X-Message-Number: 6023 Date: Wed, 3 Apr 1996 15:40:03 -0700 (MST) From: David Brandt-Erichsen <> Subject: 2nd Circuit ruling On April 2, the Second Circuit Court of Appeals held that "physicians who are willing to do so may prescribe drugs to be self-administered by mentally competent patients who seek to end their lives during the final stages of a terminal illness." In a unanimous decision, a three-judge panel overturned a lower court ruling and struck down two New York laws banning assisted suicide, but only as regards to physician-assisted suicide under the conditions referred to above. The ruling makes this practice legal in New York, Connecticut, and Vermont. The reference to the "final stages" of a terminal illness makes this decision a bit more narrowly defined than the Ninth Circuit decision. The Court did not define this precisely, stating that "the plaintiffs seek to hasten death only where a patient is in the 'final stages' of 'terminal illness,' and it seems…certain that physicians would agree on when this condition occurs." The Court also stated that the state was free to "define that stage of illness with greater particularity." The Court made no mention of persons who are peripherally involved (such as placing pills in the patient's hands or providing the necessary liquids, as was mentioned in the Ninth Circuit ruling). The Second Circuit did say that the state could establish rules and procedures to assure that all choices are free of pressure "upon the elderly and infirm to consent to death," could require the opinion of more than one physician, and could "impose any other obligation upon patients and physicians who collaborate in hastening death." It elaborated on this in a footnote: "For example, the state might take steps to assure the competence of prescribing physicians by imposing education and training qualifications, including pain management; it may require the establishment of local ethics committees as resources for physicians faced with questions relating to requests for lethal medications; it could specify the information to be furnished to the patient to ascertain that the patient's choice is a fully voluntary one; it might require consultations with other physicians for further diagnosis and prognosis in regard to the patient's illness, for psychiatric evaluation, and for evaluation of pain control possibilities; it may provide a time delay between a request for lethal medication and the prescription in order to allow a time for reflection; and it may suggest some sort of notification to the patient's family." The Second Circuit ruling was made on different constitutional grounds than the Ninth Circuit ruling. The Ninth Circuit based their decision on the Due Process clause of the Fourteenth Amendment, and specifically declined to rule on the Equal Protection clause because the first ruling was sufficient to resolve the case. The Second Circuit ruled that the Due Process clause was insufficient to grant the right of physician-assisted suicide, but the Equal Protection clause did grant such a right. The Court stated that "New York does not treat similarly circumstanced persons alike: those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing the removal of such systems; but those who are similarly situated, except for the previous attachment of life-sustaining equipment, are not allowed to hasten death by self-administering prescribed drugs." Such unequal treatment can only be justified by a compelling state interest, but, the Court stated, "what business is it of the state to require the continuation of agony when the result is imminent and inevitable?" After the Second Circuit ruling was released, the New York Attorney General immediately announced an intention to appeal the decision to the Supreme Court. It is unknown whether the Supreme Court will agree to hear the case. A copy of the Second Circuit ruling can be obtained at http://www.tourolaw.edu/abouttlc/2ndcircuit/april96/95-7028.html (David Brandt-Erichsen) Rate This Message: http://www.cryonet.org/cgi-bin/rate.cgi?msg=6023