Sara Myers et al., Plaintiffs, Eric A. Seiff, et al., Appellants,v.Eric Schneiderman,, Respondent, et al., Defendants.BriefN.Y.May 30, 2017No. APL-2016-00129 To be argued by: ANISHA S. DASGUPTA 15 minutes requested Supreme Court, New York County, Index No. 151162/15 State of New York Court of Appeals SARA MYERS, STEVE GOLDENBERG, Plaintiffs, ERIC A. SEIFF, HOWARD GROSSMAN, M.D., SAMUEL C. KLAGSBRUN, M.D., TIMOTHY E. QUILL, M.D., JUDITH K. SCHWARZ, PH.D., CHARLES A. THORNTON, M.D., and END OF LIFE CHOICES NEW YORK, Plaintiffs-Appellants, -against- ERIC SCHNEIDERMAN, in his official capacity as ATTORNEY GENERAL OF THE STATE OF NEW YORK Defendant-Respondent, JANET DIFIORE, in her official capacity as DISTRICT ATTORNEY OF WESTCHESTER COUNTY, SANDRA DOORLEY, in her official capacity as DISTRICT ATTORNEY OF MONROE COUNTY, KAREN HEGGEN, in her official capacity as DISTRICT ATTORNEY OF SARATOGA COUNTY, ROBERT JOHNSON, in his official capacity as DISTRICT ATTORNEY OF BRONX COUNTY and CYRUS R. VANCE, JR., in his official capacity as DISTRICT ATTORNEY OF NEW YORK COUNTY, Defendants. BRIEF FOR RESPONDENT BARBARA D. UNDERWOOD Solicitor General ANISHA S. DASGUPTA Deputy Solicitor General VALERIE FIGUEREDO Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent 120 Broadway New York, New York 10271 (212) 416-8019 (212) 416-8962 (facsimile) Dated: January 27, 2017 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................ iii PRELIMINARY STATEMENT ........................................................ 1 QUESTIONS PRESENTED ............................................................ 3 STATEMENT OF THE CASE ......................................................... 4 A. New York’s Longstanding Prohibitions on Assisting a Suicide ........................................................... 4 1. The State’s codification of the common-law prohibition on assisting a suicide ............................. 4 2. The Legislature’s ongoing consideration of end-of-life issues, and repeated rejection of proposals to allow physician-assisted suicide .......... 9 B. The Proceedings Below .................................................. 15 1. Plaintiffs’ complaint ............................................... 15 2. Supreme Court’s dismissal of the complaint for failure to state a claim ...................................... 17 3. The Appellate Division’s affirmance ...................... 18 ARGUMENT .................................................................................. 20 PLAINTIFFS’ COMPLAINT FAILS TO STATE A VALID CAUSE OF ACTION ....................................................................................... 20 POINT I PLAINTIFFS’ PROPOSED CONDUCT IS ENCOMPASSED BY THE PENAL LAW’S PROHIBITIONS ON ASSISTING A SUICIDE ................ 21 ii TABLE OF CONTENTS (cont'd) Page A. Plaintiffs’ Proposed Conduct Plainly Falls Within the Language of the Penal Law’s Prohibitions on Assisting in a Suicide. .................................................... 22 B. Plaintiffs’ Claims Are Also Inconsistent with the History and Purpose of the Penal Law’s Prohibitions on Assisting in a Suicide. .......................... 27 C. Plaintiffs’ Allegations Do Not Raise Any Factual Issues Material to a Construction of the Penal Law’s Scope. ................................................................... 29 POINT II PLAINTIFFS HAVE NOT STATED A VALID CLAIM UNDER THE DUE PROCESS CLAUSE ................................................................. 32 A. New York Does Not Recognize a Fundamental Right to Take One’s Own Life, or to Be Helped to Commit That Act. ........................................................... 33 B. New York’s Prohibition on Assisting a Suicide Furthers Legitimate State Interests. ............................ 42 POINT III PLAINTIFFS HAVE NOT STATED A VALID CLAIM UNDER THE EQUAL PROTECTION CLAUSE ....................................................... 54 CONCLUSION ............................................................................... 61 iii TABLE OF AUTHORITIES Cases Page(s) Affronti v. Crosson, 95 N.Y.2d 713 (2001) ........................................................... 51, 52 Al Rushaid v. Pictet & Cie, 28 N.Y.3d 316 (2016) ................................................................. 20 Baxter v. Montana, 354 Mont. 234 (2009) ................................................................. 40 Bumbury v. City of New York, 62 A.D.3d 621 (1st Dep’t 2009) ............................................ 29, 59 City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) .................................................................... 51 Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261 (1990) ........................................................ 10, 36, 37 Derdiarian v. Felix Constr. Corp., 51 N.Y.2d 308 (1980) ................................................................. 60 Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512 (1949) ................................................................... 58 Harris v. Econ. Opportunity Comm’n of Nassau County Inc., 142 Misc. 2d 980 (App. Term 2d Dep’t 1989), aff’d, 171 A.D.2d 223 (2d Dep’t 1991) ........................................ 30 Heller v. Doe, 509 U.S. 312 (1993) .................................................................... 51 Hope v. Perales, 83 N.Y.2d 563 (1994) ................................................................. 42 Krischer v. McIver, 697 So. 2d 97 (Fla. 1997) ........................................................... 40 iv TABLE OF AUTHORITIES (cont'd) Cases Page(s) Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577 (1998) ................................................................. 22 Mallory v. Travelers’ Ins. Co., 47 N.Y. 52 (1871) ......................................................................... 6 Manhattan Pizza Hut, Inc. v. N.Y. State Human Rights Appeals Bd., 51 N.Y.2d 506 (1980) ................................................................. 25 Matter of Bezio v. Dorsey, 21 N.Y.3d 93 (2013) ........................................................... passim Matter of Doe v. Axelrod, 71 N.Y.2d 484 (1988) ................................................................. 48 Matter of Esler v. Walters, 56 N.Y.2d 306 (1982) ................................................................. 58 Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218 (1990) ......................................................... passim Matter of Koch v. Sheehan, 21 N.Y.3d 697 (2013) ................................................................. 48 Matter of N.Y. County Lawyers’ Ass’n v. Bloomberg, 19 N.Y.3d 712 (2012) ................................................................. 22 Matter of Storar, 52 N.Y.2d 363 (1981) ............................................... 10, 36, 39, 43 Matter of Von Holden v. Chapman, 87 A.D.2d 66 (4th Dep’t 1982) ............................................. 41, 42 Maurer v. U.S., 668 F.2d 98 (2d Cir. 1981) ......................................................... 59 v TABLE OF AUTHORITIES (cont'd) Cases Page(s) Myers v. Schneiderman, 140 A.D.3d 51 (1st Dep’t 2016) .......................................... passim Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ................................................................ 40 People v. Boothe, 16 N.Y.3d 195 (2011) ................................................................. 27 People v. Duffy, 79 N.Y.2d 611 (1992) ................................................................... 7 People v. Kevorkian, 447 Mich. 436 (1995) ..................................................... 40, 55, 56 People v. King, 61 N.Y.2d 550 (1984) ................................................................. 25 People v. Knox, 12 N.Y.3d 60 (2009) ....................................................... 32, 33, 42 People v. Minor, 111 A.D.3d 198 (1st Dep’t 2013) ................................................ 23 People v. Walker, 81 N.Y.2d 661 (1993) ................................................................. 54 Quail Ridge Assocs. v. Chem. Bank, 162 A.D.2d 917 (3d Dep’t 1990) ................................................. 30 Rivers v. Katz, 67 N.Y.2d 485 (1986) ........................................................... 36, 37 Rosner v. Metro. Prop. & Liab. Ins. Co., 96 N.Y.2d 475 (2001) ................................................................. 22 vi TABLE OF AUTHORITIES (cont'd) Cases Page(s) Rozen v. Russ & Russ, P.C., 76 A.D.3d 965 (2d Dep’t 2010) ................................................... 52 Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582 (3d Cir. 1998) ....................................................... 51 Sampson v. Alaska, 31 P.3d 88 (Alaska 2001) ........................................................... 40 Vacco v. Quill, 521 U.S. 793 (1997) ............................................................ passim Washington v. Glucksberg, 521 U.S. 702 (1997) ............................................................ passim Constitutional Provisions N.Y. Const. of 1777, art. XXXV .................................................... 4, 5 N.Y. Const. Art. I, § 6 ..................................................................... 39 U.S. Const. amend. XIV § 1 ............................................................ 39 Laws New York Ch. 37, 1788 N.Y. Laws 664 ............................................................. 5 Ch. 414, 1919 N.Y. Laws 1193 ............................................. 6, 24, 28 Ch. 346, 1961 N.Y. Laws 1275 ......................................................... 8 Ch. 1030, 1965 N.Y. Laws 2343 ................................................... 7, 8 Ch. 818, 1987 N.Y. Laws 3140 ....................................................... 10 vii TABLE OF AUTHORITIES (cont'd) Laws Page(s) Correction Law § 402 ..................................................................................... 35, 43 § 508 ..................................................................................... 