-: SJC-13194, Robert M. Kligler and another,
V. Attorney General and another.
-: Okay, Attorney Kappos.
-: Thank you, Miss Chief Justice.
Good morning, Your Honors.
May it please the court.
My client, Dr. Roger Kligler
spent 32 years of his career as a physician,
helping to treat the citizens of the Commonwealth.
Now, Dr. Kligler is asking the Commonwealth to help him.
Dr. Kligler has stage four prostate cancer,
the most advanced stage.
He wanted to be here today,
but his cancer has spread and he is immunocompromised
and unable to attend in-person,
but he is attending remotely.
Dr. Kligler faces the very real prospect
that he will experience an unbearably painful death
when he reaches the final days of his illness.
Dr. Kligler, therefore wants a prescription
for a medical aid in dying drug
that will allow him to peacefully and painlessly pass,
if his suffering becomes overwhelming.
Mind you, Dr. Kligler, does not wanna die,
in fact, he has done everything medically possible
to extend time that he will have
with his grandchildren and family,
but he realizes that his illness
will overcome him eventually,
and he does not want to be forced
to endure unbearable suffering.
-: If I could ask you about count one
on the declaratory judgment,
why aren't you asking really for an advisory opinion here?
We don't have a prosecution.
We don't have the prospect of prosecution.
And when we look at, particularly,
involuntary manslaughter with the need
to really get into the facts, the specificity,
it's really concerning to think about an advisory opinion
in this context.
-: Thank you, Justice Lowy.
We don't believe that this is an advisory opinion.
Dr. Kligler, he has a very real illness.
His cancer has progressed to stage four,
it's metastasized.
He wants to live much longer,
but he doesn't know how much time he's gonna have.
And this is an issue that if we were to wait until
he were within six months of dying,
we wouldn't be able to bring the case
and get it through the trial court,
and through the appellate process
before the plaintiff would pass away.
So we really don't see this as an advisory opinion.
We see this as something that is capable of repetition.
-: But the prosecution is, would be of a physician.
Kappos: That's correct,
the prosecution would be of physician-
-: And that's the advisory opinion that you'd be seeking
the question you pointed.
-: This court is noted in the Commonwealth versus Barr case
that the choice to openly challenge a criminal law
it's unnecessary that you violate the law first, right?
If you think about this situation,
no doctor would want to make the prescription
and risk criminal prosecution
and loss of their medical license.
So this is a situation where if the court were
to rule that there actually has to be a doctor
that writes the prescription and gets indicted,
I fear that it would never happen
and it would frustrate the process
of having court review because no doctor would ever
be willing to risk criminal prosecution
and their medical license in that way
that we're talking about.
-: Are you also_ -: What is the closest
legal authority you have for that proposition?
-: The Commonwealth versus Barr case was one case
that dealt with that.
And that's the one that comes to mind
off the top of my head.
Cypher: Thank you.
Gaziano: Can can I ask You,
I'm sorry you done Justice Cypher?
Cypher: I am, Thank. -: Thank you.
Can I ask you about a Common law of manslaughter
and where this fits in.
We're discussing involuntary manslaughter
which involves intentional conduct by actor omission,
whether there's a duty to act involving a high degree
of substantial harm.
And we're looking at, of course,
Catalina and Carrillo their heroin overdose cases,
Landscape the nightclub, Cocoanut Grove fire,
also the warehouse fire in Moisters,
we have that line of cases where there's
either they did something or failed to do something
that caused great harm.
Here, as I read your brief, you challenge two parts,
and you go through the elements
of Commonwealth manslaughter and you challenge two
of the elements, first is causation
arguing that the patient caused his or her own death,
correct?
Not the physician.
And secondly, the wanted in reckless because the
there's a factual issue, you alleged.
As to whether or not prescribing these meds
is a harmful consequence,
it's actually a helpful consequence.
And that's what the attorney general says
is you're reading in a good faith exception.
So turn into our case law,
and forgive me for the hypothetical,
but I'm gonna have to give you one on the Persampiery case,
1961 case.
In Persampiery, horrible husband, abusive relationships
gives her the gun and she kills herself.
If we flipped that around,
and we say that was manslaughter,
if we flip the facts of Persampiery around
and not to belittle Mr. Dr. Kligler's condition
by any stretch, but I just wanna use this
for educational purposes, if we flip Persampiery around
and rather than being a horrible person,
he's actually a loving husband,
and she has critical disease.
She's on her last days, and he says,
"I'll load the gun for you.
Here's how you do it.
I'm gonna walk away, we had a great life" and he leaves.
How do we not have the same liability in Persampiery
that you're asking about in this case
and not a Commonwealth with causation and harm?
-: Thank you, Justice Gaziano.
That it seems like a very different case to us.
We're talking about a compassionate option for-
-: We have a compassionate husband who doesn't wanna see
his wife suffer anymore.
-: Yeah, but gun violence we would never advocate for,
and we would never condone that type of process.
Medical aid dying is a compassionate peaceful way
for doctor Kligler. -: Well that brings to-
-: But lemme me ask you,
is there a good faith exception to this then?
To the harm?
As I see what we read harm is harm physical harm or death?
Or is harm kind of a bad faith exercise in this?
-: Yeah, I don't think we're arguing for a good faith
exception necessarily,
but what we see is that there is a very different causation
element here where a doctor writes a prescription
and then it is left to the patient and their own volition
on whether or not they ever wanna fill it
or ever wanna subject.
-: Okay.
This in situation, if we adopt your argument,
do we open the door for the Persampiery
good husband's situation I just laid out for you?
-: Well, the Persampiery case, as I recall the facts
in that case, the husband was actually present at the time
and assisted the wife in loading the gun,
and then giving her instructions on how to kill herself.
That is not what's gonna going on here.
This is a situation where the doctor gives the patient
a prescription with the intent that the patient
is gonna have peace of mind from that,
and know that they have an alternative
if they're suffering becomes unbearable-
-: And death is reasonably foreseeable from the prescription,
correct?
-: Not for any one patient.
It is foreseeable that a significant number of patients
may take it, but for any one patient
that we're talking about,
you can't tell whether that patient is gonna be one
who never fills the prescription or fills it,
but never self ingests.
The statistics from the states that are allowing
medical aid and dying currently show that over 30%
of people who get a medical aid and dying prescription
never end up filling it.
