In this vlog, we’ll break down the recent ruling in Kligler v Healey, where the MA Supreme Judicial Court ruled that there is no constitutional right to assisted suicide and that involuntary manslaughter is the appropriate charge for a medical professional who assists in a patient’s suicide. All quotes and citations are from the Decision, which can be found here: https://adflegal.org/sites/default/files/2022-12/Kligler-v-Attorney-General-2022-12-19-Slip-Opinion.pdf
Video Transcript
[Speaker] The Not Dead Yet Vlog Episode 3. Crucial Case: Kligler Versus Healey.
– Hello and welcome to the special edition of the Not Dead Yet vlog. My name is Jules Good. I use they/them pronouns. And, I’m the Assistant Director and Policy Analyst at Not Dead Yet. I’m a white person with short brown hair and today I have on a yellow turtleneck sweater.
On December 19th, we got some great news. The Massachusetts Supreme Judicial Court ruled that people do not have a constitutional right to assisted suicide. This ruling came out of Kligler v Healy, a case initially filed in 2016 in which Dr. Robert Kligler, a cancer patient, and Dr. Allen Steinbach, a physician, argued that assisted suicide could not be prosecuted as involuntary manslaughter and that doctors should be immune from legal penalty if they prescribe medication for the purpose of assisted suicide. Plaintiffs also, and most importantly, argued that people have a constitutional right to assisted suicide. In this video, we’ll break down the most recent decision on this case and explore why it is so crucial to the landscape of assisted suicide opposition work in the United States.
Let’s start with the court’s summary of the case from the decision. It reads: “In this case, we are faced with the solemn task of determining whether the Massachusetts Declaration of Rights provides a substantive due process right to physician assisted suicide. The plaintiffs, a doctor who wishes to provide physician-assisted suicide and a patient who has been diagnosed with an incurable cancer, contend that terminally ill patients with six months or less to live have a constitutional right to receive prescription for lethal medication in order to bring about a death at a time and manner of their choosing. Although we recognize the paramount importance and profound significance of all end of life decisions, after careful consideration, we conclude that the Massachusetts Declaration of Rights does not reach so far as to protect physician assisted suicide. We conclude as well that the law of manslaughter may prohibit physician assisted suicide, and does so, without offending constitutional protections.”
There are a few key terms here that will help us understand the scope of this case. The first of these is substantive due process. Substantive due process is a principle courts used to decide if a policy is fair and just, especially if the policy in question is not specifically mentioned or detailed in the US Constitution or the state constitution of the state in which the case is being heard. Basically, it is impossible for a document such as the Constitution to account for every possible situation so courts rely on decisions from other court cases, peer-reviewed studies and other reputable sources of information in tandem with enumerated laws to guide their decision. In the Kligler case, this means that the court was trying to decide whether physician-assisted suicide is justified by the Massachusetts Declaration of Rights even though there is no specific clause within that document about physician-assisted suicide.
Kligler and Steinbach combined two arguments into one case. Kligler’s argument was that assisted suicide should be a fundamental right for terminally ill people with six months or less to live. The court was able to dismiss this claim pretty quickly because Kligler failed to present a case that fulfilled the purposes of the Declaratory Judgment Act. This is a legal principle that states that the outcome of a case should have an immediate impact on the rights of the parties. Kligler’s case didn’t meet the standard because he himself does not have a six month prognosis. In fact, Kligler’s doctor is quoted in the decision as saying that he would not “be surprised if Kligler is alive in 10 years time.” In other words, Kligler has way more than six months to live so a ruling that allowed assisted suicide for terminally ill people with six months or less to live would have no tangible impact on him. This causes him to fall short of the standards of declaratory judgment, so his complaint is dismissed.
Steinbach’s claim, on the other hand, required much deeper consideration by the court. He claims he has standing, a legalese term for a justified reason to bring forth a case, because he would be prosecuted for facilitating assisted suicide if he did so. Now you might be thinking, “Wait a second. Kligler and Steinbach are both arguing on the basis of hypothetical scenarios. Why was Kligler’s claim dismissed while Steinbach’s was considered?” That’s a great question. Kligler is literally not capable of meeting the standards necessary to give his claim standing. If he actually had a medical prognosis of six months to live, this case could have gone differently. The court is required to consider everything on a case by case basis. Kligler was essentially the wrong plaintiff for this case because he didn’t meet the requirements he was trying to have the court grant privileges around. Steinbach, however, could perform an assisted suicide tomorrow and face the consequences for doing so. He faces a real threat of prosecution even if he has not yet done the thing that would get him prosecuted.