35, 43 C.P.L.R. 3211 ............................................................................ 17, 20 Mental Hygiene Law § 9.37 .................................................................................... 35, 43 § 9.39 .................................................................................... 35, 43 § 9.41 .................................................................................... 35, 43 4 N.Y. Cons. Laws (1909) 2305 ............................................................................................ 28 2809 .............................................................................................. 6 2810 .............................................................................................. 6 Penal Law § 35.10 ............................................................................ 35, 36, 43 § 120.30 ............................................................................ 7, 22, 26 § 125.15 ........................................................................ 7, 9, 22, 26 § 125.25 .................................................................................. 9, 26 Penal Law tit. IX, ch. 1 (1881) § 172 ....................................................................................... 6, 34 § 173 ....................................................................................... 6, 34 § 174 ............................................................................................. 6 § 175 ....................................................................................... 6, 34 § 176 ....................................................................................... 6, 34 Public Health Law § 2989 ............................................ 12, 29, 38, 43 Rev. Stat. pt. IV, ch. 1, tit. 2, art. 1, § 7 (1829) .......................... 5, 34 viii TABLE OF AUTHORITIES (cont'd) Laws Page(s) Other States Ala. Code § 22-8A-10 (1990) ........................................................... 57 Ariz. Rev. Stat. Ann. § 36-3210 (1994) ........................................... 57 Ark. Code Ann. § 20-17-210 (1991) ................................................ 57 Cal. Health & Safety Code pt. 1.85 (2015) ..................................... 41 Colo. Rev. Stat. § 25-48-101 (2016) ................................................ 41 Fla. Stat. § 765.309 (1996) ............................................................. 57 755 Ill. Comp. Stat. Ann. § 35/9 (1988) ............................................................................... 57 § 40/50 (1991) ............................................................................. 57 Ind. Code § 16-36-1-13 (1990) ..................................................................... 57 § 16-36-4-19 (1990) ..................................................................... 57 § 30-5-5-17 (1990)....................................................................... 57 Ky. Rev. Stat. Ann. § 311.639 (1994) ............................................. 57 Md. Health-Gen. Code Ann. § 5-611 (1993) ................................... 58 Me. Rev. Stat. Ann. tit. 18-A § 5-813 (1995) .................................. 57 Mass. Gen. Laws ch. 201D § 12 (1990) .......................................... 58 Minn. Stat. § 145B.14 (1989) ......................................................... 58 Mo. Rev. Stat. § 459.055 (1985) ..................................................... 58 Mont. Code Ann. § 50-9-205 (1995) ................................................ 58 Neb. Rev. Stat. § 20-412 (1995) ...................................................... 58 ix TABLE OF AUTHORITIES (cont'd) Laws Page(s) Nev. Rev. Stat. § 449.670 (1991) .................................................... 58 N.C. Gen. Stat. § 90-320 (1993) ..................................................... 58 Ohio Rev. Code Ann. § 2133.12 (1994) ........................................... 58 Okla. Stat. tit. 63 § 3101.12 (1992) ................................................ 58 Or. Rev. Stat. § 127.800 (1997) ...................................................... 41 R.I. Gen. Laws § 23-4.10-9 (1992) ....................................................................... 58 § 23-4.11-10 (1991) ..................................................................... 58 S.C. Code Ann. § 44-77-130 (1993) ...................................................................... 58 S.D. Codified Laws § 34-12D-20 (1994) ..................................................................... 58 Tex. Health & Safety Code Ann. § 166.047 (1989) ......................................................................... 58 § 166.050 (1989) ......................................................................... 58 § 166.096 (1995) ......................................................................... 58 Va. Code Ann. § 54.1-2990 (1994) .................................................. 58 18 Vt. Stat. Ann. ch. 113 (2013) ..................................................... 41 W. Va. Code § 16-30-2 (1993) .......................................................................... 58 § 16-30-15 (2000) ........................................................................ 58 § 16-30C-14 (1993) ..................................................................... 58 Wash. Rev. Code § 70.245.010 (2008) ............................................ 41 Wis. Stat. § 154.11 (1983) .............................................................. 58 x TABLE OF AUTHORITIES (cont'd) Bills Proposed Page(s) Assembly A. 6333, 218th Sess. (1995) ............................................................ 13 A. 9360, 235th Sess. (2012) ............................................................ 13 A. 2129, 238th Sess. (2015) ............................................................ 13 A. 5261, 238th Sess. (2015) ............................................................ 13 A. 10059, 239th Sess. (2016) .................................................... 13, 14 A. 2383, 240th Sess. (2017) ............................................................ 14 Senate S. 7986, 217th Sess. (1994) ............................................................ 13 S. 1683, 218th Sess. (1995) ............................................................ 13 S. 5024, 218th Sess. (1995) ............................................................ 13 S. 7396, 223rd Sess. (2000) ............................................................ 13 S. 677, 224th Sess. (2001) .............................................................. 13 S. 3685, 238th Sess. (2015) ............................................................ 13 S. 5814, 238th Sess. (2015) ............................................................ 13 S. 7579, 239th Sess. (2016) ............................................................ 13 S. 3151, 240th Sess. (2017) ............................................................ 14 xi TABLE OF AUTHORITIES (cont'd) Miscellaneous Authorities Page(s) Black’s Law Dictionary, s.v. suicide (10th ed. 2014) ..................... 23 Council on Ethical & Judicial Affairs, Am. Med. Ass’n, Physician-Assisted Suicide (Dec. 1993) ............................... 56, 57 Kelsey Harkness, Assisted Suicide: How One Woman Chose to Die, Then Survived, The Daily Signal, May 18, 2015 .............................................................................. 44 Penal Law Revised, McKinney’s Cons. Laws of N.Y. (Sept. 1965) ................................................................................ 24 McKinney’s Statutes § 94 ............................................................................................. 22 § 232 ........................................................................................... 25 § 363 ........................................................................................... 27 Merriam-Webster’s Collegiate Dictionary, Eleventh Edition, s.v. suicide (11th ed. 2003) .......................................... 23 N.Y. Comm’n on Revision of Penal Law and Crim. Code to Proposed N.Y. Penal Law, McKinney’s Cons. Laws of N.Y., Spec. Pamphlet (1964) .......................................... 8 N.Y. Law Revision Comm’n, Report, No. 65 (1937) ......................... 5 N.Y. Pattern Jury Instructions—Civil, 4:57 .................................. 23 N.Y. Pattern Jury Instructions—Criminal, Penal Law § 125.30 .................................................................... 23 N.Y. Comm’n on Revision of Penal Law and Crim. Code to Proposed N.Y. Penal Law, 1964 Report .................................. 8 N.Y. Comm’n on Revision of Penal Law and Crim. Code to Proposed N.Y. Penal Law, 1966 Report .................................. 8 xii TABLE OF AUTHORITIES (cont'd) Miscellaneous Authorities Page(s) N.Y. Pattern Jury Instructions—Criminal, Penal Law § 125.15 .................................................................... 23 N.Y. State Task Force on Life & the Law, Do Not Resuscitate Orders: The Proposed Legislation and Report of the New York State Task Force on Life and the Law (Apr. 1986) ........................................................ 9, 10 N.Y. State Task Force on Life & the Law, Life Sustaining Treatment: Making Decisions and Appointing a Health Care Agent (July 1987) ........................... 11 N.Y. State Task Force on Life & the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context (May 1994) .............................................. passim N.Y. Sun, “Anti-Suicide Law is Now Repealed” (Sept. 2, 1919) ...... 6 Richard A. Posner, Aging and Old Age (U. Chi. 1995) .................. 44 Richard G. Denzer and Peter McQuillan, Practice Commentary to § 125.15, 39 McKinney’s Cons. Laws of N.Y. 177 (1967) ................................................... 8, 26, 31 Staff Notes of Comm’n on Revision of Penal Law and Crim. Code, Proposed N.Y. Penal Law, McKinney’s Cons. Laws of N.Y., Spec. Pamphlet (1964) ................................ 