New Jersey Motion for Reconsideration

Margaret Dore

To view Dore's brief as submitted, click here.

I.   RELIEF REQUESTED

Margaret Dore moves for reconsideration of the Court’s order dated April 1, 2020, which upheld the constitutionality of the Medical Aid in Dying for the Terminally Ill Act.[1]

II. THE ACT MUST BE SET ASIDE

The Court did not reach the Act’s violation of the object in title rule, which is dispositive to set the Act aside. The Court should reach this issue now to overturn the Act.

The Court’s order states that Dore asked the Court to declare the Act unconstitutional “on grounds not asserted by plaintiffs.”[2] The plaintiffs, did, however, ask the Court to rule on the issue, stating:

Ms. Dore’s brief should be considered by the Court since if the law is unconstitutional under the single object rule, it should be the Court’s responsibility to raise that issue sua sponte even if not raised by Ms. Dore or the Plaintiffs.[3]

The Legislature understood that it was enacting a strictly voluntary law limited to assisted suicide for dying patients.[4] The prior judge expressed a similar view. See, for example, the transcript from the hearing on August 14, 2019 (“This case is not about euthanasia”).[5]

This case, however, is about euthanasia. The Act is also 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. The Act is unconstitutional and must be set aside.


III. WHAT THE ACT DOES

A.  The Act Allows Physician-Assisted Suicide,                  Which It Terms Medical Aid in Dying

Dictionary definitions of “assisted suicide,” include “suicide committed by someone with assistance from another person especially:  physician-assisted suicide.”[6] Dictionary definitions of physician-assisted suicide include the following:

[S]uicide by a patient facilitated by means (such as a drug prescription) or by information (such as an indication of a lethal dosage) provided by a physician aware of the patient's intent.[7]

Here, the Act allows this same practice, which it terms medical aid in dying. The Act, “Findings, Declarations Relative to Medical Aid in Dying for the Terminally Ill,” states:

[T]his 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. (Emphasis added).[8]

The Act also specifically describes physician involvement to write the prescription for the lethal dose.[9] The bottom line, the Act allows physician-assisted suicide as traditionally defined, which it terms medical aid in dying.

B. The Act Legalizes Assisted Suicide as a “Right”

Again, the Act states:

[T]his 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. (Emphasis added).[10]

If for the purpose of argument, this provision is limited to allowing voluntary assisted suicide (because it says that the patient may chose to self-administer the lethal medication), the Act will nonetheless also allow euthanasia due to assisted suicide being described as a “right.” This is true due to: (1) The New Mexico Supreme Court Decision, Morris v. Brandenburg, 376 P.3d 836 (2016); and (2) the Americans with Disability Act, both of which are discussed below.

1.  Morris v. Brandenburg

The 5-0 decision states in part:

[W]e agree with the legitimate concern that recognizing a right to physician aid in dying will lead to voluntary or involuntary euthanasia because if it is a right, it must be made available to everyone, even when a duly appointed surrogate makes the decision, and even when the patient is unable to self-administer the life-ending medication. (Emphasis added).[11]

2. The Americans With Disabilities Act (ADA)

The ADA is “a federal civil rights law that prohibits discrimination against individuals with disabilities in every day activities, including medical services.”[12] “Medical care providers are required to make their services available in an accessible manner.”[13]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).[14]

Here, the Act legalized “medical aid in dying” as part of New Jersey healthcare.[15] 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 require euthanasia as traditionally defined.

IV. HOW THE ACT WORKS

The Act has an application process to obtain the lethal dose.[16] Once the lethal dose is issued by the pharmacy, there is no oversight.[17] No witness, not even a doctor, is required to present at the death.[18]

V.  “ELIGIBLE” PERSONS MAY HAVE YEARS TO LIVE

The Act applies to “terminally ill” individuals. 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.[19]

Such persons may, in fact, have years or decades to live. This is true due to actual mistakes (the test results got switched), and because predicting life expectancy is not an exact science.[20] Also, sometimes doctors are wrong, as in way wrong.

