This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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77
Sara Myers et al.,
             Plaintiffs,
Eric A. Seiff, et al.,
             Appellants,
        v.
Eric Schneiderman, &c.,
             Respondent,
et al.,
             Defendants.
           Edwin G. Schallert, for appellants.
           Anisha S. Dasgupta, for respondent.
           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.

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

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                               - 2 -                        No. 77

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.


                 I. FACTUAL AND PROCEDURAL HISTORY
          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



     1
       Plaintiffs discontinued the action against the District
Attorneys after entering into a stipulation that all parties
would be bound by any result reached in the litigation between
plaintiffs and the Attorney General.
     2
       Penal Law § 120.30 provides that "[a] person is guilty of
promoting a suicide attempt when [such individual] intentionally
causes or aids another person to attempt suicide." Penal Law §
125.15 (3) provides that "[a] person is guilty of manslaughter in
the second degree when . . . [such person] intentionally causes
or aids another person to commit suicide."

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                                - 3 -                          No. 77

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 AD3d 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


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                              - 4 -                              No. 77

violates their equal protection and due process rights under the
State Constitution.


                       II.   REVIEWABILITY
          "On a motion to dismiss pursuant to CPLR 3211, the
pleading is to be afforded a liberal construction" (Leon v
Martinez, 84 NY2d 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 NY3d 46, 52 [2012], quoting Maas v Cornell Univ., 94
NY2d 87, 91 [1999]; see Connaughton v Chipotle Mexican Grill,
Inc., 29 NY3d 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


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reasonable interpretations, these questions can be decided
without any factual development.


                 III. PLAINTIFFS' STATUTORY CLAIM
          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 NY2d 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 NY2d 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 NY3d 178, 181 [2016]
[internal quotations omitted]).    Suicide has long been understood


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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 NY2d 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 NY2d 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


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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.


               IV. PLAINTIFFS' CONSTITUTIONAL CLAIMS
           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 NY3d 497, 502 [2016]; Esler v
Walters, 56 NY2d 306, 313–314 [1982]).     In Vacco v Quill, the


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United States Supreme Court held that New York State's laws
banning assisted suicide do not unconstitutionally distinguish
between individuals (521 US 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 US 702, 710, 728 [1997]).   We have, at times,
held that our State Due Process Clause provides greater


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                               - 9 -                           No. 77

protections than its federal counterpart (see Aviles, 28 NY3d 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 NY2d 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 NY2d 485, 492 [1986]).
           We have consistently adopted the well-established
distinction between refusing life-sustaining treatment and


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                                - 10 -                         No. 77

assisted suicide (see Matter of Bezio v Dorsey, 21 NY3d 93, 103
[2013]; Matter of Fosmire v Nicoleau, 75 NY2d 218, 227 [1990];
Storar, 52 NY2d 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 US 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 NY2d 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


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                              - 11 -                           No. 77

"fundamental legal principles of causation and intent" (Vacco,
521 US 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 NY3d at
103, quoting Von Holden v Chapman, 87 AD2d 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 NY3d 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 US 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 NY2d 661, 668 [1993]
[citation omitted]).   "Indeed, courts may even hypothesize the
Legislature's motivation or possible legitimate purpose"
(Affronti v Crosson, 95 NY2d 713, 719 [2001] [citation omitted]).
At bottom, "[t]he rational basis standard is a paradigm of
judicial restraint" (id. [citation omitted]).


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                              - 12 -                        No. 77

          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 NY3d at
104; Storar, 52 NY2d at 377; see also Glucksberg, 521 US 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 US 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 US 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


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                              - 13 -                          No. 77

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 P3d 836, 843 [2016]; Sampson v State of
Alaska, 31 P3d 88 [Alaska 2001]; Krischer v McIver, 697 So 2d 97,
104 [Fla 1997]; People v Kevorkian, 447 Mich 436, 446, 527 NW2d
714, 717 [1994]; see also Donaldson v Lungren, 2 Cal App 4th




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                               - 14 -                          No. 77

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 US 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.




     3
       The Supreme Court of Montana has held that a statutory
consent defense protects physicians from prosecution for
physician-assisted suicide, but it did not reach the
constitutional question (see Baxter v State, 2009 MT 449, ¶ 50,
354 Mont 234, 251, 224 P3d 1211, 1222 [2009]).

                               - 14 -
Myers v Schneiderman
No. 77




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; US Const, 14th
Amend; see also Rivers v Katz, 67 NY2d 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 NY2d at 493; Planned Parenthood of Southeastern Pa. v
Casey, 505 US 833, 857 [1992]; Lawrence v Texas, 539 US 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


     1
       There is a rich debate taking place over centuries
discussing the meaning of the term "dignity," and the
significance of the concept remains controversial today (see
generally Richard E. Ashcroft, Making Sense of Dignity, 31 J Med
Ethics 679 [2005]). As used here, the term is intended to evoke
an individual's freedom to pursue autonomously chosen goals as
well as an individual's need to be free from debasement and
humiliation, broadly conceived (id. at 681).

                               - 1 -
                                - 2 -                           No. 77

to define one's own concept of existence, of meaning, of the
universe, and of the mystery of human life" (Casey, 505 US 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


     2
       I agree with the Court's analysis that what plaintiffs
call "aid-in-dying" is assisted-suicide within the meaning of our
criminal law (per curiam at 5-7), and that the plaintiffs' equal
protection claim is without merit (id. at 7-8). I address only
the rights of the terminally ill under the State Due Process
Clause.

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                              - 3 -                            No. 77

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


                               I.
          "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 US 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-



     3
       Lest my intention be misconstrued, I do not write to
expound on plaintiffs' State due process rights as limited by
their complaint, but rather to address the State's position that
its interests outweigh the rights of all terminally-ill patients
regardless of their condition.

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                                 - 4 -                        No. 77

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


                                 - 4 -
                                 - 5 -                        No. 77

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


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                              - 6 -                           No. 77

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.


                               II.
          Constitutional limits on governmental interference with
individual liberty have long included protection of the
fundamental right to bodily integrity (Rivers, 67 NY2d at 492;
Matter of Bezio v Dorsey, 21 NY3d 93, 119 [2013]; Glucksberg, 521
US at 720; Vacco v Quill, 521 US 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 US at 851; Cruzan
v Dir., Missouri Dep't of Health, 497 US 261, 278 [1990]).    While


                              - 6 -
                              - 7 -                           No. 77

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 NY3d 88, 127 [2004]; see
also People v Scott, 79 NY2d 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 NY2d 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 NY2d 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

                              - 7 -
                                 - 8 -                         No. 77

clause of our State Constitution" (Rivers, 67 NY2d 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 NY2d 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 NY2d 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 NY2d 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 NY3d at 103; Fosmire, 75 NY2d at 227;
Matter of Storar, 52 NY2d 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


                                 - 8 -
                               - 9 -                          No. 77

legitimate government interest (People v Knox, 12 NY3d 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 NY3d 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


                               - 9 -
                              - 10 -                          No. 77

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.


                               III.
           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 US at 851; Rivers, 67 NY2d 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 NY2d 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,


                              - 10 -
                               - 11 -                         No. 77

procreation, and child rearing -- all choices that reflect
personal beliefs and desires (see e.g. Lawrence, 539 US at 567;
Brooke S.B. v Elizabeth A.C.C., 28 NY3d 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 US 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



     4
       It is worth noting that in her Glucksberg concurrence,
Justice O'Connor was operating on the assumption that all dying
patients in Washington and New York could obtain palliative care
that would relieve their suffering. As a result, she did not
reach the narrower question of "whether a mentally competent
person who is experiencing great suffering has a constitutionally
cognizable interest in controlling the circumstances of his or
her imminent death" (Glucksberg, 521 US at 737-738 [O'Connor, J.
concurring]). As plaintiffs and amici allege, and as medical
science indicates, palliative care is not always an option for a
terminally ill patient in severe pain approaching death.

                               - 11 -
                              - 12 -                           No. 77

live, only of how to die" (Glucksberg, 521 US at 746 [1997]
[Stevens, J. concurring]; see also Wilkinson v Skinner, 34 NY2d
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 "a constitutionally
cognizable interest in obtaining relief from the suffering that
they may experience in the last days of their lives" that
outweighs the State's interest in essentially prolonging the
agony (Glucksberg, 521 US at 737).
           Certainly, the State may "stay its hand" by doing
nothing to assist a terminally ill patient, thus letting the
dying process take its natural course (Fosmire, 75 NY2d at 227).
However, this is not the approach chosen by the State of New
York.   The reality is that the State already permits a patient to
choose medical measures that hasten death in ways that require
active, deliberate assistance of a physician.   These measures are
not passive.   For example, the State permits the turning off of
ventilators, the removal of breathing tubes, and the removal of
intravenous life-sustaining nourishment and medications, even
when the physician and patient know this will lead rapidly to
certain death.   As such, the State currently allows a physician,
with a patient or a guardian's informed consent, and in the
exercise of the physician's professional judgment, to
affirmatively assist in bringing about a terminally-ill patient's
death (see Pub Health Law §§ 2994-e [1]; 2994-f [1]).


                              - 12 -
                              - 13 -                         No. 77

          These processes are widely considered appropriate and
humane end-of-life treatments that recognize the dignity of the
individual patient.   The justifications for allowing a physician
to take active steps to precipitate a patient's death were
powerfully noted in 2010, in the context of changes to the Public
Health Law that now allows guardians of mentally-incompetent
patients to withdraw or withhold life-sustaining treatments.
Supporters of the bill wrote that,
          "[l]ost in the gaps of existing law, many
          families have witnessed what they knew to be
          the ardent desires of their incapacitated
          loved ones go unfulfilled for weeks and
          months, while every participant -- from the
          patient, to family members, to the
          professionals providing care -- has
          anguished. At the same time, families have
          been frozen by the lack of legal means to
          honor the deeply personal wishes of their
          loved ones" (Letter from Healthcare
          Association of New York State, Bill Jacket,
          2010, AB 7729, ch 8).
The Assembly Memorandum in Support described the legislation as
necessary because mentally-incompetent patients "may linger,
through unnecessary medical intervention, in a state of
irrevocable anguish," and "are, as a class, uniquely disqualified
from health care rights essential to the humane and dignified
treatment to which every other citizen is entitled" (2001 NY
Assembly Bill A08466D).
          Plaintiffs and amici Surviving Family Members similarly
describe how terminally-ill patients, deprived of a legal path to
bring about a death in line with their wishes, suffer