7 Timothy Quill, Death and Dignity (1993) ...................................... 49 U.S. Census Bureau, QuickFacts, http://www.census.gov/quickfacts/table/ PST045216/36,41,00 .................................................................. 53 William C. Donnino, Practice Commentary to Penal Law § 125.00, 39 McKinney’s Cons. Laws of N.Y. ........................ 9, 26 xiii TABLE OF AUTHORITIES (cont'd) Miscellaneous Authorities Page(s) Yale Kamisar, Against Assisted Suicide – Even a Very Limited Form, 72 U. Det. Mercy L. Rev. 735 (1995) ................. 49 PRELIMINARY STATEMENT New York State has a long-standing and legitimate concern for the lives of all of its citizens, whatever their mental or physical condition. To that end, the State has taken various measures to prevent suicides and to protect individuals in the vulnerable position of making end-of-life decisions. These measures include the enactment of Penal Law § 120.30 and § 125.15, which prohibit promoting or aiding another person’s efforts to commit suicide. Plaintiffs ask this Court to exclude from the Penal Law’s prohibition the conduct of a physician who prescribes lethal medication for use by a patient to take his or her own life. They assert that Penal Law § 120.30 and § 125.15 do not apply to such conduct, and that any such application would be inconsistent with the New York Constitution’s Equal Protection and Due Process Clauses. Supreme Court dismissed the complaint for failure to state a claim. The Appellate Division, First Department affirmed. This Court should do the same. 2 Plaintiffs’ statutory interpretation arguments fail because the text and purpose of the Penal Law’s prohibition on intentionally aiding another person to commit suicide plainly encompass the act of providing an individual with medication to use for ending his or her life. Plaintiffs’ due-process and equal-protection claims fail because New York’s history and traditions do not recognize any fundamental right to receive assistance with taking one’s own life. New York law has long recognized a right to refuse medical treatment, but not a right to receive assistance in committing suicide. And neither New York nor any other state has ever recognized a fundamental right to assistance in committing suicide. Whether physician-assisted suicide should be treated as an appropriate medical option implicates sensitive policy judgments more appropriate for the Legislature than for a court. A New York State task force charged with studying the issue concluded that permitting physician-assisted suicide would risk serious harm to persons who might experience external pressures to seek that option—such as the elderly, poor, persons without access to adequate medical care, or those suffering from uncontrolled pain or 3 depression. The task force also concluded that any criteria or possible safeguards for regulating physician-assisted suicide could prove malleable in clinical practice, thereby increasing the risk of abuse and error. The Legislature was entitled to address these concerns by creating a bright-line rule prohibiting physicians as well as others from assisting in a suicide. QUESTIONS PRESENTED 1. Does the Penal Law’s prohibition against assisting in another person’s suicide bar a physician from prescribing a lethal dose of medication to a mentally competent, terminally ill patient who requests the medication for the purpose of ending his or her life? 2. Is such an application of the Penal Law consistent with the guarantee of due process set forth in the state Constitution? 3. Is such an application also consistent with the state Constitution’s equal-protection clause? 4 STATEMENT OF THE CASE A. New York’s Longstanding Prohibitions on Assisting a Suicide 1. The State’s codification of the common- law prohibition on assisting a suicide “[F]or over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide.” Washington v. Glucksberg, 521 U.S. 702, 711 (1997) (discussing historical statutes and commentaries). As early as the thirteenth century, the English common law treated the act of taking one’s own life as a felony offense and also prohibited the practice of assisting with such an act. Id. at 711; see also id. at 774 n.13 (Souter, J., concurring). The family of an individual who took his own life could be punished by forfeiture of the individual’s movable goods, and, in some cases, by forfeiture of the individual’s real property as well. See id. at 711. During colonial times, New York directly applied these common-law prohibitions and penalties. See N.Y. Const. of 1777, 5 art. XXXV.1 After the Revolutionary War, New York continued to incorporate these prohibitions through the state Constitution and through statutory enactments that recognized the existence of common-law crimes and set forth procedures and penalties for their punishment. See id.; Ch. 37, § 2, 1788 N.Y. Laws 664, 665; see also Law Revision Comm’n, Report, No. 65 (1937), at 830 (observing that New York’s prohibition on assisting suicide is “traceable into the ancient common law”). In 1828, New York passed the first American statute explicitly criminalizing the act of helping another person to end his or her life, providing for treatment of that offense as manslaughter in the first degree. N.Y. Rev. Stat. pt. IV, ch. 1, tit. 2, art. 1, § 7 1 This provision states in relevant part: [S]uch parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. N. Y. Const. of 1777, art. XXXV (emphasis added). 6 (1829). In 1881, the Legislature eliminated the forfeiture of a suicide’s property because of the “impossibility of reaching the successful perpetrator.” Penal Law tit. IX, ch. 1, §§ 172-173 (1881) (codified at Penal Law §§ 2300 to 2306, 4 N.Y. Cons. Laws 2809 (1909)). The Legislature nonetheless noted that suicide was “a grave public wrong,” id. § 173, and explicitly prohibited attempts to take one’s own life, setting a penalty of up to two years in prison, a fine, or both. Id. § 174; see also Mallory v. Travelers’ Ins. Co., 47 N.Y. 52, 55 (1871) (describing the taking of one’s own life as an act of “gross moral turpitude”). And the Legislature also retained the criminal prohibition on assisting a suicide, see id. §§ 175, 176—rejecting proposals to “give a physician the right to relieve painlessly the sufferings of a patient suffering from incurable disease,” see N.Y. Sun, “Anti-Suicide Law is Now Repealed” (Sept. 2, 1919). In 1919, New York decriminalized the act of attempting to take one’s own life, yet declined to decriminalize the conduct of assisting with either suicide or attempted suicide. See Ch. 414, § 1, 1919 N.Y. Laws 1193, 1193; see also Penal Law § 2305, 4 N.Y. Cons. Laws 2810 (1909). Similarly, in its 1965 revision of the Penal Law, 7 the State omitted the declaration that taking one’s own life is a “grave public wrong,” and did not make attempted suicide a crime, but retained the criminal prohibition on assisting with either suicide or attempted suicide. See Ch. 1030, 1965 N.Y. Laws 2343, 2385, 2387 (codified at Penal Law §§ 120.30, 125.15(3)). At present, the Penal Law continues to prohibit both aiding a suicide and aiding an attempted suicide. Penal Law § 125.15(3) provides that a person is guilty of manslaughter in the second degree, a class C felony, when “[h]e intentionally causes or aids another person to commit suicide.” And Penal Law § 120.30 provides that a person is guilty of promoting a suicide attempt, a class E felony, when “he intentionally causes or aids another person to attempt suicide.” Moreover, the Penal Law’s prohibitions on assisting a suicide are generally understood to apply “even where the defendant is motivated by ‘sympathetic’ concerns, such as the desire to relieve a terminally ill person from the agony of a painful disease.” See People v. Duffy, 79 N.Y.2d 611, 615 (1992) (quoting Staff Notes of Comm’n on Revision of Penal Law and Crim. Code, Proposed N.Y. 8 Penal Law, McKinney’s Cons. Laws of N.Y., Spec. Pamphlet, at 339 (1964)).2 This was the understanding of the New York State Temporary Commission on Revision of the Penal Law and Criminal Code at the time of the drafting and enactment of the 1965 revision of the Penal Law. Moreover, it has remained the consistent understanding of the authors of the Practice Commentary to the Penal Law since that time. See Richard G. Denzer and Peter McQuillan, Practice Commentary to § 125.15, 39 McKinney’s Cons. Laws of N.Y. 177, 226-27 (1967) (“1967 Practice Commentary”). Indeed, as the current Practice Commentary to the Penal Law 2 The Legislature created the Commission to evaluate the then-existing Penal Law and Code of Criminal Procedure, and submit a “revised, simplified body of substantive laws relating to crimes and offenses in the state.” See Comm’n on Revision of Penal Law and Crim. Code to Proposed N.Y. Penal Law, 1964 Report, at 9 (Commission Foreword); see also Ch. 346, 1961 N.Y. Laws 1275. The Legislature enacted the Commission’s proposed bill comprehensively revising the Penal Law in 1965. See Ch. 1030, 1965 N.Y. Laws 2343; see also Comm’n on Revision of Penal Law and Crim. Code to Proposed N.Y. Penal Law, 1966 Report, at 7. In conjunction with the proposed bill, the Commission submitted “staff notes” to explain the “changes which would be effected by the proposed Penal Law.” See Comm’n on Revision of Penal Law and Crim. Code to Proposed N.Y. Penal Law, McKinney’s Cons. Laws of N.Y., Spec. Pamphlet, at 251 (1964). 9 explains, because the use of duress or deception transforms the act of “causing or aiding” a suicide from second-degree manslaughter, see Penal Law § 125.15(3), to second-degree murder, see id. § 125.25(1)(b), the lower-level manslaughter provision encompasses assisting a “person tortured by painful disease” to commit suicide, see William C. Donnino, Practice Commentary to § 125.00, at 131-132. 