Kligler and another v. Attorney General Maura T. Healy and another, No. 2016-03254-F (December 31, 2019)


Two physicians, one terminally ill and one whose practice includes care for the terminally ill, sought declaratory relief upholding as constitutional the prescription of fatal doses of medication for patient self-administration, called Medical Assistance in Dying (MAID) and upholding as constitutional discussion of such assistance and referrals to sources competent and capable of providing such prescriptions.

The physicians were wholly successful in obtaining, with no opposition from the state, the court’s opinion that the discussion of assistance in dying and the making of referrals to obtain such assistance is protected by the First Amendment.  In that no prosecution is likely to ensue from such discussions, the court declined to enjoin the state from so doing.

The court declined to find the characterization of medical assistance in dying as involuntary homicide to be unconstitutional or to find the application of involuntary manslaughter statutes to such aid to be unconstitutionally vague.  The United States Supreme Court has twice stated that substantive due process principles do not protect a physician’s right to participate in assisting in dying. Moreover, concepts of criminal law have long traditions leaving no one to guess what is proscribed within the meaning of “involuntary manslaughter.”

In the absence of a fundamental constitutional right, the state need only show that the prohibition of prescriptive assistance in dying serves and is reasonably related to an important government interest.  The preservation of life, the prevention of suicide, the protection of vulnerable populations, and the maintenance of sound medical practices and ethics are such interests, the court observed. In light of the irrevocability of administration of fatal medications, the court concluded that the proscription against such prescriptions is not unreasonable.

The court rejected the physicians’ arguments that a patient’s ingestion of the fatal doses of medications would serve as an intervening cause of death, relieving the physician of liability, where death is the known outcome at the time of issuing the prescription.  Nor was the court persuaded that the absence of coercion could change the result where, as before, death would be the known and intended outcome of the act of prescription.

The court likewise rejected equal protection challenges, observing that the law can and does respect the privacy and autonomy rights that attach to the refusal of medical treatment while concomitantly finding no corollary in any right to administer death.  Moreover, the active prescription of lethal doses of drugs differs from the permissible cessation of extraordinary treatments, the voluntary cessation of eating and drinking, or the provision of palliative pain management. The first produces death as a result of active physician intervention,  while the latter permits death to ensue as a natural result of underlying disease or debility.

The trial court noted that as social thought changes, so too may the law.  The trial court articulated its decision according to current precedent, yet noted change has occurred in the thirty years since the controlling decisions issued.  Of equal if not greater importance, the court concluded, the determination of the parameters of end of life care are not best addressed by the courts, but should be undertaken by the legislature.  

2019 12 31 Kligler v. Healy (Suffolk Sup. Ct.)

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