Unequal protection

ALBANY, N.Y.—J.J. Hanson, 35, is a tall former Marine from New York’s Hudson Valley who did a tour in Iraq. He speaks so quickly and sharply that someone meeting him for the first time wouldn’t know that two years ago he couldn’t talk, walk, read, or write.

The loss of Hanson’s basic functions came shortly after a shattering diagnosis for a man with a wife and a young son. In 2014, out of the blue, Hanson had a seizure while he was at work. Doctors discovered he had stage 4 glioblastoma (GBM), one of the deadliest forms of brain cancer—and the same kind of cancer that assisted suicide advocate Brittany Maynard had when she ended her life in late 2014.

Three different doctors told Hanson his case was terminal and said he had four months to live. But he was determined to do aggressive treatment anyway. Doctors operated on his brain, which led to nine seizures in a day and his “cognitive loss” of basic functions. He joined a clinical trial. In order to recover from his cognitive loss, Hanson read children’s books, slowly working back up to adult reading.

Now he has survived two years—walking, talking, reading, and writing—and he is in what he calls remission, although he calmly admits that with GBM, there is really no such thing as remission.

Hanson, who worked in New York state government before turning to the private sector, had not given much thought to the issue of assisted suicide until he had a terminal disease. Now he is leading efforts against physician-assisted suicide legislation around the country with the organization Patients’ Rights Action Fund. New York is currently considering two bills to legalize the practice. California, Oregon, Vermont, and Washington have already made it legal.

Many people confuse physician-assisted suicide with the debate over keeping someone on a ventilator or feeding tube. Indeed, that’s partly due to proponents of assisted suicide, who characterize it as just another option in the menu of end-of-life palliative care. Physician-assisted suicide is in an entirely different category, allowing doctors to prescribe lethal drugs, which the patients then self-administer when they wish.

Opponents believe the laws will coerce the elderly, the poor, and the disabled who feel like economic and emotional burdens on their families to take these lethal drugs. The Netherlands, Belgium, and Switzerland allow assisted suicides for those with psychiatric problems, and a recent study in the journal JAMA Psychiatry showed that most of those obtaining the drugs in those countries were depressed and lonely.

‘That’s the strategy of the advocates. They’re going to try to chip away state by state. … There’s significant concern that the courts will lose sight of the limits of individual autonomy.’ —Ed Mechmann

Since Maynard so publicly ended her life in 2014, a number of states have considered legalizing the practice. Most bills have not passed—in Connecticut, Tennessee, Maryland, Colorado, Nevada, Wyoming, Utah, and Minnesota among others. California legalized the practice last year. Assisted suicide advocates are trying to overturn state laws via the courts as well. The courts could be a faster track to legalization than the legislatures, perhaps following a similar path as the legalization of gay marriage that came through the U.S. Supreme Court in Obergefell v. Hodges. Backers of assisted suicide are basing their legal arguments on the same basic principle as in the gay marriage cases: individual rights and equal protection under the law.

This already happened in Canada. Last year the Canadian Supreme Court overturned the country’s ban on the practice. Last month, Liberal Prime Minister Justin Trudeau introduced legislation to legalize the practice formally. The legislation allows for assisted suicide of non-terminal patients, and also requires objecting doctors to refer their patients to another doctor who would prescribe the drugs. The Liberal Parliament will likely pass the legislation in the coming weeks.

The same process is underway in U.S. courts. The Montana Supreme Court legalized assisted suicide there in 2009. In New Mexico a lawsuit against the state ban on assisted suicide is ongoing. A state district judge initially ruled that the suicide ban violates individual rights “to choose aid in dying.” The state appeals court reversed that ruling last August, but assisted suicide advocates—led by the American Civil Liberties Union—appealed to the state Supreme Court.

And last year in New York, a group of terminally ill patients, a few doctors, and pro–assisted suicide group End of Life Choices filed a lawsuit against the state ban, on the grounds that it violates the equal protection clause of the state constitution. Ed Mechmann, a lawyer and the director of public policy for the archdiocese of New York, worked on the archdiocese’s amicus brief in the New York case.

Mechmann says the equal protection argument, after Obergefell, is gaining traction: “That’s the strategy of the advocates. They’re going to try to chip away state by state. ... There’s significant concern that the courts will lose sight of the limits of individual autonomy.”

A state judge threw out the New York lawsuit, citing the controlling U.S. Supreme Court opinion, Vacco v. Quill, where the high court unanimously upheld New York’s law against assisted suicide in 1997. But the state judge threw the assisted suicide crew a bone in the closing paragraph of her opinion, saying she was “baffled” that confusion existed over “the right of every individual to the possession and control of his own person.”

