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SJC-13194, Robert M. Kligler and another,
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V. Attorney General and another.
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Okay, Attorney Kappos.
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Thank you, Miss Chief Justice.
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Good morning, Your Honors.
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May it please the court.
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My client, Dr. Roger Kligler
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spent 32 years of his career as a physician,
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helping to treat the citizens of the Commonwealth.
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Now, Dr. Kligler is asking the Commonwealth to help him.
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Dr. Kligler has stage four prostate cancer,
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the most advanced stage.
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He wanted to be here today,
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but his cancer has spread and he is immunocompromised
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and unable to attend in-person,
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but he is attending remotely.
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Dr. Kligler faces the very real prospect
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that he will experience an unbearably painful death
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when he reaches the final days of his illness.
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Dr. Kligler, therefore wants a prescription
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for a medical aid in dying drug
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that will allow him to peacefully and painlessly pass,
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if his suffering becomes overwhelming.
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Mind you, Dr. Kligler, does not wanna die,
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in fact, he has done everything medically possible
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to extend time that he will have
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with his grandchildren and family,
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but he realizes that his illness
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will overcome him eventually,
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and he does not want to be forced
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to endure unbearable suffering.
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If I could ask you about count one
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on the declaratory judgment,
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why aren't you asking really for an advisory opinion here?
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We don't have a prosecution.
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We don't have the prospect of prosecution.
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And when we look at, particularly,
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involuntary manslaughter with the need
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to really get into the facts, the specificity,
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it's really concerning to think about an advisory opinion
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in this context.
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Thank you, Justice Lowy.
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We don't believe that this is an advisory opinion.
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Dr. Kligler, he has a very real illness.
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His cancer has progressed to stage four,
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it's metastasized.
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He wants to live much longer,
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but he doesn't know how much time he's gonna have.
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And this is an issue that if we were to wait until
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he were within six months of dying,
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we wouldn't be able to bring the case
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and get it through the trial court,
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and through the appellate process
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before the plaintiff would pass away.
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So we really don't see this as an advisory opinion.
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We see this as something that is capable of repetition.
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But the prosecution is, would be of a physician.
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That's correct,
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the prosecution would be of physician-
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And that's the advisory opinion that you'd be seeking
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the question you pointed.
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This court is noted in the Commonwealth versus Barr case
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that the choice to openly challenge a criminal law
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it's unnecessary that you violate the law first, right?
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If you think about this situation,
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no doctor would want to make the prescription
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and risk criminal prosecution
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and loss of their medical license.
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So this is a situation where if the court were
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to rule that there actually has to be a doctor
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that writes the prescription and gets indicted,
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I fear that it would never happen
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and it would frustrate the process
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of having court review because no doctor would ever
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be willing to risk criminal prosecution
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and their medical license in that way
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that we're talking about.
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Are you also_
What is the closest
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legal authority you have for that proposition?
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The Commonwealth versus Barr case was one case
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that dealt with that.
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And that's the one that comes to mind
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off the top of my head.
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Thank you.
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Can can I ask You,
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I'm sorry you done Justice Cypher?
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I am, Thank.
Thank you.
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Can I ask you about a Common law of manslaughter
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and where this fits in.
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We're discussing involuntary manslaughter
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which involves intentional conduct by actor omission,
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whether there's a duty to act involving a high degree
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of substantial harm.
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And we're looking at, of course,
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Catalina and Carrillo their heroin overdose cases,
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Landscape the nightclub, Cocoanut Grove fire,
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also the warehouse fire in Moisters,
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we have that line of cases where there's
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either they did something or failed to do something
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that caused great harm.
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Here, as I read your brief, you challenge two parts,
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and you go through the elements
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of Commonwealth manslaughter and you challenge two
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of the elements, first is causation
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arguing that the patient caused his or her own death,
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correct?
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Not the physician.
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And secondly, the wanted in reckless because the
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there's a factual issue, you alleged.
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As to whether or not prescribing these meds
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is a harmful consequence,
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it's actually a helpful consequence.
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And that's what the attorney general says
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is you're reading in a good faith exception.
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So turn into our case law,
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and forgive me for the hypothetical,
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but I'm gonna have to give you one on the Persampiery case,
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1961 case.
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In Persampiery, horrible husband, abusive relationships
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gives her the gun and she kills herself.
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If we flipped that around,
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and we say that was manslaughter,
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if we flip the facts of Persampiery around
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and not to belittle Mr. Dr. Kligler's condition
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by any stretch, but I just wanna use this
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for educational purposes, if we flip Persampiery around
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and rather than being a horrible person,
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he's actually a loving husband,
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and she has critical disease.
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She's on her last days, and he says,
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"I'll load the gun for you.
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Here's how you do it.
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I'm gonna walk away, we had a great life" and he leaves.
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How do we not have the same liability in Persampiery
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that you're asking about in this case
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and not a Commonwealth with causation and harm?
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Thank you, Justice Gaziano.
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That it seems like a very different case to us.
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We're talking about a compassionate option for-
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We have a compassionate husband who doesn't wanna see
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his wife suffer anymore.
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Yeah, but gun violence we would never advocate for,
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and we would never condone that type of process.
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Medical aid dying is a compassionate peaceful way
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for doctor Kligler.
Well that brings to-
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But lemme me ask you,
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is there a good faith exception to this then?
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To the harm?
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As I see what we read harm is harm physical harm or death?
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Or is harm kind of a bad faith exercise in this?
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Yeah, I don't think we're arguing for a good faith
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exception necessarily,
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but what we see is that there is a very different causation
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element here where a doctor writes a prescription
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and then it is left to the patient and their own volition
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on whether or not they ever wanna fill it
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or ever wanna subject.
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Okay.
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This in situation, if we adopt your argument,
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do we open the door for the Persampiery
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good husband's situation I just laid out for you?
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Well, the Persampiery case, as I recall the facts
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in that case, the husband was actually present at the time
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and assisted the wife in loading the gun,
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and then giving her instructions on how to kill herself.
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That is not what's gonna going on here.
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This is a situation where the doctor gives the patient
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a prescription with the intent that the patient
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is gonna have peace of mind from that,
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and know that they have an alternative
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if they're suffering becomes unbearable-
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And death is reasonably foreseeable from the prescription,
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correct?
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Not for any one patient.
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It is foreseeable that a significant number of patients
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may take it, but for any one patient
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that we're talking about,
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you can't tell whether that patient is gonna be one
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who never fills the prescription or fills it,
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but never self ingests.
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The statistics from the states that are allowing
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medical aid and dying currently show that over 30%
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of people who get a medical aid and dying prescription
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never end up filling it.
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So I don't think you can necessarily say
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that it is foreseeable as to any individual patient,
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what the outcome is going to be in that case?
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Well, if over 70% of people were driving in a manner that
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led to an involuntary manslaughter instruction,
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we wouldn't say there was a causation problem,
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or 70% of the time when the doors were locked in a nightclub
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and people couldn't get out and it was a fire and they died
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we wouldn't say that there was a causation problem.
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It seems like that's a pretty high number
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for causation purposes.
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Right, the language is
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high degree of substantial harm.
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There are a significant number I'm not arguing
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that there aren't, it is over 60% that end up taking it.
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But the considerations here are,
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you've got people that are very close to passing already.
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Usually the people who are eligible
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and who actually self ingest the medication
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are within days or weeks of dying,
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which is a situation where the harm from that
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is much diminished we would argue.
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It's sort of, there's an attenuated state interest
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at that point when you get that close to death.
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And so that the harm we would submit is much diminished
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at that point, and in connection with the break in the,
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or the lack of a break in the chain of self causation
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from the point-
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You're asking us to do this under the Common law
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and then you pause it on competency, correct?
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That is one of the standards of care, correct.
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That the patient has to be an adult,
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they have to be competent to have to request-
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In his six months?
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That that's correct.
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All right, what about nine months
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or three months?
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That is not been the standard that's been adopted.
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And I think the reason for that, Justice Gaziano is that
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the six month cutoff is something that is well recognized
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right now already in the medical community
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and in the Commonwealth for other end of life options,
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like hospice, palliative care,
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voluntarily stopping eating and drinking, which by the way,
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I'll just in connection with your-
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Well, what if a physician doesn't get
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two forms of verification
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or physician does it three months
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rather than six months away-
That would be-
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Would a physician be liable?
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No, not at all, because once you're within six months,
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it doesn't mean it has to be right at six months,
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it could be less than that.
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If the physician is-
All right, nine months?
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That's not the standard that has been-
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Okay, would the physician who does,
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gives a prescription at nine months,
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have they committed involuntary manslaughter?
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Yeah, they would be outside the protection
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of what we would consider to be acceptable standard of care
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prescribing.
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So they would be liable if they were-
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Eight Month physician would be guilty
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of involuntary manslaughter too?
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Yeah, although I'll preface that,
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but I would agree with you Justice Gaziano
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but I'll preface that.
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But the point is this seems
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a lot like legislating to me.
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Well, the Legislature has not spoken
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one way or the other on this.
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That's problem.
Oh, no, no, no.
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It has spoken, hasn't it?
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They've not-
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They've rejected this similar bill five times, I think.
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There has been a number of bills
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that have come up,
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but they haven't chosen to enact any statute
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that would make medical aid and dying illegal.
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Can we conclude that that's a rejection of those bills?
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The bills were very similar to yours.
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Also the ballot question was similar to yours
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00:12:25.940 --> 00:12:27.237
and that did not pass.
268
00:12:27.237 --> 00:12:29.220
And there was a ballot initiative
269
00:12:29.220 --> 00:12:31.890
and you are correct, Justice Cypher that that did not pass.
270
00:12:31.890 --> 00:12:35.340
There are ongoing bill in the Legislature as well though.
271
00:12:35.340 --> 00:12:37.416
So I don't think we can necessarily conclude
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that because the Legislature didn't pass the bill
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00:12:40.630 --> 00:12:43.190
the last time it won't at some point in the future.
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00:12:43.190 --> 00:12:45.788
But let me just say this, that this is a matter
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00:12:45.788 --> 00:12:48.020
that arises under the Common law
276
00:12:48.020 --> 00:12:49.880
of involuntary manslaughter.
277
00:12:49.880 --> 00:12:53.890
And so this court is best positioned to clarify
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00:12:53.890 --> 00:12:57.040
what the law is on involuntary manslaughter
279
00:12:57.040 --> 00:12:58.650
and whether or not it would cover-
280
00:12:58.650 --> 00:13:02.800
You want us to write an opinion that says six months
281
00:13:02.800 --> 00:13:05.620
is fine, but seven months isn't
282
00:13:05.620 --> 00:13:07.590
under a Common law of manslaughter.
283
00:13:07.590 --> 00:13:09.160
I'm not asking the court to make
284
00:13:09.160 --> 00:13:10.620
that kind of a factual finding.
285
00:13:10.620 --> 00:13:14.340
I think what the court's opinion would be is that
286
00:13:14.340 --> 00:13:18.720
if physician is following a medical standard of care
287
00:13:18.720 --> 00:13:20.930
that it would be okay to do this.
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00:13:20.930 --> 00:13:25.300
And the six month is a requirement that is written in
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00:13:25.300 --> 00:13:26.640
to the medical standards of care,
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00:13:26.640 --> 00:13:29.380
virtually uniformly in the 10 jurisdictions
291
00:13:29.380 --> 00:13:32.270
that currently permit medical aid in dying.
292
00:13:32.270 --> 00:13:35.070
And can I ask you about those 10 jurisdictions?
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00:13:35.070 --> 00:13:38.080
Do they do so under their Common law
294
00:13:38.080 --> 00:13:42.300
or has there been some legislative action?
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00:13:42.300 --> 00:13:43.930
There has been legislative action.
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00:13:43.930 --> 00:13:48.720
I believe that Montana was under judicial pronouncements.
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00:13:48.720 --> 00:13:50.160
So that was under Common law.
298
00:13:50.160 --> 00:13:55.127
The other nine jurisdictions have done so under legislation.
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00:13:55.127 --> 00:13:59.070
And that legislation that medical standard of care
300
00:13:59.070 --> 00:14:00.930
at six months?
301
00:14:00.930 --> 00:14:02.700
That's my understanding, correct, Justice-
302
00:14:02.700 --> 00:14:04.117
I thought the Baxter case you're referring
303
00:14:04.117 --> 00:14:06.420
to the Baxter case in Montana?
304
00:14:06.420 --> 00:14:07.253
Correct?
305
00:14:07.253 --> 00:14:10.290
I thought that was an interpretation of a statute
306
00:14:10.290 --> 00:14:13.870
as it relates, as opposed to Common law.
307
00:14:13.870 --> 00:14:15.333
You're correct Justice George,
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00:14:15.333 --> 00:14:17.730
as that was interpretation of his statute,
309
00:14:17.730 --> 00:14:21.430
it was a carve out, it was an exception to the
310
00:14:21.430 --> 00:14:26.430
manslaughter statute in Montana for someone who requests
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00:14:26.630 --> 00:14:29.250
or a victim who requests a certain treatment.
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00:14:29.250 --> 00:14:30.083
Okay.
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00:14:30.083 --> 00:14:33.463
Counsel I'd like to focus for a second on,
314
00:14:35.760 --> 00:14:40.760
you talk about the issue of the constitutional right,
315
00:14:42.800 --> 00:14:45.990
or the fundamental right to,
316
00:14:45.990 --> 00:14:47.070
what exactly are you saying,
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00:14:47.070 --> 00:14:50.240
a fundamental right to die or a fundamental right
318
00:14:50.240 --> 00:14:52.330
to have a physician assist you
319
00:14:52.330 --> 00:14:53.973
if you're already going to die?
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00:14:54.860 --> 00:14:58.550
It would be a fundamental right to direct
321
00:14:58.550 --> 00:15:00.090
one's medical treatment.
322
00:15:00.090 --> 00:15:03.610
And we view this as flowing, Justice Cypher
323
00:15:03.610 --> 00:15:06.150
from the line of cases, starting with Sachwitz,
324
00:15:06.150 --> 00:15:10.540
and then Brophy, and then more recently the Mo case
325
00:15:10.540 --> 00:15:11.520
but all those cases-
326
00:15:11.520 --> 00:15:14.503
Is that grounded in privacy or in liberty?