                              - 13 -
                               - 14 -                            No. 77

excruciatingly through the final moments of their lives as their
loved ones and caregivers watch helplessly.     The complaint,
plaintiffs' affidavits, and amici briefs are filled with accounts
of patients who would have chosen aid-in-dying if the option were
available.   One account describes an elderly man whose bones were
so riddled with cancer they would spontaneously break, even when
he was lying in bed without bearing weight.     Despite receiving
opioids and other medications around the clock, he found his pain
and suffering unbearable.    He wanted to know his options for a
peaceful death and the only option the physician was able to
offer was for him to voluntarily stop eating and drinking.
Another describes a man suffering from a degenerative motor
neuron disease who, eight years after diagnosis, was wheelchair
bound, had lost control of his bladder and bowels, as well as the
ability to cough up food caught in his lungs, experienced his
limbs atrophy, and "everything which he had previously identified
as degrading about dying."    Ultimately he too chose to stop
eating and drinking.   He remained conscious during the 12 days
that followed until his death, at one point developing terminal
agitation that caused "sudden uncontrollable fits of yelling and
violent thrashing" that led to him being strapped to his bed.
          The State argues a dichotomy between active and passive
physician conduct differentiates aid-in-dying from other
sanctioned end-of-life treatments.      This binary is unpersuasive
in this context.   First, it does not conform with the experience


                               - 14 -
                              - 15 -                          No. 77

of all physicians (TE Quill, et al., Palliative Options of Last
Resort, 278(23) JAMA 2099, 2102 [Dec 17, 1997] ["[T]here is
nothing psychologically or physically passive about taking
someone off a mechanical ventilator who is incapable of breathing
on his or her own.").   Second, the withdrawal of nourishment is
anything but passive, as patients without an underlying disease
die if they are prevented from eating and drinking.   Third, and
in contrast, the physician's role in aid-in-dying is "passive" in
a practical sense, for it is the patient who administers the
lethal medication, often spatially and temporally distant from
the moment the physician provided the prescription (id.). In some
cases, the patient never ingests the dosage.5
          Apart from the fact that the State permits these
non-passive actions to hasten death for the terminally ill, the


     5
       Not all physicians who prescribe a patient a lethal dosage
necessarily know for certain that the patient will die from
taking the prescription, as many patients prescribed these drugs
do not ultimately take them. Many patients simply want to regain
a modicum of control over the dying process (see Glucksberg, 521
US at 751 n 15 [Stevens, J. concurring]). The ranges vary from
state to state. In California, under the End of Life Option Act,
173 physicians prescribed 191 individuals lethal medication
between June 9, 2016, and December 31, 2016. Of the 191
prescribed patients, 111 (58.1%) were reported by their physician
to have died following ingestion of lethal medication and 21
(11.0%) died without ingestion of the prescribed drugs. The
outcome of the remaining 59 (30.9%) individuals was undetermined
at the time of the report (California Department of Public
Health, California End of Life Option Act 2016 Data Report [2016]
at 3, available at:
https://www.cdph.ca.gov/Programs/CHSI/CDPH%20Document%20Library/C
DPH%20End%20of%20Life%20Option%20Act%20Report.pdf [accessed
August 29, 2017]).

                              - 15 -
                              - 16 -                         No. 77

State's interest in prohibiting aid-in-dying for this particular
sub-group of patients is further weakened by its sanctioning of
terminal sedation.   This end-of-life treatment consists of the
intravenous administration of sedatives and pain medication,
often coupled with the withholding of nutrition and hydration, to
a terminally-ill patient (J M van Delden, Terminal Sedation:
Source of a Restless Ethical Debate, 33(4) J Med Ethics 187, 187
[2007]).   In 2003, the American Medical Association issued a
policy statement supporting the practice, which it calls
"palliative sedation to unconsciousness," as "an intervention of
last resort to reduce severe, refractory pain or other
distressing clinical symptoms that do not respond to aggressive
symptom-specific palliation" (see The AMA Code of Medical Ethics'
Opinions on Sedation at the End of Life, 15(5) Virtual Mentor
428-429 [May 2013]).6
           For this sub-group of terminally ill patients, the
State recognizes this as a lawful means to end life.7    As in

     6
       The statement recommends ethical guidelines for physicians
using the practice, such as only using it for patients in the
final stage of a terminal illness when their symptoms have been
unresponsive to aggressive treatment, and stresses that it is not
appropriate when the patient's suffering is primarily existential
(AMA Code at 429). These guidelines are not dissimilar from
those codified in aid-in-dying statutes across the country (see
Or Rev Stat Ann §§ 127.800 - 127.897 [enacted in 1997]), and in
the bill currently before the legislature (Proposed Medical Aid
in Dying Act, NY Assembly Bill A02383 [Jan 19, 2017]).
     7
       Determining whether terminal sedation is appropriate is a
decision for physicians and patients (see AMA Code of Medical
Ethics' Opinions on Sedation at the End of Life at 428).

                              - 16 -
                               - 17 -                        No. 77

Glucksberg, the "parties and amici agree that . . . a patient who
is suffering from a terminal illness and who is experiencing
great pain has no legal barriers to obtaining medication, from
qualified physicians, to alleviate that suffering, even to the
point of causing unconsciousness and hastening death"
(Glucksberg, 521 US at 736-37 [O'Connor, J. concurring]).    The
difference between injecting a drug that sedates a patient while
simultaneously quickening death and prescribing lethal medication
is not meaningful in the constitutional sense.   Regardless of the
method, the purpose of the physician's act and the patient's goal
in both situations is to expedite the dying process and avoid the
severe pain, suffering, and indignity associated with the last
stage of a terminal illness.   In these cases, a patient's
"interest in refusing medical care is incidental to [the
patient's] more basic interest in controlling the manner and
timing of her death" (Glucksberg, 521 US at 742 [1997] [Stevens,
J. concurring]).   Moreover, by sanctioning a patient's right to
refuse medical treatment, which leads to certain death, this
Court has, like the United States Supreme Court, "in essence,
authorized affirmative conduct that would hasten [a patient's]
death" (id. at 743).
          The State and my colleagues rely on an analysis of
physician intent to differentiate aid-in-dying from terminal
sedation and the withholding or withdrawal of life-saving
treatment (per curiam at 10-11; J. Fahey concurring op at 4; J.


                               - 17 -
                               - 18 -                        No. 77

Garcia concurring op at 6).    The argument presumes that
physicians who adopt aid-in-dying intend to cause the patient's
death, while physicians who perform these other treatments intend
solely to alleviate the patient's pain, and death is merely a
potential unintended consequence.    My colleagues quote Vacco v
Quill for the proposition that the law "has long used actors'
intent or purpose to distinguish between two acts that may have
the same result" (521 US 793, 802 [1997]; per curiam at 11; J.
Fahey concurring op at 4; J. Garcia concurring op at 5).    This is
irrelevant, because in every case involving individual liberty,
the constitutional question turns on the nature and expanse of
the patient's right to autonomy and bodily integrity as weighed
against the State's interest, not the intent of a third party who
assists the patient in receiving the proper medical treatment
(Rivers, 67 NY2d at 498).8    Besides, we do not defer to federal
analysis when we construe our broader state constitutional due
process clause (LaValle, 3 NY3d at 127).
          Moreover, this intent-based analysis fails even on its
own terms.   Simply put, it is impossible, as a practical matter,
to distinguish between these various end-of-life practices based



     8
       Due to the conceptual murkiness of determining whether a
physician's act is active or passive, and whether death is
intended or merely foreseen by a physician, some experts on
palliative care advise that considerations of "the patient's
wishes and competent consent are more ethically important [than
these concerns about the physicians's mindset]" (Quill,
Palliative Options of Last Resort, at 2102).

                               - 18 -
                              - 19 -                          No. 77

on a third party's state of mind.   When a physician removes a
patient from a life-sustaining apparatus, or declines to
administer life-saving procedures, the physician's intent, in
accord with the wishes of the patient, is to precipitate the
death of the patient.   A physician who complies with a patient's
constitutionally protected choice to forego life-sustaining
treatment knows that when a ventilator is withdrawn, for example,
the patient will soon die.9   To argue otherwise is to ignore the
reality of the physician's actions and the patient's wishes.
          Even the primary distinction cited by the State and my
colleagues does not hold in all cases because, as the State
concedes, the drugs involved in terminal sedation are known to
cause a patient's death in certain cases.   A physician providing
this medical option knows very well about the potential immediate
consequence and must forewarn the patient (see AMA Code of
Medical Ethics' Opinions on Sedation at the End of Life at 428).
Furthermore, while sedation may be necessary to alleviate a
patient's pain, the withdrawal of nourishment, which forms part
of the treatment, can only serve to bring about death (see David
Orentlicher, The Supreme Court and Terminal Sedation: Rejecting
Assisted Suicide, Embracing Euthanasia, 24 Hastings Const L Q


     9
       Arguably, at least as long as the patient remains
conscious, it may be possible for a patient who has asked for a
ventilator or nourishment to be withdrawn to change course and
decide to resume life-sustaining treatment. Terminal sedation,
however, initiates a process whereby the patient cannot object
once sedated and inevitably ends in the patient's death.

                              - 19 -
                                - 20 -                        No. 77

947, 957 [Summer 1997]). Resolution of the constitutional
question requires consideration of the patient's rights; not a
speculative exploration of the physician's intent.
           Terminal sedation is intended to initiate what must be
described for what it is:   a slow-acting lethal process.   While
it may fall under the umbrella of palliative care (see
Glucksberg, 521 US at 737-738 [O'Connor, J. concurring]),
terminal sedation is not solely a method of pain management but
is instead a procedure that hastens the inevitable death of the
patient.   It places the patient in a condition where choosing to
struggle against death is no longer possible.    It facilitates the
patient's choice to end life.
           If terminally-ill patients may exercise their liberty
interest by choosing to be terminally sedated, the State has no
compelling rationale, or even a rational interest, in refusing a
mentally-competent, terminally-ill patient who is in the final
stage of life the choice of a less intrusive option -- access to
aid-in-dying -- which may better comport with the patient's
autonomy and dignity.   It is also an option which lessens the
time patients and their families are forced to wait for the
inevitable -- often by no more than days and possibly much less.


