Opinion
SUCV2016-03254-F
05-25-2017
Dr. Roger M. Kligler et al. [1] v. Maura T. Healy [2] et al. [3] No. 137155
Mary K. Ames, Justice of the Superior Court.
Filed May 31, 2017
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS
Mary K. Ames, Justice of the Superior Court.
The plaintiffs filed this suit claiming that the Massachusetts Constitution protects the rights of mentally competent terminally ill patients and their doctors to engage in physician assisted suicide. This matter is before the court on the Defendant (DA)'s Motion to Dismiss and the Attorney General's Motion to Dismiss pursuant to Mass.R.Civ.P. 12(b)(6). For the reasons discussed below, the motions are DENIED .
BACKGROUND
The following facts are taken from the Complaint and, at this stage, and as the law requires, are assumed to be true for purposes of this motion. Plaintiff Roger Kligler, M.D. is a competent adult who has been diagnosed with Stage 4 Metastatic Castrate-Resistant Prostate Cancer, for which he began treatment in July of 2016. Based on this diagnosis and treatment, his prognosis is a median of twenty-five months to live, with a range of seven to fifty-seven months. Dr. Kligler seeks physician assistance to obtain lethal medication so that he may have the option to end his life peacefully. Plaintiff Alan Steinbach, M.D. is a licensed physician who treats competent terminally ill patients, including Dr. Kligler, with no chance of recovery. Some of these patients have expressed a desire not to live in a state of palliative sedation and are not receiving medical interventions that can be withdrawn. If requested, Dr. Steinbach would provide information and advice to and would write prescriptions for lethal medication to be self-administered by competent terminally ill adults, giving them the option to bring about a quick and peaceful death. However, Dr. Steinbach is deterred from doing so by the fear of criminal prosecution.
This Court takes judicial notice of the fact that writing such a prescription is an explicitly authorized practice in several states. See California End of Life Option Act, Health and Safety Code Division 1, § 443 (passed by legislature effective June 9, 2016); Colorado End of Life Option Act, Colo. Rev. Stat. Article 48 (adopted by ballot initiative December 16, 2016); Oregon Death With Dignity Act, Revised Statutes Chapter 127.800 (adopted by ballot initiative October 27, 1997); Vermont Patient Choice and Control at the End of Life Act, Title 18, chapter 113 (passed by legislature May 2013); Washington Death With Dignity Act, Wash. Rev. Code § 70.245 (adopted by ballot initiative November 4, 2008); District of Columbia Death With Dignity Act, B21-0038 (passed by D.C. Council effective February 20, 2017). See Mass.G.Evid. § 202(b) (2016) (court may take judicial notice of laws of other jurisdictions).
Doctors Kligler and Steinbach filed this action against Attorney General Maura Healey (" the AG") and Cape and Islands District Attorney Michael O'Keefe (" the DA") on October 24, 2016. Count I of the complaint seeks a declaratory judgment that " manslaughter charges are not applicable to physicians who follow a medical standard of care and write a prescription to terminally ill, competent adults who request such aid and may choose to self-administer the medication consistent with the practice of 'Medical Aid in Dying.' "
The plaintiffs define the term " Medical Aid in Dying" in their complaint to mean " the recognized medical practice of allowing mentally competent, terminally ill adults to obtain medication that they may choose to take to bring about a quick and peaceful death."
Count II alleges that application of the common law of manslaughter to a physician who engages in the conduct described above violates the Massachusetts Constitution because the law is impermissibly vague. Count III alleges that application of the manslaughter law to such a physician impermissibly restricts the constitutional right to privacy, autonomy and bodily integrity, and Count IV alleges that it impermissibly restricts the plaintiffs' fundamental liberty interests. Counts II, III, and IV each request a declaration " that physicians who follow a medical standard of care and write a prescription pursuant to the practice of Medical Aid in Dying to terminally ill, competent adults who request such aid do not violate criminal law, including the common-law crime of manslaughter." Each count also seeks an injunction prohibiting the AG and the DA from prosecuting physicians who engage in that conduct.