327
00:15:14.503 --> 00:15:17.500
My recollection from those cases is it was grounded
328
00:15:17.500 --> 00:15:18.690
in both privacy and liberty.
329
00:15:18.690 --> 00:15:19.876
Okay.
330
00:15:19.876 --> 00:15:24.020
But why would we make a distinction between,
331
00:15:24.020 --> 00:15:28.350
we can't say that your physician has a right to prescribe
332
00:15:28.350 --> 00:15:31.210
and that this particular patient has a right
333
00:15:31.210 --> 00:15:36.210
to take his life before the natural course ends his life
334
00:15:37.360 --> 00:15:40.947
without first concluding that we all have a right
335
00:15:40.947 --> 00:15:44.303
to die when we choose, correct?
336
00:15:45.139 --> 00:15:47.040
I think the right that we're talking about
337
00:15:47.040 --> 00:15:49.440
is the right to direct one's own medical care.
338
00:15:49.440 --> 00:15:52.040
I understand that, but underneath that
339
00:15:52.040 --> 00:15:54.300
right to direct one owns medical care,
340
00:15:54.300 --> 00:15:56.020
which the courts have distinguished in some,
341
00:15:56.020 --> 00:15:59.840
there is a distinction between affirmatively giving somebody
342
00:15:59.840 --> 00:16:04.080
something to cause death and just a person choosing
343
00:16:04.080 --> 00:16:07.530
medical care, like I want this end of life treatment,
344
00:16:07.530 --> 00:16:09.080
I don't want that.
345
00:16:09.080 --> 00:16:13.390
But underneath that, there has to be some kind right
346
00:16:13.390 --> 00:16:16.167
for the patient to end his or her own life.
347
00:16:16.167 --> 00:16:20.703
I want to know why does it have to be tied to medical care?
348
00:16:24.070 --> 00:16:28.630
We would agree with you that the line of cases started out
349
00:16:28.630 --> 00:16:31.160
with drawing this distinction between refusal
350
00:16:31.160 --> 00:16:33.340
of medical care versus acceptance.
351
00:16:33.340 --> 00:16:36.560
But then Brophy advanced that to the point where
352
00:16:36.560 --> 00:16:41.220
it covered acceptance and then Mo made it even more clear,
353
00:16:41.220 --> 00:16:44.280
the Mo case Your Honor will recall was
354
00:16:44.280 --> 00:16:46.560
a case dealing with Medicare funding
355
00:16:46.560 --> 00:16:47.960
for reproductive rights.
356
00:16:47.960 --> 00:16:51.730
And that case very clearly made it apparent
357
00:16:51.730 --> 00:16:54.620
that the right to receive medical treatment,
358
00:16:54.620 --> 00:16:57.350
not only to reject medical treatment
359
00:16:57.350 --> 00:17:00.620
was a fundamental liberty and privacy right-
360
00:17:00.620 --> 00:17:03.350
That's not the thrust of the liberty
361
00:17:03.350 --> 00:17:06.071
and privacy analysis in Mo.
362
00:17:06.071 --> 00:17:10.270
The Liberty and privacy analysis in Mo has to do with
363
00:17:10.270 --> 00:17:15.070
what's viewed under the constitution from penumbra
364
00:17:15.070 --> 00:17:18.280
is a medically necessary procedure in the state,
365
00:17:18.280 --> 00:17:23.280
not being able to compel women to have to give birth,
366
00:17:24.860 --> 00:17:29.610
completely different situation than a physician
367
00:17:29.610 --> 00:17:32.363
initiating causation.
368
00:17:33.250 --> 00:17:36.670
Well, the physician, Justice Lowy does not initiate
369
00:17:36.670 --> 00:17:39.300
causation in this situation of medical aid and dying,
370
00:17:39.300 --> 00:17:41.500
it's the patient who requests it.
371
00:17:41.500 --> 00:17:42.333
This is not something-
372
00:17:42.333 --> 00:17:44.990
First step, I mean, I understand that
373
00:17:44.990 --> 00:17:48.770
you have to go get the prescription filled and take it.
374
00:17:48.770 --> 00:17:53.410
But the first step in the causation links is
375
00:17:53.410 --> 00:17:56.033
the physician writing out a prescription.
376
00:17:57.600 --> 00:17:59.820
Justice Lowy, we would disagree with that
377
00:17:59.820 --> 00:18:01.600
to the extent that the first step
378
00:18:01.600 --> 00:18:04.430
is the patient requesting it, physicians cannot-
379
00:18:04.430 --> 00:18:05.840
How how can you make that argument
380
00:18:05.840 --> 00:18:08.003
in the face of Catalina and Carrillo?
381
00:18:11.200 --> 00:18:12.033
Well, first of all,
382
00:18:12.033 --> 00:18:13.890
let me just stress that Catalina and Carrillo
383
00:18:13.890 --> 00:18:18.020
we're talking about cases where you've got drug dealers
384
00:18:18.020 --> 00:18:20.550
that are pushing heroin for personal gain.
385
00:18:20.550 --> 00:18:24.530
You argue there's no causation because the patient causes
386
00:18:24.530 --> 00:18:26.830
his or her own death, correct?
387
00:18:26.830 --> 00:18:30.300
'Cause they're the one that put the pills in their mouth,
388
00:18:30.300 --> 00:18:31.190
right?
389
00:18:31.190 --> 00:18:32.810
That is correct, Justice Gaziano-
390
00:18:32.810 --> 00:18:37.250
In Catalina and Carrillo we've said and I, again,
391
00:18:37.250 --> 00:18:41.960
I don't want to demean Dr. Kligler's condition,
392
00:18:41.960 --> 00:18:46.340
but in Carrillo and Catalina on causation,
393
00:18:46.340 --> 00:18:49.430
we said the fact that the person who dies,
394
00:18:49.430 --> 00:18:54.430
injects him/herself doesn't mean there's no causation
395
00:18:54.740 --> 00:18:58.183
for the person who supplies the lethal substance, correct?
396
00:18:59.370 --> 00:19:03.530
Yes, there is language in the context of a heroin pusher,
397
00:19:03.530 --> 00:19:06.320
I would submit to the court, but you're correct
398
00:19:06.320 --> 00:19:07.250
Justice Gaziano.
399
00:19:07.250 --> 00:19:11.701
I mean look at the causation as to who does what.
400
00:19:11.701 --> 00:19:14.700
What's the difference here and the who does what?
401
00:19:14.700 --> 00:19:19.120
The drug pusher is trying to profit make money off
402
00:19:19.120 --> 00:19:20.150
of selling drugs-
403
00:19:20.150 --> 00:19:22.760
That's not it, you're ducking the question,
404
00:19:22.760 --> 00:19:25.900
answer the who does what on causation
405
00:19:25.900 --> 00:19:27.703
without the dramatics.
406
00:19:30.988 --> 00:19:34.080
The who does what, it's the heroin dealer
407
00:19:34.080 --> 00:19:36.500
who is selling the drug-
408
00:19:36.500 --> 00:19:37.333
Right.
409
00:19:37.333 --> 00:19:40.253
So the heroin dealer who supplies the lethal substance,
410
00:19:41.320 --> 00:19:46.320
the user injects him or herself and they die, right?
411
00:19:47.590 --> 00:19:51.070
It's the injection that causes the, the injection.
412
00:19:51.070 --> 00:19:53.710
So what you are saying is the patient causes his own death
413
00:19:53.710 --> 00:19:55.760
because they put the pill in their mouth.
414
00:19:55.760 --> 00:19:57.620
How is that different from the addict,
415
00:19:57.620 --> 00:19:59.330
again, different situation,
416
00:19:59.330 --> 00:20:01.370
but how is that different from the addict
417
00:20:01.370 --> 00:20:04.720
who puts the needle in his or her arm?
418
00:20:04.720 --> 00:20:08.930
Well, didn't Carrillo result in actually an acquittal.
419
00:20:08.930 --> 00:20:10.803
Yeah, because of the lethality of,
420
00:20:11.710 --> 00:20:13.060
that doesn't help you.
421
00:20:13.060 --> 00:20:16.420
'Cause Carrillo dealt with the lethality of the heroin
422
00:20:16.420 --> 00:20:18.650
as to whether or not it was laced with fentanyl
423
00:20:18.650 --> 00:20:20.660
or whether it was regular old heroin,
424
00:20:20.660 --> 00:20:22.390
so that doesn't help you at all.
425
00:20:22.390 --> 00:20:26.300
So the doctor in the case of medical aid and dying
426
00:20:26.300 --> 00:20:29.990
at the patient's request does provide a prescription.
427
00:20:29.990 --> 00:20:33.840
And we don't disagree with you that in a significant number
428
00:20:33.840 --> 00:20:38.720
of cases, the patient will self ingest and pass away
429
00:20:38.720 --> 00:20:43.390
when their condition becomes very near end stage,
430
00:20:43.390 --> 00:20:47.093
that does happen in over 60% of the cases, the data shows.
431
00:20:48.260 --> 00:20:52.057
We submit though that the intent is different,
432
00:20:52.057 --> 00:20:55.810
the doctor is not present at the time that that happens.
433
00:20:55.810 --> 00:20:57.770
I think in a lot of these heroin cases-
434
00:20:57.770 --> 00:21:01.030
I'm just focused on, I know the intent is way different,
435
00:21:01.030 --> 00:21:03.160
I'm just focused on the causation element,
436
00:21:03.160 --> 00:21:04.780
and I don't see how you can make your argument
437
00:21:04.780 --> 00:21:06.630
in the face of Catalina and Carrillo.
438
00:21:07.750 --> 00:21:10.060
Well, we submit that the self causation,
439
00:21:10.060 --> 00:21:14.840
the chain of self causation is not broken by the doctor
440
00:21:14.840 --> 00:21:17.180
intervening, and I realize that there are
441
00:21:17.180 --> 00:21:19.160
in the context of these heroin cases,
442
00:21:19.160 --> 00:21:22.607
there is authority from this court that has recognized
443
00:21:22.607 --> 00:21:27.440
an element of causation in situations dealing with heroin.
444
00:21:27.440 --> 00:21:30.360
We think that this very different fact pattern,
445
00:21:30.360 --> 00:21:33.050
but if we wanna focus only on the causation element,
446
00:21:33.050 --> 00:21:35.943
Your Honor is correct that there is a similarity there.
447
00:21:37.500 --> 00:21:39.420
Can we talk about intent for a moment?
448
00:21:39.420 --> 00:21:44.420
You just mentioned intent and that the intentions
449
00:21:44.600 --> 00:21:47.122
of the physician sublime,
450
00:21:47.122 --> 00:21:50.741
and I'm sure they only have the best interest of the patient
451
00:21:50.741 --> 00:21:55.741
at heart and whether or not this is an important
452
00:21:56.710 --> 00:21:59.777
and a good idea, legislatively is an entirely
453
00:21:59.777 --> 00:22:01.670
different issue.
454
00:22:01.670 --> 00:22:05.430
But don't you have a problem here where
455
00:22:05.430 --> 00:22:07.210
with involuntary manslaughter,
456
00:22:07.210 --> 00:22:11.170
the intent we're talking about is intent to do the act,
457
00:22:11.170 --> 00:22:12.943
not the intent to cause the death.
458
00:22:17.550 --> 00:22:21.270
I do understand this court's precedents, Justice Lowy
459
00:22:21.270 --> 00:22:25.210
to focus on the intent to do the act,
460
00:22:25.210 --> 00:22:28.660
and that is correct that the doctor does
461
00:22:28.660 --> 00:22:30.010
write the prescription.
462
00:22:30.010 --> 00:22:32.530
And so that's not necessarily distinction,
463
00:22:32.530 --> 00:22:36.060
but we do feel that the intent to help the patient
464
00:22:36.060 --> 00:22:39.110
rather than to profit from a drug deal
465
00:22:39.110 --> 00:22:43.730
or to kill one's wife in the case of Persampiery
466
00:22:43.730 --> 00:22:45.850
is a rather different element that's-
467
00:22:45.850 --> 00:22:50.850
It's dramatically different, but we analyzing the elements
468
00:22:52.180 --> 00:22:56.280
of a Common law crime, not whether or not
469
00:22:56.280 --> 00:22:59.783
the Legislature should take that difference into account.
470
00:23:05.190 --> 00:23:06.960
I'm sorry, I didn't understand the question.
471
00:23:06.960 --> 00:23:09.620
So I understand that the difference,
472
00:23:09.620 --> 00:23:12.085
it's a huge difference.
473
00:23:12.085 --> 00:23:14.890
And again, the risk of redundancy,
474
00:23:14.890 --> 00:23:18.630
this might be a very important,
475
00:23:18.630 --> 00:23:21.500
a good idea as a Public Policy matter.
476
00:23:21.500 --> 00:23:25.333
But as when we're talking about a Common law crime,
477
00:23:27.370 --> 00:23:31.580
we're dealing with intent that's developed
478
00:23:31.580 --> 00:23:32.413
through the years,
479
00:23:32.413 --> 00:23:34.510
and it's not the intent to cause the death
480
00:23:34.510 --> 00:23:37.063
it's the tend to do the act.
481
00:23:40.999 --> 00:23:42.650
The act of giving the prescription.
482
00:23:42.650 --> 00:23:43.483
Right.
483
00:23:43.483 --> 00:23:47.050
And there is, we don't disagree with you on that,
484
00:23:47.050 --> 00:23:49.990
Justice Lowy and Justice Cypher that the doctor
485
00:23:49.990 --> 00:23:52.260
at the patient's request does give them
486
00:23:52.260 --> 00:23:54.373
a prescription and intends to do so.
487
00:23:55.853 --> 00:23:57.720
I want to point out one other thing, and that is,
488
00:23:57.720 --> 00:24:00.610
we haven't really talked about the court's decisions
489
00:24:00.610 --> 00:24:02.480
in the two Carter cases.
490
00:24:02.480 --> 00:24:05.430
And I know there were some language in Carter one
491
00:24:05.430 --> 00:24:08.310
to the effect that this court actually pointed out
492
00:24:08.310 --> 00:24:11.350
that that case, that was the case where the girlfriend
493
00:24:11.350 --> 00:24:14.100
pressured her boyfriend into committing suicide,
494
00:24:14.100 --> 00:24:17.200
and to get back into the truck that was gas infused.
