Kligler v. Attorney General, SJC-13194

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation491 Mass. 38,198 N.E.3d 1229
Docket NumberSJC-13194
Parties Roger M. KLIGLER & another v. ATTORNEY GENERAL & another.
Decision Date19 December 2022

491 Mass. 38
198 N.E.3d 1229

Roger M. KLIGLER & another1


Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 9, 2022
Decided December 19, 2022

The following submitted briefs for amici curiae:

John Kappos, of California (Meng Xu, of California, Kevin Díaz, of Oregon, & Jonathan M. Albano also present) for the plaintiffs.

Maria Granik, Assistant Attorney General (Julie E. Green & James A. Sweeney, Assistant Attorneys General, also present) for the defendants.

Christopher P. Schandevel, of Virginia, for Euthanasia Prevention Coalition USA.

Konstantin Tretyakov, pro se.

Dwight G. Duncan, North Dartmouth, for Massachusetts Citizens for Life, Inc.

Michelle M. Uzeta, of California, for Disability Rights Education and Defense Fund & others.

Catherine Glenn Foster, Steven H. Aden, Katie Glenn, & Natalie M. Hejran, of the District of Columbia, Carolyn McDonnell, of Wisconsin, & Andrew Beckwith, for Christian Medical & Dental Associations.

Kevin Yuill, pro se.

Brandon Jiha, of the District of Columbia, Robert A. Skinner, Thanithia Billings, Boston, & Douglas Hallward-Driemeier, for Massachusetts Medical Society & another.

Andrés J. Gallegos, of Illinois, for National Council on Disability.

Michael J. Kerrigan, Boston, for four Roman Catholic Bishops of the Dioceses of Massachusetts.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Wendlandt, & Georges, JJ.


491 Mass. 40

In this case, we are faced with the solemn task of determining whether the Massachusetts Declaration of Rights provides a substantive due process right to physician-assisted suicide. The plaintiffs, a doctor who wishes to provide physician-assisted suicide and a patient who has been diagnosed with an incurable cancer, contend that terminally ill patients with six months or less to live have a constitutional right to receive a prescription for lethal medication in order to bring about death at a time and in a manner of their choosing.

Although we recognize the paramount importance and profound significance of all end-of-life decisions, after careful consideration,

198 N.E.3d 1237

we conclude that the Massachusetts Declaration of Rights does not reach so far as to protect physician-assisted suicide.3 We conclude as well that the law of manslaughter may prohibit physician-assisted suicide, and does so, without offending constitutional protections.

Background. We summarize the facts based on the summary judgment record on the parties’ cross motions for summary judgment. "In a case like this one where both parties have moved for summary judgment, the evidence is viewed in the light most favorable to the party against whom judgment [has entered]." Boazova v. Safety Ins. Co., 462 Mass. 346, 350, 968 N.E.2d 385 (2012).

1. Physician-assisted suicide. Physician-assisted suicide, also known as medical aid in dying, is a term of art that refers to the practice of providing a terminally ill, competent patient who has a short time left to live with a prescription for medication that the patient may ingest to bring about a quick and painless death.4 See Morris v. Brandenburg, 2016-NMSC-027, ¶ 5, 376 P.3d 836 ;

491 Mass. 41

Myers v. Schneiderman, 30 N.Y.3d 1, 10, 62 N.Y.S.3d 838, 85 N.E.3d 57 (2017). See also Pope, Medical Aid in Dying: Key Variations Among U.S. State Laws, J. Health & Life Sci. L., vol. 14, Oct. 2020, at 32. The prescription generally is for barbiturates and includes instructions on the manner in which to administer the medication in a way that will cause death.

After obtaining the prescription, the patient may choose to self-administer the medication and die painlessly at a time and place of his or her choosing. For some terminally ill individuals, obtaining such a prescription may alleviate anxiety related to the process of dying by serving as reassurance that the individual will have the option to end his or her own suffering.