Count V alleges that application of the law of manslaughter to a physician who provides information and advice about Medical Aid in Dying to competent terminally ill patients who voluntarily ingest lethal prescribed medication constitutes an unlawful restraint on the constitutional right to freedom of speech by hindering physicians' ability to discuss medically appropriate end of life treatment options. Count V seeks a declaration that giving such advice is not manslaughter and an injunction prohibiting the AG and the DA from prosecuting physicians who inform, advise, or counsel patients about Medical Aid in Dying.
Finally, Count VI alleges that application of the manslaughter law to physicians who follow a medical standard of care and provide Medical Aid in Dying violates the constitutional right to the equal protection of law by treating differently terminally ill adults who wish to receive Medical Aid in Dying and terminally ill adults who wish to hasten death by withdrawing life-sustaining treatment. Count VI seeks a declaration that physician assisted suicide is not manslaughter as well as an injunction against prosecution.
DISCUSSION
The AG and the DA move to dismiss the complaint on the ground that it fails to state a claim for declaratory relief. When evaluating the legal sufficiency of a complaint pursuant to Rule 12(b)(6), the court must accept as true all of the factual allegations of the complaint and draws all reasonable inferences from the complaint in favor of the plaintiff. Coghlin Elec. Contractors, Inc. v. Gilbane Building Co., 472 Mass. 549, 553, 36 N.E.3d 505 (2015); Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008). However, the court need not accept as true legal conclusions cast in the form of factual allegations. Schaer v. Brandeis Univ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000). To survive a motion to dismiss, a complaint must contain factual allegations which, if true, raise a right to relief above the speculative level. Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223, 950 N.E.2d 853 (2011); Iannacchino v. Ford Motor Co., 451 Mass. at 636. The plaintiff's allegations must be more than mere labels and conclusions and must plausibly suggest, not merely be consistent with, an entitlement to relief. Coghlin Elec. Contractors, Inc. v. Gilbane Building Co., 472 Mass. at 553.
I. LACK OF ACTUAL CONTROVERSY
The AG and the DA first contend that dismissal of the complaint is required because this Court cannot grant declaratory relief in the absence of an actual controversy. Thus, this Court must decide whether it has jurisdiction to allow the complaint to proceed to a determination on the merits. The Declaratory Judgment Act provides in relevant part:
the superior court . . . may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings . . .G.L.c. 231A, § 1. Although the purpose of this statute is remedial and it is to be liberally construed, declaratory relief is not available if there is no actual controversy. Gay & Lesbian Advocates & Defenders v. Attorney Gen., 436 Mass. 132, 134, 763 N.E.2d 38 (2002). An actual controversy means a real dispute caused by one party's assertion of a legal right in which he has a definite interest and the denial of such assertion by another party with a definite interest in the subject matter, where the attendant circumstances plainly indicate that unless the matter is adjusted, the parties' antagonistic claims will almost immediately and inevitably lead to litigation. Id. ; Bunker Hill Distrib., Inc. v. District Atty. for Suffolk Dist., 376 Mass. 142, 144, 379 N.E.2d 1095 (1978). The defendants contend that there is no actual controversy here because no one has threatened to prosecute Dr. Steinbach for manslaughter.
This Court is not persuaded by the AG's argument that the complaint implicates section 2 of the statute, which permits declaratory judgment to be used " to obtain a determination of the legality of the administrative practices and procedures of any municipal, county or state agency or official which practices and procedures are alleged to be in violation of the Constitution of the United States or of the constitution or laws of the commonwealth . . . which violation has been consistently repeated . . ." G.L.c. 231A, § 2 (emphasis added).