So I don't think you can necessarily say
that it is foreseeable as to any individual patient,
what the outcome is going to be in that case?
-: Well, if over 70% of people were driving in a manner that
led to an involuntary manslaughter instruction,
we wouldn't say there was a causation problem,
or 70% of the time when the doors were locked in a nightclub
and people couldn't get out and it was a fire and they died
we wouldn't say that there was a causation problem.
It seems like that's a pretty high number
for causation purposes.
Gaziano: Right, the language is
high degree of substantial harm.
-: There are a significant number I'm not arguing
that there aren't, it is over 60% that end up taking it.
But the considerations here are,
you've got people that are very close to passing already.
Usually the people who are eligible
and who actually self ingest the medication
are within days or weeks of dying,
which is a situation where the harm from that
is much diminished we would argue.
It's sort of, there's an attenuated state interest
at that point when you get that close to death.
And so that the harm we would submit is much diminished
at that point, and in connection with the break in the,
or the lack of a break in the chain of self causation
from the point-
Gaziano: You're asking us to do this under the Common law
and then you pause it on competency, correct?
-: That is one of the standards of care, correct.
That the patient has to be an adult,
they have to be competent to have to request-
Gaziano: In his six months?
-: That that's correct.
Gaziano: All right, what about nine months
or three months?
-: That is not been the standard that's been adopted.
And I think the reason for that, Justice Gaziano is that
the six month cutoff is something that is well recognized
right now already in the medical community
and in the Commonwealth for other end of life options,
like hospice, palliative care,
voluntarily stopping eating and drinking, which by the way,
I'll just in connection with your-
-: Well, what if a physician doesn't get
two forms of verification
or physician does it three months
rather than six months away- Kappos: That would be-
-: Would a physician be liable?
-: No, not at all, because once you're within six months,
it doesn't mean it has to be right at six months,
it could be less than that.
If the physician is- -: All right, nine months?
-: That's not the standard that has been-
-: Okay, would the physician who does,
gives a prescription at nine months,
have they committed involuntary manslaughter?
-: Yeah, they would be outside the protection
of what we would consider to be acceptable standard of care
prescribing.
So they would be liable if they were-
-: Eight Month physician would be guilty
of involuntary manslaughter too?
-: Yeah, although I'll preface that,
but I would agree with you Justice Gaziano
but I'll preface that.
Gaziano: But the point is this seems
a lot like legislating to me.
-: Well, the Legislature has not spoken
one way or the other on this.
-: That's problem. -: Oh, no, no, no.
It has spoken, hasn't it?
Kappos: They've not-
-: They've rejected this similar bill five times, I think.
Kappos: There has been a number of bills
that have come up,
but they haven't chosen to enact any statute
that would make medical aid and dying illegal.
-: Can we conclude that that's a rejection of those bills?
The bills were very similar to yours.
Also the ballot question was similar to yours
and that did not pass.
-: And there was a ballot initiative
and you are correct, Justice Cypher that that did not pass.
There are ongoing bill in the Legislature as well though.
So I don't think we can necessarily conclude
that because the Legislature didn't pass the bill
the last time it won't at some point in the future.
But let me just say this, that this is a matter
that arises under the Common law
of involuntary manslaughter.
And so this court is best positioned to clarify
what the law is on involuntary manslaughter
and whether or not it would cover-
-: You want us to write an opinion that says six months
is fine, but seven months isn't
under a Common law of manslaughter.
-: I'm not asking the court to make
that kind of a factual finding.
I think what the court's opinion would be is that
if physician is following a medical standard of care
that it would be okay to do this.
And the six month is a requirement that is written in
to the medical standards of care,
virtually uniformly in the 10 jurisdictions
that currently permit medical aid in dying.
-: And can I ask you about those 10 jurisdictions?
Do they do so under their Common law
or has there been some legislative action?
-: There has been legislative action.
I believe that Montana was under judicial pronouncements.
So that was under Common law.
The other nine jurisdictions have done so under legislation.
-: And that legislation that medical standard of care
at six months?
-: That's my understanding, correct, Justice-
Lowy: I thought the Baxter case you're referring
to the Baxter case in Montana?
-: Correct?
-: I thought that was an interpretation of a statute
as it relates, as opposed to Common law.
-: You're correct Justice George,
as that was interpretation of his statute,
it was a carve out, it was an exception to the
manslaughter statute in Montana for someone who requests
or a victim who requests a certain treatment.
-: Okay.
Counsel I'd like to focus for a second on,
you talk about the issue of the constitutional right,
or the fundamental right to,
what exactly are you saying,
a fundamental right to die or a fundamental right
to have a physician assist you
if you're already going to die?
-: It would be a fundamental right to direct
one's medical treatment.
And we view this as flowing, Justice Cypher
from the line of cases, starting with Sachwitz,
and then Brophy, and then more recently the Mo case
but all those cases-
-: Is that grounded in privacy or in liberty?
-: My recollection from those cases is it was grounded
in both privacy and liberty.
-: Okay.
But why would we make a distinction between,
we can't say that your physician has a right to prescribe
and that this particular patient has a right
to take his life before the natural course ends his life
without first concluding that we all have a right
to die when we choose, correct?
-: I think the right that we're talking about
is the right to direct one's own medical care.
-: I understand that, but underneath that
right to direct one owns medical care,
which the courts have distinguished in some,
there is a distinction between affirmatively giving somebody
something to cause death and just a person choosing
medical care, like I want this end of life treatment,
I don't want that.
But underneath that, there has to be some kind right
for the patient to end his or her own life.
I want to know why does it have to be tied to medical care?
-: We would agree with you that the line of cases started out
with drawing this distinction between refusal
of medical care versus acceptance.
But then Brophy advanced that to the point where
it covered acceptance and then Mo made it even more clear,
the Mo case Your Honor will recall was
a case dealing with Medicare funding
for reproductive rights.
And that case very clearly made it apparent
that the right to receive medical treatment,
not only to reject medical treatment
was a fundamental liberty and privacy right-
-: That's not the thrust of the liberty
and privacy analysis in Mo.
The Liberty and privacy analysis in Mo has to do with
what's viewed under the constitution from penumbra
is a medically necessary procedure in the state,
not being able to compel women to have to give birth,
completely different situation than a physician
initiating causation.
-: Well, the physician, Justice Lowy does not initiate
causation in this situation of medical aid and dying,
it's the patient who requests it.
