Margaret Dore: Euthanasia Act "Must Be Set Aside"

E. David Smith

On March 24, 2020, a hearing was held in Glassman v Grewal, a lawsuit, which seeks to invalidate New Jersey's euthanasia law, formally known as the "Medical Aid in Dying for the Terminally Ill Act."

The specific matter before the court was a motion to dismiss brought by the defendant, New Jersey Attorney General, Gurbir S. Grewal.

The plaintiff, Joseph Glassman, represented by E. David Smith, opposed the motion, as did Margaret Dore, president of Choice is an Illusion, representing herself as amicus curiae.

Dore, who had filed both an amicus brief and a reply brief, argued that the Act must be set aside pursuant to the New Jersey Constitution. Her arguments largely tracked her reply brief, a portion of which is set forth below.

The Court took the matter under advisement.

* * *

Reply Brief Excerpt (web version):

B. The Act’s Title Is Misleading and Therefore                                  Unconstitutional

The Act’s title, the “Medical Aid in Dying For the Terminally Ill Act,” implies that the Act is limited to the “dying” and the “terminally ill.”[6] As described in Dore’s amicus brief, the Act also applies to people with years or decades to live.[7] For this reason alone, the title is misleading and therefore unconstitutional. The Act must be set aside.

C. Contrary to the Attorney General, the Act Allows                        Euthanasia

Euthanasia as traditionally defined is the administration of a lethal agent by another person.[8] The Attorney General claims that the Act does not allow euthanasia.[9] This claim is wrong for the following reasons:

1.   The Act’s name means euthanasia

The Act’s name, “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. See, for example: Craig A. Brandt, Model Aid-in-Dying Act, Iowa Law Review, 1989 (“Subject: Active Euthanasia ....”)[10]

For this reason alone, the Act allows euthanasia.

2.   The Act allows euthanasia as traditionally                 defined

The Act refers to the lethal dose as “medication.”[11] Generally accepted medical practice allows other people, including doctors and adult children, to administer medication.[12]

If the medication administered is a lethal dose, this is euthanasia as traditionally defined.

3.   The Act does not require self-administration.            The ADA would trump any such requirement

Nothing in the Act says that self-administration is required.[13] If it were, the Americans with Disability Act [ADA] would trump the requirement to allow euthanasia for people unable to self-administer.[14] For this reason also, the Act allows euthanasia as traditionally defined.

D. Voluntariness Is Not Assured

The Attorney General claims that the Act is “strictly voluntary” for patients, which is not true.[15] As previously discussed in Dore’s amicus brief, a more obvious reason is the Act’s complete lack of oversight at the death.[16] If the patient objected or even struggled, who would know?

E.   Purported Patient Protections Are Illusory

The Act sets forth patient protections, including a formal application process to obtain the lethal dose.[17] Per the Act, the attending physician:

shall ensure that all appropriate steps are carried out in accordance with the provisions of [the Act] before writing a prescription for [the lethal dose].[18]

The Act does not define “accordance.”[19] Dictionary definitions include “in the spirit of,” meaning “in thought or intention.”[20] With these definitions, the physician’s mere thought or intention to comply with patient protections is good enough. Actual compliance is not required. Purported patient protections are illusory.

F. Deaths in Accordance With the Act Are “Natural” as                   a Matter of Law.

1.   Action taken in accordance with the Act is not          suicide or homicide

The Act states:

Any action taken in accordance with the provisions of [the Act] shall not constitute ...  suicide ... or homicide under any law of this State.[21]

2.   The Act requires deaths to be reported as                  “natural”

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.[22] The fifth category is “undetermined.”[23]

As noted in the preceding section, a death occurring in accordance with the Act does not constitute suicide or homicide under any law of the State. The death is also not an accident due its having been an intended event. This leaves “natural.” Deaths occurring pursuant to the Act are natural as a matter of law.

