On April 12, 2019, Governor Murphy of New Jersey signed into law the “Medical Aid in Dying for the Terminally Ill Act.” The law, which originally took effect on Aug. 1, 2019, established New Jersey as the eighth state to allow qualified terminally ill patients the option to request and self-administer lethal prescription drugs to “end their lives peacefully, with dignity, and at their own discretion.” (State of New Jersey Press Release, April 12, 2019).
A patient interested in undergoing medical aid in dying (“MAID”) must satisfy specific statutory requirements in order to be eligible. First, the patient must make a series of three statutorily required requests for the lethal medication. Two of the requests must be made orally to the patient’s attending physician at least 15 days apart, and the third request must be made in writing. The written requests must be witnessed by at least two people in the patient’s presence who can attest that the patient is capable and acting voluntarily.
In addition to making the requests, the patient must be found to be a qualified terminally-ill patient. In order to be a “qualified” terminally-ill patient, an attending physician must determine that the patient is:
- An adult resident of New Jersey,
- Capable,
- Terminally ill with a life expectancy of less than six months, and
- The patient must have voluntarily expressed a wish to receive a prescription for lethal medication.
If the attending physician finds the patient meets the above requirements, they must then refer the patient to a consulting physician to confirm their findings. If either the attending or consulting physician determines that the patient is not capable of making their own health-care decisions, the patient must be referred to a mental health-care professional. In that case, no lethal medication can be prescribed until the attending physician receives a written determination from the mental health-care professional that the patient is capable.
While many refer to “medical aid in dying” as physician assisted suicide or euthanasia, the Act explicitly states that the provisions of this Act “shall not constitute … suicide, assisted suicide, [or] mercy killing … under any law of this State.” (Medical Aid in Dying for the Terminally Ill Act). This creates a situation where you have a doctor advising about lethal medication, prescribing that lethal medication, and a patient self-administering lethal medication, yet it is not “suicide” or “assisting suicide” under the law of New Jersey. Instead, the Act provides that its provisions are to be considered “medical aid in the dying process.” N.J. P.L. 2019, c.59.
Other states have also grappled with making a distinction between assisted suicide and medical aid in dying. For example, in examining a statute that was very similar to New Jersey’s, the Montana supreme court articulated that patients were not seeking to commit suicide “[r]ather, they acknowledge that death within a relatively short time is inescapable because of their illness or disease. And with that fact in mind … they simply ask the government not to force them to suffer and die in an agonizing, degrading, humiliating, and undignified manner.” Baxter v. Montana, 224 P.3d 1211,1226 (2009).
Supporters of the Act contend that medical aid in dying allows patients who are already dying from a terminal illness to pass away in a manner of their choosing—instead of dragging out the inevitable while they are left to suffer. Steve Sweeney, the president of the New Jersey Senate, stated that the Act “provides a humane choice for terminally-ill patients who are experiencing tremendous suffering and pain. It offers the freedom of choice for those with no hope of surviving beyond six months to end their suffering in a dignified way.” State of New Jersey Press Releases, April 12, 2019.
Jessica Guenzel, a resident of Rutherford, New Jersey, voiced her support for the Bill after watching her mother suffer from a “horrible, drawn-out death. She [her mother] lost all of her dignity, all of her happiness. Everything hurt and we knew she was dying and all that we could do was sit there and wait while she begged for relief.” State of New Jersey Press Releases, April 12, 2019. Support for MAID seems to be growing as a May 2018 Gallup Poll showed that 72% of Americans believe that “doctors should be legally allowed, at a patient’s and a family’s request, to end a terminally ill patient’s life using painless means.”
While support may be growing for MAID, many people remain vehemently opposed to MAID. Sarah Steele, was told that most people with her prognosis only have three years to live, but that she has survived for 13 years. Her fear is that “a doctor’s ‘educated guess’ could be wrong, which means people may be throwing away years or even decades of their life.” (“Doctor-assisted suicide in New Jersey,” Wilson-Glover, 2019). Also opposed is Dr. Yosef Glassman, a physician who filed a lawsuit seeking to block the law from implementation.
For those medical professionals opposed to participating in MAID, this isn’t just a political question, but it is something that strikes at the very core of what it means to be a healer. Glassman based his suit, in part, on the requirement that a physician who does not wish to participate in MAID must still refer that patient and transfer the patient’s records to a physician who is willing to participate in MAID. Glassman argued that the act of transferring the records and referring the patient to another doctor was tantamount to participation, and, in his view, this would make him complicit in something he viewed as both unethical and immoral. Glassman v. Grewal, 2019. Glassman further argued that participation in MAID violates his faith and his “oath as a doctor” which prohibits him from assisting in a “murder.” (Susan Livio, “Doctor tells judge N.J.’s new right-to-die law is murder,” 2019).
Initially, a New Jersey trial court ordered a preliminary injunction that blocked implementation of the law until after Glassman’s legal challenges could be decided on the merits. However, an appellate court disagreed, and the Supreme Court of New Jersey issued an order denying Glassman’s request for relief on Aug. 27, 2019. Order on Emergent Motion, Glassman v. Grewal, No. AM-000707-18T3 (N.J. Aug. 27, 2019). The court’s decision to deny the preliminary injunction allowed implementation of the law to continue, but it did not address the underlying merits of the case. The merits of the case are being decided in Mercer County Superior Court where Glassman and three other plaintiffs have challenged MAID.
While the medical community has moved forward with implementation of MAID, the courts of New Jersey are still grappling with Glassman’s underlying legal challenge. Most outlets seem to suggest that since the Supreme Court of New Jersey denied Glassman’s request for relief on the temporary injunction, the case is all but over; however, the reality is that until the merits of the case are decided by the court, this case is still ongoing—no matter how unlikely Glassman is to be successful. Susan Livio, 2019.
For both sides of MAID, the stakes couldn’t be higher. On one hand, you have terminally ill people who are suffering excruciating pain, and at times humiliation, as they wait for their imminent death. For supporters of MAID, allowing those suffering from terminal illness the choice to have “death with dignity” is the humane and compassionate thing to do. On the other hand, you have medical professionals who may view participation in MAID as a violation of their ethical responsibility to “do no harm.” For some, they may also view participation in MAID as a violation of their sincerely held religious beliefs or personal ethics. In either case, for medical professionals who do not wish to participate in MAID, the crux of the issue seems to hinge on whether transferring a patient’s medical files equates to participation.
Justin L. Scott serves as principal attorney for Cherry Hill elder care firm Scott Counsel, PC.