The application of criminal statutes lies with the prosecutor in the first instance and he cannot be compelled to render advisory opinions at the behest of private citizens. Bunker Hill Distrib., Inc. v. District Atty. for Suffolk Dist., 376 Mass. at 147. Accordingly, where the prosecutor has neither threatened the plaintiff with prosecution nor indicated to the plaintiff that he views particular conduct to be in violation of a criminal statute, there is no actual controversy. Gay & Lesbian Advocates & Defenders v. Attorney Gen., 436 Mass. at 134; Bunker Hill Distrib., Inc. v. District Atty. for Suffolk Dist., 376 Mass. at 144-45. Cf. Benefit v. Cambridge, 424 Mass. 918, 921-22, 679 N.E.2d 184 (1997); Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).
The complaint in this case does not allege that either the AG or the DA has threatened to prosecute Dr. Steinbach or asserted an interpretation of the manslaughter law that encompasses the conduct in which he wants to engage. Nonetheless, in deciding a Rule 12(b)(6) motion, the court may consider matters of public record and matters of which it may take judicial notice. Schaer v. Brandeis Univ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000). The court may take judicial notice of a fact that is not subject to reasonable dispute because it can be readily determined from sources whose accuracy cannot reasonably be questioned. Mass.G.Evid. § 201(b)(2) (2016). According to the Cape Cod Times, Cape & Island District Attorney Michael O'Keefe has opined that state law prohibits medically-assisted dying and the resulting charge would be murder. In addition, the New Boston Post reports that O'Keefe has expressed his belief that physician assisted suicide is illegal until the Legislature passes a law telling him otherwise. The court may take judicial notice of the existence and content of a published newspaper article, particularly when the content is not being considered for the truth of the matters reported. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569 n.13, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Kosilek v. Spencer, 889 F.Supp.2d 190, 215 n.6 (D.Mass. 2012), rev'd on merits of claim, 774 F.3d 63 (1st Cir. 2014), cert. den., 135 S.Ct. 2059, 191 L.Ed.2d 958 (2015). Cf. Bogertman v. Attorney Gen., 474 Mass. 607, 616, 53 N.E.3d 627 (2016).
Haven Orecchio-Egresitz, 2 Cape Doctors Sue for the Right to Participate in Assisted Suicide, Cape Cod Times, October 26, 2016.
Evan Lips, Lawsuit Seeks to Prove Legality of Massachusetts Physician-assisted Suicide, New Boston Post, October 27, 2016.
Here, O'Keefe's statements are offered not for their truth but rather, to show his state of mind and the effect of his words on a reasonable physician. Notably, the defendants do not claim that the statements attributed to O'Keefe in the newspaper are inaccurate, nor do they contend that it is improper for the court to consider those statements in ruling on the motion to dismiss. Rather, they argue that the plaintiffs have taken O'Keefe's statements out of context because when he made them, he had not yet been served with the complaint in this matter and was not commenting on the specific facts of this case. The defendants emphasize that O'Keefe subsequently clarified his position that all manslaughter charges must be considered on a case by case basis and his office does not answer hypotheticals about whether it will commence a prosecution.
The Boston Globe reports that when asked specifically whether he would prosecute Dr. Kligler's physician for prescribing lethal drugs, O'Keefe responded, " We don't answer 'ifs.' " Patricia Wen, Falmouth Doctor Files Lawsuit Seeking Right to Die: " It's an Option that I Want to Have, " Boston Globe, October 26, 2016. As noted supra, the District Attorney is never required to render advisory opinions. See Bunker Hill Distrib., Inc. v. District Atty. for Suffolk Dist., 376 Mass. at 147.
This Court does not now decide whether physician assisted suicide is protected by the Massachusetts Constitution.
Rather, the court's task is only to address whether there is jurisdiction to hear the declaratory judgment action brought by Doctors Kligler and Steinbach. In the view of this Court, O'Keefe's statements to the media satisfy the threshold pleading requirement of a credible threat of prosecution for manslaughter. O'Keefe's public comments demonstrate a threat of prosecution to physicians in the Cape and Islands District that is more than imaginary or speculative. Accordingly, the complaint raises an actual controversy appropriate for resolution by declaratory judgment and should not be dismissed at this stage of the proceedings.
