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Brief filed in aid in dying case

Our brief in Myers v. Schneiderman was filed last week in the New York Court of Appeals, New York’s highest court, seeking a reversal of a ruling upholding the dismissal of the case. End of Life Choices New York initiated this lawsuit last year seeking to establish the right to aid in dying in New York.

As stated in the brief, the patients seeking the option of aid in dying “… would choose life if that were possible; indeed, they have fought long and hard to cure their illnesses, or slow their advance through surgery, radiation therapy, chemotherapy and other measures. Despite such efforts, their inexorable decline into the final ravages of terminal illness, from conditions that are not of their own making, is beyond their control.”

The brief argues that the statute which bans assisted suicide does not apply to aid in dying.  “The Legislature could not have intended the assisted suicide statute to apply to aid in dying in light of the acceptance in both law and medicine of… other end-of-life options,” the brief states. “Writing a prescription empowering a suffering, dying patient with the option of a peaceful death involves a less active role for the physician than is required for other end-of-life options that precipitate death.”

Further, we argue that the choice to end one’s own life is guaranteed by the due process clause of the state constitution, which has historically given wide latitude to questions of self-determination, as well as the equal protection clause.

Additional briefs, one in opposition from the Attorney General, our reply brief in response to the Attorney General’s brief, and amicus curiae (friend of the court) briefs supporting or opposing the appeal, will be filed in the coming months. Then the attorneys representing both sides will present oral argument before the Court of Appeals in Albany, probably in the spring.  A decision will likely be rendered in the late spring. If the appeal is successful, the case will be sent back to the trial court for further factual development and then an evidentiary hearing.

Click here to read the entire brief, submitted to the Court of Appeals by our attorneys at Debevoise & Plimpton and Kathryn Tucker of the End of Life Liberty Project.


Court of Appeals rules to hear Myers vs. Schneiderman appeal

New York’s highest court has ruled to hear the appeal of Myers v. Schneiderman, the lawsuit End of Life Choices New York initiated to make medical aid in dying available in New York. Previously the case had been dismissed by two lower courts, but the ruling by the Court of Appeals means it can now move forward.

The plaintiffs in Myers v. Schneiderman are End of Life Choices New York, three terminally ill patients, four doctors, and EOLCNY Clinical Director Judith Schwarz. The lawsuit asks the court to find that physicians who provide a prescription for medication to a mentally competent, terminally ill patient – which the patient could consume to bring about a peaceful death – should not be subject to criminal prosecution under existing law which prohibits assisting another to ‘commit suicide.’ The suit argues that the choice of such a dying patient for a peaceful death is not ‘suicide’ and the physician does not assist such a patient in ‘committing suicide.’

The plaintiffs also assert constitutional claims; New York’s courts have long recognized a fundamental right to self-determination with respect to one’s body and to control the course of one’s medical treatment. The case presents substantial issues under the Due Process and Equal Protection Clauses of New York’s Constitution.

“We are pleased that New York’s highest court recognized the substantial constitutional questions raised by this appeal,” said Edwin G. Schallert, Debevoise & Plimpton, co-counsel to plaintiffs in the case. “We look forward to vindicating the rights of terminally ill patients to choose to avoid unbearable suffering by having the option of aid in dying.”

“The Court of Appeals, in allowing this case to proceed, took a key step forward toward allowing the patients and physicians who brought this case to present compelling facts before the important issues are decided,” said Kathryn L. Tucker, Director of the End of Life Liberty Project, and plaintiffs’ co-counsel. “We are optimistic that when the Court is made aware of the suffering facing patients, the profoundly personal reasons motivating their desire to choose a more peaceful death, and the fact that when the option is available, end of life care for all patients improves, with no harm to anyone, it will rule in our favor.”

Laurie Leonard, Executive Director of End of Life Choices New York, one of the plaintiffs in the suit, said: “We are very pleased the Court of Appeals has given us the opportunity to move forward with this case. Dying patients in New York should have the right to choose a humane and peaceful death.”