2. The Legislature’s ongoing consideration of end-of-life issues, and repeated rejection of proposals to allow physician- assisted suicide Since 1965, the Legislature has continued to reflect upon end- of-life issues, and to clarify the boundaries of an individual’s rights to autonomy in the medical context. In 1985, the Legislature established the New York State Task Force on Life and the Law (“Task Force”), to assist the State in developing public policy on issues arising at the intersection of medicine, law, and ethics. The next year, the Task Force issued a report and recommendations on “do not resuscitate” orders, including a proposal for legislation. See Task Force, Do Not Resuscitate Orders: The Proposed Legislation 10 and Report of the New York State Task Force on Life and the Law (Apr. 1986) (“DNR Report”). The 1986 Task Force report considered, among other things, the interaction between the common-law right to refuse medical treatment3 and the State’s prohibition on suicide. The report focused in particular on this Court’s holding that the prohibition on suicide is implicated only by self-inflicted harm, and not by a decision to refuse life-sustaining treatment. See DNR Report at 10-11 (discussing Matter of Storar, 52 N.Y.2d 363 (1981), superseded by statute on other grounds). Ultimately, the report resulted in a 1987 statute allowing individuals to create “do not resuscitate” orders, or to decline cardiopulmonary resuscitation. See Ch. 818, § 1, 1987 N.Y. Laws 3140 (codified as amended at Public Health Law §§ 2960-2978 (eff. Apr. 1, 1988)). 3 See, e.g., Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 269-73, 277 (1990) (discussing basis of right to refuse medical treatment as grounded in common-law rights of informed consent, self-determination, and privacy); Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218, 226 (1990) (recognizing right of a competent adult to determine the course of his or her own medical treatment). 11 In 1987 the Task Force issued a report discussing the withdrawal of life-sustaining treatment and the appointment of health-care proxies. See Task Force, Life Sustaining Treatment: Making Decisions and Appointing a Health Care Agent (July 1987). In that report, the Task Force examined the ethics of foregoing medical treatment and the difference between killing a patient and letting that patient die. Id. at 33-42. While endorsing the view that competent adults have a right to make “decisions about the withholding and withdrawal of artificial nutrition and hydration,” the Task Force concluded that “the taking of human life” through euthanasia “must not be granted legal sanction.” Id. at 40-41. “If one human being is legally permitted to take the life of another,” the Task Force reasoned, “society will have changed its understanding of human life.” Id. at 42. The Legislature subsequently codified the distinction between the withdrawal of medical treatment and killing. In 1990, it authorized health-care proxies to direct the withholding of life- sustaining treatment, but declared at the same time that this 12 measure “is not intended to permit or promote suicide, assisted suicide, or euthanasia.” See Public Health Law § 2989(3). In 1994, the Task Force issued a lengthy report on physician- assisted suicide and euthanasia. See Task Force, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context (May 1994) (“1994 Task Force Report”). In that report, the Task Force “unanimously recommend[ed] that New York laws prohibiting assisted suicide and euthanasia should not be changed.” See id. at Executive Summary and Introduction. The Task Force based its view on (i) the risks that could be presented to the elderly, poor, socially disadvantaged, and those without access to good medical care; (ii) the role of treatable symptoms such as pain and depression in creating a desire for lethal medications; and (iii) the consequences that could result from blurring the State’s bright-line prohibitions on assisting another person to take his or her life, given that most doctors lack a sufficiently close relationship to their patients to appropriately evaluate a request for help in committing suicide. Id. The Task Force also expressed concern about the possibility that 13 permitting physician-assisted suicide could open the door to euthanasia of those incapable of consent. Id. Since 1994, the Legislature has been presented with various proposals to amend state law in a manner that would allow physicians to prescribe medication to assist a patient in ending his or her life.4 Each of these proposed amendments, however, has failed. For example, in 2016, the Legislature was presented with proposed legislation that would have shielded a physician from criminal liability for providing a mentally competent, terminally ill patient with medication that the patient could self-administer for the purpose of hastening the patient’s death. See A. 10059, 239th Sess. (2016). 4 See, e.g., A. 10059, 239th Sess. (2016) (proposal to amend the public health law to authorize physicians to prescribe medications that assist a patient in ending his or her life), A. 5261, 238th Sess. (2015) (same), A. 2129, 238th Sess. (2015) (same), A. 9360, 235th Sess. (2012) (same), A. 6333, 218th Sess. (1995) (same, through amendment of the public health law and the penal law); S. 7579, 239th Sess. (2016) (same, through amendment of public health law), S. 5814, 238th Sess. (2015) (same), S. 3685, 238th Sess. (2015) (same), S. 677, 224th Sess. (2001) (same, through amendment of the civil rights law), S. 7396, 223rd Sess. (2000) (same), S. 1683, 218th Sess. (1995) (same, through amendment of the public health law and penal law), S. 5024, 218th Sess. (1995) (same), S. 7986, 217th Sess. (1994) (same). 14 The bill contained a provision expressly providing that the conduct to be authorized by the statute “shall not be construed for any purpose to constitute suicide.” See A. 10059, proposed § 2899-o (stating that “action taken in accordance with this article shall not be construed for any purpose to constitute suicide, assisted suicide, attempted suicide, [or] promoting a suicide attempt”). The bill did not pass. It was reintroduced in January 2017. See A. 2383, 240th Sess. (2017); S. 3151, 240th Sess. (2017). 15 B. The Proceedings Below 1. Plaintiffs’ complaint Plaintiffs brought this action in Supreme Court, New York County against five district attorneys and Eric T. Schneiderman, in his capacity as Attorney General of the State of New York. (Record on Appeal (“R.”) 25.) After the district attorney defendants agreed to be bound by the judgment in this case5, plaintiffs discontinued their suit against those defendants, leaving the Attorney General as the sole defendant in this suit. (See R. 6.) The complaint seeks a declaration that the prohibitions against assisting suicide set forth in Penal Law § 120.30 and § 125.15, properly construed, do not apply to the act of a medical professional who provides lethal narcotics to a mentally competent, terminally ill patient—conduct that plaintiffs term “aid-in-dying.”6 5 See Pls. & District Attorney Defs. Stip. (filed Mar. 18, 2015) NYSCEF Doc. No. 27. 6 Plaintiffs Sara Myers and Steve Goldenberg were mentally competent, terminally ill adults who passed away during this litigation. (See R. 23-24, 26-29.) See also Br. for Plaintiffs-Appellants (“Br.”) at 8 n.4. Plaintiff Eric Seiff was diagnosed with an illness that has the potential to progress to a terminal stage. (See R. 24, 16 (R. 40-41.) Plaintiffs allege that “aid-in-dying” is distinct from death by suicide, claiming that suicide is “a premature death of a life of otherwise indefinite duration, often motivated by treatable depression” whereas “aid-in-dying” effectuates “the choice of a dying patient for a peaceful death.” (R. 38.) The complaint requests, in the alternative, a declaration that applying Penal Law § 120.30 and § 125.15 to “aid-in-dying” would be inconsistent with the Equal Protection and Due Process Clauses of the New York Constitution. (R. 41-44.) Plaintiffs assert that New York’s Equal Protection Clause requires that “aid-in-dying” be given the same legal status as refusals of unwanted medical care (R. 41-42), and that prohibiting “aid-in-dying” is irrational and violates their fundamental rights (R. 43). On the basis of the foregoing claims, the complaint also seeks a permanent injunction preventing defendants and their “agents, employees, representatives, and all those acting in concert with 29-30.) The other plaintiffs are five medical professionals who regularly treat terminally ill patients, and End of Life Choices New York, an advocacy group. (R. 24-25, 30-35.) 17 them from prosecuting plaintiffs for seeking or providing aid-in- dying to a mentally-competent, terminally-ill individual.” (R. 45.) 2. Supreme Court’s dismissal of the complaint for failure to state a claim Supreme Court (Kenney, J.) granted the Attorney General’s motion to dismiss the complaint for failure to allege facts showing a cause of action. (R. 6-17.) See C.P.L.R. 3211(a)(7). Noting the “clear” language of Penal Law § 120.30 and § 125.15 (R. 13), Supreme Court held that the State’s prohibition on assisting suicide undoubtedly extends to the practice of providing lethal medications to mentally competent, terminally ill patients (R. 14, 17). The court rejected plaintiffs’ claim that such an application was inconsistent with the New York Constitution’s guarantees of equal protection and due process, relying on this Court’s recognition that “the State has long made a constitutionally-permissible distinction between a right to refuse medical treatment and a right to commit suicide (or receive assistance in doing so).” (R. 15 (quoting Matter of Bezio v. Dorsey, 21 N.Y.3d 93, 101 (2013)).) The court also observed that plaintiffs’ constitutional arguments were essentially identical to 18 the arguments rejected by the United States Supreme Court in Vacco v. Quill, 521 U.S. 793 (1997). (R. 15-16.) 