495
00:24:17.200 --> 00:24:19.810
And this court noted that this is not about
496
00:24:19.810 --> 00:24:23.420
a person offering support, comfort, and even assistance-
497
00:24:23.420 --> 00:24:25.690
And you know what happened in Carter two, right?
498
00:24:25.690 --> 00:24:26.523
I do, yes.
499
00:24:26.523 --> 00:24:28.840
Persistence is no longer in the opinion.
500
00:24:29.720 --> 00:24:32.100
Yes, but there was a lot of language about
501
00:24:32.100 --> 00:24:36.280
the lack of a break in the chain of self causation
502
00:24:36.280 --> 00:24:37.230
in that case, right?
503
00:24:37.230 --> 00:24:39.700
In the situation where this court said that
504
00:24:39.700 --> 00:24:43.790
had the young man remained in the gas infused truck and die
505
00:24:43.790 --> 00:24:45.580
at the insistence of his girlfriend.
506
00:24:45.580 --> 00:24:47.560
And she would not have been criminally liable.
507
00:24:47.560 --> 00:24:49.650
It was only when he got out of the truck
508
00:24:49.650 --> 00:24:52.150
that broke the chain of self causation,
509
00:24:52.150 --> 00:24:54.500
and then she compelled and pressured him
510
00:24:54.500 --> 00:24:57.340
to get back in the truck that there was criminal liability.
511
00:24:57.340 --> 00:24:59.950
And so if we apply that to our situation,
512
00:24:59.950 --> 00:25:02.380
there is no break in the chain of self causation
513
00:25:02.380 --> 00:25:05.380
from the point that the patient fills their prescription-
514
00:25:05.380 --> 00:25:07.330
I understand, Counsel that it depends on where you
515
00:25:07.330 --> 00:25:10.150
look at this in terms of how you have analysis,
516
00:25:10.150 --> 00:25:12.240
it was the causation when the prescription's written,
517
00:25:12.240 --> 00:25:14.910
is it started when the patient asks.
518
00:25:14.910 --> 00:25:18.800
But you have a case where a doctor could write
519
00:25:18.800 --> 00:25:21.760
the prescription and perhaps the patient fills it,
520
00:25:21.760 --> 00:25:22.600
but doesn't take it.
521
00:25:22.600 --> 00:25:27.120
And now the substances out in the world,
522
00:25:27.120 --> 00:25:28.810
isn't there some kind of danger
523
00:25:28.810 --> 00:25:31.110
we have to be concerned about with that?
524
00:25:31.110 --> 00:25:32.590
That's not been born out.
525
00:25:32.590 --> 00:25:36.090
I mean, I understand Your Honor's concern, Justice Cypher
526
00:25:36.090 --> 00:25:36.923
and it's a good point,
527
00:25:36.923 --> 00:25:40.370
but we haven't had that problem in the thousands of cases
528
00:25:42.040 --> 00:25:44.420
where this has been used in other states, people generally-
529
00:25:44.420 --> 00:25:46.260
One other question, I actually have a couple,
530
00:25:46.260 --> 00:25:49.540
but one is what's the difference between
531
00:25:49.540 --> 00:25:52.460
involuntary manslaughter in this case,
532
00:25:52.460 --> 00:25:56.463
and second degree murder, third prong malice.
533
00:26:00.960 --> 00:26:04.823
Cause it's a very small slender difference, really.
534
00:26:06.070 --> 00:26:07.310
Yeah, I don't.
535
00:26:07.310 --> 00:26:10.040
I'm just curious whether even if we did this,
536
00:26:10.040 --> 00:26:12.840
would there not be a charge of a potential charge
537
00:26:12.840 --> 00:26:15.233
of second degree murder on third prong malice?
538
00:26:16.538 --> 00:26:17.880
I don't know the elements of that,
539
00:26:17.880 --> 00:26:19.428
so I can't speak to that
540
00:26:19.428 --> 00:26:20.261
Your Honor.
All right.
541
00:26:20.261 --> 00:26:21.810
And then can I take you for a minute to the
542
00:26:21.810 --> 00:26:23.490
constitutional arguments?
543
00:26:23.490 --> 00:26:28.490
You're talking about this needs scrutiny analysis,
544
00:26:28.770 --> 00:26:29.800
is that correct?
545
00:26:29.800 --> 00:26:30.790
Yes.
546
00:26:30.790 --> 00:26:33.990
So that, but we don't even get there
547
00:26:34.896 --> 00:26:36.589
unless we're in equal protection,
548
00:26:36.589 --> 00:26:40.060
could this not be resolved as a fundamental right
549
00:26:41.596 --> 00:26:46.430
and under ordered liberty and just look at it that way?
550
00:26:46.430 --> 00:26:49.320
It could be, it could be, we argue that this
551
00:26:49.320 --> 00:26:51.640
is a fundamental right as we talked about earlier,
552
00:26:51.640 --> 00:26:53.960
and that if we're gonna talk about equal protection,
553
00:26:53.960 --> 00:26:56.750
then a heightened level of scrutiny should apply,
554
00:26:56.750 --> 00:27:00.040
but we could analyze it under just liberty and privacy.
555
00:27:00.040 --> 00:27:01.620
And I think our briefing did that.
556
00:27:01.620 --> 00:27:03.033
Okay, all right.
557
00:27:04.220 --> 00:27:05.053
Thank you.
558
00:27:06.500 --> 00:27:08.680
Okay, looks like we're all set.
559
00:27:08.680 --> 00:27:09.513
Thank you.
560
00:27:14.640 --> 00:27:15.740
Okay, attorney Granik.
561
00:27:26.180 --> 00:27:27.223
Good morning, may it please the court.
562
00:27:27.223 --> 00:27:30.940
This is assistant attorney Maria Granik for the defendants.
563
00:27:30.940 --> 00:27:33.550
To begin, I would like to express the defendant's
564
00:27:33.550 --> 00:27:36.090
immense compassion for Dr. Kligler.
565
00:27:36.090 --> 00:27:38.300
I would also like to note at the outset
566
00:27:38.300 --> 00:27:40.480
that this case does not turn on resolving
567
00:27:40.480 --> 00:27:42.730
the policy question of whether or not
568
00:27:42.730 --> 00:27:45.067
the practice that the plaintiff's term medical aid
569
00:27:45.067 --> 00:27:48.260
and dying should be legalized in Massachusetts.
570
00:27:48.260 --> 00:27:50.530
Instead, this court it should affirm the superior court's
571
00:27:50.530 --> 00:27:53.010
grant of summary judgment to the defendants
572
00:27:53.010 --> 00:27:55.480
because there's no fundamental constitutional right
573
00:27:55.480 --> 00:27:56.880
to assistance in suicide.
574
00:27:56.880 --> 00:27:59.320
And the policy discussion about the pros and cons
575
00:27:59.320 --> 00:28:03.000
of legalization properly belongs in the Legislature
576
00:28:03.000 --> 00:28:05.080
where it is currently taking place.
577
00:28:05.080 --> 00:28:07.770
As the superior court correctly noted
578
00:28:07.770 --> 00:28:11.370
medical aid and dying raise difficult to moral, societal
579
00:28:11.370 --> 00:28:13.140
and governmental questions.
580
00:28:13.140 --> 00:28:15.610
The resolution of which requires the type
581
00:28:15.610 --> 00:28:17.940
of robust public debate that the courts
582
00:28:17.940 --> 00:28:19.653
are ill suited to accommodate.
583
00:28:20.570 --> 00:28:23.850
Because there's no fundamental right to assisted suicide
584
00:28:23.850 --> 00:28:24.683
this court should-
585
00:28:24.683 --> 00:28:27.440
Is there a fundamental right to suicide?
586
00:28:27.440 --> 00:28:28.760
There's no fundamental right to suicide suicide.
587
00:28:28.760 --> 00:28:32.230
Is that based on tradition and history,
588
00:28:32.230 --> 00:28:35.490
is one of the Amici argue or is it based on religion
589
00:28:35.490 --> 00:28:37.880
as another Amici argues?
590
00:28:37.880 --> 00:28:41.960
What's the origin of that prohibition on suicide.
591
00:28:41.960 --> 00:28:44.810
The prohibition on suicide and this instance on suicide
592
00:28:47.108 --> 00:28:51.732
is grounded both in historical and legal tradition.
593
00:28:51.732 --> 00:28:55.360
And as the Supreme Court has recognized,
594
00:28:55.360 --> 00:28:57.700
there's no fundamental right to receive assistance
595
00:28:57.700 --> 00:29:01.210
to suicide and no other appellate court in this country
596
00:29:01.210 --> 00:29:02.947
has ever recognized the fundamental right-
597
00:29:02.947 --> 00:29:05.461
And I guess what I'm getting at is underneath this,
598
00:29:05.461 --> 00:29:08.350
is there a religious component to this?
599
00:29:08.350 --> 00:29:13.270
That the reason we have historically preclude prohibited it
600
00:29:13.270 --> 00:29:15.203
based on religious belief.
601
00:29:16.909 --> 00:29:18.663
There's not in the,
602
00:29:20.000 --> 00:29:22.380
the historical and legal tradition recognizes
603
00:29:22.380 --> 00:29:25.790
various justifications for the prohibition on suicide.
604
00:29:25.790 --> 00:29:30.050
And one of the primary ones being the state's important
605
00:29:30.050 --> 00:29:35.050
reasons in protecting the live of all of its citizens.
606
00:29:35.340 --> 00:29:38.210
So there's not, we would submit this is not grounded
607
00:29:38.210 --> 00:29:40.624
in the religious worldview
608
00:29:40.624 --> 00:29:45.480
or ethical judgment about suicide,
609
00:29:45.480 --> 00:29:50.203
rather it's rational for the Legislature here
610
00:29:50.203 --> 00:29:54.150
to prohibit medical aid and dying as it prohibits
611
00:29:54.150 --> 00:29:56.630
other forms of assistance on suicide
612
00:29:56.630 --> 00:29:58.909
for reasons that we outlined.
Before determine
613
00:29:58.909 --> 00:30:01.690
whether we're dealing with the heightened scrutiny,
614
00:30:01.690 --> 00:30:03.640
strict scrutiny or rational basis
615
00:30:03.640 --> 00:30:07.050
let's take a step back because
616
00:30:08.240 --> 00:30:12.200
one of the most important points about the appellant's
617
00:30:12.200 --> 00:30:16.500
position here is that there's really not a difference
618
00:30:16.500 --> 00:30:20.573
between the right to reject medical care
619
00:30:23.000 --> 00:30:28.000
and proactively be able to receive a prescription
620
00:30:28.510 --> 00:30:32.000
and end one's life when you only have six months
621
00:30:32.930 --> 00:30:34.160
or less to live.
622
00:30:34.160 --> 00:30:39.160
And I know that the response is well rejecting medical care
623
00:30:39.400 --> 00:30:43.990
is a battery to have it happen to you
624
00:30:43.990 --> 00:30:47.490
if you don't want the cure, but that's not necessarily
625
00:30:47.490 --> 00:30:51.360
the case in Brophy.
626
00:30:51.360 --> 00:30:56.360
Sometimes the way somebody is is dying is removal
627
00:30:58.100 --> 00:31:01.270
of life support.
628
00:31:01.270 --> 00:31:05.800
You have as the plaintiffs point out, Mo.
629
00:31:05.800 --> 00:31:10.060
And we have other circumstances where
630
00:31:10.060 --> 00:31:14.170
there's something proactive that happens to cause the death.
631
00:31:14.170 --> 00:31:19.170
These palliative care sometimes can be proactive as well.
632
00:31:20.390 --> 00:31:21.863
So why aren't they right?
633
00:31:23.360 --> 00:31:25.600
We don't we rely solely on the passive
634
00:31:25.600 --> 00:31:26.680
active distinction here.
635
00:31:26.680 --> 00:31:30.780
I think the important distinction as this court recognized
636
00:31:30.780 --> 00:31:34.270
in Brophy is that the right to refuse medical treatment
637
00:31:34.270 --> 00:31:38.450
is grounded in the interest in avoiding
638
00:31:38.450 --> 00:31:41.550
non-consensual invasion of bodily integrity.
639
00:31:41.550 --> 00:31:46.550
And though the patient who has received medical treatment
640
00:31:46.850 --> 00:31:50.500
has to have consented to it initially.
641
00:31:50.500 --> 00:31:52.803
And if the patient's consent or,
642
00:31:53.950 --> 00:31:55.490
and by the way, in this context,
643
00:31:55.490 --> 00:31:58.530
we're not only talking about competent patients,
644
00:31:58.530 --> 00:32:00.400
there could be substituted judgment.
645
00:32:00.400 --> 00:32:04.540
So if the patient withdraws the consent
646
00:32:04.540 --> 00:32:08.350
and has the right to have that medical treatment withdrawn,
647
00:32:08.350 --> 00:32:11.520
and that's a very diff different situation in terms of
648
00:32:13.380 --> 00:32:14.802
the kind of right-
649
00:32:14.802 --> 00:32:19.802
I understand our case law, but they're making a good point
650
00:32:20.300 --> 00:32:23.140
as there advances in palliative care,
651
00:32:23.140 --> 00:32:26.150
and in circumstances like Brophy,
652
00:32:26.150 --> 00:32:29.080
it's not stop doing what you're doing,
653
00:32:29.080 --> 00:32:33.260
it's actively doing something.
654
00:32:33.260 --> 00:32:37.800
And that their view is we analyze this constitutionally
655
00:32:37.800 --> 00:32:40.420
and the liberty interest and equal protection
656
00:32:40.420 --> 00:32:44.973
in this context that it's blurry.
657
00:32:46.890 --> 00:32:49.030
Well, it would be a radical expansion
658
00:32:49.030 --> 00:32:54.030
of the kind of a privacy or liberty interest involved.
659
00:32:54.290 --> 00:32:56.923
And moreover as Justice Cypher noted,
660
00:32:58.200 --> 00:33:00.938
this liberty interest that the plaintiffs articulate
661
00:33:00.938 --> 00:33:04.840
if recognized as a fundamental constitutional right,
662
00:33:04.840 --> 00:33:08.060
would have to be available to everyone rather than
663
00:33:08.060 --> 00:33:12.520
patients in this limited group of people who have six months
664
00:33:12.520 --> 00:33:14.360
prognosis and are competent
665
00:33:16.330 --> 00:33:19.120
and able to self ingest the medication so-
666
00:33:19.120 --> 00:33:21.620
Why it have to be available to everybody?