Consider John Norton, diagnosed with ALS at age 18.[21] He was told that he would get progressively worse (be paralyzed) and die in three to five years.[22] Instead, the disease progression stopped on its own.[23]  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.[24]

VI.  ELDER ABUSE 

A. Elder Abuse Is a Problem in New Jersey;                    Perpetrators Are Often Family Members

Elder abuse is a problem in New Jersey and throughout the United States.[25] Nationwide, prominent cases include actor Mickey Rooney and New York philanthropist, Brooke Astor.[26]

Perpetrators are often family members.[27] They typically start out with small crimes, such as stealing jewelry and blank checks, before moving on to larger items or to coercing victims to change their wills or to liquidate their assets.[28] Amy Mix, of the AARP Legal Counsel of the Elderly, states:

[Perpetrators] are family members, lots are friends, often people who befriend a senior through church ....  We had a senior victim who had given her life savings away to some scammer who told her that she’d won the lottery and would have to pay the taxes ahead of time....  The scammer found the victim using information in her husband’s obituary.[29]

B. Elder Abuse Is Rarely Reported, Victims Don’t           Want to Report Their Children as Abusers

The vast majority of elder abuse cases are not reported to the authorities. Reasons include:

[F]ear of retaliation, lack of physical and/or cognitive ability to report, or because they don’t want to get the abuser (90% of whom are family members) in trouble.  (Emphasis added).[30]

C.  Elder Abuse Is Sometimes Fatal

In some cases, elder abuse is fatal. More notorious cases include California’s “black widow” murders, in which two women took out life insurance policies on homeless men.[31] Their first victim was 73 year old Paul Vados, whose death was staged to look like a hit and run accident.[32] The women collected $589,124.93.[33]

Consider also, People v. Stuart in which an adult child killed her mother with a pillow, so as to inherit. The Court observed:

Financial considerations [are] an all too common motivation for killing someone.[34]

VII. PENALTIES PROVIDE A DETERRENT; NOT THE ACT

While elder abuse is a largely uncontrolled problem, there are penalties for doing it and when perpetrators are caught, they can be punished. The California black widows and the adult child who killed her mother with a pillow, discussed above, served prison time. With a risk of punishment, there is a deterrent to protect other potential victims from harm.

This is in contrast to the Act, in which purported protections are illusory, which renders potential victims sitting ducks to their adult children and other predators, without recourse. See below.

VIII.  THE ACT IS STACKED AGAINST THE INDIVIDUAL

A.  “Even If a Patient Struggled, Who Would Know?”

The Act has no oversight over administration of the lethal dose.[35] In addition, the drugs used are water and alcohol soluble, such that they can be injected into a sleeping or restrained person without consent.[36] 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).[37]

B. 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).[38]

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 necessarily be in control of his or her fate.

C.  Purported Protections Are Illusory

The Act says that the attending physician is to ensure that all “appropriate” steps are carried out in “accordance” with the Act as necessary. The Act states:

The attending physician shall ensure that  all appropriate steps are carried out in accordance with the provisions of [the Act] . . . including such actions as are necessary to: . . .

(6) recommend that the patient participate in a consultation concerning concurrent or additional treatment opportunities . . . [and]

(8) inform the patient of the patient’s opportunity to rescind the request . . . . (Emphasis added).[39]

The Act does not define "appropriate" or “accordance.”[40] Dictionary definitions of appropriate include "suitable or proper” in the circumstances.[41] Dictionary definitions of accordance include “in the spirit of,” meaning “in thought or intention.”[42]

With these definitions, the attending physician’s view of what is "suitable or proper" is enough for compliance with patient protections. The physician's "thought or intention" is similarly sufficient. The purported protections are neutralized to whatever an attending physician happens to feel is appropriate and/or had a thought or intention to do. The “protections” are unenforceable.

D. 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 patient abuse or neglect, suicide, assisted suicide, mercy killing, euthanasia, or homicide under any law of this State. (Emphasis added).[43]

  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.[44] The fifth category is “undetermined.”[45]

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.

E. 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, which determined that he had “killed at least 250 of his patients over 23 years.”[46] 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). [47]

Per a subsequent article in 2015, proposed reforms included having a medical examiner review death certificates, so as to improve patient safety.[48] 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.

F. 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].”[49]

The rational is that a criminal should not be allowed to benefit from his or her crime.[50]

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.

IX.  OTHER CONSIDERATIONS

A. My Clients Suffered Trauma in Oregon and                 Washington State

I have had two cases where my clients suffered trauma due to legal assisted suicide.  In the first case, one side of my client’s family wanted her father to take the lethal dose, while the other side did not.  The father spent the last months of his life caught in the middle and torn over whether he should kill himself. My client was severely traumatized. The father did not take the lethal dose and died a natural death.

