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)


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