Assemblywoman Amy Paulin (D-Westchester), prime sponsor of legislation to explicitly make clear that aid in dying is legal in New York, said: “I am pleased that the Court of Appeals has determined that the appeal can move forward. Just as the plaintiffs in this lawsuit argue, I believe that patients facing the end of their lives have a right to make their own decision about their bodies and how they will die. That is why I will continue to work to pass my bill, the Medical Aid in Dying Act, so that mentally competent, terminally ill patients can request medication that the patient can take to bring about a peaceful death at the time and under the circumstances they choose.”

“This case is about patient autonomy and dignity,” said Assembly Health Committee Chair Richard N. Gottfried (D-Manhattan), a co-sponsor of the bill to allow aid in dying.  “For over a century, New York law has recognized that adults with mental capacity have a constitutional right to refuse life-saving treatment.  Similarly, they should have the right to end their suffering through medication if that is their own choice.  We are pursuing that right in court and in the Legislature.  It is important that the Court of Appeals will hear this case.”

The plaintiffs must submit their brief by November 15, 2016. New York Attorney General Eric Schneiderman’s office, which is defending the state, will have until December 30, 2016 to reply. The plaintiffs then have until January 17, 2017 to submit their reply brief.

Aid in dying is already an available end of life option in Montana, Oregon, Vermont, California and Washington State.

