Friday, December 27, 2019

Dore Friend of the Court (Amicus) Brief: New Jersey "Aid in Dying Act" Is Unconstitutional

To view the filed print version, including the appendix, click here.

I.  IDENTITY OF AMICUS

Margaret Dore is a licensed attorney in good standing in Washington State where assisted suicide is legal. She is appearing pro se.

Dore is a former Law Clerk to the Washington State Supreme Court and the Washington State Court of Appeals. She worked for a year with the United States Department of Justice and has been in private practice since 1990. She is also president of two nonprofit corporations opposed to assisted suicide and euthanasia: Choice is an Illusion, a 501(c)4 nonprofit corporation; and the Foundation for Choice is an Illusion, a 501(c)3 public charity.

Dore has personally appeared and testified against assisted suicide and/or euthanasia in at least 20 US legislatures, and also internationally. Her CV is attached in the appendix, at pages A-1 through A-4. For more information see www.margaretdore.org and www.choiceillusion.org.

II. STATEMENT OF RELIEF SOUGHT

Invalidation of the Medical Aid in Dying for the Terminally Ill Act (“the Act”).[1]

III. DEFINITIONS (TRADITIONAL)

The American Medical Association (AMA) defines physician-suicide as occurring when “a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act.”[2]  For example:
[T]he physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.[3]
Assisted suicide is a general term in which an assisting person is not necessarily a physician.  Euthanasia is the administration of a lethal agent by another person.[4]

IV. ISSUE PRESENTED

Whether the Act must be invalidated pursuant to the single object rule of the New Jersey Constitution, which states “every law shall embrace but one object, and that shall be expressed in the title?”[5]

V.  ARGUMENT SUMMARY

The single object rule protects against the enactment of misleading legislation, which occurred here.  The Legislature understood that it was enacting a strictly voluntary law limited to assisted suicide for dying patients.[6] 

The Attorney General and this Court have expressed a similar view. See, for example, the transcript from this Court’s hearing on August 14, 2019 (“This case is not about euthanasia”).[7]

This case, however, is about euthanasia. The Act is not limited to dying people. Patient voluntariness is allowed, but not required. These are material facts not disclosed by the Act’s title and related findings. For this reason, the Act is unconstitutional and must be set aside.

VI. THE ACT

The Medical Aid in Dying for the Terminally Ill Act legalized “aid in dying,” a traditional euphemism for active euthanasia and physician assisted suicide.[8]

The Act employs other euphemisms, and also non sequiturs, which render the Act difficult to understand. As an example, the Act refers to the lethal dose used to kill patients as a “medication,” a word normally defined as a “substance used to treat disease or injury.”[9]

VII. FACTUAL AND LEGAL BACKGROUND
A. Assisting Persons Can Have an Agenda
Persons assisting a suicide or euthanasia can have an agenda. Consider Tammy Sawyer, trustee for Thomas Middleton in Oregon where assisted suicide is legal. Two days after his death via assisted suicide, she sold his home and deposited the proceeds into bank accounts for her own benefit.[10]  Consider also Graham Morant, convicted of counseling his wife to kill herself in Australia, to get the life insurance.[11] The Court found:
[Y]ou counselled and aided your wife to kill herself because you wanted ... the 1.4 million.[12]
Medical professionals too can have an agenda. New York physician, Michael Swango, got a thrill from killing his patients.[13] Consider also Harold Shipman, a doctor in the UK, who not only killed his patients, but stole from them and in one case made himself a beneficiary of the patient’s will.[14]
B. Most States Reject Assisted Suicide
Most states reject assisted suicide and euthanasia. In July 2016, the Supreme Court of New Mexico overturned a lower court ruling allowing assisted suicide.[16] In the last eight years, seven other states have strengthened their laws against assisted suicide and/or euthanasia.[17]
C.  The Swiss Study:  Physician-Assisted Suicide Can Be Traumatic for Family Members
A European research study addressed trauma suffered by persons who witnessed legal physician-assisted suicide in Switzerland.[18] The study found that one out of five family members or friends present at an assisted suicide was traumatized. These people,
experienced full or sub-threshold PTSD (Post Traumatic Stress Disorder) related to the loss of a close person through assisted suicide.[19]
VIII. HOW THE ACT WORKS

The Act has an application process to obtain the lethal dose, which includes a lethal dose request form.[20] Once the lethal dose is issued by the pharmacy, there is no oversight. No doctor, not even a witness, is required to be present at the death.[21]

