Amicus Curiae Margaret Dore, who argued the cause below in Petro v. Platkin, 472 N.J. Super. 536, 277 A.3d 480 (2022), seeks to overturn the Medical Aid in Dying for the Terminally Ill Act as unconstitutional.
The case was initially filed as Glassman v. Grewel, then renamed Petro v. Grewel, and then renamed Petro v. Platkin. This brief is submitted in support of the petitioners: Dr. Joseph Glassman, MD; Manish Pujara, a licensed pharmacist; and Anthony Petro, a patient.
The Act’s findings describe the Act as “entirely voluntary.” There is, however, no enforcement mechanism to make this so. Deaths per the Act are allowed to occur in private, without a witness or even a doctor present. If the patient objected or struggled against administration of the lethal dose, would anyone, other than the person who administered the lethal dose, know what happened? More to the point, the Act allows deaths to occur on both a voluntary and involuntary basis.
Motivations of assisting persons can be financial, for example, to secure an inheritance before mom or dad changes the will. Motivations can also be personal, for example, due to jealousy or to settle a score.
The Act is based on similar acts in Oregon and Washington State. All three acts apply to persons with a life expectancy of six months or less. A well-known example is Oregonian Jeanette Hall, who was diagnosed with cancer in 2000 and made a settled decision to die via Oregon’s Act. Her doctor, however, encouraged her to be treated for cancer instead. She eventually agreed, experiencing a full recovery. Hall is alive today, twenty three years later.
The New Jersey Constitution has two rules to determine the constitutionality of a legislative enactment: (1) the single subject rule; and (2) the object in title rule. In order for a legislative enactment to be constitutional, there must be compliance with both rules. Here, the Medical Aid in Dying for the Terminally Ill Act complies with the single subject rule, but not the object in title rule. The Act is therefore unconstitutional and must be set aside. This Court must so order.
IDENTITY AND INTEREST OF AMICUS CURIAE
Margaret Dore is a guardianship, elder law, and adult abuse attorney, licensed to practice law in Washington State.[1] In that capacity, she has seen the terrible things that people do to each other for money, especially in the inheritance context. Her publications include: “Preventing Abuse and Exploitation: A Personal Shift in Focus (An Article about Guardianship, Elder Abuse and Assisted Suicide).”[2]
Dore is also an appellate lawyer and former law clerk to the Washington State Supreme Court and the Washington State Court of Appeals.[3] She worked for a year with the United States Department of Justice and has been in private practice since 1990.[4] Dore 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 the legalization of these practices in 20 U.S. legislatures and also internationally. A copy of her curriculum vitae and the Act are part of the record and also attached hereto.
DEFINITIONS
The Act does not define physician-assisted suicide, assisted suicide, or euthanasia.[5] Per the American Medical Association, “physician-assisted suicide” occurs when a physician facilitates a patient’s death by providing the means or information to enable the patient to perform the life-ending act.[6] For example:
[T]he physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.[7]
“Assisted suicide” is a general term in which the assisting person is not necessarily a physician. “Euthanasia” is the administration of a lethal agent by another person.[8]
Here, the Act allows the above practices in substance, but terms them medical aid in dying. The Act also defines euthanasia and assisted suicide out of the Act, stating:
Nothing in [the Act] shall be construed to:
a. authorize a physician or any other person to end a patient's life by lethal injection, active euthanasia, or mercy killing, or any act that constitutes assisted suicide under any law of this State.... (Emphasis added).[9]
QUESTIONS PRESENTED
1. Whether the Medical Aid in Dying for the Terminally Ill Act is unconstitutional due to its failure to comply with the object in title rule of the New Jersey Constitution?
2. Whether the petitioners, who live in New Jersey and are therefore subject to death via the Act, have standing to overturn the Act?
3. Whether Petro v. Platkin must be overturned?
The petitioners are entitled to appeal as of right to the New Jersey Supreme Court, per Rule 2:2-1(a), which states:
Appeals may be taken to the Supreme Court from final judgments as of right: (1) in cases determined by the Appellate Division involving a substantial question arising under the Constitution of ... this State ....