Sara Myers Dies
Sara Myers was the lead plaintiff in Myers v. Schneiderman, our case seeking to establish aid in dying as a right in New York. She died on August 16th, at the age of 61.
Our Clinical Director Judith Schwarz says, “Sara was determined to stay alive to see the end of this important legal case that, if won, would have afforded her the option of medical support in controlling the timing of her death.  For years, she had managed the symptoms of her ALS disease with that goal in mind, but also wanted to retain independence and dignity in her final months.  Her body gave out, but not her will and determination.  She was surrounded by wonderful friends and family who she had known since her college days, and she was helped by several amazing aides. While she did end up requiring institutional hospice care for the final days of her life , her friends went with her, and will remember always her indomitable spirit and eloquence.  It was my privilege to know her, and to help a bit, in keeping her comfortable in those final months.”
Ed Schallert, a partner at Debevoise & Plimpton and co-counsel in Myers said: “I was so sorry to hear that Sara had died. I was so impressed with Sara’s determination and grace in dealing with this litigation. My only hope is that a case with her name can lead to change.”
Kathryn Tucker, Executive Director of the Disability Rights Legal Center and co-counsel in Myers commented:  “The most we can do for Sara now is to see her name on the case that establishes the right of terminally ill New Yorkers to be empowered with the autonomy to choose a more peaceful death when confronted by suffering they find unbearable. It would be a great legacy for her. We will redouble our efforts to see this happen.”
Here are Sara’s own words, from a statement she made a year and a half ago:
“Four years ago I was diagnosed with ALS, a terminal disease which is paralyzing my entire body, piece by piece, while my emotional and intellectual capacities remain intact.   Eventually, this disease will rob me of my ability to breathe,” said patient plaintiff Sara Myers, who has amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s disease. “There is no medicine to stop or even slow the progression of this disease.It’s unclear how much time I have left before I’m unable to breathe anymore. If I choose, I can be kept alive artificially, completely reliant on a mechanical device for breathing, and a feeding tube for nutrition. But, more important than the choices to prolong my life with this horrible disease, is the right to choose how to die with it.”
“I am determined to take what steps I can to die with dignity, and to have some choice and control over my final weeks, days and hours. I want every day to matter. I want to live my life being aware, able to love, and to be loved consciously,” Myers said.
“When the time comes, I want to be able to gather my loved ones around me and bid them good-bye while I am of clear mind and able to share those final moments,” Myers said.”When the pain and suffering of the disease strips away the good parts of my life that I can still enjoy, and my life becomes intolerable, I want the choice to ask my doctor to aid me in my dying.I am suing the State of New York to remove the legal barrier between my doctor and myself to help me achieve a peaceful and dignified death, at the time and place of my choosing.”
Update on Aid in Dying Lawsuit
Last year End of Life Choices New York initiated a lawsuit seeking to establish aid in dying in New York.  The nine plaintiffs include EOLCNY, three patients, four doctors and Judy Schwarz, EOLCNY Clinical Director. A ruling was sought to permit aid in dying on state constitutional grounds or by finding that the existing law prohibiting assisting a suicide does not apply to medical aid in dying. The lower court, on a motion by the New York State Attorney General, dismissed our complaint. The Appellate Division, First Department, affirmed that decision. Now, we are at New York’s highest court, the New York Court of Appeals.
The New York Court of Appeals asked our attorneys to submit a letter to the court explaining why our constitutional claims are substantial, which would entitle us to have our appeal to the court taken as of right (instead of having to seek the court’s permission to appeal). Click here to see our letter and click here to see an opposing letter submitted by the Attorney General’s office. Our attorneys’ arguments are compelling and persuasive.
Ed Schallert, co-counsel at Debevoise & Plimpton said, “This appeal raises important questions under the New York State Constitution concerning fundamental liberties and equal protection under the law with respect to a dying patient’s autonomy, privacy, bodily integrity, and self-determination to control the choice of medical treatment, how much suffering to endure prior to death and how one will cross the threshold to death.”
Kathryn Tucker, co-counsel and Executive Director of Disability Rights Legal Center said, “We hope New York’s high court will open the courthouse doors to this important case, and, ultimately, find that mentally competent terminally ill New Yorkers have a right protected by New York’s Constitution to choose a peaceful death through aid in dying.”
We are hopeful that the court will decide to hear our appeal.
CME Bill We Initiated Is Passed
On June 17th both houses of the New York State Legislature passed legislation to ensure that professionals who can prescribe controlled substances receive continuing medical education on pain and palliative care every three years.  End of Life Choices New York first initiated this legislation several years ago.
The legislation, which passed as part of an omnibus opioid bill (A.10727 Linda B. Rosenthal, D-Manhattan) / (S.8139 Terrence Murphy, R-Carmel), was for several years carried by Rosenthal and Senate Health Committee Chairman Kemp Hannon (R-Garden City), most recently as A.355/S.4348.
“We are grateful to Senator Hannon and Assemblywoman Rosenthal for their leadership on this legislation. We know from numerous studies that too many patients suffer from inadequate pain management which is partly due to insufficient training of doctors in medical school and after. Post graduate training, as required here, should improve pain and palliative care for patients,” said EOLCNY Executive Director David Leven.
The bill requires that professionals licensed to prescribe controlled substances take a three-hour course covering pain management, palliative care and addiction, approved by the New York State Department of Health, every three years.
Assemblywoman Rosenthal, Chair of the Committee on Alcoholism and Substance Abuse and prime sponsor of the bill said: “After fighting for years to require mandatory training in pain and palliative care and addiction prevention, I am pleased that doctors will finally be required to take courses in responsible opioid prescribing. Irresponsible prescribing of opioids has helped to worsen the heroin and opioid addiction crisis that has torn families and communities apart.”
Senator Hannon said: “After having passed legislation (S. 4348A) in the Senate for several years, I am pleased that this legislation has been incorporated into the recently agreed upon Heroin Package and will finally become law.  This bill will benefit the citizens of New York State and help curb the opioid epidemic as prescribers who are authorized to prescribe controlled substances receive specific and updated training in addiction, pain management and palliative care.”
Dr. Diane Meier, Director of the Center to Advance Palliative Care, based at Mt. Sinai Medical Center in New York City, said: “This legislation is long overdue. Most doctors have not been trained adequately in pain management and palliative care. They need to be. This is an important step to ensure that many doctors will now receive essential training so that they will be better able to treat their patients.”
“End of Life Choices New York is committed to ensuring that New Yorkers have access to the best possible treatment to control pain and are provided palliative care as needed.  That’s why we worked hard for passage of this legislation and will continue to fight to provide appropriate medical options for New Yorkers,” Leven said.