The Right to Die is Not Protected by New York's State Constitution

By Ronald A. Fatoullah, Esq. and Jeffrey P. Gorak, Esq.

{3:52 minutes to read} The constitutionality of New York's statute criminalizing physician-assisted suicide has, once again, been tested. In a recent case, Myers v. Schneiderman, three individual plaintiffs (mentally competent terminally ill patients, individual medical providers, and an organization called End of Life Choices) brought suit to establish a right to physician-assisted suicide under the Constitution of the State of New York. In other words, the plaintiffs argued that individuals have a fundamental right to self-determination and to control the course of their treatment, which by extension includes an individual's right to choose aid-in-dying.

The New York Court of Appeals unanimously disagreed with the plaintiffs. The court reached its decision by examining the history of New York State's case law in the area of physician-assisted suicide. For instance, in one case, a surgeon who performed surgery on a patient who had not given consent was deemed to have committed an assault because, according to the court, every adult of sound mind has a right to bodily integrity. In another case, the court concluded that an involuntarily committed mentally ill individual had a right to refuse antipsychotic medication-even though it may have been necessary to preserve the patient's life. The reason that a person can refuse life-sustaining treatment is that individuals have a fundamental right to bodily integrity and unwanted bodily invasions. However, the court drew a clear distinction between the refusal of life-sustaining treatment (which, as the case laws holds, is protected under our State Constitution) and physician-assisted suicide. Physician-assisted suicide, or aid-in-dying, involves the active prescription of drugs for the purpose of causing death. Since physician-assisted suicide is not a fundamental right, the only mechanism to declare New York's statutes criminalizing physician-assisted suicide unconstitutional is to show that such conduct is not rationally related to a legitimate state interest.

The court reviewed the state's interest in criminalizing physician-assisted suicide, namely preventing the distribution of prescriptions in lethal amounts that could be intentionally or accidentally misused, preserving life, and preventing suicide, and concluded that these interests were in fact rationally related to a legitimate state interest. Accordingly, the court held that the statute is constitutional and that it would be up to the New York State legislature to legalize the prescription of life-ending medications.

Individuals have a constitutional right to make medical treatment decisions, which, while it does not include the right to assisted suicide, it does include the right to forgo life-sustaining treatments. However, a problem often arises whereby individuals fail to execute health care proxies and living wills appointing someone to make healthcare decisions on their behalf in the event of incapacity and where specific instructions are not given. When this occurs, an individual's desires regarding treatment or non-treatment in the event of a terminal illness may not be known or followed. It is therefore critical that an individual execute a health care proxy and living will as part of his or her estate plan.

Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Jeffrey P. Gorak, Esq. is an elder law attorney with the firm. The law firm can be reached at 718-621-5300, or toll-free at 1-877-ESTATES. Mr. Fatoullah is also a partner with Advice Period, a wealth management firm, and he can be reached at 424-256-7273.