IX.  THE ACT IS NOT LIMITED TO DYING PEOPLE

The Act’s findings refer to “dying patients.”[22] The Act instead applies to terminally ill adults predicted to have less than six months to live. Such persons may, in fact, have years or decades to live.  This is true for three reasons:
A.  If New Jersey Follows Oregon Practice, Chronic Conditions Such as Diabetes Will Qualify for Death via the Act, Including for Young Adults
The Act states:
“Terminally ill” means that the patient is in the terminal stage of an irreversibly fatal illness, disease, or condition with a prognosis, based upon reasonable medical certainty, of a life expectancy of six months or less.  (Emphasis added).[23]
Oregon’s law has a similar definition:
“Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.  (Emphasis added).[24]
In Oregon, this definition is interpreted to include chronic conditions such as “diabetes mellitus,” better known as diabetes.[25] Oregon doctor, William Toffler, explains:
In Oregon, people with chronic conditions [such as diabetes] are "terminal," if without their medications, they have less than six months to live. This is significant when you consider that a typical insulin-dependent 20 year-old [diabetic] will live less than a month without insulin.  (Emphasis added).[26]
B. Doctor Predictions of Life Expectancy Can Be Wrong
Eligible persons may also have years or decades to live because doctor predictions of life expectancy can be wrong. This is due to misdiagnosis and the fact that predicting life expectancy is not an exact science.[27]

Consider John Norton, who was diagnosed with ALS (Lou Gehrig’s disease) at age 18.[28] He was told that he would get progressively worse (be paralyzed) and die in three to five years.[29] Instead, the disease progression stopped on its own.[30] In a 2012 affidavit, at age 74, he states:
If assisted suicide or euthanasia had been available to me in the 1950's, I would have missed the bulk of my life and my life yet to come.[31]
C.  Treatment Can Lead to Recovery
Patients may also have years to live because treatment can lead to recovery. Consider Oregon resident, Jeanette Hall, who was diagnosed with cancer in 2000 and made a settled decision to use Oregon’s law.[32] Her doctor convinced her to be treated instead.[33] In a 2019 affidavit, she states:
It has now been 19 years since my diagnosis. If [my doctor] had believed in assisted suicide, I would be dead.[34]
X. EUTHANASIA IS ALLOWED

The Act was sold as limited to self-administered assisted suicide. Euthanasia as traditionally defined is, however, allowed. See below.
A.  The Act’s Name Means Euthanasia
As noted previously, the Act’s name (“The Medical Aid in Dying for the Terminally Ill Act”), contains the phrase “aid in dying.” Aid in dying is a traditional euphemism for active euthanasia.[35] For this reason alone, the Act can be read as allowing euthanasia.
B. The Act Does Not Require Self Administration
The Act states:
“Self-administer” means a qualified terminally ill patient's act of physically administering, to the patient’s own self, medication that has been prescribed pursuant to [the Act].[36]
Nothing in this definition or any other part of the Act says  that self-administration is mandatory.[37]
C. The Lethal Dose Is a “Medication”
The Act refers to the lethal dose as a “medication.[38] Generally accepted medical practice allows doctors to administer medication to a patient.[39] If the medication administered is a lethal dose, this is euthanasia as traditionally defined.

XI. THE AMERICANS WITH DISABILITY ACT (ADA) WOULD TRUMP REQUIRED SELF-ADMINISTRATION

If for the purpose of argument, the Act requires self-administration of the lethal dose, any such requirement would be unenforceable due to the Americans with Disability Act (“ADA”).

The ADA is “a federal civil rights law that prohibits discrimination against individuals with disabilities in every day activities, including medical services.”[40] “Medical care providers are required to make their services available in an accessible manner.”[41] This includes:
Reasonable modifications to policies, practices, and procedures to make healthcare services fully available to individuals with disabilities, unless the modifications would fundamentally alter the nature of the services (i.e., alter the essential nature of the services).  (Emphasis added).[42]
Here, the Act legalized “aid in dying” as part of New Jersey healthcare.[43] If for the purpose of argument, the Act does in fact require self-administration, the ADA will require a reasonable accommodation for individuals unable to self-administer. This will mean administration by another person. The Act will thereby allow euthanasia as traditionally defined.