3. The Appellate Division’s affirmance The Appellate Division, First Department unanimously affirmed the dismissal of plaintiffs’ complaint. See Myers v. Schneiderman, 140 A.D.3d 51, 65 (1st Dep’t 2016). As the court’s written decision shows, the court considered plaintiffs’ factual allegations and the supporting documents they submitted in opposition to the motion to dismiss, “giving plaintiffs the benefit of every reasonable inference.” Id. at 64. The court first determined that, under the “straightforward meaning” of the term “suicide,” Penal Law § 120.30 and § 125.15 plainly encompass the act of intentionally ingesting lethal medication prescribed by a physician. Id. at 57. The court noted that “[w]hatever label” plaintiffs choose to put on this conduct, and whatever the basis for that label, the conduct itself unquestionably qualifies as an instance of taking one’s own life voluntarily and intentionally. Id. The Appellate Division next concluded that plaintiffs had not stated an equal-protection claim. Referencing the United States Supreme Court’s analysis in Vacco v. Quill, the Appellate Division 19 observed that New York’s prohibition on assisting in a suicide does not “‘treat anyone differently from anyone else or draw any distinctions between persons. Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide.’” See Myers, 140 A.D.3d at 59 (quoting Vacco, 521 U.S. at 800-01). Finally, the Appellate Division held that plaintiffs had not stated a due-process claim. Relying on decisions of this Court and the United States Supreme Court, the Appellate Division rejected plaintiffs’ argument that a right to “aid-in-dying” is encompassed within the well-recognized right to refuse medical treatment. Id. at 60-61. Based on those same authorities, the Appellate Division also concluded that New York’s prohibition on physician-assisted suicide was rationally related to the State’s legitimate interest in preserving the life of all persons. Id. at 60-61. The Appellate Division determined that plaintiffs’ proffered evidence failed to “demonstrate a societal evolution on the question of aid-in-dying such that, if the ban [were] upheld, [the courts] would be paying blind adherence to outmoded thinking.” Id. at 62. The court further noted that, in any event, 20 “[c]onsidering the complexity of the concerns presented here,” it was proper to “defer to the political branches of government on the question of whether aid-in-dying should be considered a prosecutable offense.” Id. at 65. ARGUMENT PLAINTIFFS’ COMPLAINT FAILS TO STATE A VALID CAUSE OF ACTION On a motion to dismiss under C.P.L.R. 3211, the Court “accept[s] the facts as alleged in the complaint as true, accord[s] plaintiffs the benefit of every possible favorable inference, and determine[s] only whether the facts as alleged fit within any cognizable legal theory.” Al Rushaid v. Pictet & Cie, 28 N.Y.3d 316, 327 (2016) (quotation marks omitted). Here, “even giving plaintiffs the benefit of every reasonable inference,” their complaint does not state a valid statutory or constitutional claim—as the courts below correctly determined. Myers, 140 A.D.3d at 64. (See also R. 14-16.) 21 POINT I PLAINTIFFS’ PROPOSED CONDUCT IS ENCOMPASSED BY THE PENAL LAW’S PROHIBITIONS ON ASSISTING A SUICIDE Plaintiffs ask this Court to read the Penal Law’s prohibitions on assisting in a suicide as excluding the actions of a medical professional who provides lethal medication for use by a terminally ill patient to end his or her own life. But as the Appellate Division correctly observed, intentionally ingesting lethal medication unquestionably qualifies as “suicide” under that term’s “straightforward meaning.” Myers, 140 A.D.3d at 57. Moreover, the soundness of this legal conclusion is not affected by the label plaintiffs have chosen to attach to their proposed conduct, or their reasons for attaching that label. Id. The courts below thus properly determined that plaintiffs’ allegations and supporting evidence fail to state a statutory claim, and that factual development of their allegations is unnecessary. 22 A. Plaintiffs’ Proposed Conduct Plainly Falls Within the Language of the Penal Law’s Prohibitions on Assisting in a Suicide. When interpreting a statute, the Court’s task is “to effectuate the intent of the Legislature.” Matter of N.Y. County Lawyers’ Ass’n v. Bloomberg, 19 N.Y.3d 712, 721 (2012) (quotation marks omitted). And the “clearest indicator of legislative intent is the statutory text.” Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 583 (1998); accord Matter of N.Y. County Lawyers’ Ass’n, 19 N.Y.3d at 721. “[S]tatutory language is generally construed according to its natural and most obvious sense.” McKinney’s Statutes § 94. “In the absence of any controlling statutory definition,” the Court will “construe words of ordinary import with their usual and commonly understood meaning,” relying on “dictionary definitions as useful guideposts in determining the meaning of a word or phrase.” Rosner v. Metro. Prop. & Liab. Ins. Co., 96 N.Y.2d 475, 479-80 (2001) (quotation marks omitted). Penal Law § 120.30 and § 125.15 prohibit a person from, among other things, intentionally “aid[ing]” a “suicide.” Although the Penal Law does not expressly define the terms “suicide” or 23 “aiding,” courts considering criminal prosecutions under this language have recognized that “[t]here is nothing confusing or unclear about the words ‘aiding . . . another person to commit suicide.’” See People v. Minor, 111 A.D.3d 198, 204-05 (1st Dep’t 2013) (ellipses in original). Indeed, the meaning of the word “suicide” is so universal and plain that New York’s pattern jury instructions, in both criminal and civil proceedings, do not define the term “suicide” for a jury.7 Suicide is commonly defined as “the act of taking one’s own life.” Black’s Law Dictionary, s.v. suicide, at 1662 (10th ed. 2014).8 “The ordinary meaning of the term ‘aid’ is to help or assist” through active or passive means. Minor, 111 A.D.3d at 205. The language of 7 See, e.g., N.Y. Pattern Jury Instructions—Civil, 4:57 (jury instruction for contract claims involving life-insurance coverage); N.Y. Pattern Jury Instructions—Criminal, Penal Law § 125.30 (jury instruction for violation of Penal Law § 120.30); N.Y. Pattern Jury Instructions—Criminal, Penal Law § 125.15 (jury instruction for violation of Penal Law § 125.15). 8 See also Washington v. Glucksberg, 521 U.S. 702, 711-12, n.10 (1997); Merriam-Webster’s Collegiate Dictionary, Eleventh Edition, s.v. suicide, at 1249 (11th ed. 2003) (defining suicide as “the act or an instance of taking one’s own life voluntarily and intentionally”). 24 the Penal Law prohibition thus plainly encompasses the act of a physician who provides a person with medication (or a prescription for medication) to use for ending the person’s life—the conduct plaintiffs describe as “aid-in-dying,” which is also commonly referred to as physician-assisted suicide. See Myers, 140 A.D.3d at 57. Plaintiffs do not dispute these points. Instead, they mistakenly argue (Br. at 16) that the Legislature could not have intended for courts to rely on the foregoing dictionary definitions of the term “suicide” because the dictionary definitions are “virtually identical” to a statutory definition the Legislature repealed.9 But as noted above, well-established principles of statutory interpretation provide that “[w]ords of ordinary import” in a statute should be 9 Plaintiffs misplace their reliance on the Legislature’s 1919 repeal of the criminal prohibition on attempting to commit suicide “and the punishment therefor.” See Br. 16 (citing Ch. 414, § 1, 1919 N.Y. Laws 1193, 1193). That provision left intact the State’s prohibitions on assisting in a suicide or attempted suicide, and manifested no intention to narrow the scope of those prohibitions. Moreover, the definition of the term “suicide” remained in the Penal Law until 1965, not 1919. See, e.g., Penal Law § 2300 (1944); Penal Law Revised, Tbl. II – Dispositions, McKinney’s Cons. Laws of N.Y. (Sept. 1965) (showing post-1965 changes and listing Penal Law § 2300 as “omitted”). 25 construed in accordance with “their usual and commonly understood meaning.” McKinney’s Statutes § 232; see also Manhattan Pizza Hut, Inc. v. N.Y. State Human Rights Appeals Bd., 51 N.Y.2d 506, 511 (1980). Thus, if the Legislature had intended to depart from the well-recognized and commonly understood definition of the term “suicide,” it would have done so expressly. For example, where the Legislature has provided “no indication of an intention to narrow [a term’s] meaning,” this Court has relied on the common-law definition of the term even after that definition was deleted as part of the 1965 Penal Law revisions. See, e.g., People v. King, 61 N.Y.2d 550, 554- 55 (1984). There is likewise no merit to plaintiffs’ argument that the prohibition on assisting a suicide does not apply to actions taken by physicians. See Br. at 20-21, 26. (See also R. 36 (¶ 37).) Neither Penal Law § 125.15 nor § 120.30 contains an exclusion for a physician’s conduct. Instead, by their unambiguous terms, those statutes apply to all persons who assist in a suicide or attempted 26 suicide.10 Nor does the Penal Law prohibition exclude “passive” assistance, such as the act of providing another person with the lethal drug necessary to cause death. (See R. 36 (¶ 38).) As the Practice Commentary to the 1965 revisions to the Penal Law explains, a husband’s act of providing his terminally ill wife “a lethal drug in order to aid her in ending a tortured existence” is second-degree manslaughter. See Denzer, 1967 Practice Commentary, at 226-27. Indeed, because the use of duress or deception elevates assisting a suicide from second-degree manslaughter, Penal Law § 125.15(3), to second-degree murder, id. § 125.25(1)(b), it is apparent that the Penal Law prohibition applies even in “sympathetic cases”—such as where the person seeking to commit suicide is “tortured by [a] painful disease.” See Donnino, Practice Commentary to § 125.00, at 131-32. In sum, plaintiffs seek an exception for specific conduct otherwise encompassed by a statute. But that relief is only available 10 See Penal Law § 120.30 (“A person is guilty of promoting a suicide attempt when he intentionally causes or aids another person to attempt suicide.”); id. § 125.15(3) (“A person is guilty of manslaughter in the second degree when,” among other things, “[h]e intentionally causes or aids another person to commit suicide”). 