This is not something-
-: First step, I mean, I understand that
you have to go get the prescription filled and take it.
But the first step in the causation links is
the physician writing out a prescription.
-: Justice Lowy, we would disagree with that
to the extent that the first step
is the patient requesting it, physicians cannot-
Gaziano: How how can you make that argument
in the face of Catalina and Carrillo?
-: Well, first of all,
let me just stress that Catalina and Carrillo
we're talking about cases where you've got drug dealers
that are pushing heroin for personal gain.
-: You argue there's no causation because the patient causes
his or her own death, correct?
'Cause they're the one that put the pills in their mouth,
right?
Kappos: That is correct, Justice Gaziano-
-: In Catalina and Carrillo we've said and I, again,
I don't want to demean Dr. Kligler's condition,
but in Carrillo and Catalina on causation,
we said the fact that the person who dies,
injects him/herself doesn't mean there's no causation
for the person who supplies the lethal substance, correct?
-: Yes, there is language in the context of a heroin pusher,
I would submit to the court, but you're correct
Justice Gaziano.
-: I mean look at the causation as to who does what.
What's the difference here and the who does what?
-: The drug pusher is trying to profit make money off
of selling drugs-
-: That's not it, you're ducking the question,
answer the who does what on causation
without the dramatics.
-: The who does what, it's the heroin dealer
who is selling the drug-
-: Right.
So the heroin dealer who supplies the lethal substance,
the user injects him or herself and they die, right?
It's the injection that causes the, the injection.
So what you are saying is the patient causes his own death
because they put the pill in their mouth.
How is that different from the addict,
again, different situation,
but how is that different from the addict
who puts the needle in his or her arm?
-: Well, didn't Carrillo result in actually an acquittal.
-: Yeah, because of the lethality of,
that doesn't help you.
'Cause Carrillo dealt with the lethality of the heroin
as to whether or not it was laced with fentanyl
or whether it was regular old heroin,
so that doesn't help you at all.
-: So the doctor in the case of medical aid and dying
at the patient's request does provide a prescription.
And we don't disagree with you that in a significant number
of cases, the patient will self ingest and pass away
when their condition becomes very near end stage,
that does happen in over 60% of the cases, the data shows.
We submit though that the intent is different,
the doctor is not present at the time that that happens.
I think in a lot of these heroin cases-
-: I'm just focused on, I know the intent is way different,
I'm just focused on the causation element,
and I don't see how you can make your argument
in the face of Catalina and Carrillo.
-: Well, we submit that the self causation,
the chain of self causation is not broken by the doctor
intervening, and I realize that there are
in the context of these heroin cases,
there is authority from this court that has recognized
an element of causation in situations dealing with heroin.
We think that this very different fact pattern,
but if we wanna focus only on the causation element,
Your Honor is correct that there is a similarity there.
-: Can we talk about intent for a moment?
You just mentioned intent and that the intentions
of the physician sublime,
and I'm sure they only have the best interest of the patient
at heart and whether or not this is an important
and a good idea, legislatively is an entirely
different issue.
But don't you have a problem here where
with involuntary manslaughter,
the intent we're talking about is intent to do the act,
not the intent to cause the death.
-: I do understand this court's precedents, Justice Lowy
to focus on the intent to do the act,
and that is correct that the doctor does
write the prescription.
And so that's not necessarily distinction,
but we do feel that the intent to help the patient
rather than to profit from a drug deal
or to kill one's wife in the case of Persampiery
is a rather different element that's-
-: It's dramatically different, but we analyzing the elements
of a Common law crime, not whether or not
the Legislature should take that difference into account.
Kappos: I'm sorry, I didn't understand the question.
-: So I understand that the difference,
it's a huge difference.
And again, the risk of redundancy,
this might be a very important,
a good idea as a Public Policy matter.
But as when we're talking about a Common law crime,
we're dealing with intent that's developed
through the years,
and it's not the intent to cause the death
it's the tend to do the act.
Cypher: The act of giving the prescription.
-: Right.
And there is, we don't disagree with you on that,
Justice Lowy and Justice Cypher that the doctor
at the patient's request does give them
a prescription and intends to do so.
I want to point out one other thing, and that is,
we haven't really talked about the court's decisions
in the two Carter cases.
And I know there were some language in Carter one
to the effect that this court actually pointed out
that that case, that was the case where the girlfriend
pressured her boyfriend into committing suicide,
and to get back into the truck that was gas infused.
And this court noted that this is not about
a person offering support, comfort, and even assistance-
Lowy: And you know what happened in Carter two, right?
-: I do, yes.
Lowy: Persistence is no longer in the opinion.
-: Yes, but there was a lot of language about
the lack of a break in the chain of self causation
in that case, right?
In the situation where this court said that
had the young man remained in the gas infused truck and die
at the insistence of his girlfriend.
And she would not have been criminally liable.
It was only when he got out of the truck
that broke the chain of self causation,
and then she compelled and pressured him
to get back in the truck that there was criminal liability.
And so if we apply that to our situation,
there is no break in the chain of self causation
from the point that the patient fills their prescription-
-: I understand, Counsel that it depends on where you
look at this in terms of how you have analysis,
it was the causation when the prescription's written,
is it started when the patient asks.
But you have a case where a doctor could write
the prescription and perhaps the patient fills it,
but doesn't take it.
And now the substances out in the world,
isn't there some kind of danger
we have to be concerned about with that?
-: That's not been born out.
I mean, I understand Your Honor's concern, Justice Cypher
and it's a good point,
but we haven't had that problem in the thousands of cases
where this has been used in other states, people generally-
-: One other question, I actually have a couple,
but one is what's the difference between
involuntary manslaughter in this case,
and second degree murder, third prong malice.
Cause it's a very small slender difference, really.
Kappos: Yeah, I don't.
-: I'm just curious whether even if we did this,
would there not be a charge of a potential charge
of second degree murder on third prong malice?
Kappos: I don't know the elements of that,
so I can't speak to that
Your Honor. -: All right.
And then can I take you for a minute to the
constitutional arguments?
You're talking about this needs scrutiny analysis,
is that correct?
Kappos: Yes.
-: So that, but we don't even get there
unless we're in equal protection,
could this not be resolved as a fundamental right
and under ordered liberty and just look at it that way?
-: It could be, it could be, we argue that this
is a fundamental right as we talked about earlier,
and that if we're gonna talk about equal protection,
then a heightened level of scrutiny should apply,
but we could analyze it under just liberty and privacy.