XII.  VOLUNTARINESS IS NOT ASSURED [REQUIRED]
A. Someone Else Is Allowed to Communicate on the Patient’s Behalf
The Act uses the word, “capable,” which is specially defined to allow other people to communicate on the patient’s behalf, as long as they are “familiar with the patient’s manner of communicating.” The Act states:
“Capable” means having the capacity to make health care decisions and to communicate them to a health care provider, including communication through persons familiar with the patient’s manner of communicating if those persons are available.  (Emphasis added).[44]
Being familiar with a patient’s manner of communicating is a very minimal standard. Consider, for example, a doctor’s assistant who is familiar with a patient’s “manner of communicating” in Spanish, but she herself does not understand Spanish. That, however, would be good enough for her to communicate on the patient’s behalf during the lethal dose request process. The patient would not be in control of his or her fate.
B.  “Even If the Patient Struggled, Who Would Know?”
The Act has no required oversight over administration of the lethal dose.[45] In addition, the drugs used are water and alcohol soluble, such that they can be injected into a sleeping or restrained person without consent.[46] Alex Schadenberg, Executive Director for the Euthanasia Prevention Coalition, puts it this way:
With assisted suicide laws in Washington and  Oregon [and with the Act], perpetrators can . . . take a “legal” route, by getting an elder to sign a lethal dose request. Once the prescription is filled, there is no supervision over administration. Even if a patient struggled, “who would know?” (Emphasis added).[47]
C. In Summary
In summary, with the Act as written, the Legislature and also participants in this action were misled as to whether euthanasia is allowed. Moreover, and contrary to the title, the Act is not limited to dying people. People with years, even decades to live, are subject to death under the Act.  The Act is not required to be voluntary.

XIV. THE ACT MUST BE INVALIDATED AS UNCONSTITUTIONAL

The New Jersey Constitution governs permissible legislative conduct when enacting legislation. To that end, the Constitution sets forth the single object rule, as follows:
To avoid improper influence which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title. (Emphasis added).[48]
The rule is designed to protect against the:
misleading of the people ... or matters which are ‘uncertain, misleading or deceptive.’
Cambria v. Soaries, 169 NJ 1, 11, 776 A.2d 754 (2001).

In the case at bar, the Legislature, the Attorney General and this court were mislead by the Act’s deceptive title, describing the Act as limited to [voluntary] assisted suicide, when the Act also allows non-voluntary euthanasia. The Act must be set aside.

Respectfully Submitted,

Margaret Dore, Esq., MBA, appearing pro se
Law Offices of Margaret K. Dore, PS
1001 4th Avenue, Suite 4400
Seattle, WA 98154
206 697 1217

Footnotes:

[1]  A copy of the Act can be viewed at this link: https://choiceisanillusion.files.wordpress.com/2019/12/an-act-concerning-medical-aid-in-dying-for-the-terminally.pdf
[2]  AMA Code of Medical Ethics, Opinion 5.7, in the appendix, at p. A-21.
[3]  Id.
[4]  AMA Code of Medical Ethics Opinion, 5.8, in the appendix at page A-22. (“Euthanasia is the administration of a lethal agent by another person....”).
[5]  New Jersey Constitution, Article IV, Section VII, paragraph 4, in the appendix at page A-23.
[6]   See for example, the Order on Emergent Motion, Superior Court of New Jersey Appellate Division, August 27, 2019, quoting the Legislature’s findings (“the process is entirely voluntary on the part of all participants, including patients...”). Attached in the appendix at A-24.
[7]  In the appendix, at page A-25. https://choiceisanillusion.files.wordpress.com/2019/12/amicus-nj-const.-excerpt.pdf
[8]  Cf. Craig A. Brandt, Model Aid-in-Dying Act, Iowa Law Review, 1989 Oct; 75(1): 125-215, (“Subject: Active Euthanasia ....”); and Maria T. CeloCruz, “Aid-in-Dying: Should We Decriminalize Physician-Assisted Suicide and Physician-Committed Euthanasia?,” American Journal of Law and Medicine, 1992; 18(4): 369-394.  Attached in the appendix at pages A-26 and A-27.
[9]  Compare the Act’s findings, attached in the appendix at A-5 (“the State affirms the right ... to obtain medication ... to bring about the patient’s ... death”), versus the normal meaning of medication, attached in the appendix at page at A-28.
[10]  "Sawyer Arraigned on State Fraud Charges," KTVZ.COM, 08/16/16, attached in the appendix at page A-29.
[11]  R v Morant [2018] QSC 251, Order, 11/02/18, excerpts in the appendix at pp. A-30 and A-31.  Full opinion available here:  https://archive.sclqld.org.au/qjudgment/2018/QSC18-251.pdf
[12]  Morant opinion, ¶ 78, attached hereto at A-31.
[13]  Charlie Leduff, “Prosecutors Say Doctor Killed to Feel a Thrill,” The New York Times, 09/07/00, attached in the appendix at pages A-32 to A-34, https://choiceisanillusion.files.wordpress.com/2019/12/amicus-swango.pdf (“Basically, Dr. Swango liked to kill people.  By his own admission in his diary, he killed because it thrilled him.”)
[14]  David Batty, “Q & A: Harold Shipman,” The Guardian, 08/25/05, at https://choiceisanillusion.files.wordpress.com/2019/12/amicus-shipman-q-a.pdf  (Attached hereto at A-35 to A-37).
[15]  As of this writing, 42 states do not allow assisted suicide.
[16]  Morris v, Brandenburg, 376 P.3d 836 (2016).
[17]  Margaret Dore, “U.S. States Strengthen Their Laws Against Assisted Suicide, April 2, 2019, attached in the appendix at A-38, also available at https://www.choiceillusion.org/2019/04/in-last-ten-years-at-least-nine-us.html
[18]  “Death by request in Switzerland: Posttraumatic stress disorder and complicated grief after witnessing assisted suicide,” B. Wagner, J. Muller, A. Maercker; European Psychiatry 27 (2012) 542-546, available at http://choiceisanillusion.files.wordpress.com/2012/10/family-members-traumatized-eur-psych-2012.pdf  (Cover page attached in the appendix at A-39)
[19]  Id.
[20]  The form can be viewed in the appendix, at page A-14
[21]  See the Act in its entirety in the appendix at pages A-5 through A-20.
[22]  See the Act, in the appendix at page A-5.
[23]  The Act, attached in the appendix at page A-7 and page A-46 (legislative version
[24]  Or. Rev. Stat. 127.800 s.1.01(12), attached in the appendix at page A-43.
[25]  See excerpt from Oregon's annual report for 2017 (listing "diabetes" as an underlying illness for deaths via its assisted suicide law).  Attached to Dr. Toffler's declaration in note 26, infra.
[26]  Declaration of William Toffler, MD, attached in the appendix at pages A-40 to A-46; the quote is set forth at A-41, ¶ 5.
[27]  See Jessica Firger, “12 million Americans misdiagnosed each year,” CBS NEWS, 4/17/14 (attached in the appendix at page A-47); and Nina Shapiro, “Terminal
Uncertainty — Washington's new 'Death with Dignity' law allows doctors to help
people commit suicide — once they've determined that the patient has only six
months to live. But what if they're wrong?,” The Seattle Weekly, 01/14/09.
(Excerpts attached in the appendix at pages A-48 to A-51).
[28]  Affidavit of John Norton, ¶ 1 (Attached in the appendix at pages A-51 through A-53).
[29]  Id., ¶ 1
[30]  Id., ¶ 4
[31]  Id., ¶ 5
[32]  Affidavit of Kenneth Stevens, MD, attached in the appendix at A-55 to A-57; Jeanette Hall discussed at A-55 to A-56. Affidavit of Jeanette Hall, attached in the appendix at A-58.
[33]  Id.
[34]  Affidavit of Jeanette Hall, ¶ 4, in the appendix at page A-58.
[35]  Again see, Craig A. Brandt, Model Aid-in-Dying Act, Iowa Law Review, 1989 Oct; 75(1): 125-215, (“Subject: Active Euthanasia ....”); and Maria T. CeloCruz, “Aid-in-Dying: Should We Decriminalize Physician-Assisted Suicide and Physician-Committed Euthanasia?,” American Journal of Law and Medicine, 1992; 18(4): 369-394.  Attached in the appendix at pages A-26 and A-27.
[36]  See the Act, attached in the appendix at page A-7.
[37]  See the Act in its entirety, attached in the appendix at pages A-5 to A-27.
[38]  Id.
[39]  Cf. Declaration of Kenneth Stevens, MD, dated January 6, 2016, ¶ ¶  9-10 (available at note 32).
[40]  U.S. Department of Justice, Civil Rights Division, and the U.S. Department of Health and Human Services, Office for Civil Rights, “Americans with Disabilities Act: Access to Medical Care for Individuals with Mobility Disabilities,” July 2010, available at https://www.ada.gov/medcare_mobility_ta/medcare_ta.htm 
[41]  Id.
[42]  Id.
[43]  The Act, Findings, paragraph c.
[44]  The Act, Definitions, C.26: 16-3.
[45]  See the Act in its entirety.
[46]  Reported drugs include Secobarbital, Pentobarbital, Phenobarbital and Morphine Sulfate, which are water and/or alcohol soluble.  See Oregon and Washington report excerpts, in the appendix at pp. A-64 and A-65 (listing these drugs).  See also http://www.drugs.com/pro/nembutal.html and https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2977013
[47]  Alex Schadenberg, Letter to the Editor, “Elder abuse a growing problem,” The Advocate, Official Publication of the Idaho State Bar, October 2010.
[48]  Article IV, Section VII, paragraph 4, attached in the appendix at A-23.