BOSTON — A court decision in Massachusetts this week keeps assisted suicide in the hands of state legislators and voters — and sets up a likely political fight in the coming new year.

The state’s highest court on Monday refused to declare a right to assisted suicide under the state’s constitution, in a highly anticipated opinion that was considered overdue.

To date, no court in the United States has ever declared assisted suicide a fundamental right, as the Massachusetts Supreme Judicial Court noted in its opinion. The court also acknowledged longstanding precedent suggesting that state government has a legitimate interest in trying to prevent people from killing themselves, even in cases where remaining life may be short and painful.

“In sum, given our long-standing opposition to suicide in all its forms, and the absence of modern precedent supporting an affirmative right to medical intervention that causes death, we cannot conclude that physician-assisted suicide ranks among those fundamental rights protected by the Massachusetts Declaration of Rights,” wrote Justice Frank Gaziano in the court’s opinion, which was signed by all seven justices.

A current state statute in Massachusetts does not allow a health care professional “to offer to provide information about assisted suicide or the prescribing of medication to end life.” Another statute says that nothing in state law “shall be construed to constitute, condone, authorize, or approve suicide or mercy killing, or to permit any affirmative or deliberate act to end one's own life other than to permit the natural process of dying.”

Supporters of what they call “medical aid in dying” plan in the new year to try for the 10th time since the 1990s to get the state Legislature to approve it.

 

The Plaintiff’s Case

The plaintiffs in the case (known as Kligler vs. Attorney General) are Roger Kligler, a retired physician diagnosed with terminal prostate cancer that has metastasized to his bones; and Alan Steinbach, an urgent care physician who wants to be able to prescribe lethal drugs to terminal patients who request them without fear of being prosecuted for involuntary manslaughter under the state’s common law. Kligler lives in Falmouth, a town on Cape Cod. Steinbach practices medicine in the same town, but is not Kligler’s doctor.

Lawyers for the plaintiffs asked the court to use the state’s previous abortion-friendly court decisions to find a right to assisted suicide as a form of health care, comparable to the right to abortion that the state’s highest court found in the state constitution in a 1981 decision called Moe v. Secretary of Administration and Finance. They also argued that keeping physician-assisted suicide illegal violates patients’ right to equal protection of the law, because it distinguishes between hastening death through lethal drugs and hastening death through more common means that are legal, such as stopping eating and drinking, withdrawing life support, and undergoing palliative sedation.

Lawyers called for a standard allowing such prescriptions in cases where doctors have judged a patient is within six months of dying, which they said is the standard in jurisdictions that allow assisted suicide.

 

Oral Arguments

During oral arguments in March, Justice Gaziano sounded uncomfortable with deciding from the bench that six months from death would be an acceptable cutoff for prescribing lethal drugs but nine months or eight months wouldn’t.

“The point is this seems a lot like legislating to me,” Gaziano said.

A lawyer for the plaintiffs, John Kappos, responded, “Well, the Legislature has not spoken one way or another on this.”

“That’s the problem,” Gaziano said.

Along those lines, this week a defendant in the case, Michael O’Keefe, the district attorney for the Cape and Islands, told the Register that the court isn’t the right place for such a policy decision.

“I’m pleased with the decision because the Supreme Judicial Court has essentially agreed with my position, which is that this belongs in the Legislature, where the people’s representatives have an opportunity to weigh in on this thorny issue,” O’Keefe said in a telephone interview. “It’s not an issue people in black robes should be deciding. It’s an issue the Legislature should be deciding.”

The decision does not amount to an ideological turn for the left-leaning court, which in 2003 was the first court in the country to legalize same-sex civil marriage. This week’s opinion spends more than 13 pages defending a legal doctrine known as “substantive due process” — embracing what it calls a “comprehensive approach” to determining what constitutes a “fundamental right” as opposed to “a narrow view of this nation’s history and traditions” — which is the standard used in the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health decision overturning Roe v. Wade this past June. 

In that 13-page stretch, the state Supreme Judicial Court’s assisted suicide decision approvingly cites its own 2003 same-sex civil marriage decision 10 times and the U.S. Supreme Court’s 2015 decision on the issue nine times.