In addition, an actual controversy concerning a criminal statute may exist in the case of a constitutional challenge to the validity of legislation on its face or as applied to a class of persons similarly situated. Moe v. Secretary of Administration & Fin., 382 Mass. 629, 643, 417 N.E.2d 387 (1981); Bunker Hill Distrib., Inc. v. District Atty. For the Suffolk Dist., 376 Mass. at 145; Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401, 405, 280 N.E.2d 406 (1972); Sturgis v. Attorney Gen., 358 Mass. 37, 42, 260 N.E.2d 687 (1970); Commonwealth v. Baird, 355 Mass. 746, 755, 247 N.E.2d 574 (1969), cert. den., 396 U.S. 1029, 90 S.Ct. 580, 24 L.Ed.2d 524 (1970). See, e.g., Massachusetts Chiropractic Layman's Ass'n, Inc. v. Attorney Gen., 333 Mass. 179, 180, 130 N.E.2d 101 (1955) (actual controversy existed as to constitutionality of application to chiropractors of statute prohibiting practice of medicine without license, where plaintiff held degree of chiropractic and wished to practice in this State). The fact that this case involves the well-established elements of a common-law crime rather than the text of a criminal statute is of no consequence for the purposes of declaratory relief.
This Court does not now decide the merits of Doctors Kligler and Steinbach's claim that the Massachusetts Constitution prohibits the prosecution for manslaughter of physicians who prescribe lethal medication to be self-administered by competent terminally ill patients. Rather, it concludes that the complaint survives a motion to dismiss because the plaintiffs have satisfied their threshold burden to allege an actual controversy with respect to the validity of the law of manslaughter as applied to a class of citizens.
The Supreme Judicial Court has opined that where the question of the scope of a criminal statute is of continuing concern to the parties, and no criminal prosecution is actually pending, it is responsible for prosecuting authorities to utilize declaratory relief to obtain judicial clarification before subjecting a class of individuals to the hazard and discomfort of criminal litigation. See Attorney Gen. v. Kenco Optics, Inc., 369 Mass. 412, 415, 340 N.E.2d 868 (1976); Knox v. Massachusetts Soc'y for the Prevention of Cruelty to Animals, 12 Mass.App.Ct. 407, 408-09, 425 N.E.2d 393 (1981).
Moreover, the United States Supreme Court has stated that in order to contest the constitutionality of a criminal statute, the plaintiff need not first expose himself to actual arrest or prosecution. See Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). It is sufficient that the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest but proscribed by statute, and there exists a credible threat of prosecution under the statute. Id. See, e.g., Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (licensed physicians presented justiciable controversy as to constitutionality of abortion statute although none had ever been prosecuted or threatened with prosecution). In addition, there is an actual controversy where a plaintiff is chilled from exercising his right to free expression or foregoes such expression in order to avoid enforcement consequences. Blum v. Holder, 744 F.3d 790, 796 (1st Cir.), cert. den., 135 S.Ct. 477, 190 L.Ed.2d 358 (2014). The complaint in this case alleges that Dr. Steinbach wishes to counsel patients and prescribe lethal medication but is deterred from doing so by his fear of prosecution for manslaughter. Given that Dr. Steinbach asserts a First Amendment right to counsel patients, the complaint presents an actual controversy if he has alleged an objectively credible fear of prosecution.
The common-law crime of manslaughter may be proved by intentional conduct which involves a high degree of likelihood that substantial harm will result to another: i.e., wanton or reckless conduct resulting in a death. Commonwealth v. Carter, 474 Mass. 624, 631, 52 N.E.3d 1054 (2016); Commonwealth v. Catalina, 407 Mass. 779, 789, 556 N.E.2d 973 (1990). There are two reported cases in Massachusetts in which a defendant was charged with or convicted of manslaughter for playing a role in a victim's suicide. As emphasized by the AG and the DA here, the facts of those cases are substantially different from and more egregious than the scenario posited by Doctors Kligler and Steinbach. See Carter, 474 Mass. at 635 (probable cause existed for manslaughter charge where defendant badgered mentally fragile boyfriend, who was predisposed to suicide and in the process of suicide attempt, to get back into truck filled with carbon monoxide); Persampieri v. Commonwealth, 343 Mass. 19, 22, 175 N.E.2d 387 (1961) (manslaughter conviction proper where husband loaded gun, removed safety, handed it to wife and encouraged her to kill herself, knowing that she was intoxicated, emotionally distraught, and suicidal).