“It was almost a signal from the judge, ‘Oh I wish I could rule the other way,’” said Mechmann. He said judges did this in the rulings leading up to Obergefell, dropping “Easter eggs” in decisions that other judges could use to issue different rulings.

On May 3, a unanimous New York Supreme Court appeals panel again threw out the case; but the plaintiffs can appeal again, so the case is likely ongoing. Mechmann felt a “boost” from the unanimous ruling in a jurisdiction as liberal as New York.

THOUGH THE U.S. SUPREME COURT was unanimous on the question of assisted suicide two decades ago, Mechmann thinks the court has since moved to the left on unbridled individual autonomy, especially with the loss of Justice Antonin Scalia. He thinks his side could still win a case on assisted suicide at the high court, but he doubts he could get a unanimous ruling anymore.

Assisted suicide advocates, led by the group called Compassion & Choices, emphasize the words “autonomy” and “individual choice.” One of the two bills in the New York legislature is titled “The Patient Self-Determination Act.” A group of 39 New York physicians signed a letter to lawmakers supporting the legislation: “As physicians, our sacred promise is to respect autonomy and relieve suffering,” they wrote.

Doctors who work with the poor, mentally ill, elderly, and terminal patients argue such measures would result in the opposite of self-determination. At the beginning of May, a couple dozen New York doctors traveled to Albany to lobby legislators against the measure, citing the “potential for coercion” among the most vulnerable patients.

The group included physicians like Dr. Michael Brescia, who is the medical director of Calvary Hospital in the Bronx; Dr. Wen Dombrowski, who works in geriatrics in New York City; and Dr. David Kim, the New York director for the American Academy of Medical Ethics, who also operates Beacon Christian Community Health Center, a clinic in a low-income area of Staten Island.

“[The assisted suicide advocates’] approach is not achieving the end they’re aiming for,” said Kim. “They’re not increasing personal autonomy. They’re not increasing options; they’re decreasing options.”

‘When you were the sickest in your life, how well were you thinking at that time? Not good, right?’ —J.J. Hanson

For now, the New York coalition against assisted suicide (which also includes local Catholic and evangelical groups) has a strong ally: the American Medical Association (AMA), considered the country’s pre-eminent medical association. The AMA opposes assisted suicide in its code of medical ethics: “Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.” Courts often side with the AMA.

Medical associations could change their positions against the practice. The California Medical Association lobbied against assisted suicide back when the state was considering a measure in 2007. But then last year the group withdrew its opposition, saying that doctors should individually decide whether they supported the measure. The legislature passed the measure.

AT MONTH FIVE OF HIS TREATMENT, the normally irrepressible Hanson became depressed. He says he lay in his bed and asked himself if he should give up, if it would make things easier for everyone if he were gone. He decided to continue—but then he imagined what others in his position might do.

Under the current New York proposals, a patient like Hanson could go to a doctor when he received a terminal prognosis and, if he were in a good mental state, receive a prescription for the lethal drugs. Then the patient could go home and put the drugs on his nightstand for whenever he might reach that desperate moment.

“When you were the sickest in your life, how well were you thinking at that time?” Hanson asked. “Not good, right? Now multiply that exponentially. … Put [the drugs] in a glass of beer, done. In that moment of weakness and difficulty and stress, done. ... I don’t think I would have done that, but there’s many people who could’ve or would’ve in that situation.”

At the state Capitol Hanson walked the halls with a black binder under his arm, filled with articles and notes about assisted suicide data. He needs the binder to remember things after the surgery nicked certain circuits in his brain. Before cancer, he says, he could remember the specific details of almost every person he met. Now, sometimes he forgets the names of family members, though he is still quick to recall most information.

Speaking helps him speak, so he speaks with legislators. He emphasizes how legalizing assisted suicide will change social norms, legitimizing the general practice of suicide. A new report from the Centers for Disease Control and Prevention shows a 24 percent increase in suicides over the last 15 years, after 15 years of declines. The rate of increase is also higher in recent years.

Hanson also emphasizes to legislators how assisted suicide will shrink an already small pool of terminal patients willing to participate in clinical trials. As it is, glioblastoma patients rarely live long enough to participate in a trial, so the pool of those who can participate in research that might help future patients is tiny. This session at least, it looks as if Hanson’s arguments are helping to keep the legislation from passing.

“I think we will be fighting this bill for 20 years,” said Hanson. “I don’t think it’s going away.”