Life in the Balance

On May 30, the New York State Court of Appeals heard oral arguments in the case of Myers v. Schneiderman, which is seeking to legalize assisted suicide in New York. The case was previously rejected unanimously by the trial court and the Appellate Division. Our pro-life coalition, along with disabilities-rights groups, have been opposing this effort, and the Catholic Conference filed an amicus brief in both the lower court and at the Court of Appeals.

It was a lively oral argument. The Judges were definitely engaged in the issues and asked tough questions of both sides. We were very fortunate that the Deputy Solicitor General did an excellent job representing our side. The essence of her argument was that the lower courts correctly dismissed the case because the Legislature has already enacted a “bright line prohibition” against assisted suicide and the Court should leave it to the Legislature to make any changes in that rule. One of the Judges affirmed that, noting that no other state (with the ambiguous exception of Montana) had legalized assisted suicide by court decision, but instead had enacted extensive legislation.

The Judges showed little interest in defining a broad constitutional right to assisted suicide or in sending the case back down to the trial court for a fact-finding hearing. Several Judges also stated that they had read a brief submitted by a disabilities-rights organization which stressed that legalizing assisted suicide sends a message that their lives are less worthy of respect. And one judge clearly recognized that once you permit assisted suicide for some patients, it is difficult to deny it to others.

On the whole, though, I’m still pessimistic. There was no reason for the Court to take this case, except to reverse the lower courts. One Judge pressed the Solicitor General repeatedly over the state’s interest in protecting life at the last extremity, when it already allows patients to be sedated into a state of unconsciousness and to then die of starvation or dehydration. This suggested strongly that the Judge was trying to figure out a way to define a statutory right to assisted suicide in a way that has a reasonably-definable limit. But that’s a bad thing for them to be even considering — again, whether or not to draw lines, and where you put them, is for the Legislature to decide, not the courts.

None of the judges pressed the plaintiff’s attorney to explain why the lower court judges were unanimously wrong or why the right to decline medical treatment includes having a third party (i.e., the doctor) give them a drug that will directly kill them. They also did not seem to grasp the fundamental difference between declining treatment and committing suicide — the crucial difference is in the intention and causation between those acts. Other state interests, such as the preservation of the integrity of the medical profession and the potential negative effect on other anti-suicide activities, were not addressed in the arguments (although they were extensively discussed in the briefs, including ours).

It is so hard to read oral arguments, especially when one judge said nothing and another very little. A decision is expected in June. I fear that the most likely result is that the Court will create some kind of statutory right to assisted suicide for patients who are at the very end of life and would otherwise be eligible for palliative/terminal sedation, and then either leave it to the Legislature to enact procedural protections (or, even worse, leave it to doctors to self-regulate). Of course, there’s no way to hold that limit, or to trust the Legislature to do it right, and we’ll inevitably slide right down the slippery slope to euthanasia along with Canada, Belgium and Holland. The Culture of Death has quite a grip on New York already, and things will only get worse.

One last point. It’s easy to be cynical about the law and about judges. I certainly am. The law is an extension of politics, it serves the powerful better than the weak, and it is easily manipulated for special interests. Judges often consider themselves to be our Black-Robed Platonic Guardian Rulers and arrogate to themselves authority that should belong to the people.

But to sit in that magnificent courtroom, listening to a very high level of legal argumentation on such a momentous issue, with the portraits of so many Judges looking down at us, with the portrait of the Founding Father John Jay in the center facing the bronze statute of Chancellor Robert Livingston and Judge Benjamin Cardozo looking on from the side, is an extraordinary reminder of something very important. The law and the judicial system, for all their faults, demonstrate the remarkable human capacity for reason and self-government. The administration of law is awe-inspiring and fearsome, and there’s still quite a bit of nobility in it. Whichever way the Court rules, we should not forget that.

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