In the case at bar, the substantial question arising under the Constitution of this State is the object in title rule. The petitioners are entitled to appeal as of right.
Rule 2:12-4 states:
Certification will be granted ... if the decision under review is in conflict with any other decision of the same or a higher court ....
In the case at bar, the New Jersey Supreme Court case, Grover v. Trustees of Ocean Grove Camp-Meeting Association, 45 N.J.L. 399, 16 Vroom 399 (1883), is in conflict with the New Jersey Appellate Division case, Petro v. Platkin. This is with regard to the object in title rule of the New Jersey Constitution.
In Grover, the New Jersey Supreme Court applied the object in title rule, to partially overturn legislation, stating:
We think that under the restrictive title adopted by the legislature for this act, it was not competent for that body to legislate for licensing, regulating and prohibiting the manufacture and sale of intoxicating liquors, and that those provisions of the act, however salutary they may be, must fail, because of the non-compliance with the constitutional requirement. (Emphasis added).[10]
In Petro v. Platkin, the Superior Court of New Jersey, Appellate Division, mentions the object in title rule three times, but does not apply it, rendering the rule as of no effect.[11] Grover, which applied the object in title rule, and Petro, which failed to apply the same rule, are therefore in conflict regarding the rule. Certification must be allowed to uphold the Constitution.
PROCEDURAL HISTORY
On August 9, 2019, Dr. Glassman initiated the instant action before the trial court. The Attorney General appeared to defend the Act. Multiple pleadings followed.
On December 19, 2019, Dore filed an amicus brief seeking to overturn the Act. On March 20, 2020, attorney for the petitioners, E. David Smith, submitted a letter brief to the trial court, clarifying the Act with regard to its title. Smith stated:
[T]he title of the Act implies that the patient is in the process of dying when, in fact, the statute only requires a “terminal” diagnosis which means an estimation (more appropriately speculation) of six months to live based on statistical outcomes. There is no medical assurance that the person is actually dying or will die. Poisoning the patient is causing the dying, not aiding the dying. (Emphasis added).[12]
The trial court subsequently dismissed the case. Glassman and the other petitioners appealed to the Superior Court of New Jersey, Appellate Division. On June 10, 2022, the Appellate Division issued Petro v. Platkin, upholding the Act.
HOW THE ACT WORKS
A. Persons Subject to the Act May Have Years or Decades to Live
As noted supra, the Medical Aid in Dying for the Terminally Ill Act applies to persons predicted to have six months or less to live. Such persons may in fact have years or decades to live. This is true based on the Oregon and Washington experience with their similar Acts, and common knowledge that predictions of illness and death can be wrong. See for example: “12 Million Americans Misdiagnosed Each Year,” CBS News at Smith Pa304; and Nina Shapiro, “Terminal Uncertainty,” at Smith Pa305-308.
Consider also this affidavit by John Norton submitted to a legislative committee in Quebec, Canada, in 2014. Norton, then age 74, testifies:
When I was eighteen years old ..., I was diagnosed with Amyotrophic Lateral Sclerosis (ALS)... I was told that I would get progressively worse (be paralyzed) and die in three to five years...
Six years after my initial diagnosis, the disease progression stopped....
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.[13]
B. Self-Administration Is Not Required
The Medical Aid in Dying for the Terminally Ill 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].[14]
Nothing in this definition or any other part of the Act says that self-administration is required.[15] Self-administration may also not be feasible, for example, if the patient objects to administration, or due to complications such as myocloneus (involuntary muscle contractions).[16] Self-administration is, regardless, not required.
