y.2d 618, 623 [1990]). It is for the courts "to weigh the interest of the individual against the interests asserted on behalf of the State to strike an appropriate balance" (Fosmire, 75 N.Y.2d at 226-227). Second, the Court has, as the per curiam makes clear, consistently distinguished between refusing life-sustaining or life-saving medical treatment and assisting suicide (see Bezio, 21 N.Y.3d at 103; Fosmire, 75 N.Y.2d at 227; Matter of Storar, 52 N.Y.2d 363, 377 n 6 [1981]; per curiam at 9-11). Across these cases the Court has held that an individual has a fundamental right to refuse medical treatment but, implicitly, not to physician-assisted suicide.

         Even though this Court's precedent establishes that the right to control medical treatment generally does not extend to assisted suicide, because the criminal statutes challenged on this appeal effect a curtailment of patients' liberty, the State's prohibition must still be rationally related to a legitimate government interest (People v Knox, 12 N.Y.3d 60, 67 [2009]). The Court here highlights how the State's legitimate interest in protecting life has led it to make a rational distinction between permitting a patient to refuse life-sustaining medical treatment and a ban on assisted suicide (per curiam at 12-13; see e.g. Bezio, 21 N.Y.3d at 103). This interest extends to protecting the lives of the terminally ill, as does the rational link between this interest and prohibiting assisted suicide. There are several bases on which the State may justify prohibiting physician-assisted suicide for the terminally ill in most cases: a terminal diagnosis may be incorrect, or at least underestimate the time a patient has left; palliative care can often reduce a patient's will to die, whether caused by physical pain or depression, and thus prolong life; vulnerable, terminally-ill patients could face external influences encouraging them to hasten their deaths, such as familial or financial pressure; the fear of opening the door to voluntary and involuntary euthanasia; and, finally, the possible negative impact on the integrity and ethics of the medical profession.

         I agree, on constraint of this prior case law, that the right of a patient to determine the course of medical treatment does not, in general, encompass an unrestricted right to assisted suicide, and the State's prohibition of this practice in the vast majority of situations is rationally related to its legitimate interests. Nevertheless, this conclusion does not support the State's position that its interests are always superior to and outweigh the rights of the terminally ill. In particular, when these patients are facing an impending painful death, their own interest may predominate. For the reasons I discuss, in those limited circumstances in which a patient seeks access to medical treatment options that end pain and hasten death, with the consent of a treating physician acting on best professional judgment, the State's interest is diminished and outweighed by the patient's liberty interest in personal autonomy.


         The liberty interest protected by our State Constitution is broader than the right to decline medical treatment. At its core, liberty is the right to define oneself through deeply personal choices that form a lifetime of human experience (Casey, 505 U.S. at 851; Rivers, 67 N.Y.2d at 493). As we have stated "to preserve and promote liberty and the personal autonomy of the individual" is "the primary function of the State" (Fosmire, 75 N.Y.2d at 227).

         An individual's interests in autonomy and freedom are not less substantial when facing the choice of how to bear the suffering and physical pain of a terminal illness at the end of life. Self-determination includes the freedom to make decisions about how to die just as surely as it includes decision making about life's most private matters - e.g. sexuality, marriage, procreation, and child rearing - all choices that reflect personal beliefs and desires (see e.g. Lawrence, 539 U.S. at 567; Brooke S.B. v Elizabeth A.C.C., 28 N.Y.3d 1, 26 [2016]). As the United States Supreme Court has recognized, "[t]he choice between life and death is a deeply personal decision of obvious and overwhelming finality" Cruzan, 497 U.S. at 281).

         For the terminally ill patient who is experiencing intractable pain and suffering that cannot be adequately alleviated by palliative care, plaintiffs and amici affirm that the ability to control the end stage of the dying process and achieve a peaceful death may lead to a renewed sense of autonomy and freedom [4]. So while the State's interest in protecting life is paramount, the law requires that we balance that interest against those of an individual facing an imminent and unbearably painful death. Contrary to the State's argument, the government's interest in protecting life diminishes as death draws near, as that interest "does not have the same force for a terminally ill patient faced not with the choice of whether to live, only of how to die" (Glucksberg, 521 U.S. at 746 [1997] [Stevens, J. concurring]; see also Wilkinson v Skinner, 34 N.Y.2d 53, 58 [1974] ["The requirements of due process are not static; they vary with the elements of the ambience in which they arise."]). In such cases, patients have ...

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