                                 IV.
           Concerns about allowing aid-in-dying for the sub-group
I have identified are misplaced.    Consider, first, the State's


                                - 20 -
                               - 21 -                         No. 77

interest in preserving life.   Admittedly, the State has
compelling interests that justify prohibiting assisted suicide as
a general matter, but those interests are diminished and do not
outweigh the individual's liberty interest in the case of a
competent terminally-ill patient in the final stage of life, with
no cure or recourse other than inadequate pain management, facing
a death the patient feels is bereft of dignity.   As the State's
own policies regarding terminal sedation attest, it has accepted
that its interest in preserving life should cede to the rights of
a patient in this condition.   Acknowledgment of the individual's
right to decide when and how to end life in the limited
situations I have discussed does not undermine the sacredness of
life or devalue the patient any more than terminal sedation does.
Instead, by honoring a patient's wishes, the State recognizes the
individual's right to full autonomy and to make a choice that
reflects deeply held beliefs about life and death.
          Nor does the State's general interest in preventing
suicide and avoiding misdiagnosis outweigh the liberty interests
in aid-in dying for mentally-competent, terminally-ill patients
facing imminent, agonizing death.   The State's interests for this
group of patients are not comparable to cases involving persons
without terminal illnesses who are able to manage their illness
and its debilitating effects, or those who for any number of
personal reasons do not want to hasten death with a lethal
prescription.   There is no possibility of an erroneous terminal


                               - 21 -
                              - 22 -                         No. 77

diagnosis for these patients as aid-in-dying would only be
available in the last stage of life, when the end is imminent and
certain.   The fear that allowing aid-in-dying will result in
patient coercion or be the first step to government-sanctioned
euthanasia is as misplaced as the notion that terminal sedation
inevitably leads to government-sanctioned euthanasia.10
Permitting these patients to choose whether to experience the
short time that remains under conditions some may find unbearable
is a recognition of the importance of individual autonomy and the
limits of the State's ability to interfere with a patient's most
intimate personal decisions (Rivers, 67 NY2d at 492-493;
Obergefell, 135 S Ct at 2597).
           The State's argument that aid-in-dying would make it



     10
       The prediction that sanctioning aid-in-dying would put
New York State on a slippery slope toward legalizing non-
voluntary euthanasia is far from certain. Studies of two decades
of euthanasia in the Netherlands "show no evidence of a slippery
slope [leading to non-voluntary euthanasia]. . . . Also, there
is no evidence for a higher frequency of euthanasia among the
elderly, people with low educational status, the poor, the
physically disabled or chronically ill, minors, people with
psychiatric illnesses including depression, or racial or ethnic
minorities, compared with background populations" (JA Rietjens,
et al., Two Decades of Research on Euthanasia from the
Netherlands. What Have We Learnt and What Questions Remain?, 6(3)
J Bioeth Inq 271 [2009], at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2733179/ [accessed
August 29, 2017]; see also MP Battin, et al., Legal
physician-assisted dying in Oregon and the Netherlands: evidence
concerning the impact on patients in “vulnerable” groups, 33(10)
J Med Ethics 591 [2007]). This finding is mirrored in the data
from Oregon, which shows no evidence of heightened risk in any of
the above categories (id.).

                              - 22 -
                                - 23 -                         No. 77

more difficult to ensure adequate medical treatment for those
with untreated pain and depression is a valid interest in support
of the State's prohibition on physician-assisted suicide as a
general matter.   However, it does not outweigh the interests of
the terminally ill for whom pain treatment is inadequate and
whose choice is not motivated by depression and helplessness, but
by the desire to exercise autonomy to achieve a peaceful death,
one that honors individuality and dignity (see Glucksberg, 521 US
at 746-74 [1997] [Stevens, J. concurring]).      Nor can it be said
to be rational when the State already permits terminal sedation.
          The State's other argument, that aid-in-dying
undermines the integrity and ethics of the medical profession as
it is incompatible with the physician's role as a healer,11 is
not uniformly accepted and is contradicted by the experiences of
some medical professionals.12   The plaintiff-


     11
       The State does not adopt Judge Garcia's argument that the
opinion of some medical professionals alone is enough for this
statute to survive rational basis scrutiny as applied to this
sub-group (J. Garcia concurring op at 15). And with good reason:
such a low threshold risks rendering our rational basis test
meaningless.
     12
       For example, the New York State Academy of Family
Physicians, representing over six thousand physicians and medical
students, recently decided to support aid-in-dying ("Physician's
group endorses medical aid-in-dying legislation," The Legislative
Gazette [June 25, 2017], available at:
http://legislativegazette.com/physicians-group-endorses-medical-a
id-in-dying/ [accessed August 29, 2017]). Also, this year the
Medical Society of the State of New York decided to conduct a
survey of physicians in the State to determine their attitudes
towards aid-in-dying, citing public support and changes in the

                                - 23 -
                              - 24 -                         No. 77

physicians who treat the terminally ill and amici representing
the American Medical Student Association, American Medical
Women's Association, and American College of Legal Medicine,
describe how inhibiting a physician's exercise of best
professional judgment when counseling a patient about end-of-life
choices undermines the doctor-patient relationship.   Indeed, aid-
in-dying is openly practiced in various parts of the country
without having compromised the profession.13   Several amici point
out that in those states where aid-in-dying is lawful -- Oregon,
Washington, Vermont and California14 -- the physician standard of
care is governed by statutes and professional guidelines that


law elsewhere (see "New York's medical society will survey
doctors on attitudes towards physician assisted dying," WXXI News
[April 24, 2017], available at:
http://wxxinews.org/post/new-york-s-medical-society-will-survey-d
octors-attitudes-toward-physician-assisted-dying [accessed August
29, 2017]). This included a survey commissioned by Compassion &
Choices, a non-profit organization focusing on end-of-life care,
which indicates that 77 percent of New Yorkers support access to
aid-in-dying (Compassion & Choices, New York 2015-16 Research
Report, available at:
https://www.compassionandchoices.org/wp-content/uploads/2017/02/2
NY-POLL-INFO.pdf [accessed August 29, 2017]).
     13
       Notably, a 2003 survey of doctors and nurses published by
the Journal of the American Medical Association indicated that
aid-in-dying was being practiced clandestinely throughout the
country (see Diane E. Meier, MD et al, Characteristics of
Patients Requesting and Receiving Physician-Assisted Death,
163(13) Arch Intern Med 1537 [2003], available at:
https://jamanetwork.com/journals/jamainternalmedicine/fullarticle
/215798 [accessed August 29, 2017]).

     14
       Colorado has recently adopted a ballot measure permitting
aid-in-dying (Colo End of Life Options Act, Prop 106 [2016]).

                              - 24 -
                               - 25 -                       No. 77

have ensured the quality and careful application of this end of
life treatment.15   By all measures, the State fails to address
that the "time-honored line between healing and harming" does not
provide much guidance for practices like terminal sedation or
aid-in-dying (Glucksberg, 521 US at 731 [citations and quotation


     15
       The decisions from other states cited by the Court to
demonstrate that assisted suicide has nowhere yet been deemed a
fundamental right by a high court in the United States do not
affect the analysis, as plaintiffs rely on the guarantees
afforded by the New York State Constitution and our Court's broad
interpretation of the state Due Process Clause. To the extent
some of the cases cited by the per curiam analyze their own state
constitutions in a manner similar to that employed by the per
curiam here (per curiam at 13-14), I note that not all are based
on their respective state's due process clause (see People v
Kevorkian, 447 Mich 436, 538, 527 NW2d 714, 758 [Mich 1994]).
Further, the analysis is not uniform across these cases. For
example, in Morris v Brandenburg (2016-NMSC-027, 376 P3d 836, 841
[NM 2016]), the most recent case cited by the per curiam, the
Supreme Court of New Mexico reversed the trial court, which had
found a statute that prohibited aid-in-dying violated the New
Mexico State Constitution's guarantee to protect life, liberty,
and happiness. However, in that case, the State conceded that it
did not "have an interest in preserving a painful and
debilitating life that will end imminently." The court found
that the State had, instead, a legitimate interest in providing
protections to ensure that decisions regarding aid-in-dying are
informed, independent, and procedurally safe (id. at 855). The
court ultimately determined that the right to aid-in-dying is
best defined by the legislature, which is better equipped to
develop appropriate safeguards than the judiciary (points also
made by the courts in the Florida and Alaska cases [Krischer v
McIver, 697 So 2d 97, 104 (Fla 1997); Sampson v State of Alaska,
31 P3d 88,98 (Alaska 2001)]). A dissenting judge in the Michigan
case also argued that the State's interest in the preservation of
life dwindles as a terminally-ill patient suffering great pain
seeks to hasten death through physician-prescribed medications
(Kevorkian, 447 Mich at 538 [Mallett, J., dissenting]). Thus, to
the extent these cases may be instructive, they reveal that the
constitutional analysis of aid-in-dying is specific to each
state's constitutional jurisprudence and interests.

                               - 25 -
                              - 26 -                          No. 77

marks omitted]).   For this sub-group of patients, healing, as
understood as a restoration of bodily health, is no longer a
possibility.
          In addition to the interests asserted by the State, my
colleagues "hypothesize" an additional concern in avoiding misuse
of a patient's dosage (per curiam at 11-12).   Yet, the risk of
the drugs involved in aid-in-dying being "deliberately or
accidentally misused" is no more than with any other drug with
the potential to cause severe injury or death that a physician
may legally prescribe (see Office of the New York State
Comptroller, Prescription Opioid Abuse and Heroin Addiction in
New York State [June 2016], available at
https://www.osc.state.ny.us/press/releases/june16/heroin_and_opio
ids.pdf [accessed August 29, 2017]).   At most, this simply shows
that the State may regulate this area, as other states have
done.16


                                V.
          "It is the province of the Judicial branch to define,
and safeguard, rights provided by the New York State
Constitution, and order redress for violation of them" (Campaign


     16
       Although the State's authority to regulate the exercise
of a terminally-ill patient's access to aid-in-dying medications
is not directly presented in this appeal, some regulation of this
medical treatment option would fall within the State's power over
public health matters (see Viemeister v White, 179 NY 235, 238
[1904]).

                              - 26 -
                               - 27 -                           No. 77

for Fiscal Equity, Inc. v State, 100 NY2d 893, 925 [2003]).
Although a liberty interest is at stake here, the Court implies
and Judge Garcia argues that this question is best addressed by
the Legislature (per curiam at 13; J. Garcia concurring op at
17).   "The Court, however, plays a crucial and necessary function
in our system of checks and balances.     It is the responsibility
of the judiciary to safeguard the rights afforded under our State
Constitution" (People v LaValle, 3 NY3d 88, 128 [2004]).       We may
not abdicate that role to any other branch of government
(Campaign for Fiscal Equity, 100 NY2d at 925).
           Mentally-competent, terminally-ill patients, with no
cure or recourse other than inadequate pain management or
palliative sedation to unconsciousness, and who face certain,
imminent, excruciating death, are situated quantitatively and
qualitatively differently from other individuals, even others
living with terminal illnesses.   State interests that animate the
prohibition on physician aid-in-dying for these patients are
diminished as death draws near and ultimately are outweighed by
these patients' liberty interest and extant rights to self-
determination and bodily integrity.     The compelling state
interests that bar physician assisted suicide in general are not,
for this group, dispositive.   When the State already permits
physicians to instigate other processes that precipitate death,
there is no compelling basis for depriving such patients of an
option that can better comport with their sense of dignity,


                               - 27 -
                              - 28 -                         No. 77

control, and independence.   Our State Constitution protects the
rights of these terminally-ill patients to make the deeply
personal choice of how they define and experience their final
moments.