27 through legislative means. It is well settled that omissions from a statute “are to be remedied by the Legislature,” McKinney’s Statutes § 363, and “‘that courts are not to legislate under the guise of interpretation,’” People v. Boothe, 16 N.Y.3d 195, 198 (2011). B. Plaintiffs’ Claims Are Also Inconsistent with the History and Purpose of the Penal Law’s Prohibitions on Assisting in a Suicide. The history and purpose of the Penal Law’s prohibitions further support a conclusion that the Legislature intended to cover all instances of assisting a suicide, regardless of the attributes of the persons giving and receiving assistance. The Penal Law prohibitions are a codification of the long-standing common-law bar on assisting a suicide, which “for over 700 years” has “punished or otherwise disapproved of both suicide and assisting suicide” without any exception for those who are terminally ill. Glucksberg, 521 U.S. at 711, 714; see also supra at 4-5. Moreover, the current form of the prohibition follows a long line of legislative enactments—extending back to the colonial period—through which New York has sought to express its “commitment to the protection and preservation of all 28 human life,” id. at 710; see supra at 5-7 (surveying enactments). See also Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218, 227 (1990) (discussing the state’s “well-recognized interest in protecting and preserving the lives of its citizens”). “The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828.” See Glucksberg, 521 U.S. at 715; see also supra at 5-6. The Field Penal Code, which took its place several decades later, continued that prohibition with language clarifying that the bar extended to the acts of “furnishing another person with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life.” See Glucksberg, 521 U.S. at 715. Since then, the Legislature has decriminalized the act of attempting to take one’s own life, but repeatedly declined to decriminalize the conduct of helping with such an act. See Ch. 414, § 1, 1919 N.Y. Laws 1193, 1193; see also 4 N.Y. Cons. Laws 2305 (1909). As particularly relevant here, the Legislature has been presented with many proposals to permit physician-assisted suicide, all of which have failed. See supra at 13-14. 29 The Legislature has also consistently sought to maintain and reinforce the State’s longstanding distinction between assisted suicide and the withdrawal of medical treatment. For example, when authorizing health-care proxies to direct the withholding of life-sustaining treatment, the Legislature included a declaration that this measure “is not intended to permit or promote suicide, assisted suicide, or euthanasia.” See Public Health Law § 2989(3). C. Plaintiffs’ Allegations Do Not Raise Any Factual Issues Material to a Construction of the Penal Law’s Scope. Plaintiffs argue that they were entitled to fact-finding on their statutory claims because their complaint calls their proposed conduct “aid-in-dying” and alleges that it is a new medical practice distinct from physician-assisted suicide. Br. at 26-27. (See also R. 22 (¶ 1), 23 (¶ 3), 36 (¶ 38).) Their arguments are mistaken. Even on a motion to dismiss, Supreme Court was not required to accept plaintiffs’ assertion that “aid-in-dying” does not qualify as physician- assisted suicide—a legal conclusion flatly contradicted by centuries of established practice and tradition. See Bumbury v. City of New 30 York, 62 A.D.3d 621, 624 (1st Dep’t 2009); Quail Ridge Assocs. v. Chem. Bank, 162 A.D.2d 917, 918 (3d Dep’t 1990). Hastening the death of a person who is terminally ill is not a new phenomenon. See supra at 6-9, 12-13. As the brief of the physician amici explains, “aid-in-dying” is the same as euthanasia or physician-assisted suicide—practices long-barred in New York. Amicus Br. of Michael R. Aiello, M.D., et al. (“Physicians Amici Br.”) at 8-10. Contrary to plaintiffs’ argument (Br. at 26-27), the lack of a specific reference to “aid-in-dying” in Penal Law § 125.15 or § 120.30 does not mean that such conduct is excluded from the statutory prohibition on assisting a suicide. See supra Point I.A. Where conduct satisfies the elements of the crime under the Penal Law, the shorthand label used to describe the conduct is irrelevant.11 The provision of lethal medication to a terminally ill patient for that patient’s use to “bring about a peaceful death” (see 11 See, e.g., Harris v. Econ. Opportunity Comm’n of Nassau County Inc., 142 Misc. 2d 980, 982 (App. Term 2d Dep’t 1989) (concluding that description of raffle payments as “contributions” does not exempt conduct from Penal Law § 225.00 where conduct meets elements of gambling prohibition), aff’d, 171 A.D.2d 223, 227- 28 (2d Dep’t 1991). 31 R. 36 (¶ 38)) has always qualified as aiding another person to commit suicide, regardless of labels. See, e.g., Glucksberg, 521 U.S. at 715. Plaintiffs likewise cannot manufacture a factual issue through allegations concerning the preferences of patients or physicians—such as the claim that some terminally ill persons and their physicians regard “aid-in-dying” as a beneficial practice that is socially and medically acceptable. See Br. at 17-19, 22-23, 25, 35, 38. (See also R. 38-39 (¶¶ 44-47, 50).) No element of Penal Law § 125.15 or § 120.30 concerns the reason for a person’s desire to commit suicide or the policy views of physicians. See Denzer, 1967 Practice Commentary, at 226-27. More generally, conduct plainly encompassed by a Penal Law prohibition is not exempt merely because some members of the affected population may regard that conduct favorably or wish to engage in it. Finally, the courts below were not obligated to accept as true plaintiffs’ allegation (R. 39 (¶ 50)) that physician-assisted suicide is a legally accepted practice. Br. at 35. That allegation is merely an assertion about the laws of other states and countries. Even on a 32 motion to dismiss, the courts below were entitled to reject that assertion by taking judicial notice of other States’ laws and concluding, based on their own review of those laws, that there is no clear legal consensus in favor of physician-assisted suicide. See infra at 40-41, 57-58 & nn. 17-18, 22. POINT II PLAINTIFFS HAVE NOT STATED A VALID CLAIM UNDER THE DUE PROCESS CLAUSE Legislation is consistent with the Due Process Clause of the New York Constitution “where no fundamental right is infringed” and the legislation “is rationally related to legitimate government interests.” People v. Knox, 12 N.Y.3d 60, 67 (2009). Here, the lower courts’ dismissal of plaintiffs’ due-process claim was proper because New York law does not recognize a fundamental right to take one’s own life, and because the State’s prohibition on helping with such an act is rationally related to the State’s legitimate interest in preserving all human life. Myers, 140 A.D.3d at 60-62. These features of the law are not called into doubt by plaintiffs’ allegations 33 that some terminally ill persons would like to end their lives with lethal medication, some physicians are willing to assist them, and some states have recently begun to allow that practice. Thus, plaintiffs failed to raise any issue “requir[ing] development of a factual record.” Br. at 29. A. New York Does Not Recognize a Fundamental Right to Take One’s Own Life, or to Be Helped to Commit That Act. In evaluating claims that legislation implicates a fundamental right, this Court looks to whether the asserted right is “‘deeply rooted’” in “‘history and tradition.’” Knox, 12 N.Y.3d at 67 (quoting Glucksberg, 521 U.S. at 721). As the Appellate Division correctly observed, New York—like almost every other State—has never recognized a right to take one’s own life, or to have assistance in doing so.12 Myers, 140 A.D.3d at 60-61. 12 See, e.g., Glucksberg, 521 U.S. at 710-16 (discussing historical underpinnings of assisted-suicide prohibitions in New York and other States); see also Matter of Bezio, 21 N.Y.3d at 103 (noting distinction between right to refuse medical treatment and right to commit suicide). 