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Aid in dying lawsuit dismissal to be appealed

Justice Joan Kenney, in a lower court, recently granted the motion of the Attorney General to dismiss the lawsuit which End of Life Choices New York initiated to establish aid in dying in New York, Myers v. Schneiderman. We were disappointed but not surprised. The decision will be promptly appealed to the Appellate Division, First Department. EOLCNY is a plaintiff along with four distinguished doctors, three patients with terminal illnesses, and Judith Schwarz, our Director of Clinical Services, raising both state constitutional and statutory claims.

In her decision Justice Kenney did acknowledge that the plaintiffs have more than just a passing interest in the outcome of the case and that we have successfully pleaded for a judicial review, raising issues of public importance that are of a recurring nature. (Click here to read Justice Kenney’s decision). However, one of our lead lawyers, Ed Schallert, a partner at Debevoise and Plimpton, says “The Court’s opinion did very little to address our statutory arguments”; and “It relied heavily on Vacco in rejecting the constitutional arguments”.

Vacco v. Quill is a federal Supreme Court case which should not be controlling. The failure of Justice Kenney to analyze our state constitutional claims seems to strengthen our appeal. New York courts have at times interpreted our state constitution as granting broader rights than the Supreme Court has been willing to grant under the federal constitution. And our case particularly calls out for relief under the New York State constitution. As our other lead lawyer, Kathryn Tucker, Executive Director of the Disability Rights Legal Center said, “It is now our task to persuade the Appellate Division that the Supreme Court decision is no barrier to a New York Court finding a New York State constitutional right. We have compelling arguments why this is so and look forward to the opportunity to present them…”

We knew that this case would probably be decided by the Court of Appeals, New York’s highest state court. We hope and are confident that this is only a temporary setback. As Ms. Tucker said, “We will move the case forward as quickly as we can.”

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