                              - 28 -
Sara Myers v Schneiderman
No. 77




FAHEY, J. (concurring):
          Experience teaches us that arguably benign policies can
lead to unanticipated results.    I write separately to expand on
certain risks that would be associated with legalizing physician-
assisted suicide in New York and that justify its prohibition.
                                  I.
          Several significant rationales exist for criminalizing
physician-assisted suicide, each of which would constitute a
legitimate legislative purpose for the statute challenged here.
The per curiam opinion, which I join, outlines many of these
legitimate government interests (see per curiam op at 12; see
also Washington v Glucksberg, 521 US 702, 728-735 [1997] [holding
that Washington State's then-ban on assisted suicide did not
violate substantive due process under the Fourteenth Amendment of
the Federal Constitution]).
          I focus on two, closely related rationales.   First, the
Legislature may reasonably criminalize assisted suicide because
to permit the practice would open the door to voluntary and non-
voluntary euthanasia.   To use the familiar metaphor, it would
place New York on a slippery slope toward legalizing non-
voluntary euthanasia.   Second, the Legislature may reasonably


                                 - 1 -
                               - 2 -                          No. 77

criminalize physician-assisted suicide because a right to
assisted suicide by the terminally ill in circumscribed last-
resort situations would inevitably expand to include persons who
are not terminally ill.
           I begin by discussing matters of terminology in regard
to physician-assisted dying and the legal landscape in the United
States.   Physician-assisted suicide, the topic of this appeal,
differs conceptually from euthanasia.    In euthanasia, a physician
brings about the death of a patient, whereas, in physician-
assisted suicide, it is the patient who kills himself or herself,
with the assistance of a physician.    The common thread, more
significant than the conceptual difference, is the use of a
lethal dosage of medication intended to end the patient's life.
           In the United States, physician-assisted suicide has
been legalized and is regulated in Oregon (see Or Rev Stat Ann §§
127.800 - 127.897 [enacted in 1997]); Washington (see Wash Rev
Code §§ 70.245.010 - 70.245.904 [enacted in 2008]); Vermont (see
18 Vt Stat Ann ch 113 [enacted in 2013]); California (see End of
Life Option Act, Cal. Health & Safety Code pt 1.85 [enacted in
2015]); Colorado (see Rev Stat §§ 25-48-101 - 25-48-123 [enacted
in 2016]); and the District of Columbia (see D.C. Act 21-577
[enacted in 2016]).   Each of these jurisdictions expressly
permits physician-assisted suicide by statute,1 and in each one

     1
          In Montana, a terminally ill patient's consent to
physician-assisted suicide constitutes a defense to a charge of
homicide under a state criminal statute, as interpreted by the

                               - 2 -
                               - 3 -                          No. 77

physician-assisted suicide is limited to mentally competent
patients, 18 years of age or older, who have been diagnosed with
a terminal illness that will lead to death within six months.
          By contrast, euthanasia is legal in no jurisdiction in
the United States.   Here, "euthanasia" refers to active
euthanasia, i.e., the intentional killing of a patient, motivated
by the physician's concern for the patient's suffering or
"indignity."   This concept of euthanasia does not include
practices -- sometimes referred to as passive euthanasia but more
often not described as euthanasia at all -- in which a physician
lets a patient die (see generally James Rachels, Active and
Passive Euthanasia, 292 New England Journal of Medicine 78
[1975]; Thomas D. Sullivan, Active and Passive Euthanasia: An
Impertinent Distinction?, 3 Human Life Review 40 [1977], both
reprinted in Bonnie Steinbock, Alastair Norcross, Killing and
Letting Die 112-119, 131-138 [1994]; Daniel Callahan, Killing and
Allowing to Die, 19 Hastings Center Report, Special Supplement 5
[1989], reprinted in Michael Boylan, Medical Ethics 199-202
[2000]; L.W. Sumner, Assisted Death: A Study in Ethics and Law 19
& n 46 [2011]).   Such essentially passive physician practices,
now generally considered unobjectionable in proper circumstances,
include, for example, removing a patient from a machine that
would prolong the patient's life or withdrawing nutrition and



Montana Supreme Court (see Baxter v State, 224 P3d 1211, 1222
[Mont 2009]).

                               - 3 -
                               - 4 -                        No. 77

hydration from a patient undergoing palliative sedation.
           I respectfully disagree with Judge Rivera's view that
the difference between palliative sedation and physician-assisted
suicide "is not meaningful in the constitutional sense"
(concurring op of Rivera, J., at 17).   Instead, I would follow
the Supreme Court's analysis in Vacco v Quill (521 US 793
[1997]).
           "[A] physician who withdraws, or honors a
           patient's refusal to begin, life-sustaining
           medical treatment purposefully intends, or
           may so intend, only to respect his patient's
           wishes and to cease doing useless and futile
           or degrading things to the patient when the
           patient no longer stands to benefit from
           them. The same is true when a doctor
           provides aggressive palliative care; in some
           cases, painkilling drugs may hasten a
           patient's death, but the physician's purpose
           and intent is, or may be, only to ease his
           patient's pain. A doctor who assists a
           suicide, however, must, necessarily and
           indubitably, intend primarily that the
           patient be made dead. Similarly, a patient
           who commits suicide with a doctor's aid
           necessarily has the specific intent to end
           his or her own life, while a patient who
           refuses or discontinues treatment might not.
                 "The law has long used actors' intent or
           purpose to distinguish between two acts that
           may have the same result. Put differently,
           the law distinguishes actions taken 'because
           of' a given end from actions taken 'in spite
           of' their unintended but foreseen
           consequences" (id. at 801-803 [internal
           quotation marks, square brackets, and
           citations omitted]; see also id. at 808 n
           11).2


     2
          See generally Sullivan, Active and Passive Euthanasia:
An Impertinent Distinction?, in Steinbock and Norcross at 136;
R.G. Frey, Intention, Foresight, and Killing, in Tom L.

                               - 4 -
                               - 5 -                          No. 77

           Finally, there is an important distinction between
voluntary and non-voluntary euthanasia.   Voluntary euthanasia is
euthanasia in accordance with the request of a mentally competent
patient.   Non-voluntary euthanasia is euthanasia performed on
someone who, because of a factor such as infancy, mental
incompetence, coma, etc., is not able to choose euthanasia and
has never recorded a directive expressing his or her will in
regard to euthanasia.   Involuntary euthanasia, not implicated
here, would be euthanasia performed on a person who is able to
give consent, but has not done so, either because the person was
not asked or because he or she withheld consent (see generally
L.W. Sumner, Assisted Death: A Study in Ethics and Law at 17).
                                II.
           The practice of physician-assisted suicide and
euthanasia in the Netherlands provides us with a disturbing
preview of what it would be rational to expect upon legalization.
In what follows, I concentrate on that country, which has the
longest history of socially accepted euthanasia, while adding
comments on other jurisdictions that have legalized euthanasia or
physician-assisted suicide.   It will be clear from the foregoing
section that the practices to be discussed below are euthanasia



Beauchamp, Intending Death: The Ethics of Suicide and Euthanasia
69-70 (1996); Greg Beabout, Morphine Use for Terminal Cancer
Patients: An Application of the Principle of Double Effect, 19
Philosophy in Context 49 (1989), reprinted in P.A. Woodward, The
Doctrine of Double Effect 298-311 (2001).

                               - 5 -
                              - 6 -                           No. 77

and physician-assisted suicide, not palliative sedation or
removal of a patient from life support or other treatment.
          In the Netherlands in 2002, the Termination of Life on
Request and Assisted Suicide (Review Procedures) Act was enacted
to legalize and regulate long-standing pre-existing practices of
physician-assisted suicide and voluntary euthanasia.    Under that
statute, a physician may end the life of a patient who is
experiencing unbearable suffering without hope of relief, at the
patient's explicit request, either by administering a lethal
dosage of medication (euthanasia) or by prescribing a
pharmaceutical means of suicide (physician-assisted suicide) (see
generally Government of the Netherlands, Is euthanasia allowed?,
at https://www.government.nl/topics/euthanasia/contents/is-
euthanasia-allowed [accessed August 21, 2017]).
          In 2015, euthanasia and physician-assisted suicide
accounted for 5,516 reported deaths in the Netherlands, almost
four percent of all deaths in the country, estimated at around
140,000 per annum (see Regional Euthanasia Review Committees,
Annual Report 2015, at 16, available at https://english.
euthanasiecommissie.nl/documents/publications/annual-reports/2002
/annual-reports/annual-reports [accessed August 21, 2017]).    The
proportion of deaths attributed to euthanasia and physician-
assisted suicide had more than doubled over ten years (see
Regional Euthanasia Review Committees, Annual Report 2005, at 2,
available at https://english.euthanasiecommissie.nl/documents/


                              - 6 -
                                - 7 -                         No. 77

publications/annual-reports/2002/annual-reports/annual-reports
[accessed August 21, 2017] [1,933 cases of euthanasia and
assisted suicide were reported in 2005]).
          The most immediately striking aspect of end-of-life
decision-making in the Netherlands is that no legal or ethical
distinction is drawn between physician-assisted suicide and
euthanasia.   Similarly, physician-assisted suicide and euthanasia
were made legal at the same time as one another in both Belgium
(2002) and Luxembourg (2009).   In Canada, a 2015 Supreme Court of
Canada decision striking down a prohibition on assisted suicide
led to a June 2016 law legalizing both "the prescribing or
providing by a medical practitioner or nurse practitioner of a
substance to a person, at their request, so that they may
self-administer the substance and in doing so cause their own
death" (physician-assisted suicide) and "the administering by a
medical practitioner or nurse practitioner of a substance to a
person, at their request, that causes their death" (euthanasia)
(Statutes of Canada 2016, Bill C-14, An Act to amend the Criminal
Code and to make related amendments to other Acts [medical
assistance in dying], available at http://www.parl.ca/Document
Viewer/en/42-1/bill/C-14/royal-assent [accessed August 21, 2017];
see also https://openparliament.ca/bills/42-1/C-14 [accessed
August 21, 2017]).   The movement from allowing physician-assisted
suicide to permitting euthanasia is facile; indeed, it apparently
has not even been perceived as a transition in some societies


                                - 7 -
                                - 8 -                         No. 77

outside the United States that have legalized the former
practice.
            It is true, as I have already noted, that in the United
States active euthanasia is nowhere legal, whereas physician-
assisted suicide is permitted in six states and the District of
Columbia.   I am not convinced, however, that this state of
affairs will last.    The evidence from the Netherlands, Belgium,
Luxembourg, and Canada suggests it will not.    Moreover, the line
between physician-assisted suicide and euthanasia is difficult to
defend.   If a person has the statutory or other right to
physician-assisted suicide, does she lose the right to die if she
suddenly becomes too physically weak to self-administer lethal
prescribed drugs?    "[T]his would arguably amount to
discrimination based upon physical disability" (Sampson v State,
31 P3d 88, 97 [Alaska 2001] [upholding as constitutional a
criminal statute prohibiting intentionally aiding another person
to commit suicide]; see also e.g. Dan W. Brock, Voluntary Active
Euthanasia, 22 Hastings Center Report 10, 10 [1992]).   In
practice, it appears that in Oregon a feeding tube is sometimes
used to enable a patient who wishes to commit suicide using
prescription medication, but has lost mobility, to ingest the
lethal prescription (see Disability Rights Education & Defense
Fund, Some Oregon and Washington State Assisted Suicide Abuses
and Complications, Self-Administration, at https://lozier
institute.org/a-reality-check-on-assisted-suicide-in-oregon