34 From colonial times through the early nineteenth century, New York applied the Anglo-American common law’s prohibitions on taking one’s own life and assisting in such an act. See supra at 4-7 (discussing history of New York’s assisted-suicide prohibition). The common law’s prohibitions “never contained exceptions for those who were near death.” Glucksberg, 521 U.S. at 714. Rather, “those who were hopelessly diseased or fatally wounded” were protected by the law to the same extent as persons “who were in the full tide of life’s enjoyment, and anxious to continue to live.” Id. at 714-15 (quotation marks and brackets omitted). In 1828, New York passed the first American statute explicitly outlawing the act of helping another to end his or her life. See Rev. Stat., supra, § 7; Glucksberg, 521 U.S. at 715. In 1881, the State adopted penal laws that deemed taking one’s own life “a grave public wrong,” provided for penalties of up to two years in prison for the crime of attempting that act, and provided for the crime of assisting in that act to be treated as first-degree manslaughter. Penal Law tit. IX, supra, §§ 172-173, 175-176. Those prohibitions covered the act of “furnishing another person with any deadly 35 weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life.” Glucksberg, 521 U.S. at 715 (quotation marks omitted). Since then, New York has repeatedly declined to lift its criminal prohibition on the act of helping another person to take his or her life. See supra at 13-14. Furthermore, although the State has decriminalized the act of attempted suicide (see supra at 6-7), it continues to “intervene to prevent suicide,” Matter of Bezio, 21 N.Y.3d at 101 (quotation marks omitted). For example, state law authorizes the involuntary commitment of a person who has a mental illness likely to result in serious harm to himself, see Mental Hygiene Law §§ 9.37, 9.39, 9.41; the transfer to a psychiatric hospital of a prison inmate who appears likely to cause serious harm to himself, see Correction Law §§ 402(9), 508(2); and the use of reasonable physical force to thwart a person who is about to commit suicide, see Penal Law § 35.10(4).13 13 The authorization for use of reasonable physical force applies to private and public actors. It states in full: “A person acting under a reasonable belief that another person is about to commit suicide 36 New York’s history, traditions, and existing law thus demonstrate that there is no fundamental right to take one’s own life or to receive assistance in doing so. Contrary to plaintiffs’ assertions (Br. at 28; see also Br. at 29-32), considering New York’s “fundamental right to self-determination with respect to one’s body” and related right “to control the course of one’s medical treatment” does not lead to a different conclusion. As this Court has explained on multiple occasions, the right to determine the course of one’s medical treatment “is not absolute and in some circumstances may have to yield to superior interests of the State.”14 Matter of Fosmire, 75 N.Y.2d at 226; see also Rivers v. Katz, 67 N.Y.2d 485, 495 (1986) (same); Matter of Storar, 52 N.Y.2d at 377 (same). For example, the State may “prohibit medical procedures that pose a substantial risk to the patient alone,” Matter of Fosmire, 75 N.Y.2d at 226, in light of its “well-recognized interest or to inflict serious physical injury upon himself may use physical force upon such person to the extent that he reasonably believes it necessary to thwart such result.” Penal Law § 35.10. 14 See Cruzan, 497 U.S. at 269-73, 277 (discussing basis of right to refuse medical treatment as grounded in common-law rights of informed consent, self-determination, and privacy). 37 in protecting and preserving the lives of its citizens,” id. at 227. Similarly, where a patient at a state mental hospital “presents a danger to himself or other members of society or engages in dangerous or potentially destructive conduct within the institution, the State may be warranted, in the exercise of its police power, in administering antipsychotic medication over the patient's objections.” Rivers, 67 N.Y.2d at 495. So too, the State may intervene to prevent a hunger-striking inmate’s death by forcibly feeding him via a nasogastric tube “if necessary.” Matter of Bezio, 21 N.Y.3d at 104. There is an additional reason why plaintiffs err in seeking to rely on Rivers and several similar Appellate Division cases addressing the rights of persons to refuse medical treatment. See Br. at 29-31. The right to refuse treatment concerns a person’s ability to resist an unwanted invasion into his body, and derives from the common- law right of bodily integrity. See Cruzan, 497 U.S. at 269-70. Plaintiffs, however, are not seeking to stop an unwanted intrusion into their bodies. Rather, they want affirmative assistance to bring on death. Myers, 140 A.D.3d at 60-61. The fundamental right to self- 38 determination has never been interpreted so broadly. See, e.g., Glucksberg, 521 U.S. at 725-26, 727. Indeed, as this Court has observed, “the State has long made a constitutionally-permissible distinction” between the right to refuse medical treatment and the act of seeking “to commit suicide (or receiving assistance with doing so).”15 Matter of Bezio, 21 N.Y.3d at 103. Plaintiffs are incorrect in suggesting (Br. at 22) that Matter of Bezio’s reasoning is inapplicable here because that case concerned a prison inmate engaged in a hunger strike, rather than a person who was terminally ill or in an “irreversible incapacitated condition[] as a result of illnesses or injuries beyond [his or her] control,” 21 N.Y.3d at 103. The existence of a legal distinction between the right to refuse medical treatment and the act of taking one’s own life (or receive assistance in doing so) does not turn on the facts of any individual case. Instead, that distinction reflects the common law’s 15 For example, when authorizing health-care proxies to direct the withholding of life-sustaining treatment, the Legislature provided that this measure “is not intended to permit or promote suicide, assisted suicide, or euthanasia.” See Public Health Law § 2989(3) (enacted 1990). 39 longstanding recognition of a “right of informed consent,” and failure to recognize any equivalent right to commit self-harm or to take one’s own life. Id. at 101-02; see also Matter of Fosmire, 75 N.Y.2d at 226-27; Matter of Storar, 52 N.Y.2d at 377. Considering how our “Nation’s history and constitutional traditions” have treated the act of taking one’s own life, the United States Supreme Court has concluded that state prohibitions on assisting with this act do not infringe any fundamental liberty interests protected by the Due Process Clause of the federal Constitution.16 See Glucksberg, 521 U.S. at 725. Plaintiffs argue that this Court should not be guided by Glucksberg’s analysis because, in their view, “medical standards and public views” are now vastly more supportive of physician-assisted suicide. (R. 39-40 (¶ 50).) See also Br. at 35. But plaintiffs’ allegations about public opinion polls (R. 39-40) and the policy views of certain medical 16 New York’s Due Process and the federal Due Process Clauses contain identical language. Compare N.Y. Const. Art. I, § 6 (“No person shall be deprived of life, liberty or property without due process of law.”) with U.S. Const. Amend. XIV § 1 (requiring that no State shall “deprive any person of life, liberty, or property, without due process of law”). 40 groups (R. 144-157) are legally insufficient to demonstrate that the centuries-old prohibition against assisting a suicide—still widely recognized by the vast majority of states—should now be deemed to violate a fundamental right. Cf. Obergefell v. Hodges, 135 S. Ct. 2584, 2596-97, 2611 (App’x B) (2015) (discussing legal evolution of right to marry and listing 12 state statutes and 5 judicial decisions legalizing same-sex marriage). Indeed, New York is not an outlier in declining to recognize a right to physician-assisted suicide. No state court of final resort has overturned a statute prohibiting physician-assisted suicide on constitutional grounds, and several have expressly affirmed the constitutionality of such statutes.17 And while five States expressly 17 See, e.g., Sampson v. Alaska, 31 P.3d 88 (Alaska 2001) (upholding constitutionality of state law prohibiting physician- assisted suicide); Krischer v. McIver, 697 So. 2d 97 (Fla. 1997) (same); People v. Kevorkian, 447 Mich. 436, cert. denied sub nom. Hobbins v. Kelley, 514 U.S. 1083 (1995) (same). Montana’s highest court has found it unnecessary to reach the constitutional question, having concluded that a physician who assists in a patient’s suicide may be shielded from criminal liability by a Montana statute that creates a limited consent defense to the crime of homicide. See Baxter v. Montana, 354 Mont. 234, 239 (2009). 41 permit physicians to prescribe lethal medications to terminally ill patients—Oregon, Washington, Vermont, Colorado, and California— each of those states extended that permission by legislation, and not by judicial declaration of a fundamental right.18 Finally, plaintiffs identify no authority supporting their claim (R. 43) that New York’s prohibition on physician-assisted suicide is inconsistent with their state constitutional right to privacy. And no such inconsistency exists because “only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty[] are included in this guarantee of personal privacy.” Matter of Von Holden v. Chapman, 87 A.D.2d 66, 68 (4th Dep’t 1982) (quotation marks and citations omitted). Indeed, the only New York appellate court to consider the question has held that “the right to privacy does not include the right to commit suicide.” Id. 18 Oregon Death with Dignity Act, Or. Rev. Stat. §§ 127.800-127.897 (1997); Washington Death with Dignity Act, Wash. Rev. Code §§ 70.245.010-70.245.904 (2008) Vermont Patient Choice and Control at End of Life Act, 18 Vt. Stat. Ann. ch. 113 (2013); California End of Life Option Act, Cal. Health & Safety Code pt. 1.85 (2015); Colorado End-of-Life Options Act, Colo. Rev. Stat. §§ 25-48-101 to 25-48-123 (2016). 42 B. New York’s Prohibition on Assisting a Suicide Furthers Legitimate State Interests. Because the State’s ban on physician-assisted suicide does not infringe a fundamental right (see supra Point II.A.), the prohibition must be sustained as long as it “is rationally related to legitimate government interests,” Knox, 12 N.Y.3d at 67; see also Hope v. Perales, 83 N.Y.2d 563, 577 (1994). The United States Supreme Court has concluded that state prohibitions on assisting in a suicide serve the legitimate state interests of “prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians’ role as their patients’ healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia.” Vacco, 521 U.S. at 808-09. Plaintiffs’ allegations present no reason to deviate from that conclusion here. As this Court has recognized, “the State has a significant interest in preserving life and preventing suicidal acts.” Matter of Bezio, 21 N.Y.3d at 104; see also Matter of Von Holden, 87 A.D.2d at 68 (“[T]he State has a legitimate and compelling interest in 43 preventing suicide.”). Moreover, the State’s “legitimate interest in protecting the lives of its citizens,” Matter of Storar, 52 N.Y.2d at 377, is not limited to the lives of persons in good health, see id. at 382. Indeed, as this Court has noted, that interest exists even as to persons with “an incurable disease.” Id. at 382. Multiple New York statutes reflect a similar determination. The Public Health Law, for instance, clearly announces that it is not the State’s policy “to permit or promote suicide, assisted suicide, or euthanasia,” whatever the underlying state of the patient’s physical health.19 Public Health Law § 2989(3). “The State’s prohibition on assisted suicide, like all homicide laws, both reflects and advances [the State’s] commitment to this interest.” Glucksberg, 521 U.S. at 728. There is nothing irrational about the State’s policy judgment that “all persons’ lives, from beginning to end, regardless of physical or mental condition, are under the full protection of the law,” Id. at 19 See also, e.g., Mental Hygiene Law §§ 9.37, 9.39, 9.41 (focusing on risk of self-harm rather than the individual’s physical health); Penal Law § 35.10(4) (same); Correction Law §§ 402(9), 508(2) (same). 