667
00:33:21.620 --> 00:33:25.210
Why couldn't it be a subset of patients who have this
668
00:33:25.210 --> 00:33:27.670
fundamental right to direct their medical care,
669
00:33:27.670 --> 00:33:32.670
whether by stopping or affirmatively allowing medical care?
670
00:33:35.480 --> 00:33:39.370
It would depend on how the fundamental right is defined
671
00:33:39.370 --> 00:33:42.020
in this case, and here I would argue that it's not.
672
00:33:42.020 --> 00:33:44.810
It hasn't been well defined and it's rather broad
673
00:33:44.810 --> 00:33:49.810
and understood in terms of really the right to control
674
00:33:50.510 --> 00:33:53.050
the time and manner of one's own death.
675
00:33:53.050 --> 00:33:55.393
And if it's conceived in that way,
676
00:33:56.750 --> 00:33:59.250
there wouldn't be a constitutional line that
677
00:33:59.250 --> 00:34:03.510
this court could draw between allowing it
678
00:34:03.510 --> 00:34:06.440
for certain patients who are, as I said, for example,
679
00:34:06.440 --> 00:34:09.740
able to self ingest the medication and others who are not,
680
00:34:09.740 --> 00:34:11.630
and would like the doctor to administer
681
00:34:11.630 --> 00:34:14.700
the lethal medication or those who are competent
682
00:34:14.700 --> 00:34:18.290
versus those who have made the decision that this is how
683
00:34:18.290 --> 00:34:23.290
they would like to die when the time comes-
684
00:34:23.390 --> 00:34:27.160
Your argument isn't so much that it can't be done
685
00:34:27.160 --> 00:34:32.160
it's that it does require a system of regulations on when
686
00:34:32.470 --> 00:34:36.270
it could be done, which suggests maybe it's most appropriate
687
00:34:36.270 --> 00:34:41.270
for the Legislature to define a set of rules
688
00:34:41.580 --> 00:34:44.813
for when something like this could happen.
689
00:34:44.813 --> 00:34:46.220
Correct, my point is that the Legislature
690
00:34:46.220 --> 00:34:50.210
could rationally draw the line by prohibiting
691
00:34:50.210 --> 00:34:51.650
all forms of assisted suicide,
692
00:34:51.650 --> 00:34:53.620
as it has done so far in Massachusetts,
693
00:34:53.620 --> 00:34:55.915
but it could also draw the line differently
694
00:34:55.915 --> 00:34:59.130
while putting in place all these important safeguards
695
00:34:59.130 --> 00:35:01.640
that are discussed, for example,
696
00:35:01.640 --> 00:35:03.010
in detailed and the Amicus Brief
697
00:35:03.010 --> 00:35:04.810
by the Mass Medical Association
698
00:35:06.063 --> 00:35:09.100
and the Hospice and Palliative Care Federation.
699
00:35:09.100 --> 00:35:10.850
But if a-
700
00:35:10.850 --> 00:35:14.380
So courts, even though this is a common law crime
701
00:35:14.380 --> 00:35:18.580
courts are sort of institutionally inept
702
00:35:18.580 --> 00:35:22.700
at drawing these kind of really rules about
703
00:35:24.320 --> 00:35:25.693
how this could be done.
704
00:35:27.390 --> 00:35:28.910
That's right.
705
00:35:28.910 --> 00:35:31.050
Well, the plaintiffs would respond to that
706
00:35:31.050 --> 00:35:33.970
that we have all sorts of complicated medical issues,
707
00:35:33.970 --> 00:35:38.940
and we nonetheless have a standard of care that develops.
708
00:35:38.940 --> 00:35:42.030
And that a standard of care is developed in Oregon,
709
00:35:42.030 --> 00:35:45.460
standard of care is developed in I think,
710
00:35:45.460 --> 00:35:48.020
10 or 11 other jurisdictions.
711
00:35:48.020 --> 00:35:51.510
And that the medical profession is up to a standard of care
712
00:35:51.510 --> 00:35:52.343
developing here.
713
00:35:54.240 --> 00:35:58.990
It's true that the practice has been legalized
714
00:35:58.990 --> 00:36:01.240
in United States and the district of Columbia.
715
00:36:01.240 --> 00:36:03.000
However, in all of those jurisdictions,
716
00:36:03.000 --> 00:36:05.580
it was legalized by statutes.
717
00:36:05.580 --> 00:36:09.714
And those safeguards and regulations were carefully debated
718
00:36:09.714 --> 00:36:12.460
as a matter of policy by Legislature
719
00:36:12.460 --> 00:36:15.230
and more carefully articulated in those statutes.
720
00:36:15.230 --> 00:36:17.090
And again, if you look at the differences
721
00:36:17.090 --> 00:36:18.830
So are you saying the Legislature
722
00:36:18.830 --> 00:36:21.400
set the standard of care in those statutes?
723
00:36:21.400 --> 00:36:22.310
That's right.
724
00:36:22.310 --> 00:36:23.320
And then Massachusetts,
725
00:36:23.320 --> 00:36:25.920
there's no general standard of care that would apply
726
00:36:25.920 --> 00:36:28.310
to this situation which is,
727
00:36:28.310 --> 00:36:29.860
would be brand new in Massachusetts,
728
00:36:29.860 --> 00:36:32.800
but it also is fairly new in other states
729
00:36:32.800 --> 00:36:34.290
that have recently legalized it,
730
00:36:34.290 --> 00:36:36.110
and the standard of care that applies
731
00:36:36.110 --> 00:36:39.820
to the medical profession as a whole has not developed.
732
00:36:39.820 --> 00:36:42.410
And in fact, even though the Mass Medical Society
733
00:36:42.410 --> 00:36:45.329
has recently changed this position from opposing
734
00:36:45.329 --> 00:36:48.620
physician assisted suicide or medical aid and dying
735
00:36:48.620 --> 00:36:52.070
and change its position to neutral engagement
736
00:36:52.070 --> 00:36:55.270
has not said that it endorses it.
737
00:36:55.270 --> 00:36:57.790
So it's something that's in the process of evolving
738
00:36:57.790 --> 00:36:59.000
and developed.
739
00:36:59.000 --> 00:37:02.140
And this court would preempt the regulations
740
00:37:02.140 --> 00:37:04.640
and the safeguards that are so important
741
00:37:04.640 --> 00:37:07.266
and necessary by a constitutional ruling.
742
00:37:07.266 --> 00:37:10.520
Counsel, you say that, but if it's our Common law,
743
00:37:10.520 --> 00:37:13.590
Common law evolves, right?
744
00:37:13.590 --> 00:37:17.450
A little while ago you said that if we were to take justice,
745
00:37:17.450 --> 00:37:20.210
Lowy's question about not just say
746
00:37:20.210 --> 00:37:21.830
when you want to refuse care,
747
00:37:21.830 --> 00:37:25.720
but when you want to embrace care in this case,
748
00:37:25.720 --> 00:37:29.180
the whatever prescription it would be that would
749
00:37:29.180 --> 00:37:32.950
lead to someone ending their lives on their terms.
750
00:37:32.950 --> 00:37:36.690
Why can't we say that we didn't have all of this stuff
751
00:37:36.690 --> 00:37:40.960
when we made these decisions and the Common law evolves?
752
00:37:40.960 --> 00:37:42.810
And a hundred years ago,
753
00:37:42.810 --> 00:37:45.880
you were just forced to die this painful death,
754
00:37:45.880 --> 00:37:47.830
and that's all we could expect from you,
755
00:37:47.830 --> 00:37:50.420
but we've advanced in medical care.
756
00:37:50.420 --> 00:37:52.830
And if we recognize this right,
757
00:37:52.830 --> 00:37:55.070
why wouldn't it encompass this?
758
00:37:55.070 --> 00:37:56.870
'Cause there are some things I was waiting a while,
759
00:37:56.870 --> 00:37:58.840
but there was somethings that struck me about
760
00:37:58.840 --> 00:38:00.430
what you were saying.
761
00:38:00.430 --> 00:38:03.750
You said the states has this important interest
762
00:38:03.750 --> 00:38:05.660
in protecting all of its citizens
763
00:38:05.660 --> 00:38:09.680
and their moral and societal and public interests.
764
00:38:09.680 --> 00:38:13.643
Who's looking out for Dr. Kligler as he's dying
765
00:38:13.643 --> 00:38:15.820
and he's dying painfully.
766
00:38:15.820 --> 00:38:18.560
What interest do we have in that?
767
00:38:18.560 --> 00:38:21.950
What interest does the government in that?
768
00:38:21.950 --> 00:38:23.000
Can you explain that to me?
769
00:38:23.000 --> 00:38:24.800
Because if you take those two parts,
770
00:38:24.800 --> 00:38:27.980
the Common law involves and that it may be that
771
00:38:27.980 --> 00:38:31.480
now we have these newer more humane ways
772
00:38:31.480 --> 00:38:34.260
of addressing someone's end of life.
773
00:38:34.260 --> 00:38:39.260
And in his own home, after living his own life,
774
00:38:39.420 --> 00:38:42.650
what interest does the government have in telling him
775
00:38:42.650 --> 00:38:46.110
we're not gonna let you end your life on your terms,
776
00:38:46.110 --> 00:38:48.363
we want you to end it on ours.
777
00:38:49.240 --> 00:38:51.510
I'll take the second question first.
778
00:38:51.510 --> 00:38:55.170
And I would say there's absolutely no reason
779
00:38:55.170 --> 00:38:57.710
that anyone should die a painful death.
780
00:38:57.710 --> 00:39:01.230
And in the state palliative care,
781
00:39:01.230 --> 00:39:03.660
excellent palliative care is available to many people,
782
00:39:03.660 --> 00:39:06.070
unfortunately not all and not all the time,
783
00:39:06.070 --> 00:39:08.860
but there are various ways in which patients
784
00:39:08.860 --> 00:39:11.410
at the end of life, as patients throughout their life
785
00:39:11.410 --> 00:39:16.330
can access pain relief and forms of,
786
00:39:16.330 --> 00:39:19.730
as I mentioned palliative care and comfort
787
00:39:19.730 --> 00:39:20.640
at the end of life.
788
00:39:20.640 --> 00:39:23.210
So that's not what I'm saying at all.
789
00:39:23.210 --> 00:39:25.100
What I'm saying is that the state has an interest
790
00:39:25.100 --> 00:39:27.030
in protecting all of its citizens.
791
00:39:27.030 --> 00:39:29.630
And therefore, because there's so no fundamental right
792
00:39:29.630 --> 00:39:32.180
it can balance the various interests
793
00:39:32.180 --> 00:39:34.813
and they can draw the line at what's permitted,
794
00:39:36.559 --> 00:39:38.950
and what's not in the way that it has done
795
00:39:38.950 --> 00:39:42.920
and say that while patients can get relief in other ways,
796
00:39:42.920 --> 00:39:46.784
they don't have the ability to control the exact time
797
00:39:46.784 --> 00:39:48.507
of their death.
798
00:39:48.507 --> 00:39:52.260
And if the Legislature decided as a result of the bid
799
00:39:52.260 --> 00:39:57.260
to move the line it could do so, but it hasn't so far.
800
00:39:57.550 --> 00:39:59.882
And then turning to Your Honor's first question,
801
00:39:59.882 --> 00:40:03.860
I would point this court to a quote from the Supreme Court's
802
00:40:05.550 --> 00:40:08.320
Obergefell case that says "History and tradition
803
00:40:08.320 --> 00:40:09.970
guide and discipline this inquiry,
804
00:40:09.970 --> 00:40:12.770
the inquiry of identifying and protecting
805
00:40:12.770 --> 00:40:13.870
fundamental rights,
806
00:40:13.870 --> 00:40:15.710
but do not set its out a boundaries.
807
00:40:15.710 --> 00:40:18.600
That method respects their history and learns from it
808
00:40:18.600 --> 00:40:21.760
without allowing the past alone to rule the present.
809
00:40:21.760 --> 00:40:23.060
And I would say that in this case,
810
00:40:23.060 --> 00:40:25.300
it's not at all a question of allowing the past
811
00:40:25.300 --> 00:40:27.620
to rule the present it's a question of
812
00:40:27.620 --> 00:40:29.620
allowing the present to rule the present.
813
00:40:29.620 --> 00:40:32.630
And again, in this practice of medical aid and dying,
814
00:40:32.630 --> 00:40:35.440
though it is becoming available to
815
00:40:35.440 --> 00:40:38.210
a small number of people in this country has not
816
00:40:38.210 --> 00:40:43.210
yet been something that this court can look to and say,
817
00:40:43.260 --> 00:40:46.950
it has developed there's no history or tradition,
818
00:40:46.950 --> 00:40:49.440
legal tradition to guide and discipline the inquiry-
819
00:40:49.440 --> 00:40:50.870
Attorney, Granik let me just ask,
820
00:40:50.870 --> 00:40:55.340
you said earlier that this was not rooted in religious
821
00:40:55.340 --> 00:40:59.290
or moral sensibilities, what is it rooted in then?
822
00:40:59.290 --> 00:41:03.240
Because just, the quote that you you gave us
823
00:41:03.240 --> 00:41:08.100
from Obergefell goes against you, doesn't it?
824
00:41:08.100 --> 00:41:09.303
We're moving forward.
825
00:41:10.770 --> 00:41:15.030
As Justice George said Common law changes,
826
00:41:15.030 --> 00:41:20.030
and so are you then saying that yes at some point
827
00:41:20.280 --> 00:41:21.750
we'll get there, but we're not there yet.
828
00:41:21.750 --> 00:41:22.920
Is that your point?
829
00:41:22.920 --> 00:41:25.010
I'm not saying that necessarily we would,
830
00:41:25.010 --> 00:41:28.050
but I'm also not saying that it's impossible that
831
00:41:28.050 --> 00:41:30.610
at some point this would be recognized in a way
832
00:41:30.610 --> 00:41:33.430
that the court would be able to reevaluate it,
833
00:41:33.430 --> 00:41:36.463
but I'm saying at this point-
Why isn't that now?