G. Dr. Shipman and the Call for Death Certificate Reform

Per a 2005 article in the UK’s Guardian newspaper, there was a public inquiry regarding Dr. Harold Shipman, ... determining that he had “killed at least 250 of his patients over 23 years.”[24] The inquiry also found:

that by issuing death certificates stating natural causes, the serial killer [Shipman] was able to evade investigation by coroners. (Emphasis added).[25 ]

Per a subsequent article in 2015, proposed reforms included having a medical examiner review death certificates, so as to improve patient safety.[26] The New Jersey Act has instead moved in the opposite direction to require that deaths be reported as natural. Doctors and other perpetrators have been enabled to kill under mandatory legal cover.

H. The Act Renders New Jersey Residents Sitting Ducks to             Their Heirs and Other Predators

New Jersey’s slayer statute prevents a killer from inheriting from his or her victim. The statute states:

[A]n individual who is responsible for the intentional killing of the decedent forfeits [his or her inheritance].”[27]

The rational is that a criminal should not be allowed to benefit from his or her crime.[28]

Under the Act, however, a person who intentionally kills another person is allowed to inherit. This is due to the deaths being certified as natural. With the passage of the Act, New Jersey residents with money, meaning the middle class and above, have been rendered sitting ducks to their heirs and other predators.

Footnotes: 
....

[6]  The Act, N.J.S.A. 26:16-1, attached in the appendix at p. A-2.
[7]  Dore’s Amicus Brief, dated 12/19/19, Section IX, pp. 6 to 8.
[8]  AMA Code of Medical Ethics Opinion, 5.8, in the appendix at page A-17. (“Euthanasia is the administration of a lethal agent by another person....”).
[9]  The Attorney General’s letter brief, dated February 4, 2020, page 8, states:

Dore’s argument that the Act violates the single object rule is premised on her misstatement that the Act permits involuntary participation and euthanasia.  (Emphasis added).

[10]   Georgetown University information pages, summarizing the Brandt and CeloCruz articles, in the appendix at pages A-18 and A-19.
[11]  The Act, attached in the appendix, at pages A-2 through A-16, referring to the lethal dose as medication throughout its text.
[12]  Dr. Kenneth Stevens states:

Generally accepted medical practice allows a doctor, or a person acting under the direction of a doctor, to administer prescription drugs to a patient. 

Common examples of persons acting under the direction of a doctor, include: ... adult children who act under the direction of a doctor to administer drugs to their parents in a home setting. 

Declaration of Kenneth Stevens, MD, attached in the appendix at pp. A-20 to A-22, quote at page A-22, ¶ 10 (spacing changed).
[13]  See the Act in its entirety, attached in the appendix, at pp. A-2 through A-16.
[14]  Dore’s Amicus Brief, pp. 10-11.
[15]  The Attorney General‘s letter brief, dated February 4, 2020, page 8.
[16]  See the Act in its entirety, in the appendix at pp. A-2 to A-16.
[17]  The Act, in the appendix at pp. A-4 through A-8.
[18]  Id., in the appendix, at page A-5.
[19]  See the Act in its entirety, in the appendix, at pp. A-2 through A-16.
[20]  Definitions attached in the appendix at pp. A-24 and A-25.
[21]  The Act, C.26:16-17.a.(2), attached in the appendix at page A-10.
[22]  Andrew L. Falzon, MD, and Sindy M. Paul, MPH, “Death Investigation and Certification in New Jersey,” MD Advisor, a journal for the New Jersey medical community, 2016. (Attached in the appendix at page A-25)
[23]  Id.
[24]  David Batty, “Q & A: Harold Shipman,” The Guardian, 08/25/05, at https://www.theguardian.com/society/2005/aug/25/health.shipman.  (Attached in the appendix at pages at A-26 to A-28).
[25]  Id., attached at A-28.
[26]  Press Association, “Death Certificate Reform Delays ‘Incomprehensible,” The Guardian, January 21, 2015, attached in the appendix at A-29 to A-30.
[27]  NJ Rev Stat § 3B:7-1.1, attached in the appendix at pages A-31 and A-32.
[28]  Cf. Ilene S. Cooper and Jaclene D'Agostino, "Forfeiture and New York's 'Slayer Rule', NYSBA Journal, March/April 2015