And I think our briefing did that.
Cypher: Okay, all right.
Thank you.
-: Okay, looks like we're all set.
Thank you.
Okay, attorney Granik.
-: Good morning, may it please the court.
This is assistant attorney Maria Granik for the defendants.
To begin, I would like to express the defendant's
immense compassion for Dr. Kligler.
I would also like to note at the outset
that this case does not turn on resolving
the policy question of whether or not
the practice that the plaintiff's term medical aid
and dying should be legalized in Massachusetts.
Instead, this court it should affirm the superior court's
grant of summary judgment to the defendants
because there's no fundamental constitutional right
to assistance in suicide.
And the policy discussion about the pros and cons
of legalization properly belongs in the Legislature
where it is currently taking place.
As the superior court correctly noted
medical aid and dying raise difficult to moral, societal
and governmental questions.
The resolution of which requires the type
of robust public debate that the courts
are ill suited to accommodate.
Because there's no fundamental right to assisted suicide
this court should-
Cypher: Is there a fundamental right to suicide?
-: There's no fundamental right to suicide suicide.
-: Is that based on tradition and history,
is one of the Amici argue or is it based on religion
as another Amici argues?
What's the origin of that prohibition on suicide.
-: The prohibition on suicide and this instance on suicide
is grounded both in historical and legal tradition.
And as the Supreme Court has recognized,
there's no fundamental right to receive assistance
to suicide and no other appellate court in this country
has ever recognized the fundamental right-
-: And I guess what I'm getting at is underneath this,
is there a religious component to this?
That the reason we have historically preclude prohibited it
based on religious belief.
-: There's not in the,
the historical and legal tradition recognizes
various justifications for the prohibition on suicide.
And one of the primary ones being the state's important
reasons in protecting the live of all of its citizens.
So there's not, we would submit this is not grounded
in the religious worldview
or ethical judgment about suicide,
rather it's rational for the Legislature here
to prohibit medical aid and dying as it prohibits
other forms of assistance on suicide
for reasons that we outlined. -: Before determine
whether we're dealing with the heightened scrutiny,
strict scrutiny or rational basis
let's take a step back because
one of the most important points about the appellant's
position here is that there's really not a difference
between the right to reject medical care
and proactively be able to receive a prescription
and end one's life when you only have six months
or less to live.
And I know that the response is well rejecting medical care
is a battery to have it happen to you
if you don't want the cure, but that's not necessarily
the case in Brophy.
Sometimes the way somebody is is dying is removal
of life support.
You have as the plaintiffs point out, Mo.
And we have other circumstances where
there's something proactive that happens to cause the death.
These palliative care sometimes can be proactive as well.
So why aren't they right?
-: We don't we rely solely on the passive
active distinction here.
I think the important distinction as this court recognized
in Brophy is that the right to refuse medical treatment
is grounded in the interest in avoiding
non-consensual invasion of bodily integrity.
And though the patient who has received medical treatment
has to have consented to it initially.
And if the patient's consent or,
and by the way, in this context,
we're not only talking about competent patients,
there could be substituted judgment.
So if the patient withdraws the consent
and has the right to have that medical treatment withdrawn,
and that's a very diff different situation in terms of
the kind of right-
-: I understand our case law, but they're making a good point
as there advances in palliative care,
and in circumstances like Brophy,
it's not stop doing what you're doing,
it's actively doing something.
And that their view is we analyze this constitutionally
and the liberty interest and equal protection
in this context that it's blurry.
-: Well, it would be a radical expansion
of the kind of a privacy or liberty interest involved.
And moreover as Justice Cypher noted,
this liberty interest that the plaintiffs articulate
if recognized as a fundamental constitutional right,
would have to be available to everyone rather than
patients in this limited group of people who have six months
prognosis and are competent
and able to self ingest the medication so-
-: Why it have to be available to everybody?
Why couldn't it be a subset of patients who have this
fundamental right to direct their medical care,
whether by stopping or affirmatively allowing medical care?
-: It would depend on how the fundamental right is defined
in this case, and here I would argue that it's not.
It hasn't been well defined and it's rather broad
and understood in terms of really the right to control
the time and manner of one's own death.
And if it's conceived in that way,
there wouldn't be a constitutional line that
this court could draw between allowing it
for certain patients who are, as I said, for example,
able to self ingest the medication and others who are not,
and would like the doctor to administer
the lethal medication or those who are competent
versus those who have made the decision that this is how
they would like to die when the time comes-
-: Your argument isn't so much that it can't be done
it's that it does require a system of regulations on when
it could be done, which suggests maybe it's most appropriate
for the Legislature to define a set of rules
for when something like this could happen.
-: Correct, my point is that the Legislature
could rationally draw the line by prohibiting
all forms of assisted suicide,
as it has done so far in Massachusetts,
but it could also draw the line differently
while putting in place all these important safeguards
that are discussed, for example,
in detailed and the Amicus Brief
by the Mass Medical Association
and the Hospice and Palliative Care Federation.
But if a-
-: So courts, even though this is a common law crime
courts are sort of institutionally inept
at drawing these kind of really rules about
how this could be done.
Granik: That's right.
-: Well, the plaintiffs would respond to that
that we have all sorts of complicated medical issues,
and we nonetheless have a standard of care that develops.
And that a standard of care is developed in Oregon,
standard of care is developed in I think,
10 or 11 other jurisdictions.
And that the medical profession is up to a standard of care
developing here.
-: It's true that the practice has been legalized
in United States and the district of Columbia.
However, in all of those jurisdictions,
it was legalized by statutes.
And those safeguards and regulations were carefully debated
as a matter of policy by Legislature
and more carefully articulated in those statutes.
And again, if you look at the differences
Cypher: So are you saying the Legislature
set the standard of care in those statutes?
-: That's right.
And then Massachusetts,
there's no general standard of care that would apply
to this situation which is,
would be brand new in Massachusetts,
but it also is fairly new in other states
that have recently legalized it,
and the standard of care that applies
to the medical profession as a whole has not developed.
And in fact, even though the Mass Medical Society
has recently changed this position from opposing
physician assisted suicide or medical aid and dying
and change its position to neutral engagement
has not said that it endorses it.
So it's something that's in the process of evolving
and developed.
And this court would preempt the regulations
and the safeguards that are so important
and necessary by a constitutional ruling.
