Massachusetts highest court considers allowing medically assisted death

The State Supreme Judicial Court heard arguments Wednesday in a case involving profound questions about a person's control over the end of their life and whether a doctor can legally help.

Two Massachusetts doctors are asking the high court to allow physicians to prescribe lethal amounts of medication for terminally ill patients who want to end their lives.

But State Attorney General Maura Healey's office argued that that doctors who prescribe such medications could be prosecuted, and that the issue is one for lawmakers — not the courts — to address.

Much of the discussion before the court focused on legal precedent and the procedures in the 10 other states and the District of Columbia that allow for medical aid in dying. Proponents reject the commonly used term "physician assisted suicide."

Some of the most pointed questions came between Justice Serge Georges and Assistant Attorney General Maria Granik. After Granik argued that the state is obligated to protect its citizens, and that there is no historical basis on which to allow for medical aid in dying, Georges asked whether the law should evolve to consider new medical advances that could more humanely end someone's life.

Georges also asked about the state's obligation to protect those who are terminally ill such as one of the plaintiffs in the case, Dr. Roger Kligler. He has stage 4 prostate cancer and doctors estimate that he has five years to live. Kligler is seeking a prescription for lethal drugs to end his life when his illness has reached the point where he finds it unbearable.

"In his own home, after living his own life, what interest does the government have in telling him, 'We're not going to let you end your life on your terms, we want you to end it on ours' ?" Georges asked.

Granik said while the state does not advocate anyone dying a painful death, there are palliative care options and pain relief for those who are suffering at the end of their lives.

Granik repeatedly said that the issue is one for the legislature to decide.

"Medical aid in dying raises difficult moral, societal and governmental questions," she said. "The resolution of which requires the type of robust public debate that the courts are ill-suited to accommodate."

"In his own home, after living his own life, what interest does the government have in telling him, 'We're not going to let you end your life on your terms, we want you to end it on ours' ?"

Justice Serge Georges

Medical aid in dying bills have stalled in the Massachusetts Legislature, and voters narrowly rejected a 2012 end-of-life ballot question.

Attorney John Kappos, with the California law firm O'Melveny and Myers, and co-counsel with the group Compassion & Choices, argued on behalf Kligler.

"Dr. Kligler faces the very real prospect that he will experience an unbearably painful death when he reaches the final days of his illness," Kappos said. "Dr. Kligler therefore wants a prescription for a medical aid in dying drug that will allow him to peacefully and painlessly pass if his suffering becomes overwhelming."

Another plaintiff, Dr. Alan Steinbach, is seeking the ability to write prescriptions for terminally ill patients who want to choose when to end their lives.

Kappos argued that the court should act because lawmakers have not.

"Our view is lawmakers have left this to the courts to determine," Kappos wrote in his brief to the court. "We think this is a case that is ripe for the Supreme Judicial Court to look at and they need not wait for the legislature to act on this issue."

A 2019 Suffolk County Superior Court decision affirmed that medical aid in dying is manslaughter, even if the doctor does not administer the drugs. But the court said that doctors can counsel patients on end of life options. That decision is the basis of Wednesday's SJC review.

In arguing for the plaintiffs, Kappos said that doctors would only write the prescriptions for the drugs and would not administer them. He also pointed to statistics showing that 30% of patients with such prescriptions never use them and those who do use them are close to death. What's legally different is that doctors are not intending to harm the patient, he said.

"Usually the people who are eligible and who actually self ingest the medication are within days or weeks of dying, which is a situation where the the harm from that is much diminished," Kappos said. "We would argue there's an attenuated state interest at that point, when you get that close to death. And so that the harm we would submit is much diminished at that point."

Justice Frank Gaziano asked how the courts differentiate between a doctor providing lethal medications to a dying patient and drug dealers supplying drugs to someone who dies of an overdose. Drug dealers have been charged with involuntary manslaughter in some overdose cases.

"What you're saying is the patient caused his own death because they put the pill in their mouth," Justice Gaziano said. "How is that different from the addict? Again, different situation. But how is it different from the addict who puts the needle in his or her arm?"

"The intent is different," Kappos said. "We feel that the intent to help a patient rather than profit from a drug deal is an element that's dramatically different."

The plaintiffs said the ruling would only apply to mentally competent, terminally ill patients determined to have less than 6 months to live and could choose to seek a doctor's prescription. They also argued that doctors already help end the lives of suffering patients by withholding medical care or food and water, and then provide pain medicine to such patients.

"Doctors refer to this process as 'terminal sedation' or, more commonly, 'palliative sedation,' which is a legal and accepted practice in in Massachusetts," the plaintiffs brief reads.

But opponents argue that defining which patients would be eligible for medical help in dying raises thorny issues for the courts. Christopher Schandevel with the Euthanasia Prevention Coalition USA also argued before the SJC Wednesday. He said allowing only certain patients to end their lives with medical help raises the possibility of future legal challenges from those who might be excluded from eligibility.

"The Legislature can draw those lines," Schandevel said. "But this court is not in a position to draw those lines, and that's why we think it's important to leave that role to the Legislature to make those social policy decisions."

"The Legislature can draw those lines."

Christopher Schandevel

The Massachusetts Medical Society (MMS) amicus brief in the case said it takes "a position of neutrality," citing the complexities involved in each patient's case. The MMS brief, filed with the Hospice and Palliative Care Federation of Massachusetts, said that doctors estimates on how long a patient has to live are not always accurate, and studies of terminally ill patients show that a doctor's prediction of survival rates were only 20% accurate.

The brief also says, without a legal framework in place outlining specifics about which patients and doctors would fall within the law, any court ruling " would lead to considerable confusion and create at least some risk for abuse in the provision of end-of-life health care in the Commonwealth."

Others who filed amicus briefs in the case include four Massachusetts Catholic Bishops, including Cardinal Sean O'Malley. The Bishops say they "share an interest in upholding the sanctity of human life" and "in protecting vulnerable and disadvantaged groups within society, in safeguarding the medical profession, and in preventing suicide."

"These are well established, judicially-recognized interests that promote the common good," the Bishops brief reads. "The elimination of the common law prohibition of physician-assisted suicide would undermine each and every one of these interests."

Justice Scott Kafker recused himself from Wednesday's oral arguments.

The high court is expected to make a ruling by this summer.