So what would Steinbach be charged with then? In Massachusetts, performing an assisted suicide constitutes involuntary manslaughter. To be charged with this, it must be proven that the person responsible for the death acted in a way that was “1, intentional, 2, wanton or reckless, and 3, cause the victim’s deaths.” Points 1 and 3 are pretty easy to establish. A doctor facilitating assisted suicide for a patient definitely intends for the patient to die and definitely performs an action that causes the patient’s death. Proponents of assisted suicide, including Steinbach in this case, argue that assisted suicide is not the main cause of the patient’s death. The underlying condition is. However, the court maintains that the lethal prescription used in assisted suicide is indeed the cause of death because the entire point of the prescription is to kill the patient and it is clear and foreseeable that the patient will use the prescription to kill themself.
Point 2 of establishing an involuntary manslaughter charge that the killer acted in a way that was “wanton or reckless” is up for more rigorous debate. Steinbach argued that following approved medical guidelines for facilitating assisted suicide could not be considered wanton or reckless behavior. The court uses prior case law to further establish that “knowingly providing someone who has expressed an interest in ending his or her life with the means to do so may be considered wanton or reckless behavior.” This raises an interesting point about how this court views assisted suicide not as medical treatment but in line with any other kind of suicide. While the criminalization of suicide has indeed harmed survivors and families of those who have lost loved ones to suicide, the fact that it has historically been viewed as a type of murder in the eyes of Massachusetts case law lends credence to the court’s claim that assisted suicide is manslaughter.
Another piece of Steinbach’s claim is that criminalizing assisted suicide violates a patient’s constitutional right to privacy because, “if the right to privacy includes the right to refuse unwanted medical care, it also necessarily must include the right to physician-assisted suicide because there is no meaningful distinction between the two.” The court’s response to this argument forms an important takeaway from this decision. The court argues that they “recognize an important distinction between the refusal of medical treatment and physician assisted suicide which lies in fundamental legal principles of cause and effect. Whereas withdrawing or withholding medical care is not the primary cause of a patient’s death, the physician-assisted suicide is.” While this might seem like common sense to some, assisted suicide advocates have made this claim repeatedly for decades. And it’s important that the Massachusetts Court joined the US Supreme Court and several states and again rejecting it.
There are a few additional quotes from this decision I found to be significant that didn’t fit neatly into what I discussed earlier in this video, so I’m going to highlight them here. One is a footnote on terminology. It reads, “while the plaintiffs use the term medical aid in dying, in 2018, the American Medical Association’s Council on Ethical and Judicial Affairs again asserted its belief that “ethical deliberation and debate is best served by using the term physician assisted suicide rather than the more ambiguous aid in dying.” The vast majority of cases and statutes to have addressed the issue to date in other jurisdictions also use the phrase physician-assisted suicide.” Proponents of assisted suicide love to lambast opponents for using any phrase other than “medical aid in dying” because they don’t want the practice name for what it is, which is suicide. The word has negative connotations that they prefer to avoid, so it’s great to see the court defending our terminology as more accurate.
Another tidbit is about the rationale of applying the law of manslaughter to assisted suicide. They say this application “passes constitutional muster because the law is reasonably related to the state’s legitimate interest in preserving life, preventing suicide, protecting the integrity of the medical profession, ensuring that all end of life decisions are informed, voluntary and rational, and protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their their lives.” That last part supports what disabled opponents of assisted suicide have been saying for years that a public policy of assisted suicide labels disabled people as disposable and less valuable than non-disabled people and that it leaves vulnerable people susceptible to coercion both from abusive caregivers and from our broken healthcare system. This is a crucial admission in a case of this stature.
We’ve been waiting on a decision in this case for many months and to see it come down in our favor is a great relief. Assisted suicide is not a constitutional right. Now, we have to keep fighting to stop assisted suicide from passing in state legislatures, including in Massachusetts. The legislative session kicks off this month so stay tuned for information about how you can get involved and support our work. In the meantime, visit us at www.notdeadyet.org to learn more about what we do. Thanks for watching.