Certain aspects of Massachusetts law suggest that a manslaughter charge for physician assisted suicide is unlikely. In contrast to the majority of states, Massachusetts has not expressed a public policy against assisted suicide by enacting a statute imposing criminal liability on one who assists another in committing that act. Moreover, the Supreme Judicial Court has suggested in dicta that assisting a terminally ill patient in ending his or her life may not be manslaughter. See Carter, 474 Mass. at 636 (noting that manslaughter charge against defendant who coerced depressed boyfriend to commit suicide " is not about a person seeking to ameliorate the anguish of someone coping with a terminal illness and questioning the value of life. Nor is it about a person offering support, comfort, and even assistance to a mature adult who, confronted with such circumstances, has decided to end his or her life").
As of 2015, forty states had enacted statutes making assisting or aiding suicide a crime. See Alan Meisel & Kathy L. Cerminara, The Right To Die: the Law of End-of-Life Decisionmaking § 12.09 (3d.ed. 2015 Sup.).
However, other aspects of the legal landscape suggest official disapproval of physician assisted suicide. See, e.g., G.L.c. 111, § 227(c) (nothing in palliative care statute " shall be construed to permit a healthcare professional to offer to provide information about assisted suicide or the prescribing of medication to end life"); G.L.c. 201D, § 13 (nothing in statute authorizing health care proxies " shall be construed to constitute, condone, authorize, or approve suicide or mercy killing, or to permit any affirmative or deliberate act to end one's own life other than to permit the natural process of dying"). See also Norwood Hosp. v. Munoz, 409 Mass. 116, 124-27, 564 N.E.2d 1017 (1991) (recognizing state's interests in preserving life, preventing suicide, and maintaining integrity of medical profession).
Ultimately, physician assisted suicide appears to meet the traditional elements of manslaughter, and there is substantial uncertainty as to whether it will be prosecuted as such. Given the state of the law in Massachusetts, it is plausible that a physician who writes a lethal prescription for self-administration by a competent terminally ill patient could be charged with manslaughter upon the death of that patient. This Court therefore concludes that Dr. Steinbach has alleged an objectively credible fear of prosecution, permitting him to challenge application of the manslaughter law to similarly situated physicians.
Finally, although the issue of an actual controversy is a close one on the facts of this case, a judge enjoys some discretion in deciding whether a case is appropriate for declaratory relief. See Pazolt v. Director of the Div. of Marine Fisheries, 417 Mass. 565, 569, 631 N.E.2d 547 (1994); Boston v. Keene Corp., 406 Mass. 301, 305, 547 N.E.2d 328 (1989). This case involves difficult questions of considerable importance to the public as well as a matter of grave personal urgency to Dr. Kligler.
This Court makes no judgment as to the legality of physician assisted suicide in Massachusetts. However, after serious consideration of the AG and the DA's forceful arguments, the court concludes that the plaintiffs have met their burden to plead an actual controversy and therefore, the complaint survives a Rule 12(b)(6) motion to dismiss.