-: Counsel, you say that, but if it's our Common law,
Common law evolves, right?
A little while ago you said that if we were to take justice,
Lowy's question about not just say
when you want to refuse care,
but when you want to embrace care in this case,
the whatever prescription it would be that would
lead to someone ending their lives on their terms.
Why can't we say that we didn't have all of this stuff
when we made these decisions and the Common law evolves?
And a hundred years ago,
you were just forced to die this painful death,
and that's all we could expect from you,
but we've advanced in medical care.
And if we recognize this right,
why wouldn't it encompass this?
'Cause there are some things I was waiting a while,
but there was somethings that struck me about
what you were saying.
You said the states has this important interest
in protecting all of its citizens
and their moral and societal and public interests.
Who's looking out for Dr. Kligler as he's dying
and he's dying painfully.
What interest do we have in that?
What interest does the government in that?
Can you explain that to me?
Because if you take those two parts,
the Common law involves and that it may be that
now we have these newer more humane ways
of addressing someone's end of life.
And in his own home, after living his own life,
what interest does the government have in telling him
we're not gonna let you end your life on your terms,
we want you to end it on ours.
-: I'll take the second question first.
And I would say there's absolutely no reason
that anyone should die a painful death.
And in the state palliative care,
excellent palliative care is available to many people,
unfortunately not all and not all the time,
but there are various ways in which patients
at the end of life, as patients throughout their life
can access pain relief and forms of,
as I mentioned palliative care and comfort
at the end of life.
So that's not what I'm saying at all.
What I'm saying is that the state has an interest
in protecting all of its citizens.
And therefore, because there's so no fundamental right
it can balance the various interests
and they can draw the line at what's permitted,
and what's not in the way that it has done
and say that while patients can get relief in other ways,
they don't have the ability to control the exact time
of their death.
And if the Legislature decided as a result of the bid
to move the line it could do so, but it hasn't so far.
And then turning to Your Honor's first question,
I would point this court to a quote from the Supreme Court's
Obergefell case that says "History and tradition
guide and discipline this inquiry,
the inquiry of identifying and protecting
fundamental rights,
but do not set its out a boundaries.
That method respects their history and learns from it
without allowing the past alone to rule the present.
And I would say that in this case,
it's not at all a question of allowing the past
to rule the present it's a question of
allowing the present to rule the present.
And again, in this practice of medical aid and dying,
though it is becoming available to
a small number of people in this country has not
yet been something that this court can look to and say,
it has developed there's no history or tradition,
legal tradition to guide and discipline the inquiry-
-: Attorney, Granik let me just ask,
you said earlier that this was not rooted in religious
or moral sensibilities, what is it rooted in then?
Because just, the quote that you you gave us
from Obergefell goes against you, doesn't it?
We're moving forward.
As Justice George said Common law changes,
and so are you then saying that yes at some point
we'll get there, but we're not there yet.
Is that your point?
-: I'm not saying that necessarily we would,
but I'm also not saying that it's impossible that
at some point this would be recognized in a way
that the court would be able to reevaluate it,
but I'm saying at this point- -: Why isn't that now?
This is the case we have right now,
why isn't it time to recognize that patients
like Dr Kligler have the right to decide in their own way,
on their own terms,
how they want to die as opposed to waiting
and being limited to the palliative care
and dying in hospice?
-: Because this right as described and however compelling
and difficult that the example here
and the plaintiff situation is here,
that the state recognizes there's no well defined contour
of the fundamental, right?
There's no limiting principle.
So if you were to recognize a fundamental right
to control the manner in time of death as I said,
it would be difficult to cabinet to this very specific
situation and the very limited group of people
in the way the plaintiffs have proposed.
-: I understand your point, what if,
would it be possible for this court to say, oh yeah,
there's under the order liberty analysis,
there's a right to determine the time and manner of death
and then say, go ahead, Legislature,
you go ahead and regulate this.
Do we have that authority to tell them what to do?
-: But the Legislature's ability to regulate would then be
constrained by a constitutional dimension to this practice,
which has never been recognized anywhere.
And I would argue should not be recognized by this court,
partly for that reason at the Legislature
has to put in place the important safeguards.
And-
Cypher: But if there is a constitutional right,
the Legislature's regulation always has to comply
with the constitution.
-: That's correct.
And that's why I would say that the constitution,
that the argument that there is a constitution right
in this case has not really changed from the way
that this argument was presented to the Supreme Court
in Clarksburg or back-
-: No, but we're talking about the declaration of rights,
and you talk about, I don't know,
maybe we'll get there at some point in time.
And I understand that the constitution's
on an organic document.
And so I understand that point,
but if we might get there at some point,
why are you saying that the normative values
to infuse some meaning into whether the penumbra
or due process is going to exist in three years,
but it doesn't exist now?
Granik: I wouldn't put a number certain number
of years on this-
-: Just by way of example.
-: But, go back to that quote about the history
and tradition to guide and discipline the inquiry.
And I would say at this point in time,
we have absolutely no foundation in history
or legal tradition or medical practice for allowing-
-: We're not all prisoners of 1780 or 1789,
I'm just trying to understand when you say
we may get there at some point in time,
and I understand respect the United States Supreme Court
decision under their constitution.
I'm asking you, why it is,
if this is an organic document we're interpreting
what is it about normative values that doesn't allow us
to say that there's this liberty interest now.
-: And I would just ask the court to come back to
the case you have before you today, in which you have
a patient who might become terminally ill at some point,
who would like access to lethal medication to self ingest
and end his life,
and I would argue that there's no foundation
under this court's precedent
or under the Massachusetts constitution to recognize
a brand new fundamental rights to have assistance
in dying in that situation or any other.
-: Can I ask you how this act fits into the crime
of involuntary man slaughter?
What's so involuntary about this act?
-: So the involuntary part, I would argue
goes to the point about intent so-
-: But it's an unintended cause of death,
you have to intend the act,
you have to intend to lock the doors
you have to intend to, or an omission
you have to intend to walk away from the fire.
You have to intend to sell drugs, right?
That's the intentional act is with throw the
cinder block off the highway, right?
Those are the intentional acts.
You have to not intend to cause the death.
It just has to have a likelihood.
Here, there's certainly an attempt to cause the death.
-: Well, the plaintiff's point out that in some cases
the doctor might write the prescription for intending
to bring relief to the patient,
and maybe perhaps even hoping that this lethal medication
will not be used, but in this case-
-: Which could lead to,
I think Justice Cypher alluded to second degree murder
under third prong malice.
And is that what we want when we have,
as has been pointed out advanced palliative care,
which huge, very closely to this practice?
-: So on the elements,
we argue because of this court's precedent
in applying the elements of involuntary manslaughter
to other cases in which the victim's death
is self inflicted, those are the elements that
may and the right circumstances apply more properly.
And I didn't get the question about the-
-: But, I guess take the drug overdose,
even with fentanyl and carfentanil at all
the purpose isn't to have the person's life,
and the purpose is to have a commercial transaction
to sell them drugs, and it's an unfortunate,
too familiar consequence of an overdose.
Here the purpose is to give them the choice
to end their life, correct?
-: Yeah, and I think I would say going back
to the point that there's an element in which,
what the plaintiffs are seeking is an advisory opinion,
because we don't have all the facts
that could potentially go into,
what kind of homicide could be charged in the situation.
So under the right circumstances-
-: So his physician needs to wait and see,
is that your position that we don't have an actual case
in controversy because, go ahead, write the prescription,
see if we decide to prosecute you later on.
And meanwhile, Dr. Kligler is either going to get it
or not to get it and his doctor's gonna take the risk.
-: Right, so the doctor has to raise the hand
and subject herself to a 20 year felony or a life felony.
-: I know that this court could find that this case
is not a proper vehicle for declaratory judgment
and leave the complex policy questions involved
to the Legislature.
So I'm just pointing out that the it's important to note
that there's so many factual permutations
as to the intent and the competency and
the voluntariness of the action that we don't,
this court does not have before it in the current case.
-: So you making a separation of powers argument,
or are you making a rightness argument?
-: I would say both, but again the superior court
denied the defendant's motion to dismiss,
and the defendants did not appeal it.
I would say, this argument is not waived
and it's still before this court, but
ultimately the issues as they concern this case
are also before this court.
So I'm not saying this court couldn't decided,
but I'm just saying it could also affirm
the grand of summary judgment on any ground.
Budd: Okay, thank you.
Granik: Thank you.
-: Can we have attorney Schandevel.
-: Good morning, Your Honors, may it please the court.
My name is Chris Schandevel here today on behalf of
Euthanasia Prevention Coalition USA
in support of the appellants
and in support of affirmance of the decision below.
As this court recognized just last month
in Commonwealth versus Roman only rights
that are deeply rooted in the history and tradition
of this Commonwealth and the nation can qualify
as fundamental rights under the Massachusetts constitution.
And Justice Cypher in response to your earlier question
about whether we're doing that analysis
under the due process provisions
and the constitution under the equal protection provisions
I don't think the appellants have been very clear
as to where they're asserting those rights.
However, in terms of the test
for what constitutes a fundamental right,
the test is the same.
So in Gillespie, and then in Wilbur,
those cases were due process cases.
Roman of course, was an equal protection.
In both cases the question is whether or not
a fundamental right exists,
and in all three cases this court said
the test is whether or not that right
is deeply rooted in history and tradition.
So-called medical aid and dying fails that test
for at least three reasons.
First of all, suicide and assistant suicide both
have been long prohibited in this Commonwealth
and throughout our nation's history.
Second so-called medical aid and dying is assisted suicide.
And third, as this court explained
and clearly stated in Guardianship of Doe,
"It is well settled that withdrawing
or refusing life sustaining medical treatment
is not equivalent to attempting suicide."
-: Let me stop you there and ask you a couple questions.
One is, if we're talking about things that are rooted,
deeply rooted, but yet recognizing that our Common law
can change, so we've got a constitutional issue
and a common law development issue at the time
that the prohibitions were originally came up with,
there was no simple guaranteed method of a painless death
that a physician could offer.
So this is really something that's new, isn't it?
Relatively speaking.
-: Well, so the argument on the other side
is that medical aid and dying is something
that is new and different since the
U.S. Supreme Court decision in Clarksburg and Vacko in 1997,
both those cases involved so-called medical aid and dying.
If you read the facts of what the plaintiffs
were asserting there,
they were asserting a right to lethal medication
from their prescribing physician, and they were asserting,
they were competent adults.
The exact same claim that's been made in this case.
And the majority opinion in both of those cases
walks through the history and tradition and says,
there's simply no right like this anywhere
within our nation's history or tradition so the analysis-
-: Let's stop there for a minute and say,
isn't there a distinction often between Massachusetts
provides more protections in many ways
or can provide more rights than the federal government can.
And so what in the Massachusetts constitution
would prevent us from finding
that this is a fundamental right?
-: So a couple of responses to that, Your Honor.
So in the Gillespie case where this court did apply
the deeply rooted history and tradition test
in footnote 12 of that decision,
the court did explain that at times this court
is willing to go further and, and find more robust
rights to do process, et cetera.
But the very next line after that discussion
in that footnote 12 in Gillespie
is that this court continues to apply the aim standards
that the federal courts apply.
So that's all we're asking the court to do here
is to continue to apply that standard of requiring
that the asserted right is deeply rooted in history
and tradition. -: I have one last question,
and then I'll be quiet.
And that is that this issue here with regard to,
I guess, whether it's in our constitution
or we're following the other federal constitution,
and we're adopting that language, what in the history
of the nation and the history and our traditions
is not related to religion in this area.
Is there anything that shows that this is not
a religions issue?
-: Sure, so if the court would examine
the decisions of this court day,
all the way back to Commonwealth versus Bowen,
which was the case of the inmate next to another inmate
and the encouragement to commit suicide
and the commission of the suicide,
in that case, other cases which followed that one,
which were discussed in our briefing cases
from other jurisdictions as well,
there's never an assertion that
the Common law prohibition on suicide assisted suicide
is based on religious beliefs.
It's always based on the government's interest
in protecting human life.
And that interest is not limited to religious concerns.
And I think the Amicus Brief filed in this case
by Dr. Yule in support of the appellants
and supportive affirmance,
he may very clear that he's an atheist
and doesn't believe in God.
And yet the state has very important interest
in a case like this in making sure that it's suicide
and assisted suicide remain prohibited.
So we don't think it's based on anything within religion-
-: Okay.
But doesn't that bring you right back
to Justice Wendlandt's question.
And that is what interest does the government have
in this doctor having a painful death?