In the other case, my client’s father died via the lethal dose at a suicide party. It’s not clear, however, that administration of the lethal dose was voluntary. A man who was present told my client that his father had refused to take the lethal dose when it was delivered, stating: "You're not killing me. I'm going to bed." The man also said that my client’s father took the lethal dose the next night when he (the father) was already intoxicated on alcohol. The man who told this to my client subsequently changed his story.

My client, although he was not present, was traumatized over the incident, and also by the sudden loss of his father.

B. In Oregon, Other Suicides Have Increased with         Legalization of Physician-Assisted Suicide

Government reports from Oregon show a positive correlation between the legalization of physician-assisted suicide and an increase in other (conventional) suicides.  This correlation is consistent with a suicide contagion in which legalizing physician-assisted suicide encouraged other suicides.[51]

C. The Felony for Undue Influence Is Illusory

The Act has a felony for “undue influence,” which is not defined and has no elements of proof. The Act merely states:

A person who . . . exerts undue influence on a patient to request medication pursuant to [the Act] or to destroy a rescission of a request is guilty of a crime of the third degree.  (Emphasis added).[52]

The Act also specifically allows conduct normally used to prove undue influence. For example, the Act allows an infirm person with a terminal disease to request the lethal dose. Physical weakness is a factor generally used to PROVE undue influence.[53]

How do you prove that undue influence occurred when the Act does not define it, and the Act also allows conduct generally used to prove it? You can’t. The felony for undue influence is illusory and unenforceable.

X. THE ACT VIOLATES THE OBJECT IN TITLE RULE

As noted supra, the New Jersey Constitution governs permissible legislative conduct when enacting legislation. To that end, the Constitution sets forth the object in title rule, as follows:

To avoid improper influences 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 [object] shall be expressed in the title. (Emphasis added).[54]

The rule is designed to protect against the misleading of the people. State v Guida, 119 N.J.L. 464, 465-466 (1938), states:

The sole requirement is that [the title] ‘shall express its object in a general way so as to be intelligible to the ordinary reader’; and it is the settled rule that a statute will not be judicially declared inoperative and unenforceable on this ground unless the deficiency plainly exists.  (Emphasis added).

In the case at bar, the deficiency plainly exists. The Legislature, the Attorney General and the prior court were all mislead by the Act’s deceptive title, implying that the Act is limited to voluntary assisted suicide, when the Act also allows non-voluntary euthanasia. This Court has also been mislead. The Act must be set aside.

Respectfully submitted this 18th day of April 2020

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

Footnotes:

[1] The Act is attached in the brief's appendix, at pages A-1 to A-15.
[2] The Order, page 35, attached in the brief's appendix, at page A-20.
[3] Letter from E. David Smith, Esq., to Judge Lougy, dated March 20,
2020, in the brief's appendix at page A-23.
[4] See for example, the Order on Emergent Motion, Superior Court of New Jersey Appellate Division, August 27, 2019 (“the process is entirely voluntary on the part of all participants, including patients...”). Attached in the brief's appendix at page A-63. 
[5] Transcript attached in the brief's appendix at page A-62. 
[6] Merriam-Webster, attached in the brief's appendix at page A-27; https://www.merriam-webster.com/dictionary/assisted%20suicide?utm_campaign=sd&utm_medium=serp&utm_source=jsonld

[7] Merriam-Webster, attached in the brief's appendix at page A-28.

[8] The Act, Section C.26:16-2, attached in the brief's appendix at page A-1.
[9] The Act, Section C.26:16-6, states:

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 medication that a qualified terminally ill patient may choose to self-administer pursuant to [the Act].  (Attached in the brief's appendix at page A-4).