II. EFFICACY OF DECLARATION TO END DISPUTE
The AG and the DA next contend that dismissal is warranted because this Court is incapable of rendering a judgment that will immediately and completely resolve the case. The Declaratory Judgment Act provides in relevant part:
The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceedings or for other sufficient reasons. The reasons for the refusal shall be stated in the record.G.L.c. 231A, § 3. See also Board of Selectmen of Truro v. Outdoor Advertising Bd., 346 Mass. 754, 759-60, 196 N.E.2d 218 (1964). The defendants argue that there are too many uncertainties in the declarations sought by the plaintiffs. For example, Massachusetts law does not establish a " medical standard of care" for physician assisted suicide, and the appropriate standard remains a matter of debate among professional medical societies. Nor, the defendants argue, are there universally accepted standards for identifying terminal illness and determining the competency of terminally ill patients. The defendants urge this Court to recognize that it cannot resolve these issues in a manner that definitively applies in all cases of physician assisted suicide.
Although Massachusetts law does not include a standard of care specific to this context, case law articulates a well-established general medical standard of care: the degree of care and skill of the average qualified practitioner, taking into account advances in the profession and the available resources. See Palandjian v. Foster, 446 Mass. 100, 105, 842 N.E.2d 916 (2006); Brune v. Belinkoff, 354 Mass. 102, 109, 235 N.E.2d 793 (1968). Moreover, the Legislature already has defined the concept of " terminal illness" in various contexts. See G.L.c. 111, § 228(a) (palliative care); G.L.c. 175, § 212 (life insurance settlements); G.L.c. 176O, § 1 (health insurance consumer protection). In the view of this Court, the existence of some imprecision in these concepts is not an insurmountable barrier to declaratory relief.
In Baxter v. State, (Dist.Ct.Mont. Dec. 5, 2008), vacated on other grounds, Baxter v. State, 2009 MT 449, 354 Mont. 234, 224 P.3d 1211 (Mont. 2010), the trial court noted: " Competency is easily determined by the patient's doctor. Treating physicians are frequently called upon to determine competency of their patients for purposes of guardianship or other legal proceedings. Whether a patient is terminally ill can also be determined by the physician as an integral component of the physician-patient relationship." Baxter, at *34. This Court agrees with the Montana trial court's reasoning with respect to the availability of declaratory relief.
The AG and the DA further argue that the plaintiffs are not entitled to the broad relief sought in the complaint: a declaratory judgment that physician assisted suicide involving a competent terminally ill patient is not manslaughter. Such a sweeping declaration arguably disregards the evaluation of individual facts and circumstances required by the common law of manslaughter and infringes on the prosecutor's exclusive discretion in deciding whether to prosecute a case, particularly ones suggesting fraud or coercion. See Commonwealth v. Cheney, 440 Mass. 568, 574, 800 N.E.2d 309 (2003); Commonwealth v. Clint C., 430 Mass. 219, 224 n.7, 715 N.E.2d 1032 (1999). However, even if the plaintiffs are not entitled to the specific relief sought, they are entitled to a declaration of their rights, whether they win or lose this case. Bettencourt v. Bettencourt, 362 Mass. 1, 10, 284 N.E.2d 238 (1972). Doctors Kligler and Steinbach can ask the court at the next stage of the proceedings to declare whether or not the Massachusetts Constitution protects a competent terminally ill patient's right to end his life with the assistance of a physician, and that declaration will immediately impact the parties' rights. See Boston Safe Deposit & Trust Co. v. Dean, 361 Mass. 244, 248, 279 N.E.2d 902 (1972) (recognizing that there may be benefit to parties from a partial or contingent answer to questions raised by complaint for declaratory relief).
A court declared constitutional right, if one indeed exists, may not in all cases prevent the commencement of a prosecution for manslaughter but would furnish the basis for a defense to such a charge. See Norcisa v. Board of Selectmen of Provicetown, 368 Mass. 161, 170, 330 N.E.2d 830 (1975) (noting that unconstitutionality of criminal statute as applied to defendant's conduct is complete defense to charge).
Ultimately, the refusal to enter declaratory relief under G.L.c. 231A, § 3 is a matter of discretion for the court. Board of Selecmen of Truro v. Outdoor Advertising Bd., 346 Mass. at 760. This Court does not now address the merits of the plaintiffs' claim concerning physician assisted suicide. Rather, the court simply must rule on a motion to dismiss. This Court declines the defendants' invitation to exercise its discretion to dismiss Doctor Kligler and Doctor Steinbach's complaint at this stage of the proceedings.