 

The Church’s Position

The recent Vatican document Samaritanus Bonus (The Good Samaritan) equates assisted suicide with euthanasia, which it calls “an intrinsically evil act, in every situation or circumstance” because it is, according to the document, “the deliberate and morally unacceptable killing of a human person.”

The document, which was published in July 2020 by what was then known as the Congregation for the Doctrine of the Faith after being approved by Pope Francis, also calls to task government officials who seek to allow or enable assisted suicide.

“Those who approve laws of euthanasia and assisted suicide, therefore, become accomplices of a grave sin that others will execute. They are also guilty of scandal because by such laws they contribute to the distortion of conscience, even among the faithful,” the document states.

In the Massachusetts case, the state’s four diocesan bishops filed a friend-of-the-court brief in February 2022 urging the court not to declare a right to assisted suicide, arguing that it would “lessen the value of human life” — a decision that, they said, would have “grave, long-lasting, and far-reaching negative effects for society.”

On Tuesday, Jim Driscoll, the executive director of the Massachusetts Catholic Conference, which represents the four bishops, through a spokesman issued a brief statement to the Register on the court decision: “The Massachusetts Catholic Conference welcomes the decision of the Supreme Judicial Court and is prepared to join a diverse group of individuals and organizations in opposing any future legislation that would legalize Physician Assisted Suicide.”

 

Assisted Suicide in the U.S.

Physician-assisted suicide is legal in 10 of the 50 states and in the District of Columbia. The states are California (2016), Colorado (2016), Hawaii (2019), Maine (2019), Montana (2009), New Jersey (2019), New Mexico (2021), Oregon (1997), Vermont (2013), and Washington (2008).

The District of Columbia law took effect in 2017, after the city council passed it, the mayor signed it, and Congress declined to block it.

In six of the states, the legislature approved a statute that was signed into law by the governor — California, Hawaii, Maine, New Jersey, New Mexico and Vermont. 

In Montana, the state supreme court ruled that state law didn’t prohibit assisted suicide, even though no state law explicitly allows it. (The court did not find a fundamental right to assisted suicide under the state’s constitution, however.)

In three states, voters approved a referendum — Colorado, Oregon and Washington.

But in left-leaning Massachusetts, voters rejected an assisted suicide referendum in 2012, albeit narrowly — 51% to 49%.

This week’s court decision notes that assisted suicide “has never enjoyed broad social acceptance” and that “no medical professional society in the United States has adopted an official stance in favor of physician-assisted suicide.”

Even so, in December 2017 the Massachusetts Medical Society dropped its longstanding opposition to assisted suicide, instead taking a neutral position on it. 

A Suffolk University poll published in April 2022 found that nearly 77% of Massachusetts residents favored allowing what the poll called “aid-in-dying medication” for terminally ill people “to end their suffering.”

The state’s new governor-elect, Maura Healey, a Democrat, supports physician-assisted suicide. She reaffirmed her support Tuesday, Dec. 20.

After the court decision, Death With Dignity, an organization that supports physician-assisted suicide, released a statement expressing confidence that most people in the state favor it and calling on the state Legislature to approve a bill legalizing it.

 

Legislative Showdown?

Given that backdrop, opponents of physician-assisted suicide told the Register they consider the court ruling Monday a win.

“My sense is the momentum was building, and I was really worried the state Supreme Judicial Court would give it to them without their having to work for it politically,” said Dwight Duncan, a professor of law at the University of Massachusetts School of Law, who filed a friend-of-the-court brief case on behalf of Massachusetts Citizens for Life that was largely researched and written by several Harvard Law School students.

Andrew Beckwith, president of the Massachusetts Family Institute, who also filed a friend-of-the-court brief in the case, said the decision allows for a political fight in 2023.

“I think they’re effectively signaling to the State House, ‘If you want physician-assisted suicide, go ahead and do it yourself,’” Beckwith said. “We’re definitely gearing up for another showdown at the Legislature on this issue, and we expect the forces arrayed to fight even harder for it.”

 

Matt McDonald joined the Register as a staff reporter in October 2022. He is the editor of New Boston Post.