C. No Required Oversight
Once the lethal dose is issued by the pharmacy, there is no required oversight.[17] As noted supra, no witness, not even a doctor, is required to be present at the death.[18] In addition, the drugs used are water or alcohol soluble, such that they can be injected into a sleeping or restrained person without consent.[19] Alex Schadenberg, Executive Director for the Euthanasia Prevention Coalition, put it this way:
With assisted suicide laws in Washington and Oregon [and with the New Jersey 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. As Ms. Dore describes, even if a patient struggled, “who would know?” (Emphasis added).[20]
D. The Americans with Disabilities Act Would Override Any Prohibition of Euthanasia
The Americans with Disabilities Act (ADA) is a U.S. federal civil rights law “that prohibits discrimination against individuals with disabilities in every day activities, including medical services.”[21] Here, the Medical Aid in Dying for the Terminally Ill Act repeatedly refers to the lethal dose as “medication,” thereby rendering it a medical service.[22]
Per the ADA, medical care providers are required “to make their services available in an accessible manner.”[23] This includes:
reasonable modifications to policies, practices, and procedures when necessary to make health care services fully available to individuals with disabilities, unless the modifications would fundamentally alter the nature of the services .... (Emphasis added).[24]
Here, the fundamental nature of the services provided is the provision of a lethal dose of medication to end patient lives. If, for the purpose of argument, the New Jersey Act can be read as requiring self-administration, the ADA would nonetheless require providers to make a reasonable accommodation for individuals unable to self-administer. For example, by providing the assistance of another person to administer the lethal dose. This is euthanasia as traditionally defined.
E. “Aid in Dying” Means Euthanasia
The Act’s name, “Medical Aid in Dying for the Terminally Ill Act,” contains the phrase “aid in dying.” Aid in dying has been a euphemism for active euthanasia since at least 1989. See, for example, Craig A. Brandt, “Model Aid-in-Dying Act,” Iowa Law Review (“Subject: Active Euthanasia ....”), 1989-10.[25]
F. Deaths Per the Act Are Natural as a Matter of Law
In New Jersey, death certificates have five categories for reporting the manner of death, four of which are substantive: (1) natural; (2) accident; (3) suicide; and (4) homicide.[26] The fifth category is “undetermined.”[27]
Per the Medical Aid in Dying for the Terminally Ill Act, a death occurring in accordance with the Act does not constitute suicide or homicide. The Act states:
Any action taken in accordance with the provisions of [the Act] shall not constitute patient abuse or neglect, suicide, assisted suicide, mercy killing, euthanasia, or homicide under any law of this State. (Emphasis added).[28]
The death is also not an accident due its having been an intended event. This leaves the last substantive category: “natural.” Deaths occurring pursuant to the Act are natural as a matter of law.
G. The Act Allows the Patient’s Heirs to Inherit From the Patient They Helped Kill
New Jersey’s slayer statute prevents a killer from inheriting from his or her victim. The statute states:
An individual who is responsible for the intentional killing of the decedent forfeits all benefits under this title with respect to the decedent's estate .... (Emphasis added).[29]
The rationale is that a criminal should not be allowed to benefit from his or her crime.[30]
Per the Medical Aid in Dying for the Terminally Ill Act, however, persons who are beneficiaries of a patient’s estate, who participate in killing that person, are allowed to inherit. This is because deaths per the Act are certified as natural. With passage of the Act, New Jersey residents with money, meaning the middle class and above, have been rendered sitting ducks to their heirs.
H. No Paper Trail
With deaths per the Act certified as natural, there is no paper trail via death certificates as to the number of people who have died via the Act. How many have there been to date? Does anyone know?