                                - 8 -
                               - 9 -                           No. 77

[accessed August 21, 2017]).
          Indeed, this concern about the transition from
physician-assisted suicide to euthanasia was recognized by the
United States Supreme Court, which observed that "in some
instances, the patient may be unable to self-administer the drugs
and . . . administration by the physician . . . may be the only
way the patient may be able to receive them," and that "not only
physicians, but also family members and loved ones, will
inevitably participate in assisting suicide.   Thus, it turns out
that what is couched as a limited right to 'physician-assisted
suicide' is likely, in effect, a much broader license, which
could prove extremely difficult to police and contain"
(Glucksberg, 521 US at 733 [internal quotation marks and
citations omitted]).   Justice Souter expanded on the point,
noting that "[p]hysicians, and their hospitals, have their own
financial incentives, too, in this new age of managed care.
Whether acting from compassion or under some other influence, a
physician who would provide a drug for a patient to administer
might well go the further step of administering the drug himself;
so, the barrier between assisted suicide and euthanasia could
become porous" (Glucksberg, 521 US at 784-785 [Souter, J.,
concurring]).
          Based on the current experience in the Netherlands, an
expansion from physician-assisted suicide, by a patient taking a
prescription of fatal drugs, to euthanasia, by a nurse or


                               - 9 -
                              - 10 -                         No. 77

physician administering a prescription of fatal drugs, seems all
but inevitable.   Certainly the fear of that expansion, if
physician-assisted suicide were legalized in New York, is
reasonable.
                               III.
          The Netherlands has displayed another very disturbing
trend: the countenancing of both voluntary euthanasia and non-
voluntary euthanasia.   A study conducted in 2005 revealed that
2410 people in the Netherlands, 1.8% of all deaths in the
Netherlands that year, died as a result of voluntary euthanasia
or physician-assisted suicide,3 while 0.4% of all deaths, or some
560 people, died as "the result of the use of lethal drugs not at
the explicit request of the patient" (A. van der Heide et al.,
End-of-life practices in the Netherlands under the Euthanasia
Act, 356 N Engl J Med 1957 [Table 1] [2007] [emphasis added],
available at http://www.nejm.org/doi/full/10.1056/NEJMsa071143
#t=articleTop [accessed August 21, 2017]; see also J. Pereira,
Legalizing euthanasia or assisted suicide: the illusion of
safeguards and controls, 18 Curr Oncol e38 [2011], available at


     3
          This figure includes 1,933 reported cases and 477
unreported cases. The study classified actions as euthanasia or
physician-assisted suicide if the physician administered,
supplied, or prescribed drugs with the explicit intention of
hastening death, and at the explicit request of the patient,
resulting in the patient's death. Not classified as instances of
euthanasia or physician-assisted suicide were situations in which
medical treatment was withheld or withdrawn, or measures to
alleviate pain or other symptoms (such as palliative sedation)
were intensified.

                              - 10 -
                              - 11 -                         No. 77

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3070710 [accessed
August 21, 2017]).   In other words, for every five people who
died in the Netherlands as a result of euthanasia or physician-
assisted suicide in the immediate wake of the legalization and
regulation of the practices, one died without explicitly
requesting death and thus in violation of the law.   Such cases
involved, for example, patients who were "unconscious . . . or
incompetent owing to young age" (A. van der Heide et al.,
End-of-life practices in the Netherlands under the Euthanasia
Act), and it was more common for the euthanasia to be justified
by discussion with the patient's relatives than by past
discussion with the patient (see id.).
          A similar study of euthanasia and physician-assisted
suicide in Belgium revealed a large proportion of patients who
received euthanasia without an explicit request, some 32% of
those who received euthanasia (see K. Chambaere et al.,
Physician-assisted deaths under the euthanasia law in Belgium: a
population-based survey, 182 Canadian Medical Association Journal
895, 896, 897 [Table 1] [2010], available at http://www.cmaj.ca/
content/182/9/895 [accessed August 21, 2017]).   Typically, in
Belgian cases of non-voluntary euthanasia, the patient is in a
coma or suffering from dementia, and relatives or other
caregivers are consulted in advance regarding the euthanasia (see
id. at 898-899).
          In studying the modern experience in the Benelux


                              - 11 -
                               - 12 -                         No. 77

nations, we are, of course, not facing government-sanctioned
forced euthanasia.   The decision-makers in non-voluntary
euthanasia may be well-meaning.   Such consultation, however, does
not render the euthanasia voluntary, and indeed brings to mind
the necessity of ensuring that decision-making about ending the
lives of vulnerable, terminally ill people is not entrusted
entirely to those who have the financial and emotional burden of
caring for them.
          I am not suggesting that the legalization of voluntary
euthanasia, in a society such as the Netherlands in which it was
already widely practiced, necessarily increases the rate of non-
voluntary euthanasia.   It may not invariably do so (see A. van
der Heide et al., End-of-life practices in the Netherlands under
the Euthanasia Act).    My point is simply that physician-assisted
suicide and euthanasia are inevitably accompanied by instances of
non-voluntary euthanasia, so that it is rational to predict that
endorsement of physician-assisted suicide will lead to
occurrences of non-voluntary euthanasia.
          There is also a reasonable concern that a descent from
voluntary euthanasia and physician-assisted suicide to non-
voluntary euthanasia would be an especial risk in vulnerable and
disadvantaged parts of society.   In 1994, the New York State Task
Force on Life and the Law "unanimously recommend[ed] that New
York laws prohibiting assisted suicide and euthanasia should not
be changed" (New York State Task Force on Life and the Law, When


                               - 12 -
                              - 13 -                            No. 77

Death Is Sought: Assisted Suicide and Euthanasia in the Medical
Context [May 1994], Executive Summary, available at https://www.
health.ny.gov/regulations/task_force/reports_publications/when_
death_is_sought [accessed August 21, 2017]).4   The Task Force
reasoned that "legalizing assisted suicide and euthanasia would
pose profound risks to many individuals who are ill and
vulnerable. . . . The risk of harm is greatest for the many
individuals in our society whose autonomy and well-being are
already compromised by poverty, lack of access to good medical
care, advanced age, or membership in a stigmatized social group"
(New York State Task Force, When Death Is Sought at 120,
available at https://www.health.ny.gov/regulations/task_force/
reports_publications/when_death_is_sought/chap6.htm [accessed
August 21, 2017]).   As the Task Force observed, "[n]o matter how
carefully any guidelines are framed, assisted suicide and
euthanasia will be practiced through the prism of social
inequality and bias that characterizes the delivery of services
in all segments of our society, including health care.    The
practices will pose the greatest risks to those who are poor,
elderly, members of a minority group, or without access to good
medical care" (New York State Task Force, When Death Is Sought,


     4
          In 1985, the New York State Task Force on Life and the
Law was established by Governor Mario Cuomo, commissioned with "a
broad mandate to recommend public policy on issues raised by
medical advances" (https://www.health.ny.gov/regulations/task_
force/reports_publications/when_death_is_sought/preface.htm
[accessed August 21, 2017]).

                              - 13 -
                               - 14 -                          No. 77

Executive Summary, available at https://www.health.ny.gov/
regulations/task_force/reports_publications/when_death_is_sought/
preface.htm [accessed August 21, 2017]).
          Given an acceptance of physician-assisted suicide and
voluntary euthanasia, such practices could come over time to be
regarded as cheaper alternatives to medical treatment for the
terminally ill, leading to a particular risk of non-voluntary
euthanasia when a patient's socioeconomic disadvantages,
uninsured status, and/or dementia or mental incompetence make it
impossible for the patient to advocate vigorously for his or her
health care.    "Frail and debilitated elderly people, often
demented or otherwise incompetent and thereby unable to defend
and assert their own interests, may be especially vulnerable to
unwanted euthanasia" (Brock, Voluntary Active Euthanasia, 22
Hastings Center Report at 21).
          It is true that research from Oregon suggests that such
fears of non-voluntary euthanasia of the vulnerable have not yet
come to pass.    "[R]ates of assisted dying in Oregon . . . showed
no evidence of heightened risk for the elderly, women, the
uninsured . . ., people with low educational status, the poor,
the physically disabled or chronically ill, minors, people with
psychiatric illnesses including depression, or racial or ethnic
minorities, compared with background populations" (Margaret P.
Battin, et al., Legal physician-assisted dying in Oregon and the
Netherlands: evidence concerning the impact on patients in


                               - 14 -
                               - 15 -                         No. 77

"vulnerable" groups, 33 J Med Ethics 591 [2007], available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2652799 [accessed
August 21, 2017]).   Yet the experiment with physician-assisted
suicide on the West Coast is still young, and the Dutch
experience supports the rationality of such fears.
           Another part of society that could be at significant
long-term risk is the community of people who are disabled.     The
Disability Rights amici argue that while the plaintiffs "use the
term 'dignified death' to justify assisted suicide. . . .    the
'indignities' nondisabled (and some newly disabled) people
invariably describe are the need for assistance in daily
activities like bathing, dressing, and other realities of having
a disability.   Legalizing assisted suicide enshrines in law the
prejudice that death is preferable to receiving the assistance
that many disabled people rely on" (Amicus Brief of Disability
Rights Amici: Not Dead Yet et al., at 4).   For the many members
of the disabled community who are not terminally ill, the
"indignities" that plaintiffs wish to avoid are suffered on a
daily basis.    Legalizing physician-assisted suicide would convey
a societal value judgment that such "indignities" as physical
vulnerability and dependence mean that life no longer has any
intrinsic value.
           A disability does not deprive life of integrity or
value.   There is no lack of nobility or true dignity in being
dependent on others.   The natural developments of old age and


                               - 15 -
                              - 16 -                          No. 77

final illness are dependence and waning consciousness.   Many
disabilities come with similar challenges.   It would be a
profound mistake to equate limits imposed on a person's life with
the conclusion that such a life has no value.
                                IV.
          Last year, the American Psychiatric Association (APA)
stated its official policy on physician-assisted suicide or
euthanasia of psychiatric patients: "a psychiatrist should not
prescribe or administer any intervention to a non-terminally ill
person for the purpose of causing death" (APA, Position Statement
on Medical Euthanasia [December 2016], available at https://www.
psychiatry.org/home/policy-finder [accessed August 21, 2017]).
At the time, a member of the APA's ethics committee stated that
he feared that Canada and the jurisdictions in the United States
that have legalized physician-assisted suicide are headed in the
same direction as the Netherlands and Belgium.   "So far, no other
country that has implemented physician-assisted suicide has been
able to constrain its application solely to the terminally ill,
eventually including non-terminal patients as legally eligible as
well . . .   This is when psychiatric patients start to be
included" (Michael Cook, American Psychiatric Association takes
historic stand on assisted suicide and euthanasia, BioEdge:
bioethics news from around the world, December 16, 2016,
available at https://www.bioedge.org/bioethics/american-
psychiatric-association-takes-historic-stand-on-assisted-suicide-