Oregon is currently considering a bill that would no longer require people to prove Oregon residency in order to pursue assisted suicide. This bill comes after the March 2022 settlement reached in Gideonse v Brown, which alleged that the residency requirement is unconstitutional. The court did not rule but the parties agreed to a settlement that precluded prosecution by the government defendants. The bill currently being considered by the Oregon legislature would repeal the residency requirement throughout the state. Read NDY President and CEO Diane Coleman’s testimony opposing this bill below:
Comments Opposing Oregon Bill HB 2279
to Remove Residency Requirement for Assisted Suicide
Oregon HB 2279, which would repeal the state residency requirement of the Oregon assisted suicide statute, should be rejected by Oregon legislators. Oregon’s legislature should respect the laws and procedures of other states and legislators who have determined that assisted suicide laws pose a danger to their own residents.
In March 2022, the Oregon Health Authority and the Oregon Medical Board voluntarily agreed to stop enforcing the residency requirement and asked the Legislature to remove it from the law.
Though assisted suicide proponents claim that it’s a constitutional issue, no state high court has found a constitutional right to assisted suicide.
Oregonians may wonder why another state would decline to pass an assisted suicide law, which Oregon legislators have viewed as a benefit to its residents. Nevertheless, many view these laws as a danger to people with serious illnesses, chronic conditions and significant disabilities.
On October 9, 2019, the U.S. National Council on Disability (NCD) released the findings of a federal examination (https://ncd.gov/sites/default/files/NCD_Assisted_Suicide_Report_508.pdf) of the country’s assisted suicide laws and their effect on people with disabilities, finding the laws’ safeguards are ineffective and oversight of abuses and mistakes is absent. Over the last two decades, every major national disability organization (http://notdeadyet.org/disability-groups-opposed-to-assisted-suicide-laws) that has taken a position on assisted suicide opposes it. Some of the reasons for opposing assisted suicide laws are:
When assisted suicide is legal, it’s the cheapest treatment available—an attractive option in our profit-driven healthcare system.
Assisted suicide is a prescription for abuse: an heir or abusive caregiver can steer someone towards assisted suicide, witness the request, pick up the lethal dose, and in the end, even administer the drug—no witnesses are required at the death, so who would know?
Many other pressures exist that can cause people with compromised health to consider hastening their death.
People with disabilities, whether our conditions are predicted to be terminal or not, are often viewed as tragic and worth-less. These societal messages too often lead to suicidal feelings, but these feelings deserve suicide prevention, not suicide assistance.
Let other states determine how best to provide for the safety of their residents. Please oppose HB 2279.
On Wednesday, November 18, disability activists from Second Thoughts Connecticut as well as members of Progressives Against Medical Assisted Suicide participated in a press conference held by a broad alliance of assisted suicide opponents. The media event was held in response to a previous press conference conducted by assisted suicide proponents the same day.
Head and shoulders photo of Cathy Ludlum, a woman in mid 50s with glasses and wheelchair headrest.
Below are excerpts about and quotes from disability advocates, many of them featuring Second Thoughts CT leader Cathy Ludlum:
Opponents also held a press conference in the Legislative Office Building, where they called on legislators to reject the bill. Instead, they said the legislature should focus on improving hospice care.
Cathy Ludlum, a disability rights advocate with spinal muscular atrophy, said many of the concerns often cited in end-of-life debates stem from issues that some people with disabilities live with every day, like loss of autonomy or loss of dignity.
“Supporters often say each person is just one bad death away from becoming a proponent. I say if you had to fight for preventative care, aggressive treatment and sometimes for your life in the health care system the way we do, you might well come to our side instead,” Ludlum said. “The push for assisted suicide is not about pain. It’s about loss. It’s about fear of disability.”
…Others say the bill would have a negative impact on people with disabilities.
Nancy Alisberg, a disability rights lawyer at the time, was representing a 14-year-old boy who developed a severe form of leukemia. The boy also had an intellectual disability.
She says the doctors didn’t want to treat him as they thought he wouldn’t understand why he was suffering from the chemotherapy and that treatment would impair what residual intellectual capacity he had.
“What this incident showed me was that his life, as a person with an intellectual disability, was not worth living,” said Alisberg. “I feel that the laws on assisted suicide do not protect people with disabilities, and that they are going to be put into positions where they are being made to feel that they are an onus to their family, an onus to society, and they might as well just commit suicide. For that reason, I came to oppose physician-assisted suicide.” …
In a dueling press conference, opponents from the Connecticut Alliance Against Assisted Suicide also spoke out. They say the change in the law could create a threat to people with disabilities who could be taken advantage of for their estates….
….Opponents from the Connecticut Alliance Against Assisted Suicide say the lethal cocktail has not been tested.
“These drugs are being used outside of the scope and are experimental at best,” said Dr. Rebecca Henderson, End of Life Care.