Physician-assisted suicide has been legalized in ten States and the District of Columbia.5 Attempts to legalize the practice in Massachusetts, however, have been unsuccessful. In 2012, voters rejected a proposed ballot initiative that would have allowed a physician to provide a competent, terminally ill patient with medication to end the patient's life. See Secretary of the Commonwealth, Statewide Ballot Questions -- Statistics by Year: 1919-2018.6 See also Secretary of the Commonwealth, Massachusetts Information for Voters:

198 N.E.3d 1238

2012 Ballot Questions 7-8.7 Additionally, although lawmakers have introduced over a dozen bills to legalize physician-assisted suicide in the Commonwealth, none has advanced to a vote.8 To the contrary, the Legislature has

491 Mass. 42

adopted a stance against physician-assisted suicide. See G. L. c. 111, § 227 (c ) (health care providers are not permitted to "offer to provide information about assisted suicide or the prescribing of medication to end life"); G. L. c. 201D, § 12 ("Nothing in this chapter 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 the permit the natural process of dying").

2. Parties. Plaintiff Roger Kligler is a retired physician who has been diagnosed with metastatic prostate cancer. His cancer is categorized as stage 4, which is the most advanced form of cancer. In May 2018, Kligler's treating physician estimated that there was a fifty percent chance that Kligler would die within five years.

Nonetheless, Kligler has not yet received a six-month prognosis; indeed, his cancer currently has been contained, and his physician asserts that it would not be surprising if Kligler were alive ten years from now. Kligler asserts, however, that if he were to receive a six-month prognosis, he would wish to pursue physician-assisted suicide. In Kligler's view, the possibility of physician-assisted suicide "would allow [him] to live out the rest of [his] days knowing that, if [his] suffering becomes too great, [he] would have the option of ending [his] suffering." Given the uncertain legal status of physician-assisted suicide, Kligler has been unable to find a doctor in Massachusetts willing to provide such assistance.

Plaintiff Alan Steinbach is a licensed physician and currently practices as an urgent care provider in Falmouth. Although Steinbach is not Kligler's doctor, Steinbach treats other patients who are nearing the end of life and who wish to discuss various end-of-life options, including physician-assisted suicide. Steinbach asserts that he would like to provide physician-assisted suicide, but that he does not do so out of fear of prosecution.

The Attorney General and the district attorney for the Cape and Islands district (district attorney) are named as defendants in their official capacities. They are both elected officials empowered to prosecute those who violate State criminal laws. Although the defendants have not expressed an affirmative intention to prosecute Kligler or Steinbach, they have declined to commit not to prosecute those who engage in physician-assisted suicide based on their conclusion that such a practice is "not immune from prosecution in Massachusetts."

491 Mass. 43

3. Prior proceedings. In October of 2016, the plaintiffs commenced a civil action in the Superior Court, seeking declaratory and injunctive relief. Specifically, they sought a declaration that "physicians do not violate the criminal laws of the Commonwealth of Massachusetts when they follow a medical standard of care and prescribe Medical Aid in Dying medications for self-administration by the patient ... or alternatively, that application of criminal laws of the Commonwealth of Massachusetts

198 N.E.3d 1239

to physicians providing such care is unconstitutional under the Massachusetts [C]onstitution." The plaintiffs also sought an injunction to enjoin the defendants from "prosecuting physicians for ... prescribing medication for Medical Aid in Dying to such patients upon request." The complaint asserted that such relief was warranted for several reasons. In the plaintiffs’ view, physician-assisted suicide could not satisfy the required elements of manslaughter as a matter of law. To the extent that the law of manslaughter does apply to physician-assisted suicide, the complaint asserted that the law is unconstitutionally vague and, moreover, interferes with the plaintiffs’ constitutional rights to equal protection and substantive due process. Finally, the complaint asserted that a physician's right to freedom of speech precludes the prosecution of doctors for discussing physician-assisted suicide with a terminally ill patient.

The defendants moved to dismiss on the ground that the complaint failed to state a claim for declaratory relief because the allegations did not give rise to an actual controversy. A...

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