                              - 16 -
                               - 17 -                         No. 77

a/12137 [accessed August 21, 2017]).
          The experience of euthanasia in the Netherlands amply
justifies this assertion.    Euthanasia and physician-assisted
suicide in the Netherlands have not been limited to those whose
pain is physical.    As long as "the patient’s suffering is
unbearable and without prospect of improvement" (Government of
the Netherlands, Is euthanasia allowed?), a person whose illness
is psychiatric may request and receive euthanasia or commit
physician-assisted suicide.    For example, in 2013, a woman in her
thirties suffering from obsessive-compulsive disorder and an
eating disorder, who engaged in "prolonged and extensive eating
and vomiting rituals," was considered a suitable candidate for
euthanasia because she "had tried every conceivable psychotherapy
and drug treatment" without success and "experienced her
suffering as unbearable" (id. at 24).    In 2013, there were 42
reported cases of euthanasia and physician-assisted suicide of
people with psychiatric, rather than physical, conditions, as
compared with 14 in 2012 and 13 in 2011 (see Regional Euthanasia
Review Committees, Annual Report 2013, at 9, available at
https://english.euthanasiecommissie.nl/documents/publications/
annual-reports/2002/annual-reports/annual-reports [accessed
August 21, 2017]).    By 2015, the number of persons with
psychiatric suffering who received euthanasia in the Netherlands
was 56 (see Regional Euthanasia Review Committees, Annual Report
2015, at 6, available at https://english.euthanasiecommissie.nl/


                               - 17 -
                              - 18 -                           No. 77

documents/publications/annual-reports/2002/annual-reports/annual-
reports [accessed August 21, 2017]).
           A 2016 survey of the euthanasia and physician-assisted
suicide of 66 patients with psychiatric suffering in the
Netherlands from 2011 to 2014 found that in most cases the
patient's primary psychiatric condition was a depressive disorder
(S.Y.H. Kim et al., Euthanasia and Assisted Suicide of Patients
with Psychiatric Disorders in the Netherlands 2011 to 2014, 73
JAMA Psychiatry 362 [2016], available at http://jamanetwork.com/
journals/jamapsychiatry/fullarticle/2491354 [accessed August 21,
2017], at E3), ranging from "patients with chronic, severe,
difficult-to-treat depressions" to a woman who had lost her
husband and found life as a widow "meaningless" but "did not feel
depressed at all" and "ate, drank, and slept well . . . followed
the news and undertook activities" (id. at E3).
           The same survey noted that most of the patients felt
"social isolation or loneliness," including one who believed
"that she had had a life without love and therefore had no right
to exist" and "an utterly lonely man whose life had been a
failure" (id. at E4).   The authors of the survey concluded that
the patients receiving euthanasia or physician-assisted suicide
"are mostly women   . . . with various chronic psychiatric
conditions, accompanied by personality disorders, significant
physical problems, and social isolation or loneliness" (id. at
E6).   It is evident that the practice of physician-assisted


                              - 18 -
                              - 19 -                           No. 77

suicide and euthanasia in the Netherlands has already descended
to the level of condoning the suicide or killing of people whose
primary suffering is not physical pain, but chronic depression.
          Recently, the Netherlands has shown signs of taking a
new path down the slope that began with physician-assisted
suicide and euthanasia of the terminally ill.   In 2016, the
Health Minister defended a proposed law allowing healthy older
people to seek euthanasia if they feel that they "do not have the
possibility to continue life in a meaningful way, . . . are
struggling with the loss of independence and reduced mobility,
. . . have a sense of loneliness, partly because of the loss of
loved ones, and . . . are burdened by general fatigue,
deterioration and loss of personal dignity" (Dan Bilefsky,
Christopher F. Schuetze, Dutch Law Would Allow Assisted Suicide
for Healthy Older People, New York Times, Oct 14, 2016 at A5,
available at https://www.nytimes.com/2016/10/14/world/europe/
dutch-law-would-allow-euthanasia-for-healthy-elderly-people.html?
_r=0 [accessed August 21, 2017]).   The proposed law essentially
would allow people who are tired of life to end their lives.
          Notably, the authors of the 2016 survey observe that
the requirement that there be no "prospect of improvement" has
proved controversial when the people seeking euthanasia are
psychiatric patients.   The survey authors found that almost one-
third of the patients had initially been refused euthanasia or
physician-assisted suicide and that almost one-quarter of the


                              - 19 -
                                - 20 -                          No. 77

cases "engendered disagreements among the physicians involved"
(id. at E6 [emphasis added]).    They noted "the . . . complicated
determinations of medical futility that must incorporate
patients' treatment refusals in the context of less-than-certain
prognosis even among persons with treatment-resistant depression"
(id.).   Such disagreements are telling.
           Of course, in the United States jurisdictions that
permit physician-assisted suicide, the practice is currently
limited to patients who have six months to live.       The descent
down the slippery slope in the Netherlands, however, verifies the
fear that jurisdictions in this country will find it difficult to
limit the application of physician-assisted dying to the
terminally ill.
                                  V.
           Perhaps most disturbingly, the Dutch practice of
legalized euthanasia and physician-assisted suicide has quickly
been extended to young children.       In the Netherlands, children
"may themselves request euthanasia from the age of 12, although
the consent of the parents or guardian is mandatory until they
reach the age of 16.   Sixteen[-] and seventeen-year-olds do not
need parental consent in principle, but their parents must be
involved in the decision-making process.       From the age of 18,
young people have the right to request euthanasia without
parental involvement" (Government of the Netherlands, Euthanasia,
assisted suicide and non-resuscitation on request, available at


                                - 20 -
                               - 21 -                          No. 77

https://www.government.nl/topics/euthanasia/contents/euthanasia-a
ssisted-suicide-and-non-resuscitation-on-request [accessed August
21, 2017]).   Recently, the Dutch Pediatric Association has called
for the age limit of 12 years old to be eliminated, so that "each
child’s ability to ask to die [w]ould be evaluated on a
case-by-case basis” (Dutch paediatricians: give terminally ill
children under 12 the right to die, The Guardian, June 19, 2015,
available at https://www.theguardian.com/society/2015/jun/19/
terminally-ill-children-right-to-die-euthanasia-netherlands
[accessed August 21, 2017]).
          This would put the Netherlands in line with Belgium.
In 2014, a dozen years after the 2002 Belgian Act on Euthanasia
legalized euthanasia and physician-assisted suicide for adults
suffering from constant, unbearable suffering (whether physical
or psychiatric) that cannot be alleviated, Belgium legalized
euthanasia by lethal injection for similarly situated children,
of any age, provided they possess "the capacity of discernment"
and there is parental consent (Belgium passes law extending
euthanasia to children of all ages, The Guardian, 13 February
2014, at https://www.theguardian.com/world/2014/feb/13/belgium-
law-extends-euthanasia-children-all-ages [accessed August 21,
2017]).
          The expansion of euthanasia to children needs little
commentary.   Our society recognizes that minors "are in the
earlier stages of their emotional growth, that their intellectual


                               - 21 -
                              - 22 -                         No. 77

development is incomplete, that they have had only limited
practical experience, and that their value systems have not yet
been clearly identified or firmly adopted" (People ex rel.
Wayburn v Schupf, 39 NY2d 682, 687-688 [1976]).   The immaturity
of children makes them especially vulnerable.   The Dutch
extension of euthanasia to minors is further proof that it is
reasonable to fear the consequences of legalizing physician-
assisted suicide.5
                                VI.
          The evidence from other countries is that legitimating
physician-assisted suicide can lead to the acceptance of non-
voluntary euthanasia and to the extension of physician-assisted
suicide to patients, such as those suffering from depression, who
are not terminally ill.   Such developments, valuing the avoidance
of suffering above all virtues of endurance and hope for the
future, should be intensely disturbing to all of us.   The risk of
facilitating such a bleak prospect is a rational justification
for New York's prohibition of assisted suicide.




     5
          There is also evidence of an extension of the practice
of physician-assisted suicide to non-physicians in the
Nethelands. A Dutch "suicide counselor" was acquitted of helping
a 54-year-old woman kill herself, despite advising her on the
quantity of drugs to be taken to be certain of death (T. Sheldon,
Dutch court acquits suicide counsellor of breaking the law, 334
BMJ 228 [2007], available at https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC1790785 [accessed August 21, 2017]).

                              - 22 -
Myers v Schneiderman
No. 77




GARCIA, J. (concurring):
          I agree with and join in the Court's holdings that
Penal Law § 120.30 and § 125.15 (3) encompass aid-in-dying (per
curiam at Section III), and that the statutes do not violate
plaintiffs' right to equal protection under the New York State
Constitution (per curiam at Section IV.A.).   To the extent
plaintiffs' allegations overlap with those asserted in Washington
v Glucksberg (521 US 702 [1997]), I also agree with the Court's
conclusion that, here, our State Due Process Clause is no broader
than its federal counterpart and, therefore, plaintiffs' claims
must fail.   I write separately because I believe the Court should
go further; to the extent plaintiffs' assert a "more
particularized" challenge to the assisted suicide statutes (id.
at 750 [Stevens, J., concurring]), I would expressly reach -- and
reject -- those claims.
                               I.
          In support of their due process claim, plaintiffs argue
that the assisted suicide statutes burden a fundamental right and
that, even if they do not, the statutes cannot survive rational
basis review.   These precise arguments were asserted under the
Federal Constitution in Washington v Glucksberg (521 US 702


                               - 1 -
                               - 2 -                          No. 77

[1997]), and were rejected by the United States Supreme Court.
Accordingly, unless our State Due Process Clause supplies broader
protection, plaintiffs' claim here must similarly fail.
                                A.
           In Washington v Glucksberg, the Supreme Court rejected
the plaintiffs' due process challenge to Washington's prohibition
against "caus[ing]" or "aid[ing]" a suicide (521 US 702, 705
[1997]).   There, the Court determined that the "right" to
assistance in committing suicide asserted by the plaintiffs was
"not a fundamental liberty interest protected by the Due Process
Clause" of the Federal Constitution (id. at 728).   Because
Washington's ban on assisted suicide was "at least reasonably
related" to a number of "important and legitimate" state
interests, the Court concluded that it survived rational basis
review and that it did not violate the Due Process Clause of the
Fourteenth Amendment (id. at 735 [citation and quotation marks
omitted]).
           Addressing the scope of its ruling, the Court carefully
framed the issue presented:   "It is the [lower] court's holding
that Washington's physician-assisted suicide statute is
unconstitutional as applied to the class of terminally ill,
mentally competent patients that is before us today" (id. at 709
n 6 [citation and quotation marks omitted]).1   Accordingly, the