They add lawmakers should focus on palliative care and hospice care.
“The push for assisted suicide is not about pain,” said Cathy Ludlow, Advocate for Disabled. “It’s about loss. It’s about fear of disability.”
Critics of the aid-in-dying — which include religious organizations and disability rights groups — have argued that even with robust protections, aid-in-dying laws in other jurisdictions have inevitably led to abuses and expansions to include patients who have not been diagnosed with terminal diseases.
“The ostensible safeguards in the legislation here in Connecticut are now called barriers in other states including Oregon and Washington, and are being removed through legislation and the court process,” said Cathy Ludlum, a disability rights advocate from Manchester.
DISABILITY RIGHTS ACTIVIST Cathy Ludlum and other opponents from the Connecticut Alliance Against Assisted Suicide spoke out against establishing a process for terminally ill patients in Connecticut to legally access life-ending medications.
“Once again, assisted suicide is bad medicine. It is bad public policy and it is bad for people,” said Ludlum, a leader of Second Thoughts Connecticut, grassroots group of disabled people and allies that opposes an end-of-life option.
“The push for assisted suicide is not about pain,” said Cathy Ludlum with Second Thoughts Connecticut, which has fought the legislation for years. “It’s about loss; it’s about fear of disability.”
“Assisted suicide cannot and will not stay limited to a select population,” said Cathy Ludlum, a disabilities rights advocate and staunch opponent of medically assisted suicide.
Ludlum said the eventual elimination of safeguards and expansion of medically assisted suicide is inevitable once legislation legalizes the practice. She called the proposed bill “bad medicine, bad public policy, and bad for people.”
“Supporters often say, ‘Each person is just one bad death away from becoming a proponent.’ I say, ‘If you had to fight for preventative care, aggressive treatment, and sometimes for your life in the health care system the way we do, you would likely join us on the opposing side,’” Ludlum said. “The push for assisted suicide is not about pain, it’s about loss. It’s about fear of disability.”
But many of the people present at the Capitol were disability advocates who feared that the bill would become a tool for a healthcare system that did not want to pay for costly treatment for disabled individuals.
“Assisted suicide cannot and will not stay limited to a select population. The ostensible safeguards in legislation here in Connecticut are now called barriers in other states, including Oregon and Washington, and are being removed through legislation or the court process,” said Cathy Ludlum, a resident of Manchester and a leader of a group of disabled individuals who are against the legislation.
Somers also referenced Canada, which has come under scrutiny for potential abuses of euthanasia.
“The question is how many struggling people will follow their lead, pressured by society and assisted by the health-care system to die,” Cathy Ludlum, of Second Thoughts Connecticut – a grassroots organization that opposes assisted suicide – said during a legislative hearing last year.
NDY’s Press Advisory issued Monday evening resulted in a Spectrum News interview of Albany disability activist Julie Farrar. The Advisory was distributed to New York media outlets in response to assisted suicide proponents’ announcement of a virtual press conference held Tuesday.
While giving more space to proponents’ hopes for passing the assisted suicide bill this year, Spectrum News coverage included video excerpts of the interview as well as the following quotes in the online article:
But not everyone is convinced. Julie Farrar of the organization Not Dead Yet said the legislation sends the wrong message, especially to people with disabilities.
Farrar believes the measure, in essence, tells people, “we are all cheaper dead, we are all less expensive if we need no treatment at all.”
Farrar said instead, lawmakers should consider ways of expanding health care and assisted living for vulnerable people.
“That makes living with a terminal illness very frightening if you don’t have access to the services you need,” she said.
For information on disability opposition to assisted suicide laws, read a short summary developed by NDY and the Disability Rights Education & Defense Fund.
No coverage of the assisted suicide issue is fair and balanced without the perspective of New York disability organizations and individuals who oppose it. (Proponents of bills to legalize assisted suicide will be holding a press conference at the state capital in Albany on Tuesday at 11:00 a.m.)
We live with a profit driven healthcare system facing tremendous cost-cutting pressures. Assisted suicide is the cheapest “treatment.” These bills grant legal immunity to doctors and others who assist suicides of people who may have a terminal condition. They do not prevent mistakes, coercion or abuse and, therefore, endanger the lives of old, ill and disabled people. In states that have legalized assisted suicide, the reported reasons for assisted suicide requests relate to disability, not pain. Suicide as “healthcare treatment” is not a progressive social cause but a threat that must be fought.
To speak with New York disability organizations and individuals who oppose assisted suicide bills, including members in Albany, please contact:
