New York is among a record number of states considering legislation that would allow physicians to prescribe fatal doses of medications to terminally ill patients. But even the state’s leading advocacy group for what supporters call “aid in dying” and many opponents term “assisted suicide” acknowledges that it may be New York’s highest court that makes the practice legal before the legislature does. “While it’s possible a bill could pass and be signed by the governor in the next two or three years,” says David Leven, the executive director of End of Life Choices New York, “we think it’s more likely we’ll get a favorable court ruling in that time frame.”
Leven, like other advocates, points to surveys that show greater acceptance of allowing the terminally ill to obtain lethal drugs -- a recent Harris Poll pegged American support for legalization at 74 percent -- but that hasn’t yet translated to legislative success. Religious groups, some major doctors’ groups and others have pushed back hard against the practice, arguing that legalization crosses ethical boundaries and endangers more lives than it benefits.
New York is one of three states with lawsuits making their way through the courts and one of about 15 states and the District of Columbia with active bills on the issue. That’s significantly up from last year, and the increase is likely thanks in large part to media coverage around Brittany Maynard, the 29-year-old California woman with a terminal cancer prognosis who last year decided to end her life in Oregon, which in a 1994 referendum became the first state to approve the practice.
Oregon’s provision didn’t take effect until 1997, after the U.S. Supreme Court had unanimously ruled that the federal Constitution doesn’t guarantee a right for dying patients to access lethal medications but left states free to continue the debate. About a decade later, Washington state’s voters enacted a similar law, and in 2013 Vermont became the only state to legalize access to lethal prescriptions for dying patients through its legislature.
Montana’s highest court effectively legalized the practice in 2009. It found that state law prohibiting assisted suicide didn’t apply to doctors giving lethal doses of drugs to dying patients -- a ruling that some legislators are working to invalidate by changing the law. In New Mexico this January, a lower court found a right within that state’s constitution, but the state’s attorney general is appealing.
Legal advocates in California and New York are asking judges to clarify that laws against assisted suicide, many of them well over a century old, don’t prohibit simply allowing doctors to prescribe lethal doses to the terminally ill. And even if they did, the advocates argue, state constitutions, which often go further to protect individual liberty, would allow the practice.
While advocates may have a better record in the courts than in statehouses, that’s not to say that the legal strategy is foolproof. The Florida Supreme Court ruled against a terminally ill patient in 1997. Meanwhile, finding plaintiffs and funding cases is a challenge. And if a court rules on narrow statutory grounds, doctors lack the procedural guidance that only a law can provide, says Thaddeus Pope, director of the Hamline University Health Law Institute.
Still, depending on the political affiliations and sympathies of state courts, even opponents acknowledge that there’s fertile ground for “aid in dying” supporters in state judicial systems. What no one can predict is whether the supporters will be able to move the attitudes of the public and policymakers enough to earn a return trip to -- and a different outcome in -- the U.S. Supreme Court.