834
00:41:37.530 --> 00:41:39.940
This is the case we have right now,
835
00:41:39.940 --> 00:41:44.670
why isn't it time to recognize that patients
836
00:41:44.670 --> 00:41:49.670
like Dr Kligler have the right to decide in their own way,
837
00:41:50.810 --> 00:41:52.740
on their own terms,
838
00:41:52.740 --> 00:41:56.260
how they want to die as opposed to waiting
839
00:41:57.840 --> 00:42:00.137
and being limited to the palliative care
840
00:42:00.137 --> 00:42:02.023
and dying in hospice?
841
00:42:03.810 --> 00:42:08.743
Because this right as described and however compelling
842
00:42:10.210 --> 00:42:13.930
and difficult that the example here
843
00:42:13.930 --> 00:42:15.820
and the plaintiff situation is here,
844
00:42:15.820 --> 00:42:19.900
that the state recognizes there's no well defined contour
845
00:42:19.900 --> 00:42:21.520
of the fundamental, right?
846
00:42:21.520 --> 00:42:22.850
There's no limiting principle.
847
00:42:22.850 --> 00:42:26.230
So if you were to recognize a fundamental right
848
00:42:26.230 --> 00:42:28.930
to control the manner in time of death as I said,
849
00:42:28.930 --> 00:42:33.930
it would be difficult to cabinet to this very specific
850
00:42:34.370 --> 00:42:36.990
situation and the very limited group of people
851
00:42:36.990 --> 00:42:38.650
in the way the plaintiffs have proposed.
852
00:42:38.650 --> 00:42:40.700
I understand your point, what if,
853
00:42:40.700 --> 00:42:43.981
would it be possible for this court to say, oh yeah,
854
00:42:43.981 --> 00:42:47.630
there's under the order liberty analysis,
855
00:42:47.630 --> 00:42:51.750
there's a right to determine the time and manner of death
856
00:42:51.750 --> 00:42:53.890
and then say, go ahead, Legislature,
857
00:42:53.890 --> 00:42:55.730
you go ahead and regulate this.
858
00:42:55.730 --> 00:42:58.803
Do we have that authority to tell them what to do?
859
00:43:00.260 --> 00:43:04.930
But the Legislature's ability to regulate would then be
860
00:43:04.930 --> 00:43:09.930
constrained by a constitutional dimension to this practice,
861
00:43:10.700 --> 00:43:13.360
which has never been recognized anywhere.
862
00:43:13.360 --> 00:43:15.640
And I would argue should not be recognized by this court,
863
00:43:15.640 --> 00:43:17.900
partly for that reason at the Legislature
864
00:43:17.900 --> 00:43:20.749
has to put in place the important safeguards.
865
00:43:20.749 --> 00:43:22.210
And-
866
00:43:22.210 --> 00:43:24.713
But if there is a constitutional right,
867
00:43:26.110 --> 00:43:30.400
the Legislature's regulation always has to comply
868
00:43:30.400 --> 00:43:31.873
with the constitution.
869
00:43:32.900 --> 00:43:33.733
That's correct.
870
00:43:33.733 --> 00:43:36.320
And that's why I would say that the constitution,
871
00:43:36.320 --> 00:43:38.920
that the argument that there is a constitution right
872
00:43:40.270 --> 00:43:44.810
in this case has not really changed from the way
873
00:43:44.810 --> 00:43:46.880
that this argument was presented to the Supreme Court
874
00:43:46.880 --> 00:43:49.130
in Clarksburg or back-
875
00:43:49.130 --> 00:43:51.300
No, but we're talking about the declaration of rights,
876
00:43:51.300 --> 00:43:53.080
and you talk about, I don't know,
877
00:43:53.080 --> 00:43:55.370
maybe we'll get there at some point in time.
878
00:43:55.370 --> 00:43:57.973
And I understand that the constitution's
879
00:43:57.973 --> 00:44:01.060
on an organic document.
880
00:44:01.060 --> 00:44:03.073
And so I understand that point,
881
00:44:03.073 --> 00:44:07.648
but if we might get there at some point,
882
00:44:07.648 --> 00:44:11.440
why are you saying that the normative values
883
00:44:11.440 --> 00:44:16.170
to infuse some meaning into whether the penumbra
884
00:44:16.170 --> 00:44:21.170
or due process is going to exist in three years,
885
00:44:24.760 --> 00:44:27.553
but it doesn't exist now?
886
00:44:28.500 --> 00:44:30.110
I wouldn't put a number certain number
887
00:44:30.110 --> 00:44:31.093
of years on this-
888
00:44:31.093 --> 00:44:32.630
Just by way of example.
889
00:44:32.630 --> 00:44:36.010
But, go back to that quote about the history
890
00:44:36.010 --> 00:44:38.280
and tradition to guide and discipline the inquiry.
891
00:44:38.280 --> 00:44:40.090
And I would say at this point in time,
892
00:44:40.090 --> 00:44:43.109
we have absolutely no foundation in history
893
00:44:43.109 --> 00:44:47.312
or legal tradition or medical practice for allowing-
894
00:44:47.312 --> 00:44:52.312
We're not all prisoners of 1780 or 1789,
895
00:44:53.000 --> 00:44:55.290
I'm just trying to understand when you say
896
00:44:55.290 --> 00:44:57.427
we may get there at some point in time,
897
00:44:57.427 --> 00:45:00.330
and I understand respect the United States Supreme Court
898
00:45:00.330 --> 00:45:02.320
decision under their constitution.
899
00:45:02.320 --> 00:45:05.200
I'm asking you, why it is,
900
00:45:05.200 --> 00:45:07.970
if this is an organic document we're interpreting
901
00:45:07.970 --> 00:45:12.610
what is it about normative values that doesn't allow us
902
00:45:12.610 --> 00:45:15.623
to say that there's this liberty interest now.
903
00:45:16.880 --> 00:45:19.320
And I would just ask the court to come back to
904
00:45:20.299 --> 00:45:23.320
the case you have before you today, in which you have
905
00:45:27.810 --> 00:45:30.740
a patient who might become terminally ill at some point,
906
00:45:30.740 --> 00:45:33.800
who would like access to lethal medication to self ingest
907
00:45:33.800 --> 00:45:35.163
and end his life,
908
00:45:36.469 --> 00:45:40.100
and I would argue that there's no foundation
909
00:45:40.100 --> 00:45:42.210
under this court's precedent
910
00:45:42.210 --> 00:45:45.470
or under the Massachusetts constitution to recognize
911
00:45:45.470 --> 00:45:50.200
a brand new fundamental rights to have assistance
912
00:45:50.200 --> 00:45:53.570
in dying in that situation or any other.
913
00:45:53.570 --> 00:45:56.740
Can I ask you how this act fits into the crime
914
00:45:56.740 --> 00:45:59.180
of involuntary man slaughter?
915
00:45:59.180 --> 00:46:01.373
What's so involuntary about this act?
916
00:46:03.030 --> 00:46:06.290
So the involuntary part, I would argue
917
00:46:06.290 --> 00:46:09.768
goes to the point about intent so-
918
00:46:09.768 --> 00:46:12.420
But it's an unintended cause of death,
919
00:46:12.420 --> 00:46:13.500
you have to intend the act,
920
00:46:13.500 --> 00:46:14.990
you have to intend to lock the doors
921
00:46:14.990 --> 00:46:17.270
you have to intend to, or an omission
922
00:46:17.270 --> 00:46:18.910
you have to intend to walk away from the fire.
923
00:46:18.910 --> 00:46:21.180
You have to intend to sell drugs, right?
924
00:46:21.180 --> 00:46:24.170
That's the intentional act is with throw the
925
00:46:24.170 --> 00:46:25.880
cinder block off the highway, right?
926
00:46:25.880 --> 00:46:27.380
Those are the intentional acts.
927
00:46:27.380 --> 00:46:31.376
You have to not intend to cause the death.
928
00:46:31.376 --> 00:46:33.484
It just has to have a likelihood.
929
00:46:33.484 --> 00:46:37.820
Here, there's certainly an attempt to cause the death.
930
00:46:37.820 --> 00:46:40.230
Well, the plaintiff's point out that in some cases
931
00:46:40.230 --> 00:46:44.170
the doctor might write the prescription for intending
932
00:46:44.170 --> 00:46:45.670
to bring relief to the patient,
933
00:46:45.670 --> 00:46:48.390
and maybe perhaps even hoping that this lethal medication
934
00:46:48.390 --> 00:46:53.390
will not be used, but in this case-
935
00:46:55.353 --> 00:46:57.843
Which could lead to,
936
00:46:57.843 --> 00:47:00.210
I think Justice Cypher alluded to second degree murder
937
00:47:00.210 --> 00:47:02.030
under third prong malice.
938
00:47:02.030 --> 00:47:06.190
And is that what we want when we have,
939
00:47:06.190 --> 00:47:11.160
as has been pointed out advanced palliative care,
940
00:47:11.160 --> 00:47:13.863
which huge, very closely to this practice?
941
00:47:18.240 --> 00:47:19.683
So on the elements,
942
00:47:20.810 --> 00:47:22.970
we argue because of this court's precedent
943
00:47:22.970 --> 00:47:25.160
in applying the elements of involuntary manslaughter
944
00:47:25.160 --> 00:47:29.100
to other cases in which the victim's death
945
00:47:29.100 --> 00:47:32.460
is self inflicted, those are the elements that
946
00:47:32.460 --> 00:47:36.110
may and the right circumstances apply more properly.
947
00:47:36.110 --> 00:47:37.791
And I didn't get the question about the-
948
00:47:37.791 --> 00:47:40.993
But, I guess take the drug overdose,
949
00:47:42.290 --> 00:47:45.410
even with fentanyl and carfentanil at all
950
00:47:45.410 --> 00:47:48.500
the purpose isn't to have the person's life,
951
00:47:48.500 --> 00:47:51.230
and the purpose is to have a commercial transaction
952
00:47:51.230 --> 00:47:54.770
to sell them drugs, and it's an unfortunate,
953
00:47:54.770 --> 00:47:57.800
too familiar consequence of an overdose.
954
00:47:57.800 --> 00:48:02.420
Here the purpose is to give them the choice
955
00:48:02.420 --> 00:48:03.933
to end their life, correct?
956
00:48:04.990 --> 00:48:07.260
Yeah, and I think I would say going back
957
00:48:07.260 --> 00:48:09.683
to the point that there's an element in which,
958
00:48:11.500 --> 00:48:13.720
what the plaintiffs are seeking is an advisory opinion,
959
00:48:13.720 --> 00:48:15.840
because we don't have all the facts
960
00:48:15.840 --> 00:48:17.810
that could potentially go into,
961
00:48:17.810 --> 00:48:21.243
what kind of homicide could be charged in the situation.
962
00:48:22.580 --> 00:48:24.980
So under the right circumstances-
963
00:48:24.980 --> 00:48:29.980
So his physician needs to wait and see,
964
00:48:30.030 --> 00:48:33.120
is that your position that we don't have an actual case
965
00:48:33.120 --> 00:48:37.320
in controversy because, go ahead, write the prescription,
966
00:48:37.320 --> 00:48:42.320
see if we decide to prosecute you later on.
967
00:48:42.410 --> 00:48:47.410
And meanwhile, Dr. Kligler is either going to get it
968
00:48:49.190 --> 00:48:53.160
or not to get it and his doctor's gonna take the risk.
969
00:48:53.160 --> 00:48:55.840
Right, so the doctor has to raise the hand
970
00:48:55.840 --> 00:49:00.593
and subject herself to a 20 year felony or a life felony.
971
00:49:01.803 --> 00:49:06.803
I know that this court could find that this case
972
00:49:07.900 --> 00:49:10.126
is not a proper vehicle for declaratory judgment
973
00:49:10.126 --> 00:49:14.030
and leave the complex policy questions involved
974
00:49:14.030 --> 00:49:15.350
to the Legislature.
975
00:49:15.350 --> 00:49:17.640
So I'm just pointing out that the it's important to note
976
00:49:17.640 --> 00:49:20.250
that there's so many factual permutations
977
00:49:20.250 --> 00:49:22.330
as to the intent and the competency and
978
00:49:22.330 --> 00:49:26.550
the voluntariness of the action that we don't,
979
00:49:26.550 --> 00:49:29.780
this court does not have before it in the current case.
980
00:49:29.780 --> 00:49:32.530
So you making a separation of powers argument,
981
00:49:32.530 --> 00:49:34.480
or are you making a rightness argument?
982
00:49:36.340 --> 00:49:41.340
I would say both, but again the superior court
983
00:49:41.540 --> 00:49:43.490
denied the defendant's motion to dismiss,
984
00:49:43.490 --> 00:49:45.500
and the defendants did not appeal it.
985
00:49:45.500 --> 00:49:47.630
I would say, this argument is not waived
986
00:49:47.630 --> 00:49:49.480
and it's still before this court, but
987
00:49:50.650 --> 00:49:55.350
ultimately the issues as they concern this case
988
00:49:55.350 --> 00:49:56.670
are also before this court.
989
00:49:56.670 --> 00:50:01.670
So I'm not saying this court couldn't decided,
990
00:50:01.720 --> 00:50:04.323
but I'm just saying it could also affirm
991
00:50:06.850 --> 00:50:09.523
the grand of summary judgment on any ground.
992
00:50:11.440 --> 00:50:12.840
Okay, thank you.
993
00:50:12.840 --> 00:50:13.710
Thank you.
994
00:50:13.710 --> 00:50:16.290
Can we have attorney Schandevel.
995
00:50:34.340 --> 00:50:36.250
Good morning, Your Honors, may it please the court.
996
00:50:36.250 --> 00:50:39.380
My name is Chris Schandevel here today on behalf of
997
00:50:39.380 --> 00:50:41.600
Euthanasia Prevention Coalition USA
998
00:50:41.600 --> 00:50:43.766
in support of the appellants
999
00:50:43.766 --> 00:50:46.850
and in support of affirmance of the decision below.
1000
00:50:46.850 --> 00:50:49.040
As this court recognized just last month
1001
00:50:49.040 --> 00:50:52.050
in Commonwealth versus Roman only rights
1002
00:50:52.050 --> 00:50:54.930
that are deeply rooted in the history and tradition
1003
00:50:54.930 --> 00:50:57.980
of this Commonwealth and the nation can qualify
1004
00:50:57.980 --> 00:51:01.360
as fundamental rights under the Massachusetts constitution.