[10] The Act, page 1, attached in the brief's appendix at page A-1
[11] Morris v. Brandenburg, 376 P.3d 836, 848 (2016).
[12] 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
[13]  Id.
[14]  Id.
[15] The Act, Findings, attached in the brief's appendix at page A-1.
[16] See the Act, attached in the brief's appendix at pp. A-3 to A-7.
[17] See the Act in its entirety, in the brief's appendix at pp. A-1 to A-15.
[18] Id.
[19] The Act, C.26:16-3, attached in the brief's appendix at page A-3.
[20] Cf. Jessica Firger, "12 Million Americans Misdiagnosed Each Year,"
CBS NEWS, April 17, 2014, attached in the brief's appendix at page A-29; 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, attached in the brief's appendix at pages A-30 to A-33.
[21] Affidavit of John Norton, attached in the brief's appendix at pages A-34 to A-36.
[22] Id., ¶ 1.
[23] Id., ¶ 4.
[24] Id., ¶ 5.
[25] See e.g., Dansky Katz Ringold York, Attorneys at Law, Marlton New
Jersey, “How to Spot and Prevent Elder Financial Abuse,” April 27, 2016, at
https://njlegalhelp.com/how-to-spot-and-prevent-elder-financial-abuse;
and Beth Fitzgerald, “New Jersey Considers Law to Prevent ‘Granny
Snatching,’” New Jersey Spotlight, MAY 21, 2012, http://www.njspotlight.com/stories/12/0520/2037/
[26] Tom Cohen, “Mickey Rooney tells [U.S.] Senate panel he was a
victim of elder abuse,” CNN, March 2, 2011; Carole Fleck, “Brooke Astor’s Grandson
Tells Senate Panel of Financial Abuse,” AARP Bulletin Today, 02/05/2015 (“The grandson of socialite Brooke Astor, who
blew the whistle on his father for plundering millions from his grandmother’s estate,
told the Senate panel Wednesday that his grandmother’s greatest legacy may be
the national attention focused on elder financial abuse.”), and Matthew Talbot, “Issues of Prosecuting Elder Abuse: The Casey Kasem Case,”
Talbot Law Group, PC, January 4, 2016, available at
https://www.linkedin.com/pulse/issues-prosecuting-elder-abuse-casey-kasem-case-matthew-talbot
[27] Id., MetLife Mature Market Institute, “Broken Trust: Elders, Family
and Finances, A Study on Elder Abuse Prevention,” March 2009, at
http://www.metlife.com/assets/cao/mmi/publications/studies/mmi-broken-trust.pdf
[28] Id.
[29] Kathryn Alfisi, “Breaking the Silence on Elder Abuse,”
Washington Lawyer, February 2015.
[30] “Adult Protective Services: Facts and Fiction,” Division of Aging
Services, NJ Department of Human Services, available at
http://www.nj.gov/humanservices/dmahs/home/Adult_Protective_Services_Training.pdf
[31] See People v. Rutterschmidt, 55 Cal.4th 650 (2012). See also https://en.wikipedia.org/wiki/Black_Widow_Murders 
[32] Rutterschmidt, at 652-3.
[33] Id. at 652.
[34] 67 Cal.Rptr.3d 129, 143 (2007), available at
https://www.leagle.com/decision/200719667calrptr3d1291182
[35] See the Act in its entirety, attached in the brief's appendix at A-1 to A-15.
[36] The drugs used include Secobarbital, Pentobarbital and Phenobarbital,
which are water and/or alcohol soluble. See excerpt from Oregon’s and
Washington’s annual reports, attached hereto at A-41 & A-42 (listing these
drugs). 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
[37] Alex Schadenberg, Letter to the Editor, “Elder abuse a growing problem,”
The Advocate, Official Publication of the Idaho State Bar, October 2010, page
14.
[38] The Act, C.26:16-3, attached in the brief's appendix at page A-2.
[39] Attached in the brief's appendix at page A-4.
[40] See the Act in its entirety, attached in the brief's appendix at pages A-1 through A-15.
[41] Attached in the brief's appendix at page A-43.
[42] Attached in the brief's appendix at pages 44 and A-45.
[43] The Act, C.26:16-17.a.(2), attached in the brief's appendix at page A-9.
[44] 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 brief's appendix at page A-46).
[45] Id.
[46] 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 brief's appendix at pages A-47 to A-49).
[47] Id., attached in the brief's appendix at page A-49.
[48] Press Association, “Death Certificate Reform Delays ‘Incomprehensible,”
The Guardian, January 21, 2015, attached in the brief's appendix at pages A-50 to A-51.
[49] NJ Rev Stat § 3B:7-1.1, attached in the brief's appendix at pages A-52 and A-53.
[50] Cf. Ilene S. Cooper and Jaclene D'Agostino, "Forfeiture and New York's
'Slayer Rule', NYSBA Journal, March/April 2015, attached in the brief's appendix at page A-54.
[51] For a more information, see Margaret Dore, “In Oregon, Other Suicides
Have Increased with Legalization of Assisted Suicide,” August 18, 2017,
attached in the brief's appendix at pages A-55 to A-57. See also the Declaration of Williard Johnston, MD, attached in the brief's appendix at pages A-58 to A-60.
[52] Attached in the brief's appendix at page A-10.
[53] Cf. Neugebauer v. Neugebauer, 804 N.W.2d 450, ¶17 (2011)(“physical . . . weakness is always material upon the question of undue influence”).