ARGUMENT
POINT I
THE MEDICAL AID IN DYING FOR THE TERMINALLY ILL ACT IS UNCONSTITUTIONAL
The Constitution of New Jersey is the basic governing document of the state. To date, there have been three constitutions.[31] The second and third constitutions were issued in 1844 and 1947, respectively.[32] Both constitutions set forth the object in title rule, which states
[E]very law shall embrace but one object, and that shall be expressed in the title.[33]
A. The Constitution Has Made the Act’s Title the Conclusive Index to Legislative Intent
Judge Cooley [author of “A Treatise on the Constitutional Limitations, Which Rest Upon the Legislative Power of the States of the American Union”] says:
“The legislature may make the title of an act as restrictive as they please, and they may sometimes so frame it as to preclude many matters being included in the act which might, with entire propriety, have been embraced in one enactment with the matters indicated by the title, but which must now be excluded because the title has been made unnecessarily restrictive. * * *The constitution has made the title the conclusive index to the legislative intent; and it is no answer *403 to say that the title might have been made more comprehensive, if the legislature have not seen fit to make it so.” Cooley on Const. Lim. [149], 179. The precedents in this state are in accordance with this view. Rader v. Township of Union, 10 Vroom 509-512; Evernham v. Hulit, 45 N.J.L. 53. In each of these cases an act of the legislature which contained subjects the legislature might have embraced in one act was held to be unconstitutional as to one subject, because the title of the act was so framed as not to embrace it. (Spacing changed).[34]
B. Violations of the Object in Title Rule May Lead to Partial Invalidation of an Act
Grover states:
No particular form has been framed for the expression of the legislative purpose in the title of an act.... But the court must see that the language used in the title, on a fair construction, indicates the purpose of the legislature to legislate on the subjects contained in the body of the act, so that, making every reasonable intendment in favor of the legislative act, it may reasonably be said that the object of the law is expressed in its title.Thus, in Town of Fishkill v. Fishkill, &c., Co., 22 Barb. 634, an act of the legislature was entitled “An act to release the Fishkill and Beekman Plank Road Company from the construction of part of their road, and for other purposes.” It contained eight sections, the first of which released the company from the obligation to build and maintain a plank road any further than the portion of the road which had been inspected and certified. The other sections conferred upon the corporation additional powers with respect to the road already constructed, and discharged it from past acts and engagements.The court held that, although all these provisions might have been included in one law, as they related to one general subject, the act was, nevertheless, unconstitutional with respect to the last seven sections, for the reason that, so far as they were concerned, the object of the act was not expressed in the title. (Some emphasis added; Spacing changed).[35]
C. Violation of the Object in Title Rule May Be So Severe as to Invalidate an Entire Act
In Coutieri v. Mayor of New Brunswick, 15 Vroom 58, the title of the act was “An act to fix and regulate the salaries of city officers in cities of this state.” The body of the act related only to salaries of officers in the city of New Brunswick. In a general sense the subject of the act was indicated in its title. But this court held the act to be unconstitutional, the Chief Justice, in delivering the opinion of the court, saying:
“The title is both false and deceptive--false, as it imports a regulation of a class of cities, when, in truth, it is applicable to a single city--deceptive, because no one, on reading the act, could reasonably understand that the body of the act was to have so limited an effect.” (Emphasis added, some spacing changed).[36]
D. The Medical Aid in Dying for the Terminally Ill Act is Unconstitutional; It Must Be Set Aside
As previously noted by E. David Smith:
[T]he title of the Act implies that the patient is in the process of dying when, in fact, the statute only requires a “terminal” diagnosis which means an estimation (more appropriately speculation) of six months to live based on statistical outcomes. There is no medical assurance that the person is actually dying or will die. Poisoning the patient is causing the dying, not aiding the dying. (Emphasis added).[37]
More to the point, the Act allows the direct killing of non-dying persons via poison. This material fact is not disclosed by the Act’s title. For this reason alone, the Act is unconstitutional and must be set aside.[38]
The Act is also unconstitutional for the following reasons:
1. The Act’s title, “Medical Aid in Dying for the Terminally Ill Act,” gives no hint as to the required falsification of death certificates, to report deaths via the Act as natural, thereby providing a legal cover up;
2. The Act’s title, “Medical Aid in Dying for the Terminally Ill Act,” gives no hint that the patient’s heirs, who are allowed to cause patient deaths via the Act, are also allowed to inherit from the patients they helped kill, contrary to New Jersey’s preexisting slayer’s statute; and
3. The Act’s title, “Medical Aid in Dying for the Terminally Ill Act,” combined with the Act’s preamble, describing the Act as “entirely voluntary,” is plain out false.
POINT II
COMMENT WITH RESPECT TO PETRO V. PLATKIN
The Appellate Division’s opinion in Petro v. Platkin conflates the constitutional rules at issue (single object/object in title), which can be seen in the quote below:
A. Single Object Rule
Plaintiffs contend that the Act is unconstitutional because its title is “deceptive and misleading.” Specifically, they argue that the Act's title “fails the object in title test”.... [39]
The Appellate Division’s reasoning makes no sense. The petitioners are entitled to appeal as of right to enforce the New Jersey Constitution.