1005
00:51:01.360 --> 00:51:04.170
And Justice Cypher in response to your earlier question
1006
00:51:04.170 --> 00:51:06.350
about whether we're doing that analysis
1007
00:51:06.350 --> 00:51:07.753
under the due process provisions
1008
00:51:07.753 --> 00:51:11.120
and the constitution under the equal protection provisions
1009
00:51:11.120 --> 00:51:14.060
I don't think the appellants have been very clear
1010
00:51:14.060 --> 00:51:16.470
as to where they're asserting those rights.
1011
00:51:16.470 --> 00:51:19.280
However, in terms of the test
1012
00:51:19.280 --> 00:51:21.610
for what constitutes a fundamental right,
1013
00:51:21.610 --> 00:51:22.750
the test is the same.
1014
00:51:22.750 --> 00:51:25.480
So in Gillespie, and then in Wilbur,
1015
00:51:25.480 --> 00:51:27.660
those cases were due process cases.
1016
00:51:27.660 --> 00:51:30.100
Roman of course, was an equal protection.
1017
00:51:30.100 --> 00:51:32.510
In both cases the question is whether or not
1018
00:51:32.510 --> 00:51:33.343
a fundamental right exists,
1019
00:51:33.343 --> 00:51:35.800
and in all three cases this court said
1020
00:51:35.800 --> 00:51:37.698
the test is whether or not that right
1021
00:51:37.698 --> 00:51:41.350
is deeply rooted in history and tradition.
1022
00:51:41.350 --> 00:51:44.720
So-called medical aid and dying fails that test
1023
00:51:44.720 --> 00:51:46.280
for at least three reasons.
1024
00:51:46.280 --> 00:51:49.960
First of all, suicide and assistant suicide both
1025
00:51:49.960 --> 00:51:52.530
have been long prohibited in this Commonwealth
1026
00:51:52.530 --> 00:51:54.320
and throughout our nation's history.
1027
00:51:54.320 --> 00:51:59.320
Second so-called medical aid and dying is assisted suicide.
1028
00:51:59.370 --> 00:52:01.420
And third, as this court explained
1029
00:52:01.420 --> 00:52:05.047
and clearly stated in Guardianship of Doe,
1030
00:52:05.047 --> 00:52:07.100
"It is well settled that withdrawing
1031
00:52:07.100 --> 00:52:10.300
or refusing life sustaining medical treatment
1032
00:52:10.300 --> 00:52:12.980
is not equivalent to attempting suicide."
1033
00:52:12.980 --> 00:52:15.590
Let me stop you there and ask you a couple questions.
1034
00:52:15.590 --> 00:52:20.590
One is, if we're talking about things that are rooted,
1035
00:52:20.620 --> 00:52:24.320
deeply rooted, but yet recognizing that our Common law
1036
00:52:24.320 --> 00:52:27.050
can change, so we've got a constitutional issue
1037
00:52:27.050 --> 00:52:30.900
and a common law development issue at the time
1038
00:52:30.900 --> 00:52:34.220
that the prohibitions were originally came up with,
1039
00:52:34.220 --> 00:52:38.640
there was no simple guaranteed method of a painless death
1040
00:52:38.640 --> 00:52:40.310
that a physician could offer.
1041
00:52:40.310 --> 00:52:43.440
So this is really something that's new, isn't it?
1042
00:52:43.440 --> 00:52:45.150
Relatively speaking.
1043
00:52:45.150 --> 00:52:46.460
Well, so the argument on the other side
1044
00:52:46.460 --> 00:52:48.113
is that medical aid and dying is something
1045
00:52:48.113 --> 00:52:50.790
that is new and different since the
1046
00:52:50.790 --> 00:52:55.140
U.S. Supreme Court decision in Clarksburg and Vacko in 1997,
1047
00:52:55.140 --> 00:52:58.130
both those cases involved so-called medical aid and dying.
1048
00:52:58.130 --> 00:53:00.010
If you read the facts of what the plaintiffs
1049
00:53:00.010 --> 00:53:01.090
were asserting there,
1050
00:53:01.090 --> 00:53:04.020
they were asserting a right to lethal medication
1051
00:53:04.020 --> 00:53:07.040
from their prescribing physician, and they were asserting,
1052
00:53:07.040 --> 00:53:08.210
they were competent adults.
1053
00:53:08.210 --> 00:53:10.587
The exact same claim that's been made in this case.
1054
00:53:10.587 --> 00:53:13.220
And the majority opinion in both of those cases
1055
00:53:13.220 --> 00:53:15.490
walks through the history and tradition and says,
1056
00:53:15.490 --> 00:53:18.000
there's simply no right like this anywhere
1057
00:53:18.000 --> 00:53:20.680
within our nation's history or tradition so the analysis-
1058
00:53:20.680 --> 00:53:22.290
Let's stop there for a minute and say,
1059
00:53:22.290 --> 00:53:26.280
isn't there a distinction often between Massachusetts
1060
00:53:26.280 --> 00:53:29.170
provides more protections in many ways
1061
00:53:30.188 --> 00:53:33.670
or can provide more rights than the federal government can.
1062
00:53:33.670 --> 00:53:36.160
And so what in the Massachusetts constitution
1063
00:53:36.160 --> 00:53:37.590
would prevent us from finding
1064
00:53:37.590 --> 00:53:39.910
that this is a fundamental right?
1065
00:53:39.910 --> 00:53:42.840
So a couple of responses to that, Your Honor.
1066
00:53:42.840 --> 00:53:46.417
So in the Gillespie case where this court did apply
1067
00:53:46.417 --> 00:53:48.920
the deeply rooted history and tradition test
1068
00:53:48.920 --> 00:53:51.440
in footnote 12 of that decision,
1069
00:53:51.440 --> 00:53:53.570
the court did explain that at times this court
1070
00:53:53.570 --> 00:53:56.636
is willing to go further and, and find more robust
1071
00:53:56.636 --> 00:53:59.160
rights to do process, et cetera.
1072
00:53:59.160 --> 00:54:01.190
But the very next line after that discussion
1073
00:54:01.190 --> 00:54:03.090
in that footnote 12 in Gillespie
1074
00:54:03.090 --> 00:54:05.870
is that this court continues to apply the aim standards
1075
00:54:05.870 --> 00:54:07.390
that the federal courts apply.
1076
00:54:07.390 --> 00:54:09.070
So that's all we're asking the court to do here
1077
00:54:09.070 --> 00:54:11.780
is to continue to apply that standard of requiring
1078
00:54:11.780 --> 00:54:13.987
that the asserted right is deeply rooted in history
1079
00:54:13.987 --> 00:54:16.090
and tradition.
I have one last question,
1080
00:54:16.090 --> 00:54:17.040
and then I'll be quiet.
1081
00:54:17.040 --> 00:54:20.547
And that is that this issue here with regard to,
1082
00:54:25.750 --> 00:54:28.310
I guess, whether it's in our constitution
1083
00:54:28.310 --> 00:54:32.030
or we're following the other federal constitution,
1084
00:54:32.030 --> 00:54:36.280
and we're adopting that language, what in the history
1085
00:54:36.280 --> 00:54:40.230
of the nation and the history and our traditions
1086
00:54:40.230 --> 00:54:43.360
is not related to religion in this area.
1087
00:54:43.360 --> 00:54:45.610
Is there anything that shows that this is not
1088
00:54:45.610 --> 00:54:47.080
a religions issue?
1089
00:54:47.080 --> 00:54:50.140
Sure, so if the court would examine
1090
00:54:50.140 --> 00:54:52.050
the decisions of this court day,
1091
00:54:52.050 --> 00:54:55.140
all the way back to Commonwealth versus Bowen,
1092
00:54:55.140 --> 00:54:58.370
which was the case of the inmate next to another inmate
1093
00:54:58.370 --> 00:55:00.007
and the encouragement to commit suicide
1094
00:55:00.007 --> 00:55:02.210
and the commission of the suicide,
1095
00:55:02.210 --> 00:55:06.030
in that case, other cases which followed that one,
1096
00:55:06.030 --> 00:55:08.270
which were discussed in our briefing cases
1097
00:55:08.270 --> 00:55:09.650
from other jurisdictions as well,
1098
00:55:09.650 --> 00:55:12.480
there's never an assertion that
1099
00:55:12.480 --> 00:55:17.480
the Common law prohibition on suicide assisted suicide
1100
00:55:17.610 --> 00:55:18.890
is based on religious beliefs.
1101
00:55:18.890 --> 00:55:20.680
It's always based on the government's interest
1102
00:55:20.680 --> 00:55:22.220
in protecting human life.
1103
00:55:22.220 --> 00:55:24.900
And that interest is not limited to religious concerns.
1104
00:55:24.900 --> 00:55:27.250
And I think the Amicus Brief filed in this case
1105
00:55:27.250 --> 00:55:29.450
by Dr. Yule in support of the appellants
1106
00:55:29.450 --> 00:55:30.880
and supportive affirmance,
1107
00:55:30.880 --> 00:55:32.640
he may very clear that he's an atheist
1108
00:55:32.640 --> 00:55:33.670
and doesn't believe in God.
1109
00:55:33.670 --> 00:55:35.840
And yet the state has very important interest
1110
00:55:35.840 --> 00:55:38.310
in a case like this in making sure that it's suicide
1111
00:55:38.310 --> 00:55:40.620
and assisted suicide remain prohibited.
1112
00:55:40.620 --> 00:55:43.795
So we don't think it's based on anything within religion-
1113
00:55:43.795 --> 00:55:44.628
Okay.
1114
00:55:44.628 --> 00:55:45.461
But doesn't that bring you right back
1115
00:55:45.461 --> 00:55:47.170
to Justice Wendlandt's question.
1116
00:55:47.170 --> 00:55:50.170
And that is what interest does the government have
1117
00:55:50.170 --> 00:55:53.250
in this doctor having a painful death?
1118
00:55:53.250 --> 00:55:55.000
So the government has an interest
1119
00:55:55.000 --> 00:55:58.380
in making sure that all human life is protected.
1120
00:55:58.380 --> 00:56:00.750
And part of the reason why that deeply rooted
1121
00:56:00.750 --> 00:56:04.680
in history tradition test is so important to apply here.
1122
00:56:04.680 --> 00:56:05.610
There are two reasons:
1123
00:56:05.610 --> 00:56:08.880
one is more principle, and the second is more practical.
1124
00:56:08.880 --> 00:56:11.590
The more principled reason is that in the words
1125
00:56:11.590 --> 00:56:14.240
of the panel decision and the compassion and dying case,
1126
00:56:14.240 --> 00:56:16.350
which eventually became Clarksburg,
1127
00:56:16.350 --> 00:56:18.610
applying that test prevents courts from becoming
1128
00:56:18.610 --> 00:56:21.570
essentially a free floating constitutional convention,
1129
00:56:21.570 --> 00:56:23.300
able to create new rights based
1130
00:56:23.300 --> 00:56:25.010
on their own policy preferences.
1131
00:56:25.010 --> 00:56:28.630
And then secondly the more practical reason why that
1132
00:56:28.630 --> 00:56:30.810
test applying the test here is so important
1133
00:56:30.810 --> 00:56:33.770
is because it would avoid this court creating
1134
00:56:33.770 --> 00:56:36.010
a new constitutional right that this court
1135
00:56:36.010 --> 00:56:39.439
and the lower courts it would be impossible for them-
1136
00:56:39.439 --> 00:56:41.310
Let's take both of those.
1137
00:56:41.310 --> 00:56:44.410
First of all, the language you're quoting
1138
00:56:44.410 --> 00:56:46.890
is from a substantive due process analysis.
1139
00:56:46.890 --> 00:56:47.850
Yes, Your Honor.
1140
00:56:47.850 --> 00:56:52.850
And then the New York case is a equal protection case,
1141
00:56:53.270 --> 00:56:58.270
and what the plaintiffs have not precisely articulated
1142
00:56:59.070 --> 00:57:01.907
the difference between the liberty interest
1143
00:57:01.907 --> 00:57:03.793
and the privacy interest.
1144
00:57:04.740 --> 00:57:09.650
Nonetheless, what about the privacy interest?
1145
00:57:09.650 --> 00:57:14.650
What about the penumbra issue and why doesn't this fall
1146
00:57:17.460 --> 00:57:20.670
within the right to privacy?
1147
00:57:20.670 --> 00:57:22.260
So, as we've explained in our brief,
1148
00:57:22.260 --> 00:57:25.120
and going through some of the courts cases
1149
00:57:25.120 --> 00:57:27.650
that locate this right to reject medical treatment,
1150
00:57:27.650 --> 00:57:30.540
the court does discuss a couple of things.
1151
00:57:30.540 --> 00:57:33.180
It discusses that liberty interest,
1152
00:57:33.180 --> 00:57:35.360
and really the Common law interest in being
1153
00:57:35.360 --> 00:57:37.120
able to reject a battery,
1154
00:57:37.120 --> 00:57:38.840
we think that's an important distinction,
1155
00:57:38.840 --> 00:57:41.420
which should prevent the court from expanding the right
1156
00:57:41.420 --> 00:57:44.390
to reject medical treatment, to what's being asserted here,
1157
00:57:44.390 --> 00:57:47.030
basically a right to invite a bodily invasion
1158
00:57:47.030 --> 00:57:48.410
in the form of that lethal medication.
1159
00:57:48.410 --> 00:57:52.430
But also in the rights to privacy.
1160
00:57:52.430 --> 00:57:56.160
That right in those cases is always hinges on
1161
00:57:56.160 --> 00:57:59.340
the right to avoid non-consensual invasions
1162
00:57:59.340 --> 00:58:00.800
of bodily integrity.
1163
00:58:00.800 --> 00:58:03.920
So we think even though the court uses the privacy language,
1164
00:58:03.920 --> 00:58:06.510
in some of those cases, if you read those cases
1165
00:58:06.510 --> 00:58:07.890
as we've laid out in our brief,
1166
00:58:07.890 --> 00:58:11.410
it always hinges on that nonconsensual invasion of the body.