     1
       Although the lower court's holding "was not limited to a
particular set of plaintiffs before it" (id. at 709 n 6, quoting
id. at 739 [Stevens, J., concurring]), the Court determined that

                               - 2 -
                              - 3 -                           No. 77

Supreme Court's holding affirmed the validity of the Washington
statute both "on its face" and "as applied to competent,
terminally ill adults who wish to hasten their deaths by
obtaining medication prescribed by their doctors" (id. at 735
[citation and quotation marks omitted]).
          The same conclusion is warranted under our State Due
Process Clause.
                              B.
          In general, our Court "use[s] the same analytical
framework as the Supreme Court in considering due process cases"
(Hernandez v Robles, 7 NY3d 338, 362 [2006]).   While, "[w]e have,
at times, held that our State Due Process Clause provides greater
protections than its federal counterpart" (per curiam at 9,
citing People v Aviles, 28 NY3d 497, 505 [2016]; see also People
v P.J. Video, 68 NY2d 296, 302-303 [1986]), I agree with the
Court's conclusion that this is not one of those times.
          In Glucksberg, the Supreme Court began by considering
our Nation's "history, legal traditions, and practices" with
respect to aid-in-dying, emphasizing New York's pivotal role at
the forefront of legislative efforts to punish assisted suicide
(Glucksberg, 521 US at 710-719).   Like most states, New York has
"consistently condemned, and continue[s] to prohibit, assisting



it had nonetheless ruled on the statute's constitutionality "as
applied to members of a group" -- an approach that is "not
uncommon" (id. at 709 n 6, citing Compassion in Dying v
Washington, 79 F.3d 790, 798 n 9 [9th Cir 1996 en banc]).

                              - 3 -
                               - 4 -                           No. 77

suicide" (id. at 719).   The earliest American statute explicitly
outlawing assisted suicide was enacted in New York nearly two
centuries ago, with many States and Territories later following
New York's example (see id. at 715 [citations omitted]).     In
1857, a New York commission led by Dudley Field drafted a
criminal code that prohibited "aiding" a suicide (id. [citation
omitted]).   The Field Code was adopted in New York in 1881, and
"its language served as a model for several other western States'
statutes" (id. [citation omitted]).    The language of the
prohibition remained largely unchanged until 1965, when Penal Law
§ 120.30 and § 125.15 (3) were enacted as part of a "new Penal
Law" that "reorganize[d] and modernize[d] penal provisions
proscribing conduct which has traditionally been considered
criminal" (Governor's Approval Mem, Bill Jacket, L 1965, ch 1030
at 35).
          Since then, the statutes have been repeatedly
reexamined, including by New York's Task Force on Life and the
Law, which studied physician-assisted suicide and unanimously
concluded that the "potential dangers" of such a "dramatic change
in public policy would outweigh any benefit that might be
achieved" (Glucksberg at 719 [citation omitted]).    Despite
repeated attempts to legalize aid-in-dying in New York, the
Legislature has not retreated from its prohibition.
          To be sure, "the common law of New York" recognizes a
patient's right "to determine what shall be done with his own


                               - 4 -
                                - 5 -                         No. 77

body and to control the course of his medical treatment" (Rivers
v Katz, 67 NY2d 485, 492 [1986]; see also Schloendorff v Society
of New York Hospital, 211 NY 125, 129–130 [1914]).    In Matter of
Storar, we explicitly recognized a competent patient's right to
refuse medical treatment, even where the treatment may be
necessary to preserve the patient's life (52 NY2d 363, 369
[1981]).    We again recognized the right of "a competent adult to
refuse treatment" in Matter of Fosmire, where we held that the
patient -- "an adult Jehovah's Witness [who] refused to consent
to blood transfusions" -- had a "right to decline the
transfusions" even though they were "necessary to save her life"
(75 NY2d 218, 221, 226 [1990]).    And today, we reaffirm a
patient's fundamental right to refuse life-saving medical care or
treatment (per curiam at 1-2, 9-10).
            But we have never defined this fundamental right to
encompass the broad "right to die" that plaintiffs seek; rather,
we have consistently reaffirmed the widely-recognized distinction
between refusing life-sustaining treatment and assisted suicide
(per curiam at 10, citing Matter of Bezio v Dorsey, 21 NY3d 93,
103 [2013]; Matter of Fosmire, 75 NY2d at 227; Storar, 52 NY2d at
377 n 6).    This distinction "comports with fundamental legal
principles of causation and intent" (Vacco v Quill, 521 US 793,
801 [1997]).    When a patient refuses life-sustaining treatment
and succumbs to illness, the cause of death is the underlying
disease.    By contrast, when a lethal medication is ingested, the


                                - 5 -
                               - 6 -                          No. 77

cause of death is not the pre-existing illness, but rather, the
prescribed medication.   In addition, a physician who withdraws
treatment or administers terminal sedation does not intend to
kill the patient, though that may be the eventual result.
Rather, the physician intends only to respect the patient's right
to die naturally and free from intrusion, and to alleviate any
pain or discomfort that may accompany that decision.    A physician
who provides aid-in-dying, however, indisputably intends for his
or her actions to directly cause the patient's death; that is the
very purpose of the lethal prescription.2
          New York's "consistent and almost universal tradition"
has "long rejected the asserted right, and continues to
explicitly reject it today" (Glucksberg, 521 US at 723).    The
assisted suicide statutes reflect the Legislature's longstanding
and considered policy choice, and we decline to "place the matter
outside the arena of public debate" by extending heightened
constitutional protection (id. at 720).     Accordingly, in light of


     2
       Judge Rivera's assertion that "the intent of a third party
who assists the patient" is "irrelevant" to the legal analysis
(J. Rivera concurring op at 18) ignores the factual foundation of
plaintiffs' claim: plaintiffs seek a constitutional right not
only to hasten death, but to the affirmative assistance of
another in doing so. As the Supreme Court explained, "[t]he law
has long used actors' intent or purpose to distinguish between
two acts that may have the same result," and on this basis, "many
courts, including New York courts, have carefully distinguished
refusing life-sustaining treatment from suicide" (Vacco, 521 US
at 803). Comporting with this fundamental legal principle, the
State may rationally distinguish between various end-of-life
practices.

                               - 6 -
                                - 7 -                         No. 77

New York's persistent and unambiguous legal practice, plaintiffs'
asserted right to aid-in-dying is not a fundamental right under
our State Due Process Clause.
          Because the assisted suicide statutes do not implicate
a fundamental right, they need only be "rationally related to any
conceivable legitimate State purpose" (People v Walker, 81 NY2d
661, 668 [1993] [citations omitted]).   As the rational basis test
is "the most relaxed and tolerant form of judicial scrutiny,"
plaintiffs bear the "heavy burden" of defeating the "strong
presumption" that the statutes are valid (City of Dallas v
Stanglin, 490 US 19, 26 [1989]).   Even if the State could "better
promote and protect" its interests "through regulation, rather
than prohibition, of physician-assisted suicide," our inquiry is
"limited to the question whether the State's prohibition is
rationally related to legitimate state interests" (Glucksberg,
521 US at 728 n 21).   So long as this basic requirement is
satisfied, we "need not weigh exactingly the relative strengths"
of the various competing interests (id. at 735).3



     3
       The analysis in Judge Rivera's concurring opinion -- which
concludes that the State's interests "do not outweigh" a
patient's right as death draws near (J. Rivera concurring op at
2; see also id. at 10, 12, 21, 23, 27) -- bears little
resemblance to our well-established rational basis review.
Rational basis is not a balancing test. Rather, under this
relaxed standard, plaintiffs' claims must fail so long as any
conceivable legitimate State interest supports the challenged
legislation (Affronti, 95 NY2d at 719 [citation omitted]). As
discussed below, the assisted suicide statutes "easily satisfy"
this requirement (Vacco, 521 US at 809).

                                - 7 -
                                - 8 -                          No. 77

          A number of legitimate State interests support the
assisted suicide statutes.    First, the State has a significant
interest in preserving life and preventing suicide (per curiam at
12; see also Storar, 52 NY2d at 377; Bezio, 21 NY3d at 104;
Glucksberg, 521 US at 729).    Suicide presents a "serious public
health problem," often plaguing those who "suffer from depression
or other mental disorders" -- conditions that may be difficult to
diagnose (Glucksberg, 521 US at 730 [citation omitted]).      The
availability of assisted suicide would therefore undermine the
State's interest in preventing suicide in cases involving, for
instance, untreated depression, coercion, or improperly managed
pain.
          Additionally, the State has a substantial interest in
guarding against the risks of mistake and abuse.    Physicians are
often unable to accurately ascertain how much time a terminally-
ill patient has remaining, or may misdiagnose an illness as
terminal, thereby creating a risk that patients will elect
assisted suicide based on inaccurate or misleading information
(Amicus Brief of The 39 Physicians, at 17-19).    Moreover,
assisted suicide presents substantial "risks . . . to the
elderly, poor, socially disadvantaged, and those without access
to good medical care" (Task Force, When Death Is Sought: Assisted
Suicide and Euthanasia in the Medical Context [May 1994]).      The
State has a valid interest in protecting these vulnerable groups
from the societal, familial, and financial pressures that might


                                - 8 -
                               - 9 -                          No. 77

influence a patient's decision to pursue aid-in-dying
(Glucksberg, 521 US at 731; Brief of Disability Rights Amici, at
10, 15-16; Amicus Brief of The 39 Physicians, at 11).
          The State has also asserted a valid interest in
preserving the integrity of the medical profession.   A number of
medical professionals -- including the American Medical
Association, the Medical Society of the State of New York, the
New York State Hospice and Palliative Care Association, and the
New York State Task Force on Life and the Law -- expressly reject
physician-assisted suicide as an accepted medical practice (e.g.
Brief of The 39 Physicians, at 4-13).   Many believe that
"physician-assisted suicide is fundamentally incompatible with
the physician's role as healer," and could "undermine the trust
that is essential to the doctor-patient relationship by blurring
the time-honored line between healing and harming" (Glucksberg,
521 US at 731 [citations and quotation marks omitted]).
          The Supreme Court has recognized that these, and other,
"valid and important public interests" support New York's
assisted suicide statutes (Vacco, 521 US at 809).   Each of these
State interests, by itself, "easily satisf[ies] the
constitutional requirement that a legislative classification bear
a rational relation to some legitimate end" (id.); collectively,
they overwhelmingly substantiate the Legislature's prohibition of
aid-in-dying.   Accordingly, as in Glucksberg, the assisted
suicide statutes do not violate our State Due Process Clause