POINT III
THE PETITIONERS HAVE STANDING
The Appellants (Glassman, Pujara and Petro) have standing to bring this action to invalidate the Act, because as residents of New Jersey, the Act, allowing involuntary death, applies to them.
CONCLUSION
The Act’s title, the Medical Aid in Dying for the Terminally Ill Act, is materially misleading for the reasons set forth above. The Act is unconstitutional and must be set aside. Petro v. Platkin must be overruled.
Respectively submitted June 6, 2023
Margaret K. Dore, Esq.
FOOTNOTES:
[1] Dore Curriculum Vitae, Dore pages 18-21, attached at A-1 to A-4.
[2] The Voice of Experience, American Bar Association, Volume 25, No. 4, Winter 2014, available at at: https://qa.americanbar.org/groups/senior_lawyers/publications/voice_of_experience/2014/winter/preventing_abuse_and_exploitationa_personal_shift_focus
[3] Dore Curriculum Vitae, at note 1.
[4] Id.
[5] See the Act in its entirety, attached hereto at pages A-5 to A-20.
[6] AMA Code of Medical Ethics Opinion 5.7, Dore Page 38.
[7] Id.
[8] AMA Code of Medical Ethics Opinion 5.8, Dore Page 39.
[9] N.J.S.A. 26:16-15.a, Dore pages 29-30.
[10] Grover, 45 N.J.L. at 405.
[11] Petro v. Platkin, 472 N.J. Super. at 554 and 563.
[12] Smith Pa359 (last paragraph).
[13] Norton affidavit available at Smith Pa 309 to 311.
[14] Definition attached hereto at page A-7.
[15] See the Act in its entirety, attached hereto at pages A-5 to A-20.
[16] “Myoclonus,” National Institute of Neurological Disorders and Stroke,” further information available at www.ninds.nih.gov/health-information/disorders/myoclonus
[17] See the Act, attached hereto at pages A-5 to A-20.
[18] Ibid.
[19] The drugs used include Secobarbital, Pentobarbital and Phenobarbital, which are water and/or alcohol soluble. See also http://www.drugs.com/pr/seconal-sodium.html, http://www.drugs.com/pro/nembutal.html and https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2977013
[20] Shadenberg, Alex, Letter to the Editor, “Elder abuse a growing problem,” The Advocate, Official Publication of the Idaho State Bar, October 2010.
[21] U.S. Department of Justice, Civil Rights Division, Disability Rights Section 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, Part I, ¶2.
[22] The Act refers to the lethal dose as medication over 50 times.
[23] See Note 22 supra regarding the ADA.
[24] Id.
[25] Smith Pa283
[26] Andrew Falzon, MD & Sindy M. Paul, MD, MPH, “Death Investigation and Certification in New Jersey,” MD Advisor, Summer 2016. See upper right hand corner, “Death Certificate Terminology,” regarding the “manner of death.” Available at Smith Pa350 (upper right hand corner).
[27] Ibid.
[28] The Act, 26:16-17.a.(2)
[29] The New Jersey slayer statute, N.J.S.A. 3B:7-1.1, at Smith Pa353-4.
[30] Cf. Ilene S. Cooper and Jaclene D'Agostino, "Forfeiture and New York's 'Slayer Rule',” NYSBA Journal, p.30, March/April 2015, Smith Pa371.
[31] New Jersey Department of State Website, at https://www.nj.gov/state/archives/docconstitution.html
[32] Id.
[33] The above language is in both constitutions at Article IV, Section VII, ¶ 4.
[34] Grover, 45 N.J.L. 399, 402 to 403.
[35] Id. at 403-404.
[36] Id. at 404.
[37] Letter from E. David Smith to Judge Lougy, 03/20/20 (Smith Pa359).
[38] Id.
[39] Petro v. Platkin, 472 N.J. Super. 536, 563, 277 A.3d 480 (2022).