1167
00:58:11.410 --> 00:58:13.240
And so that is what distinguishes,
1168
00:58:13.240 --> 00:58:14.408
so for example in Brophy-
1169
00:58:14.408 --> 00:58:16.523
But at least the plaintiff would say that
1170
00:58:16.523 --> 00:58:19.200
that dichotomy is not going to hold up
1171
00:58:19.200 --> 00:58:23.769
In the real world the way medicine is practiced now
1172
00:58:23.769 --> 00:58:28.040
with people who are at the end of their life.
1173
00:58:28.040 --> 00:58:32.413
And while that may have been true before it's blurring now,
1174
00:58:34.570 --> 00:58:38.000
and there's a lot of proactive medicine
1175
00:58:38.000 --> 00:58:42.640
that goes into palliative care.
1176
00:58:42.640 --> 00:58:44.100
The important thing, Your Honor,
1177
00:58:44.100 --> 00:58:47.000
in terms of the extent to which some of that medicine
1178
00:58:47.000 --> 00:58:50.220
is proactive in terms of prescribing various forms
1179
00:58:50.220 --> 00:58:53.250
of pain relief, none of that proactive activity
1180
00:58:53.250 --> 00:58:55.720
is ever the cause of the death
1181
00:58:55.720 --> 00:58:57.250
in terms of what the court has said about the right
1182
00:58:57.250 --> 00:58:58.290
to reject medical treatment,
1183
00:58:58.290 --> 00:59:00.650
it's still a death by natural causes,
1184
00:59:00.650 --> 00:59:02.010
which the doctors never intended.
1185
00:59:02.010 --> 00:59:03.680
Death by dehydration.
1186
00:59:03.680 --> 00:59:07.830
Even a withdrawal of nutrition and pneumonia,
1187
00:59:07.830 --> 00:59:10.603
that's occasioned by morphine.
1188
00:59:11.720 --> 00:59:14.163
Right, and what the courts have said in those contexts
1189
00:59:14.163 --> 00:59:17.200
is that it, but for the natural causes,
1190
00:59:17.200 --> 00:59:21.630
which precipitated the withdrawal of the hydration
1191
00:59:21.630 --> 00:59:23.750
and the feeding tubes and et cetera,
1192
00:59:23.750 --> 00:59:24.970
that patient would still be alive.
1193
00:59:24.970 --> 00:59:28.110
So it's still the natural causes that are underlying
1194
00:59:28.110 --> 00:59:29.060
cause of death.
1195
00:59:29.060 --> 00:59:30.500
And so the intent there,
1196
00:59:30.500 --> 00:59:33.400
and this is an important distinction between action
1197
00:59:33.400 --> 00:59:34.630
and inaction the court,
1198
00:59:34.630 --> 00:59:36.960
I think justice Lowy asked about the Brophy case
1199
00:59:36.960 --> 00:59:41.350
that wasn't that really an active act taken by the doctors.
1200
00:59:41.350 --> 00:59:43.390
But in that case what was being asserted
1201
00:59:43.390 --> 00:59:46.510
was a right to withdraw a feeding tube,
1202
00:59:46.510 --> 00:59:48.650
the right to stop the medical care
1203
00:59:48.650 --> 00:59:50.660
that had previously been started.
1204
00:59:50.660 --> 00:59:52.603
And what the court said in its analysis there is
1205
00:59:52.603 --> 00:59:55.430
if anyone has a right to reject medical treatment
1206
00:59:55.430 --> 00:59:56.263
the first place,
1207
00:59:56.263 --> 00:59:58.590
certainly they also have the right to subsequently
1208
00:59:58.590 --> 00:59:59.650
stop that treatment.
1209
00:59:59.650 --> 01:00:02.470
So even in Brophy was based on,
1210
01:00:02.470 --> 01:00:05.180
goes back to the Common law right to reject a battery.
1211
01:00:05.180 --> 01:00:07.580
Now it's a battery that had begun weeks or months earlier
1212
01:00:07.580 --> 01:00:08.740
when the medical treatment start,
1213
01:00:08.740 --> 01:00:11.660
but it was a battery that it became a battery
1214
01:00:11.660 --> 01:00:14.460
and knew once the patient stopped consenting
1215
01:00:14.460 --> 01:00:15.300
to that treatment.
1216
01:00:15.300 --> 01:00:16.170
So once the patient says,
1217
01:00:16.170 --> 01:00:18.180
I want to withdraw this medical care,
1218
01:00:18.180 --> 01:00:21.060
and if the hospital insists on continuing it,
1219
01:00:21.060 --> 01:00:21.893
that is battery.
1220
01:00:21.893 --> 01:00:24.238
So we think that Brophy falls perfectly in line
1221
01:00:24.238 --> 01:00:27.470
with the rules that this court has applied,
1222
01:00:27.470 --> 01:00:30.450
and in the Vacko case and the footnote there
1223
01:00:30.450 --> 01:00:32.086
that we cited in our brief,
1224
01:00:32.086 --> 01:00:35.890
the Supreme Court lists 31 different state court cases,
1225
01:00:35.890 --> 01:00:38.730
state and federal cases drawing that important distinction
1226
01:00:38.730 --> 01:00:40.750
between the right to reject medical treatment
1227
01:00:40.750 --> 01:00:44.690
and a asserted right to assisted suicide,
1228
01:00:44.690 --> 01:00:47.040
including two cases from this court of the Brophy case,
1229
01:00:47.040 --> 01:00:48.830
and I believe the Guardianship of Doe case.
1230
01:00:48.830 --> 01:00:52.420
Counsel, I know you have your argument down pat,
1231
01:00:52.420 --> 01:00:56.060
and all of the support for it and all of that, that's great.
1232
01:00:56.060 --> 01:00:58.750
I guess my question is just more fundamental.
1233
01:00:58.750 --> 01:01:02.830
Do you not see the paternalistic part of this,
1234
01:01:02.830 --> 01:01:04.970
that when you're talking about somebody
1235
01:01:04.970 --> 01:01:09.810
like Dr. Kligler who is a doctor
1236
01:01:09.810 --> 01:01:12.560
who's treated patients his entire life,
1237
01:01:12.560 --> 01:01:17.110
who's been able to define his own destiny,
1238
01:01:17.110 --> 01:01:20.450
wake up every day and feel like he's actively living,
1239
01:01:20.450 --> 01:01:22.980
to the point now with saying that
1240
01:01:22.980 --> 01:01:24.447
because we're not gonna read this,
1241
01:01:24.447 --> 01:01:27.390
and we're not gonna say that our Common law can evolve.
1242
01:01:27.390 --> 01:01:30.550
We're not gonna say that we can look to our constitution
1243
01:01:30.550 --> 01:01:32.600
and see whether or not there's something else
1244
01:01:32.600 --> 01:01:35.020
that now is different than when we enacted it
1245
01:01:35.020 --> 01:01:37.870
and when it's gone through history,
1246
01:01:37.870 --> 01:01:41.940
that doesn't encompass the right of a human being to say,
1247
01:01:41.940 --> 01:01:45.090
I don't wanna be in a pain induced, pardon me,
1248
01:01:45.090 --> 01:01:48.700
an opiate induced stupor in my palliative care
1249
01:01:48.700 --> 01:01:50.930
that I'm just chuck full of pain medication.
1250
01:01:50.930 --> 01:01:55.400
And I'm just laying there etherized on a couch somewhere.
1251
01:01:55.400 --> 01:01:57.503
Do you not see that?
1252
01:01:58.580 --> 01:02:02.320
Your Honor, we certainly do sympathize with Dr. Kligler-
1253
01:02:02.320 --> 01:02:06.030
Forget about sympathize, because as he's dying
1254
01:02:07.370 --> 01:02:09.910
in a way that he doesn't want to,
1255
01:02:09.910 --> 01:02:14.030
the only thing that the interest that seems to be
1256
01:02:14.030 --> 01:02:17.040
articulated here is because we feel better
1257
01:02:17.040 --> 01:02:19.800
about the fact that you can't do that.
1258
01:02:19.800 --> 01:02:22.660
So, Your Honor, the state maintains an interest
1259
01:02:22.660 --> 01:02:24.750
in Dr. Kligler's human life,
1260
01:02:24.750 --> 01:02:27.610
and the state more broadly retains an interest in human life
1261
01:02:27.610 --> 01:02:29.110
of all Massachusetts citizens
1262
01:02:29.110 --> 01:02:31.450
who would be impacted by a decision of this court
1263
01:02:31.450 --> 01:02:33.970
creating a constitutional right to physician
1264
01:02:33.970 --> 01:02:34.803
assisted suicide.
1265
01:02:34.803 --> 01:02:36.690
So if the Legislature here in the Commonwealth
1266
01:02:36.690 --> 01:02:40.050
decided tomorrow that that's a paternalistic approach
1267
01:02:40.050 --> 01:02:43.260
as to a patient like Dr. Kligler the Legislature tomorrow
1268
01:02:43.260 --> 01:02:45.060
could pass the statute allowing
1269
01:02:45.060 --> 01:02:49.296
a limited class of individuals and Dr. Kligler's position
1270
01:02:49.296 --> 01:02:52.609
to get access to a lethal medication, however-
1271
01:02:52.609 --> 01:02:56.640
If we were to say that there is a constitutional
1272
01:02:56.640 --> 01:02:59.190
right here, they could certainly go and do their jobs
1273
01:02:59.190 --> 01:03:02.820
to put the contours to that like they do all the time.
1274
01:03:02.820 --> 01:03:03.780
Unfortunately, Your Honor,
1275
01:03:03.780 --> 01:03:05.180
I just don't think that's the case,
1276
01:03:05.180 --> 01:03:08.360
because if this court were to constitutionalized
1277
01:03:08.360 --> 01:03:10.820
a right to physician assisted suicide,
1278
01:03:10.820 --> 01:03:12.830
it would be very difficult,
1279
01:03:12.830 --> 01:03:15.370
and I would suggest impossible for this court to say,
1280
01:03:15.370 --> 01:03:17.510
however, despite the fact that we're recognizing
1281
01:03:17.510 --> 01:03:19.540
a fundamental constitutional right,
1282
01:03:19.540 --> 01:03:22.340
we're gonna narrowly define the class of individuals
1283
01:03:22.340 --> 01:03:24.211
who have access to that constitutional right.
1284
01:03:24.211 --> 01:03:26.613
Are you're saying the Legislature can't do that.
1285
01:03:26.613 --> 01:03:30.220
If we were as a first domino to say there's a right,
1286
01:03:30.220 --> 01:03:32.960
don't they do that with access to abortion?
1287
01:03:32.960 --> 01:03:33.793
So if this court-
1288
01:03:33.793 --> 01:03:36.050
No, don't they do that with access to abortion?
1289
01:03:36.050 --> 01:03:38.077
Well, we said that there's a constitutional right,
1290
01:03:38.077 --> 01:03:40.690
and the Legislature goes off and puts the contours to it.
1291
01:03:40.690 --> 01:03:42.450
Sure, but they can't pass a statute
1292
01:03:42.450 --> 01:03:44.840
that conflicts with the constitutional right
1293
01:03:44.840 --> 01:03:45.750
at this court.
1294
01:03:45.750 --> 01:03:47.560
Has recognized even in the abortion context.
1295
01:03:47.560 --> 01:03:49.480
So in this particular context, for example,
1296
01:03:49.480 --> 01:03:51.640
if this court were to say there's a fundamental,
1297
01:03:51.640 --> 01:03:54.450
constitutional right to physician assisted suicide,
1298
01:03:54.450 --> 01:03:56.040
and the Legislature tomorrow says,
1299
01:03:56.040 --> 01:03:58.440
well, we're gonna narrowly cabin who has access
1300
01:03:58.440 --> 01:04:00.250
to that, right, they have to be competent adults,
1301
01:04:00.250 --> 01:04:02.470
they have to be terminally ill, et cetera, et cetera,
1302
01:04:02.470 --> 01:04:04.480
the lawsuit would be filed the next day saying
1303
01:04:04.480 --> 01:04:07.500
you can't limit the class of people who have access
1304
01:04:07.500 --> 01:04:09.101
to a fundamental right.
1305
01:04:09.101 --> 01:04:10.550
And this court would be put in the position
1306
01:04:10.550 --> 01:04:12.090
of having to do strict scrutiny
1307
01:04:12.090 --> 01:04:13.920
and a complex balancing of the competing
1308
01:04:13.920 --> 01:04:14.870
interest of the government,
1309
01:04:14.870 --> 01:04:16.590
and the people asserting that right
1310
01:04:16.590 --> 01:04:17.710
in order to determine whether or not
1311
01:04:17.710 --> 01:04:19.877
a new class of individual should have access to-
1312
01:04:19.877 --> 01:04:22.170
And we don't we do at all the time?
1313
01:04:22.170 --> 01:04:24.066
Well, in this particular,
1314
01:04:24.066 --> 01:04:26.050
of course the court does do that,
1315
01:04:26.050 --> 01:04:28.420
but what we're suggesting and what I think the Amicus Brief
1316
01:04:28.420 --> 01:04:31.217
make very clear is that it's near impossible,
1317
01:04:31.217 --> 01:04:33.700
and we would suggest impossible for this court
1318
01:04:33.700 --> 01:04:36.210
to do that kind of balancing and to limit that
1319
01:04:36.210 --> 01:04:37.620
access to the right in any way.
1320
01:04:37.620 --> 01:04:39.100
I think it's important to recognize,
1321
01:04:39.100 --> 01:04:41.690
so the other side bases its assertion of the right
1322
01:04:41.690 --> 01:04:43.170
to reject medical treatment.
1323
01:04:43.170 --> 01:04:44.003
But then they say,
1324
01:04:44.003 --> 01:04:45.920
but we think that this right to physicians assisted suicide
1325
01:04:45.920 --> 01:04:47.890
should be narrowly limited to this class of people.
1326
01:04:47.890 --> 01:04:49.370
And what this court has set us the right
1327
01:04:49.370 --> 01:04:51.920
to reject medical treatment is that all persons
1328
01:04:51.920 --> 01:04:54.420
have a general right to reject medical treatment
1329
01:04:54.420 --> 01:04:56.040
competent or incompetent.
1330
01:04:56.040 --> 01:04:58.410
So that right has not been so limited.
1331
01:04:58.410 --> 01:05:01.470
And to the extent that the appellants argue this right
1332
01:05:01.470 --> 01:05:04.430
should be, the Legislature can draw those lines,
1333
01:05:04.430 --> 01:05:07.050
but this court is not in position to draw those lines.
