Petro v. Platkin

Decision Date10 June 2022
Docket NumberDOCKET NO. A-3837-19
Parties Anthony PETRO, Yosef Glassman, M.D., and Manish Pujara, R.Ph., Plaintiffs-Appellants, v. Matthew J. PLATKIN , Acting Attorney General of the State of New Jersey, Defendant-Respondent.
CourtNew Jersey Superior Court — Appellate Division

Smith & Associates, attorneys for appellants (E. David Smith, on the brief).

Francis X. Baker, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Francis X. Baker, on the brief).

Emily B. Cooper (Perkins Coie LLP) of the New York bar, admitted pro hac vice, argued the cause for amici curiae Compassion & Choices, Lynne Lieberman and Dr. Paul Bryman (Emily B. Cooper, Alan Howard (Perkins & Coie LLP) of the New York bar, Kevin Diaz (Compassion & Choices) of the Oregon bar, and Jessica Pezley (Compassion & Choices) of the Oregon and District of Columbia bars, admitted pro hac vice, and Dennis Hopkins (Perkins Coie LLP), attorneys; Alan Howard, Kevin Diaz, Jessica Pezley and Dennis Hopkins, on the brief).

Margaret Dore, amicus curiae, argued the cause pro se.

Post Polak, PA, attorneys for Dawn Parkot, join in the brief of amicus curiae Margaret Dore.

Before Judges Sabatino, Rothstadt and Natali.

The opinion of the court was delivered by


After nearly a decade of deliberations among "policy makers, religious organizations, experts in the medical community, advocates for persons with disabilities, and patients," our Legislature passed the Medical Aid in Dying for the Terminally Ill Act (the Act), N.J.S.A. 26:16-1 to -20, which Governor Philip D. Murphy later signed into law. Governor's Statement upon Signing A. 1504 (Apr. 12, 2019). As defendant represented to us at oral argument, since its enactment, ninety-five New Jersey residents have invoked the Act and ended their lives, without, to our knowledge, a single family member or interested party objecting to those unquestionably difficult end of life decisions. Nor has any report surfaced that any person utilized the Act for an improper or illegal purpose.

Despite the considered decision of our legislative and executive branches, plaintiffs, Anthony Petro, a terminally ill New Jersey resident, Yosef Glassman, M.D., a licensed New Jersey physician, and Manish Pujara, R.Ph., a pharmacist, filed a complaint that sought to enjoin and invalidate the Act. On April 1, 2020, Judge Robert T. Lougy issued an order and accompanying thirty-seven-page written opinion in which he dismissed plaintiffs’ complaint based on their lack of standing and failure to state a cognizable cause of action under New Jersey law. In a May 22, 2020 order, the judge denied amicus curiae Margaret Dore's motion for reconsideration.

In this appeal, plaintiffs challenge both orders contending the judge erred in concluding they did not have standing to challenge the Act. They argue they are sufficiently affected by the Act such that they possess standing to challenge it. As to the merits, plaintiffs and Dore further argue the Act violates the New Jersey Constitution and presents a danger to all New Jersey citizens.

We reject all of these arguments and affirm substantially for the reasons expressed by Judge Lougy in his comprehensive and well-reasoned written opinion. We agree with the judge that plaintiffs lack standing and their constitutional and other challenges are meritless in any event. We provide the following extensive amplification of Judge Lougy's opinion because of the significant issues raised related to the treatment of terminally ill patients as permitted under the Act.

A. The Act

We begin our opinion with a discussion of the legislative history of the Act and its operative terms. As to its intent and purpose, the Legislature expressly found and declared that:

a. Recognizing New Jersey's long-standing commitment to individual dignity, informed consent, and the fundamental right of competent adults to make health care decisions about whether to have life-prolonging medical or surgical means or procedures provided, withheld, or withdrawn, this State affirms the right of a qualified terminally ill patient, protected by appropriate safeguards, to obtain medication that the patient may choose to self-administer in order to bring about the patient's humane and dignified death.
b. Statistics from other states that have enacted laws to provide compassionate medical aid in dying for terminally ill patients indicate that the great majority of patients who requested medication under the laws of those states, including more than 90 percent of patients in Oregon since 1998 and between 72 percent and 86 percent of patients in Washington in each year since 2009, were enrolled in hospice care at the time of death, suggesting that those patients had availed themselves of available treatment and comfort care options available to them at the time they requested compassionate medical aid in dying.
c. The public welfare requires a defined and safeguarded process in order to effectuate the purposes of this act, which will:
(1) guide health care providers and patient advocates who provide support to dying patients;
(2) assist capable, terminally ill patients who request compassionate medical aid in dying; (3) protect vulnerable adults from abuse; and
(4) ensure that the process is entirely voluntary on the part of all participants, including patients and those health care providers that are providing care to dying patients.
d. This act is in the public interest and is necessary for the welfare of the State and its residents.
[ N.J.S.A. 26:16-2.]

When he signed the Act into law, Governor Murphy similarly described it as:

the product of a near-decade long debate among policy makers, religious organizations, experts in the medical community, advocates for persons with disabilities, and patients, among many others. Without question, reasonable and well-meaning individuals can, and very often do, hold different moral views on this topic. Through years of legislative hearings, countless witnesses, many of whom shared deeply personal and heart-wrenching testimony, offered compelling arguments both in favor of and against this legislation.

He also recognized the difficult personal choices attendant to end of life decisions, stating:

[a]s a lifelong, practicing Catholic, I acknowledge that I have personally grappled with my position on this issue. My faith has informed and enhanced many of my most deeply held progressive values. Indeed, it has influenced my perspectives on issues involving social justice, social welfare, and even those topics traditionally regarded as strictly economic, such as the minimum wage. On this issue, I am torn between certain principles of my faith and my compassion for those who suffer unnecessary, and often intolerable, pain at the end of their lives.
It is undeniable that there are people with terminal illnesses whose lives are reduced to agony and pain. Some of these individuals may thoughtfully and rationally wish to bring an end to their own suffering but cannot do so because the law prevents it and compels them to suffer, unnecessarily and against their will. I have seen such debilitating suffering firsthand in my own family, and I deeply empathize with all individuals and their families who have struggled with end-of-life medical decisions. As things now stand, it is the law, rather than one's own moral and personal beliefs, that governs such decisions. That is not as it should be. After careful consideration, internal reflection, and prayer, I have concluded that, while my faith may lead me to a particular decision for myself, as a public official I cannot deny this alternative to those who may reach a different conclusion. I believe this choice is a personal one and, therefore, signing this legislation is the decision that best respects the freedom and humanity of all New Jersey residents.
[Governor's Statement upon Signing A. 1504 (Apr. 12, 2019).]

At its core, the Act permits an adult New Jersey resident with a terminal illness and whose physician has determined that he or she has a life expectancy of six months or less to be considered a "qualified terminally ill patient." N.J.S.A. 26:16-3. Once so qualified, a terminally ill patient may request and obtain from his or her physician a prescription for medication that the patient can choose to self-administer to end his or her life in a "humane and dignified manner." N.J.S.A. 26:16-3 ; N.J.S.A. 26:16-4. In prescribing the medication, the physician must inform the patient of the patient's medical diagnosis and prognosis and the potential risks associated with taking the medication. N.J.S.A. 26:16-6.

The physician is obligated to explain to the patient the probable result of taking the medication and discuss feasible alternatives, including, "additional treatment opportunities, palliative care, comfort care, hospice care, and pain control." N.J.S.A. 26:16-6. In order to request the medication, a terminally ill patient must have 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." N.J.S.A. 26:16-3.

The Act provides multiple safeguards for patients requesting end of life medication (EOLM).2 As a threshold matter, a terminally ill patient must be an adult resident of New Jersey who is capable and has been determined by his or her physician to be terminally ill and has voluntarily expressed a wish to receive EOLM. N.J.S.A. 26:16-4.

In addition, a patient must make two oral requests and one written request to his or her attending physician for EOLM and 1) at least fifteen days must elapse between the two oral requests; 2) when the patient makes the second oral request, the physician must offer the patient an opportunity to rescind the request; 3) the...

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