-: So the government has an interest
in making sure that all human life is protected.
And part of the reason why that deeply rooted
in history tradition test is so important to apply here.
There are two reasons:
one is more principle, and the second is more practical.
The more principled reason is that in the words
of the panel decision and the compassion and dying case,
which eventually became Clarksburg,
applying that test prevents courts from becoming
essentially a free floating constitutional convention,
able to create new rights based
on their own policy preferences.
And then secondly the more practical reason why that
test applying the test here is so important
is because it would avoid this court creating
a new constitutional right that this court
and the lower courts it would be impossible for them-
-: Let's take both of those.
First of all, the language you're quoting
is from a substantive due process analysis.
Chris: Yes, Your Honor.
-: And then the New York case is a equal protection case,
and what the plaintiffs have not precisely articulated
the difference between the liberty interest
and the privacy interest.
Nonetheless, what about the privacy interest?
What about the penumbra issue and why doesn't this fall
within the right to privacy?
-: So, as we've explained in our brief,
and going through some of the courts cases
that locate this right to reject medical treatment,
the court does discuss a couple of things.
It discusses that liberty interest,
and really the Common law interest in being
able to reject a battery,
we think that's an important distinction,
which should prevent the court from expanding the right
to reject medical treatment, to what's being asserted here,
basically a right to invite a bodily invasion
in the form of that lethal medication.
But also in the rights to privacy.
That right in those cases is always hinges on
the right to avoid non-consensual invasions
of bodily integrity.
So we think even though the court uses the privacy language,
in some of those cases, if you read those cases
as we've laid out in our brief,
it always hinges on that nonconsensual invasion of the body.
And so that is what distinguishes,
so for example in Brophy-
-: But at least the plaintiff would say that
that dichotomy is not going to hold up
In the real world the way medicine is practiced now
with people who are at the end of their life.
And while that may have been true before it's blurring now,
and there's a lot of proactive medicine
that goes into palliative care.
Chris: The important thing, Your Honor,
in terms of the extent to which some of that medicine
is proactive in terms of prescribing various forms
of pain relief, none of that proactive activity
is ever the cause of the death
in terms of what the court has said about the right
to reject medical treatment,
it's still a death by natural causes,
which the doctors never intended.
-: Death by dehydration.
-: Even a withdrawal of nutrition and pneumonia,
that's occasioned by morphine.
-: Right, and what the courts have said in those contexts
is that it, but for the natural causes,
which precipitated the withdrawal of the hydration
and the feeding tubes and et cetera,
that patient would still be alive.
So it's still the natural causes that are underlying
cause of death.
And so the intent there,
and this is an important distinction between action
and inaction the court,
I think justice Lowy asked about the Brophy case
that wasn't that really an active act taken by the doctors.
But in that case what was being asserted
was a right to withdraw a feeding tube,
the right to stop the medical care
that had previously been started.
And what the court said in its analysis there is
if anyone has a right to reject medical treatment
the first place,
certainly they also have the right to subsequently
stop that treatment.
So even in Brophy was based on,
goes back to the Common law right to reject a battery.
Now it's a battery that had begun weeks or months earlier
when the medical treatment start,
but it was a battery that it became a battery
and knew once the patient stopped consenting
to that treatment.
So once the patient says,
I want to withdraw this medical care,
and if the hospital insists on continuing it,
that is battery.
So we think that Brophy falls perfectly in line
with the rules that this court has applied,
and in the Vacko case and the footnote there
that we cited in our brief,
the Supreme Court lists 31 different state court cases,
state and federal cases drawing that important distinction
between the right to reject medical treatment
and a asserted right to assisted suicide,
including two cases from this court of the Brophy case,
and I believe the Guardianship of Doe case.
-: Counsel, I know you have your argument down pat,
and all of the support for it and all of that, that's great.
I guess my question is just more fundamental.
Do you not see the paternalistic part of this,
that when you're talking about somebody
like Dr. Kligler who is a doctor
who's treated patients his entire life,
who's been able to define his own destiny,
wake up every day and feel like he's actively living,
to the point now with saying that
because we're not gonna read this,
and we're not gonna say that our Common law can evolve.
We're not gonna say that we can look to our constitution
and see whether or not there's something else
that now is different than when we enacted it
and when it's gone through history,
that doesn't encompass the right of a human being to say,
I don't wanna be in a pain induced, pardon me,
an opiate induced stupor in my palliative care
that I'm just chuck full of pain medication.
And I'm just laying there etherized on a couch somewhere.
Do you not see that?
-: Your Honor, we certainly do sympathize with Dr. Kligler-
-: Forget about sympathize, because as he's dying
in a way that he doesn't want to,
the only thing that the interest that seems to be
articulated here is because we feel better
about the fact that you can't do that.
-: So, Your Honor, the state maintains an interest
in Dr. Kligler's human life,
and the state more broadly retains an interest in human life
of all Massachusetts citizens
who would be impacted by a decision of this court
creating a constitutional right to physician
assisted suicide.
So if the Legislature here in the Commonwealth
decided tomorrow that that's a paternalistic approach
as to a patient like Dr. Kligler the Legislature tomorrow
could pass the statute allowing
a limited class of individuals and Dr. Kligler's position
to get access to a lethal medication, however-
-: If we were to say that there is a constitutional
right here, they could certainly go and do their jobs
to put the contours to that like they do all the time.
-: Unfortunately, Your Honor,
I just don't think that's the case,
because if this court were to constitutionalized
a right to physician assisted suicide,
it would be very difficult,
and I would suggest impossible for this court to say,
however, despite the fact that we're recognizing
a fundamental constitutional right,
we're gonna narrowly define the class of individuals
who have access to that constitutional right.
-: Are you're saying the Legislature can't do that.
If we were as a first domino to say there's a right,
don't they do that with access to abortion?
-: So if this court-
-: No, don't they do that with access to abortion?
Well, we said that there's a constitutional right,
and the Legislature goes off and puts the contours to it.
-: Sure, but they can't pass a statute
that conflicts with the constitutional right
at this court.
Has recognized even in the abortion context.
So in this particular context, for example,
if this court were to say there's a fundamental,
constitutional right to physician assisted suicide,
and the Legislature tomorrow says,
well, we're gonna narrowly cabin who has access
to that, right, they have to be competent adults,
they have to be terminally ill, et cetera, et cetera,
the lawsuit would be filed the next day saying
you can't limit the class of people who have access
to a fundamental right.