1334
01:05:07.050 --> 01:05:10.490
And that's why we think it's important to leave that role
1335
01:05:10.490 --> 01:05:13.550
to the Legislature to make those social policy decisions
1336
01:05:13.550 --> 01:05:15.620
and not to take that role on for this court.
1337
01:05:15.620 --> 01:05:16.870
If I can make one more-
Counsel.
1338
01:05:16.870 --> 01:05:17.750
Yes, Your Honor.
1339
01:05:17.750 --> 01:05:20.590
Has any state court found that
1340
01:05:20.590 --> 01:05:24.623
there's a constitutional right to assisted suicide-
1341
01:05:25.541 --> 01:05:27.140
The only court-
...state constitution?
1342
01:05:27.140 --> 01:05:29.510
The only court that tried to was the
1343
01:05:29.510 --> 01:05:31.410
9th Circuit on ban Court of Appeals
1344
01:05:31.410 --> 01:05:32.880
in the case that eventually became Clarksburg
1345
01:05:32.880 --> 01:05:34.660
where they were reversed.
1346
01:05:34.660 --> 01:05:36.460
So other than that decision, no, Your Honor.
1347
01:05:36.460 --> 01:05:37.803
Court they've routinely rejected the argument
1348
01:05:37.803 --> 01:05:41.270
there's a fundamental right to physician assisted suicide.
1349
01:05:41.270 --> 01:05:43.520
I think the importance, getting back to my initial point,
1350
01:05:43.520 --> 01:05:44.800
the importance of the test,
1351
01:05:44.800 --> 01:05:48.680
applying the deeply rooted in history and tradition test
1352
01:05:48.680 --> 01:05:49.630
it's important because again,
1353
01:05:49.630 --> 01:05:52.770
it cabins the role of this court and allows the Legislature
1354
01:05:52.770 --> 01:05:54.050
to play its separate role.
1355
01:05:54.050 --> 01:05:57.100
And then I wanna just make one point on-
1356
01:05:57.100 --> 01:05:59.690
I know you're speaking fast 'cause you're running out
1357
01:05:59.690 --> 01:06:01.420
of time or have run out of time,
1358
01:06:01.420 --> 01:06:02.300
I welcome questions, thank you.
1359
01:06:02.300 --> 01:06:05.520
But you ha you keep going back to fundamental rights
1360
01:06:05.520 --> 01:06:10.300
being rooted in history, and I agree with you at least
1361
01:06:10.300 --> 01:06:11.503
that that is true.
1362
01:06:12.730 --> 01:06:17.730
How do you take into account that now 10 jurisdictions
1363
01:06:18.560 --> 01:06:20.160
have recognized that right?
1364
01:06:20.160 --> 01:06:24.220
So that the history is changing,
1365
01:06:24.220 --> 01:06:26.560
and so at least in 10 states
1366
01:06:26.560 --> 01:06:28.940
their citizens have this right
1367
01:06:30.260 --> 01:06:32.979
to physician assistant suicide.
1368
01:06:32.979 --> 01:06:35.300
How do you account for that
1369
01:06:35.300 --> 01:06:37.920
when we do our own historical analysis?
1370
01:06:37.920 --> 01:06:41.820
Are we limited to the history of Massachusetts or do we
1371
01:06:43.410 --> 01:06:46.590
take into account the history of these other jurisdictions
1372
01:06:46.590 --> 01:06:49.060
now that's evolving, given that Common law
1373
01:06:49.060 --> 01:06:52.240
as Justice George said is an evolving thing.
1374
01:06:52.240 --> 01:06:53.250
Sure, thank you, Your Honor.
1375
01:06:53.250 --> 01:06:54.860
That actually takes me to the exact point
1376
01:06:54.860 --> 01:06:58.050
I was rushing to make, so I appreciate the question.
1377
01:06:58.050 --> 01:07:00.690
Then this is where we part ways a little bit
1378
01:07:00.690 --> 01:07:03.460
with some of the arguments made by my friends
1379
01:07:03.460 --> 01:07:07.350
counsel the Commonwealth in that the test is,
1380
01:07:07.350 --> 01:07:10.400
and has always been including last month in Roman,
1381
01:07:10.400 --> 01:07:11.650
whether or not the asserted right
1382
01:07:11.650 --> 01:07:14.060
is deeply rooted in history and tradition.
1383
01:07:14.060 --> 01:07:16.650
Now what my friends on this side and my friends
1384
01:07:16.650 --> 01:07:18.820
on the other side have both argued is that, well,
1385
01:07:18.820 --> 01:07:21.610
Goodridge changes, that Obergefell changes that,
1386
01:07:21.610 --> 01:07:23.970
both those cases recognize you can look to more
1387
01:07:23.970 --> 01:07:25.110
modern developments.
1388
01:07:25.110 --> 01:07:27.557
However, if you read the opinions in both of those cases
1389
01:07:27.557 --> 01:07:29.290
and the reasoning that the courts,
1390
01:07:29.290 --> 01:07:31.490
this court and the U.S. Supreme Court employing
1391
01:07:31.490 --> 01:07:34.120
both of those cases, what was that issue in those cases?
1392
01:07:34.120 --> 01:07:36.930
Neither those cases involved a question of
1393
01:07:36.930 --> 01:07:39.300
is there a fundamental right to marriage?
1394
01:07:39.300 --> 01:07:41.030
It was considered by all parties involved
1395
01:07:41.030 --> 01:07:43.170
that there is a fundamental right to marriage.
1396
01:07:43.170 --> 01:07:44.950
And so in determining whether or not
1397
01:07:44.950 --> 01:07:47.080
there's a fundamental right in the first place,
1398
01:07:47.080 --> 01:07:48.500
the test is still the same,
1399
01:07:48.500 --> 01:07:51.550
whether or not it's deeply rooted in history and tradition.
1400
01:07:51.550 --> 01:07:54.280
Now what this court and the Supreme Court of Obergefell
1401
01:07:54.280 --> 01:07:56.960
both said that is that when you're doing the next step
1402
01:07:56.960 --> 01:07:58.750
of the analysis, when you're determining
1403
01:07:58.750 --> 01:08:00.550
not whether a fundamental right exists,
1404
01:08:00.550 --> 01:08:03.110
but whether a certain class of individuals
1405
01:08:03.110 --> 01:08:06.410
has been denied access to that fundamental right
1406
01:08:06.410 --> 01:08:08.700
that's where you look to more modern developments.
1407
01:08:08.700 --> 01:08:10.670
That's where you look to a more modern understanding
1408
01:08:10.670 --> 01:08:11.520
of discrimination.
1409
01:08:11.520 --> 01:08:14.410
So is that why you would,
1410
01:08:14.410 --> 01:08:16.360
is that what you would say would be the reason
1411
01:08:16.360 --> 01:08:17.540
that women have rights now?
1412
01:08:17.540 --> 01:08:20.780
Because certainly under tradition and history,
1413
01:08:20.780 --> 01:08:21.970
they weren't recognized.
1414
01:08:21.970 --> 01:08:24.590
So are you saying things changed
1415
01:08:24.590 --> 01:08:28.350
and that's why women have them, or did women's rights
1416
01:08:28.350 --> 01:08:32.010
get found somewhere in the constitution?
1417
01:08:32.010 --> 01:08:34.680
No, so we think that the rights and the principle
1418
01:08:34.680 --> 01:08:37.000
that were established at the very beginning
1419
01:08:37.000 --> 01:08:38.780
continue to apply in full force here.
1420
01:08:38.780 --> 01:08:39.800
That's more of an equal-
1421
01:08:39.800 --> 01:08:40.680
Apply to women.
1422
01:08:40.680 --> 01:08:42.420
They didn't apply at all to women.
1423
01:08:42.420 --> 01:08:43.253
So.
1424
01:08:43.253 --> 01:08:45.624
So how did that happen then
1425
01:08:45.624 --> 01:08:47.560
if somebody didn't make a change?
1426
01:08:47.560 --> 01:08:49.820
Right, so that's more of an equal protection analysis,
1427
01:08:49.820 --> 01:08:50.800
Your Honor.
1428
01:08:50.800 --> 01:08:51.790
And that equal protection analysis
1429
01:08:51.790 --> 01:08:54.310
when you're looking at two different classes of people
1430
01:08:54.310 --> 01:08:55.920
who've been treated differently,
1431
01:08:55.920 --> 01:08:58.190
that's not limited to history and tradition.
1432
01:08:58.190 --> 01:09:00.160
Whereas a fundamental right question
1433
01:09:00.160 --> 01:09:02.300
is a question of history and tradition.
1434
01:09:02.300 --> 01:09:04.820
And so that's why we think the analysis is different here,
1435
01:09:04.820 --> 01:09:08.350
and can be an ought to be cabin to history and tradition.
1436
01:09:08.350 --> 01:09:09.630
And so in this case,
1437
01:09:09.630 --> 01:09:12.530
and applying the history and tradition test
1438
01:09:12.530 --> 01:09:15.390
in light of a Obergefell and in light of Goodridge,
1439
01:09:15.390 --> 01:09:18.760
if this were a case where most individuals
1440
01:09:18.760 --> 01:09:21.600
had access to a right to physician assisted suicide,
1441
01:09:21.600 --> 01:09:22.990
but there was a narrow class of people
1442
01:09:22.990 --> 01:09:24.690
who did not have that access,
1443
01:09:24.690 --> 01:09:26.040
then you would have an argument that, well,
1444
01:09:26.040 --> 01:09:27.860
you can look at more modern developments
1445
01:09:27.860 --> 01:09:29.660
as to discrimination against that class
1446
01:09:29.660 --> 01:09:31.260
and give that class of folks
1447
01:09:31.260 --> 01:09:32.990
a right to physician assisted suicide.
1448
01:09:32.990 --> 01:09:34.790
Here the question is the threshold question
1449
01:09:34.790 --> 01:09:37.620
of whether such a right even exists in the first place?
1450
01:09:37.620 --> 01:09:39.500
And in fact, that brings me back to the point
1451
01:09:39.500 --> 01:09:41.930
that I was making earlier about the inability
1452
01:09:41.930 --> 01:09:43.870
of this court to cabin a right to physician
1453
01:09:43.870 --> 01:09:46.530
assisted suicide, to a narrow class of people.
1454
01:09:46.530 --> 01:09:48.867
So if the court were to say in this case,
1455
01:09:48.867 --> 01:09:51.050
we're gonna find a fundamental right
1456
01:09:51.050 --> 01:09:52.920
to physician assisted suicide,
1457
01:09:52.920 --> 01:09:55.010
but limit to this narrow class of people,
1458
01:09:55.010 --> 01:09:58.390
then 10, 15 years down the road, parties come in,
1459
01:09:58.390 --> 01:10:00.200
or maybe two or three years down the road,
1460
01:10:00.200 --> 01:10:01.370
parties come in and say, well,
1461
01:10:01.370 --> 01:10:04.140
that was the understanding of physician assisted suicide
1462
01:10:04.140 --> 01:10:07.010
at the time, but we are in this different class of people
1463
01:10:07.010 --> 01:10:08.960
we should have access to that right too.
1464
01:10:08.960 --> 01:10:10.970
Look at Obergefell, look at modern developments
1465
01:10:10.970 --> 01:10:12.430
we've been discriminated against.
1466
01:10:12.430 --> 01:10:14.470
And then what does this court say
1467
01:10:14.470 --> 01:10:15.640
in response to this argument?
1468
01:10:15.640 --> 01:10:18.410
How does this court than the fundamental right
1469
01:10:18.410 --> 01:10:21.310
to physician assisted suicide to the narrow class of people
1470
01:10:21.310 --> 01:10:22.860
who are asking for it here?
1471
01:10:22.860 --> 01:10:25.170
The Legislature can draw lines like that,
1472
01:10:25.170 --> 01:10:28.144
but this court cannot draw lines like that when it comes to-
1473
01:10:28.144 --> 01:10:30.650
You of course, recognize they have an equal protection
1474
01:10:30.650 --> 01:10:31.491
argument too.
1475
01:10:31.491 --> 01:10:33.760
So there's of course an equal protection argument.
1476
01:10:33.760 --> 01:10:35.199
So if they were able to say,
1477
01:10:35.199 --> 01:10:37.160
we are an era a class of people who are being
1478
01:10:37.160 --> 01:10:39.540
treated differently in terms of accessing
1479
01:10:39.540 --> 01:10:41.870
a right available to others, but that's not the case.
1480
01:10:41.870 --> 01:10:45.730
So Mr. Kligler if he ends up in a position position where
1481
01:10:45.730 --> 01:10:48.160
he's on life support or receiving some other sort
1482
01:10:48.160 --> 01:10:49.713
of medical treatment, and he asserts,
1483
01:10:49.713 --> 01:10:52.490
I want to reject that treatment or withdraw that treatment,
1484
01:10:52.490 --> 01:10:54.450
he's in the same position as every other
1485
01:10:54.450 --> 01:10:56.040
Massachusetts citizen right now,
1486
01:10:56.040 --> 01:10:57.620
he has equal access to that.
1487
01:10:57.620 --> 01:10:59.974
So there no equal protection violation
1488
01:10:59.974 --> 01:11:02.160
in terms of the rights that are afforded
1489
01:11:02.160 --> 01:11:03.550
to all Massachusetts citizens.
1490
01:11:03.550 --> 01:11:05.670
So there is no equal protection violation,
1491
01:11:05.670 --> 01:11:07.950
there is no substance due process violation.
1492
01:11:07.950 --> 01:11:10.960
For that reason rational basis review applies,
1493
01:11:10.960 --> 01:11:12.390
and for all the reasons laid out,
1494
01:11:12.390 --> 01:11:15.950
and my friend's brief for the Commonwealth
1495
01:11:15.950 --> 01:11:19.290
and the record below the Common law prohibition
1496
01:11:19.290 --> 01:11:21.750
easily satisfies rational basis review.
1497
01:11:21.750 --> 01:11:24.800
We'd ask the court to affirm the decision below,
1498
01:11:24.800 --> 01:11:26.520
happy to answer any other questions from the court,
1499
01:11:26.520 --> 01:11:29.453
otherwise I'll rest on my brief and ask the court to affirm.