III. LEGISLATIVE FORUM
Finally, the AG and the DA urge this Court to dismiss the complaint because physician assisted suicide implicates complex policy questions involving social, moral, economic, and religious considerations that are best resolved through the legislative process. This Court takes judicial notice of the fact that the Legislature has repeatedly considered but declined to enact proposed legislation that would create limited immunity for physician assisted suicide. Cf. Pereira v. New England LNG Co., Inc., 364 Mass. 109, 122, 301 N.E.2d 441 (1973); Bray v. Lee, 337 F.Supp. 934, 937 (D.Mass. 1972). In addition, in November of 2012, Massachusetts voters narrowly rejected Ballot Question 2, an initiative entitled, " Massachusetts Death With Dignity Act."
Notably, on January 23, 2017, twelve Democrats introduced Bill No. 1225, " An Act relative to end of life options, " in the Massachusetts Senate.
Voters were 51.9% opposed and 48.1% in favor of Question 2. Section 18 of that proposed law provided that physician conduct that complied with the law's detailed provisions " shall not constitute suicide, assisted suicide, mercy killing or homicide under any criminal law of the commonwealth."
Several courts rejecting a constitutional right to physician assisted suicide have opined that the questions of morality, medical ethics, and contemporary social norms raised are more appropriately considered and resolved by the legislative branch. See Sampson v. State, 31 P.3d 88, 98 (Alaska 2001); Donorovich-Odonnell v. Harris, 241 Cal.App.4th 1118, 1140, 194 Cal.Rptr.3d 579 (Cal.Ct.App. 2015); Blick v. Office of Div. of Criminal Justice, 2010 WL 2817256 at *10 (Conn.Super.Ct.); Morris v. Brandenburg, 2016 - NMSC 027, 376 P.3d 836, 838 (N.M. 2016). Notably, however, none of those courts declined to consider the merits of a constitutional claim on that basis.
This Court does not disagree that the Legislature is a superior forum for grappling with the issue of physician assisted suicide. However, allowing this case to proceed to a hearing on the merits will not foreclose legislative action on that subject. Even if the constitutional right claimed by the plaintiffs exists, the Legislature would be entitled to enact rational guidelines to protect the State's interests in preserving life, protecting the vulnerable from fraud and coercion, and maintaining the integrity of the medical profession.
For example, after finding that the Montana Constitution protects the right of a competent terminally ill patient to employ the assistance of a physician to end his life, the trial court stated: " The implementation of this Court's decision, including provisions to protect the compelling state interests, remains a function of the legislature." Baxter v. State, at *36. The court noted that the legislature could address such issues as providing an opt out for physicians who did not wish to participate, creating guidelines for participating physicians, establishing standards for terminal illness and competency, and protecting patients from abuses. See Id. at *33-36.
While the court owes great deference to the Legislature to decide social and policy issues, it is the traditional and settled role of courts to decide constitutional issues. Goodridge v. Department of Pub. Health, 440 Mass. 309, 339, 798 N.E.2d 941 (2003); Bates v. Director of the Office of Campaign & Political Fin., 436 Mass. 144, 168, 763 N.E.2d 6 (2002); Moe v. Secretary of Administration & Fin., 382 Mass. at 642. The complexity of establishing the parameters of a right to physician assisted suicide ultimately may militate against recognition of such a right, but it does not absolve this Court of the obligation to protect its citizens by adjudicating a properly presented constitutional claim. As noted supra, this Court is not ruling on the merits of Doctors Kligler and Steinbach's constitutional claim at this time. The court concludes only that the plaintiffs have satisfied their minimal burden to allege jurisdiction over their complaint for declaratory relief.
ORDER
For the foregoing reasons, it is hereby ORDERED that the Defendant (DA)'s Motion to Dismiss and the Attorney General's Motion to Dismiss be DENIED .