                               - 9 -
                             - 10 -                           No. 77

either on their face or "as applied to competent, terminally ill
adults who wish to hasten their deaths by obtaining medication
prescribed by their doctors" (Glucksberg, 521 US at 735 [citation
and quotation marks omitted]).
                                 II.
          Despite the breadth of Glucksberg's holding, plaintiffs
-- and others -- suggest that the Supreme Court left open the
possibility that some other plaintiff, under some other set of
circumstances, might successfully assert an as-applied challenge
to an assisted suicide ban (see Glucksberg, 521 US at 738-788
[Stevens, J., concurring]; see also per curiam at 10; Morris v
Brandenberg, 376 P3d 836, 847 [NM 2016]; James Bopp, Jr. &
Richard E. Coleson, Three Strikes: Is An Assisted Suicide Right
Out?, 15 Issues L. & Med. 3, 35-36 [1999]; Adam J. Cohen, The
Open Door: Will the Right to Die Survive Washington v Glucksberg
and Vacco v Quill?, 16 In Pub. Int. 79, 98-107 [1997]; Physician-
Assisted Suicide, 111 Harvard Law Rev. 237, 243-45 [1997]).
Although plaintiffs here assert a more particularized challenge
to the assisted suicide statutes, their as-applied challenge
nonetheless fails.
                                  A.
          In Glucksberg, Justice Stevens, concurring in the
judgment, asserted that the Court had conceived of the
plaintiffs' claim "as a facial challenge -- addressing not the
application of the statute to a particular set of plaintiffs


                             - 10 -
                              - 11 -                            No. 77

before it, but the constitutionality of the statute's categorical
prohibition" against assisting a suicide (Glucksberg, 521 US at
740 [Stevens, J., concurring]).   Specifically, Justice Stevens
noted that all three of the terminally ill patient-plaintiffs had
died during the pendency of the litigation, and the Court
therefore "did not have before it any individual plaintiff
seeking to hasten her death or any doctor who was threatened with
prosecution for assisting in the suicide of a particular
plaintiff" (id. at 739 [Stevens, J., concurring]).    Accordingly,
Justice Stevens contended that the Court's holding left open "the
possibility that some applications of the statute might well be
invalid" (id. [Stevens, J., concurring]).
           Writing for the majority, Chief Justice Rehnquist
conceded that the Court's opinion did not "absolutely foreclose"
the possibility that "an individual plaintiff seeking to hasten
her death, or a doctor whose assistance was sought, could prevail
in a more particularized challenge" (id. at 735 n 24, citing id.
at 750 [Stevens, J., concurring]).     But to the extent the Court
left open the prospect of a successful future due process
challenge, its concession was a narrow one.    The Court made
clear:   "[G]iven our holding that the Due Process Clause of the
Fourteenth Amendment does not provide heightened protection to
the asserted liberty interest in ending one's life with a
physician's assistance, such a claim would have to be quite
different from the ones advanced by [the] respondents here" (id.


                              - 11 -
                                  - 12 -                          No. 77

at 735 n 24 [emphasis added]; see also Vacco, 521 US at 809 n
13).       In the twenty years since Glucksberg was decided, not a
single plaintiff has asserted a successful constitutional
challenge to an assisted suicide ban.
                                    B.
               Plaintiffs here explicitly seek to present the "more
particularized" as-applied challenge purportedly "not
foreclose[d]" by Glucksberg (Glucksberg, 521 US at 739 [Stevens,
J., concurring]).       As detailed in the complaint, plaintiffs'
allegations encompass a number of diverse parties whose
experiences span the myriad stages of terminal illness.4
               At the time the complaint was filed, plaintiffs
included three competent, terminally ill patients who sought "to
declare unconstitutional the application of New York penal law"
to their respective circumstances.         These patient-plaintiffs
requested, among other things, the option to "ingest medications
prescribed by [their] doctor[s] to achieve a peaceful death."
               Plaintiffs also include a number of medical providers,
including physicians whose patients "have requested" assistance
to "help them die peacefully and with dignity."         As alleged in
the complaint, each physician-plaintiff, in the course of his


       4
       Given the breadth and nature of plaintiffs' allegations,
outlined briefly below, I agree with Judge Rivera's implicit
determination that plaintiffs' claims encompass the "sub-group of
patients" who have entered the "final stage of the dying process"
(J. Rivera concurring op at 2-3). Our disagreement concerns the
merits -- rather than the scope -- of these claims.

                                  - 12 -
                              - 13 -                           No. 77

current medical practice, "regularly encounters mentally-
competent, terminally-ill patients who have no chance of recovery
and for whom medicine cannot offer any hope other than some
degree of symptomatic relief."   In some of those cases, "even
symptomatic relief is impossible to achieve without the use of
terminal sedation."   An "[u]ncertainty about the application" of
the assisted suicide statutes deters these medical professional
from "exercising [their] best professional judgment to provide
aid-in-dying."
          Plaintiffs allege, among other things, that the
assisted suicide statutes "violate[] the patient [p]laintiffs'
rights (and the rights of the physician [p]laintiffs' mentally-
competent, terminally-ill patients . . . and [End of Life Choices
New York]'s mentally-competent-terminally-ill clients) . . . in
violation of the Due Process Clause of the New York
Constitution."   They seek a declaration that "the application" of
the assisted suicide statutes to plaintiffs' conduct violates the
New York Constitution, as well as an order enjoining defendants
"from prosecuting [p]laintiffs for seeking or providing aid-in-
dying."
                                 C.
          Plaintiffs' challenge, though more particularized, is
not meaningfully "different" from the claims rejected in
Glucksberg (521 US at 735 n 24).      Given our holding that the Due
Process Clause of the New York State Constitution does not


                              - 13 -
                              - 14 -                           No. 77

provide heightened protection to the asserted liberty interest,
plaintiffs must show, with respect to their as-applied challenge,
that the assisted suicide statutes no longer survive rational
basis review.   Plaintiffs cannot make the requisite showing
because, despite the uniquely compelling interests of the
terminally ill "facing an impending painful death" (J. Rivera
concurring op at 10), the State's asserted interests subsist even
where a patient is "in the final stage of life" (J. Rivera
concurring op at 20).
          The legitimate interests advanced by the State support
the assisted suicide statutes irrespective of a patient's
proximity to death or eligibility for terminal sedation.    For
instance, the State may permissibly conclude that its interest in
preserving life does not "diminish" merely because a patient's
death may be "certain" or "imminent" (J. Rivera concurring op at
2, 27).   Rather, research demonstrates that "suicidal feelings in
terminally ill people" are often "remediable through other means,
including pain management, hospice services and counseling,"
notwithstanding the patient's impending or imminent death (Brief
of Disability Rights Amici, at 21).    In the State's view, this
data may undermine any assurance that, in the "last stage of
life," a patient's "choice is not motivated by depression and
helplessness, but by the desire to exercise autonomy to achieve a
peaceful death" (J. Rivera concurring op at 22-23).
          The risk of misuse similarly persists regardless of a


                              - 14 -
                              - 15 -                          No. 77

patient's "stage of the dying process" (J. Rivera concurring op
at 2).   Indeed, "many patients prescribed [lethal] drugs do not
ultimately take them" (J. Rivera concurring op at 15 n 5),
creating a substantial danger that the dosage will be
deliberately or accidentally misused.   While that risk may be "no
more" than with other dangerous drugs (J. Rivera concurring op at
26), the State's legitimate interest does not fail merely because
the assisted suicide statutes do not "cover every evil that might
conceivably have been attacked" (McDonald v Board of Election
Commissioners of Chicago, 394 US 802, 809 [1969]).   Moreover,
given the lethal repercussions of misuse -- the dosage is
deliberately designed to cause death -- the Legislature's
targeted effort to address this uniquely acute risk is certainly
rational (Williamson v Lee Optical Co, 348 US 483, 489 [1955]
[noting that the State may act "one step at a time, addressing
itself to the phase of the problem which seems most acute"]).
           Nor does the State's interest in promoting sound
medical ethics dissipate as death draws near (J. Rivera
concurring op at 23-26).   To the contrary, the State has asserted
that the assisted suicide statutes encourage the unconditional
treatment of the terminally ill and preserve the critical element
of trust in a doctor-patient relationship at a time often marked
by intense fear, uncertainty, and vulnerability.   Even assuming
this asserted rationale is "not uniformly accepted" (J. Rivera
concurring op at 23), skepticism of aid-in-dying unquestionably


                              - 15 -
                              - 16 -                         No. 77

remains among well-regarded medical professionals, including a
number of the State's amici in this case.    The State is entitled
to adopt this legitimate medical perspective, which, by itself,
adequately substantiates the assisted suicide statutes.
           In any event, the State may permissibly conclude that
an absolute ban on assisted suicide is the most reliable,
effective, and administrable means of protecting against its
inherent dangers (per curiam at 14; see also Glucksberg, 521 US
at 731-733).   Indeed, the State's legitimate interest in
promoting a bright-line rule is particularly evident when
considering the challenges posed by regulation.   For instance,
Judge Rivera's proposed rule, which would permit aid-in-dying in
the "last painful stage of life," would purportedly apply only
where a patient qualifies as "mentally competent" and "terminally
ill"; where the patient is "experiencing intractable pain and
suffering"; where "pain treatment is inadequate"; where death is
"certain" and "imminent"; and where the patient's choice "is not
motivated by depression and helplessness" (J. Rivera concurring
op at 2, 3, 11, 23, 27).   But the concurrence fails to offer any
concrete guidance regarding how these amorphous threshold
eligibility determinations should be made.   Faced with these
complex and delicate calculations, the Legislature may rationally
conclude that the clarity and certainty of an absolute ban best
protects against the inherent risks of physician-assisted
suicide.


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                                 - 17 -                            No. 77

                                 III.
            The Due Process Clause of our State Constitution does
not encompass a fundamental right to physician-assisted suicide,
and the State's prohibition is rationally related to a number of
legitimate government interests -- interests that support the
assisted suicide statutes irrespective of a patient's "stage of
the dying process" (J. Rivera concurring op at 2, 11).         To the
extent a hypothetical future plaintiff -- presenting a "quite
different" set of circumstances -- might come forward, the
prospect of a successful constitutional challenge is never
"absolutely foreclose[d]" (Glucksberg, 521 US at 735 n 24).         But
in light of the Court's holding today -- and our unanimous
conclusion that heightened scrutiny is unwarranted -- it is
difficult to conceive of such a case.         Plaintiffs' claims are
better addressed to the Legislature.
*   *   *    *   *   *   *   *     *      *    *   *   *   *   *   *    *
Order affirmed, without costs. Opinion Per Curiam. Judges
Rivera, Stein, Fahey, Garcia and Wilson concur, Judge Rivera in a
concurring opinion, Judge Fahey in a separate concurring opinion,
and Judge Garcia in a separate concurring opinion in which Judge
Stein concurs. Chief Judge DiFiore and Judge Feinman took no
part.

Decided September 7, 2017




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