And this court would be put in the position
of having to do strict scrutiny
and a complex balancing of the competing
interest of the government,
and the people asserting that right
in order to determine whether or not
a new class of individual should have access to-
-: And we don't we do at all the time?
-: Well, in this particular,
of course the court does do that,
but what we're suggesting and what I think the Amicus Brief
make very clear is that it's near impossible,
and we would suggest impossible for this court
to do that kind of balancing and to limit that
access to the right in any way.
I think it's important to recognize,
so the other side bases its assertion of the right
to reject medical treatment.
But then they say,
but we think that this right to physicians assisted suicide
should be narrowly limited to this class of people.
And what this court has set us the right
to reject medical treatment is that all persons
have a general right to reject medical treatment
competent or incompetent.
So that right has not been so limited.
And to the extent that the appellants argue this right
should be, the Legislature can draw those lines,
but this court is not in position to draw those lines.
And that's why we think it's important to leave that role
to the Legislature to make those social policy decisions
and not to take that role on for this court.
If I can make one more- Budd: Counsel.
-: Yes, Your Honor.
-: Has any state court found that
there's a constitutional right to assisted suicide-
-: The only court- -: ...state constitution?
-: The only court that tried to was the
9th Circuit on ban Court of Appeals
in the case that eventually became Clarksburg
where they were reversed.
So other than that decision, no, Your Honor.
Court they've routinely rejected the argument
there's a fundamental right to physician assisted suicide.
I think the importance, getting back to my initial point,
the importance of the test,
applying the deeply rooted in history and tradition test
it's important because again,
it cabins the role of this court and allows the Legislature
to play its separate role.
And then I wanna just make one point on-
-: I know you're speaking fast 'cause you're running out
of time or have run out of time,
-: I welcome questions, thank you.
-: But you ha you keep going back to fundamental rights
being rooted in history, and I agree with you at least
that that is true.
How do you take into account that now 10 jurisdictions
have recognized that right?
So that the history is changing,
and so at least in 10 states
their citizens have this right
to physician assistant suicide.
How do you account for that
when we do our own historical analysis?
Are we limited to the history of Massachusetts or do we
take into account the history of these other jurisdictions
now that's evolving, given that Common law
as Justice George said is an evolving thing.
-: Sure, thank you, Your Honor.
That actually takes me to the exact point
I was rushing to make, so I appreciate the question.
Then this is where we part ways a little bit
with some of the arguments made by my friends
counsel the Commonwealth in that the test is,
and has always been including last month in Roman,
whether or not the asserted right
is deeply rooted in history and tradition.
Now what my friends on this side and my friends
on the other side have both argued is that, well,
Goodridge changes, that Obergefell changes that,
both those cases recognize you can look to more
modern developments.
However, if you read the opinions in both of those cases
and the reasoning that the courts,
this court and the U.S. Supreme Court employing
both of those cases, what was that issue in those cases?
Neither those cases involved a question of
is there a fundamental right to marriage?
It was considered by all parties involved
that there is a fundamental right to marriage.
And so in determining whether or not
there's a fundamental right in the first place,
the test is still the same,
whether or not it's deeply rooted in history and tradition.
Now what this court and the Supreme Court of Obergefell
both said that is that when you're doing the next step
of the analysis, when you're determining
not whether a fundamental right exists,
but whether a certain class of individuals
has been denied access to that fundamental right
that's where you look to more modern developments.
That's where you look to a more modern understanding
of discrimination.
Cypher: So is that why you would,
is that what you would say would be the reason
that women have rights now?
Because certainly under tradition and history,
they weren't recognized.
So are you saying things changed
and that's why women have them, or did women's rights
get found somewhere in the constitution?
-: No, so we think that the rights and the principle
that were established at the very beginning
continue to apply in full force here.
That's more of an equal-
-: Apply to women.
They didn't apply at all to women.
Chris: So.
-: So how did that happen then
if somebody didn't make a change?
-: Right, so that's more of an equal protection analysis,
Your Honor.
And that equal protection analysis
when you're looking at two different classes of people
who've been treated differently,
that's not limited to history and tradition.
Whereas a fundamental right question
is a question of history and tradition.
And so that's why we think the analysis is different here,
and can be an ought to be cabin to history and tradition.
And so in this case,
and applying the history and tradition test
in light of a Obergefell and in light of Goodridge,
if this were a case where most individuals
had access to a right to physician assisted suicide,
but there was a narrow class of people
who did not have that access,
then you would have an argument that, well,
you can look at more modern developments
as to discrimination against that class
and give that class of folks
a right to physician assisted suicide.
Here the question is the threshold question
of whether such a right even exists in the first place?
And in fact, that brings me back to the point
that I was making earlier about the inability
of this court to cabin a right to physician
assisted suicide, to a narrow class of people.
So if the court were to say in this case,
we're gonna find a fundamental right
to physician assisted suicide,
but limit to this narrow class of people,
then 10, 15 years down the road, parties come in,
or maybe two or three years down the road,
parties come in and say, well,
that was the understanding of physician assisted suicide
at the time, but we are in this different class of people
we should have access to that right too.
Look at Obergefell, look at modern developments
we've been discriminated against.
And then what does this court say
in response to this argument?
How does this court than the fundamental right
to physician assisted suicide to the narrow class of people
who are asking for it here?
The Legislature can draw lines like that,
but this court cannot draw lines like that when it comes to-
-: You of course, recognize they have an equal protection
argument too.
-: So there's of course an equal protection argument.
So if they were able to say,
we are an era a class of people who are being
treated differently in terms of accessing
a right available to others, but that's not the case.
So Mr. Kligler if he ends up in a position position where
he's on life support or receiving some other sort
of medical treatment, and he asserts,
I want to reject that treatment or withdraw that treatment,
he's in the same position as every other
Massachusetts citizen right now,
he has equal access to that.
So there no equal protection violation
in terms of the rights that are afforded
to all Massachusetts citizens.
So there is no equal protection violation,
there is no substance due process violation.
For that reason rational basis review applies,
and for all the reasons laid out,
and my friend's brief for the Commonwealth
and the record below the Common law prohibition
easily satisfies rational basis review.
We'd ask the court to affirm the decision below,
happy to answer any other questions from the court,
otherwise I'll rest on my brief and ask the court to affirm.