44 729. Physicians are often unable to accurately ascertain how much time a patient has remaining to live, and not infrequently misdiagnose an illness as terminal. See Physicians Amici Br. at 17-18; Amicus Br. of Not Dead Yet, et al. (“NDY Amici Br.”) at 9, 17; Glucksberg, 521 U.S. at 729. Consequently, “[a] surprising number of people have had the experience of being misinformed that they had a terminal illness.” Richard A. Posner, Aging and Old Age 245 (U. Chi. 1995); see also Kelsey Harkness, Assisted Suicide: How One Woman Chose to Die, Then Survived, The Daily Signal, May 18, 2015. Physician-assisted suicide “leave[s] no opportunity to recognize or correct a diagnosis that is negligently provided, or provided competently, but proves incorrect over time.” 1994 Task Force Report at 131. As noted by the New York State Task Force on Life and the Law—an entity charged with assisting the State in developing public policy on issues arising at the intersections of medicine, law, and ethics—“[o]ne study of adults over 50 years of age showed that more individuals committed suicide in the mistaken belief that they were dying of cancer than those who actually had a terminal illness and committed suicide.” Id. at 12-13. The State could reasonably 45 have concluded that a bright-line rule protecting all life was necessary to avoid the difficulties inherent in determining when a person should be allowed to take his own life. New York’s prohibition on assisted suicide also serves important public-health goals, such as the State’s interest in ensuring that all patients—including the terminally ill—receive appropriate medical treatment for pain and other debilitating conditions. Appropriate palliative care can treat a patient’s pain, decrease the possibility that the patient’s diagnosis will lead to depression, and ultimately prolong the patient’s life. Physicians Amici Br. at 14, 16. Research shows that “[u]ncontrolled or poorly controlled pain can increase a patient’s feelings of hopelessness and helplessness,” 1994 Task Force Report at 26, and that “[d]epression, accompanied by symptoms of hopelessness and helplessness, is the most prevalent condition among individuals who commit suicide,” id. at 11. See also Glucksberg, 521 U.S. at 730 (discussing these findings); NDY Amici Br. at 15. Depression is difficult for physicians to diagnose. See, e.g., 1994 Task Force Report at 26; Physicians Amici Br. at 17. It is also 46 difficult for trained physicians to definitively determine whether a terminally ill patient who wants to commit suicide is doing so because of depression or some other mental impairment. See NDY Amici Br. at 15-16. But proper treatment of a patient’s pain— achievable through appropriate palliative care (Physicians Amici Br. at 16)—can reduce or eliminate a patient’s wish to die, even where the patient is suffering from a serious condition such as advanced cancer. 1994 Task Force Report at 26; see also id. at 120- 21; Glucksberg, 521 U.S. at 730. The State could thus rationally conclude that legalizing physician-assisted suicide would make it more difficult to ensure adequate medical treatment for those who are suffering from untreated pain and depression. The prohibition also furthers New York’s interest in protecting vulnerable patients from external influences that may cause them to abandon an otherwise strong desire to remain alive. See Glucksberg, 521 U.S. at 731-32; see also NDY Amici Br. at 3-4, 10, 14-15. These influences include indifference or prejudicial assumptions regarding the value of the lives lived by such persons, as well as psychological and financial pressures. Glucksberg, 521 47 U.S. at 731-32. Societal and familial pressures, financial pressures from the cost of ongoing medical treatment, the lack of appropriate supportive care and treatment, or a patient’s fear of living with a disability are all factors that could influence a patient’s decision to commit suicide. See NDY Amici Br. at 14-15, 17-18, 20-21. Moreover, the danger of harmful influences is particularly pronounced for the poor, the elderly, those lacking access to good medical care, and members of stigmatized groups. Glucksberg, 521 U.S. at 732 (citing 1994 Task Force Report at 120); see also NDY Amici Br. at 17-18, 27. As the State’s Task Force determined, “[t]he risks of legalizing assisted suicide and euthanasia for these individuals, in a health care system and society that cannot effectively protect against the impact of inadequate resources and ingrained social disadvantages, would be extraordinary.” 1994 Task Force Report at 120. The State could rationally conclude that “[i]f physician- assisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of end-of-life health- care costs.” Glucksberg, 521 U.S. at 732. Moreover, the State could 48 reasonably embrace an absolute prohibition on assisted suicide as a means to communicate the “policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person’s suicidal impulses should be interpreted and treated the same way as anyone else’s.” Id. New York is also a regulator and monitor of the practice of medicine in the State. Matter of Koch v. Sheehan, 21 N.Y.3d 697, 701-02 (2013); Matter of Doe v. Axelrod, 71 N.Y.2d 484, 488 (1988). In that capacity, it has an interest in protecting “the integrity and ethics of the medical profession” by safeguarding the physician’s role as a healer. Glucksberg, 521 U.S. at 731. The physician amici state that allowing physicians to assist in the commission of a suicide is contrary to a physician’s professional duty to heal patients (Physicians Amici Br. at 8), and the State could rationally credit that view. Relatedly, the State has an interest in maintaining clear rules regarding assisted suicide to prevent a potentially dangerous expansion of the right that plaintiffs here seek to establish. Id. at 49 732-33. Indeed, one of the plaintiffs here, Dr. Timothy Quill, has asserted that limiting the right of assisted suicide to the terminally ill would, in his view, “arbitrarily exclude persons with incurable, but not imminently terminal, progressive illness.” Timothy Quill, Death and Dignity 162 (1993) (quoted in Yale Kamisar, Against Assisted Suicide – Even a Very Limited Form, 72 U. Det. Mercy L. Rev. 735, 740 (1995)). Courts may have difficulty differentiating the right to be prescribed medication from the right to have that medication administered, or the right to assistance from family members or friends. Courts also may have trouble resolving questions such as what differentiates a patient with a condition expected to result in death within six months—a necessary requirement for physician- assisted suicide in Oregon, Washington, Vermont, and California— from a patient with a longer life expectancy but a greater amount of discomfort, debilitation, or pain. The State could rationally conclude that these line-drawing exercises are too difficult to administer properly, and that a bright-line prohibition is therefore the most prudent approach. 50 Finally, it is not irrational for the State to be concerned that recognizing a right for mentally competent individuals to end their lives could open the door to voluntary and involuntary euthanasia. 1994 Task Force Report at 145. For example, a study relied upon by the United States Supreme Court in Glucksberg found that in the Netherlands, cases where physicians administered lethal morphine overdoses “without an explicit request” or without “the patients’ explicit consent” far outnumbered instances of assisted suicide and voluntary euthanasia. See 521 U.S. at 734. As New York’s Task Force has observed, “assisted suicide and euthanasia are closely linked.” 1994 Task Force Report at 145. “Permitting physicians to assist the suicide of patients physically capable of committing suicide, and characterizing this action as a ‘treatment,’” could easily “lead to acceptance of voluntary euthanasia for patients physically unable to perform the final act.” Id. Moreover, requiring physician participation might exacerbate rather than mitigate the pressures on the patient, because “patients who are ambivalent or hesitant may find it harder to delay or change the decision to die” in the presence of a physician. Id. Accordingly, 51 New York has not acted unreasonably in adopting an absolute prohibition on assisting a suicide in order to prevent “what is couched as a limited right to ‘physician-assisted suicide’” from becoming “in effect, a much broader license, which could prove extremely difficult to police and contain.” Glucksberg, 521 U.S. at 733; see also id. at 734 (discussing the Netherlands’ experience with euthanasia). Plaintiffs argue that the courts below erred in concluding, as a matter of law, that the State’s interest in prohibiting all suicide is legitimate and rational. Br. at 38-40. But the weight of the State’s interest in a substantive due-process analysis is a legal question that can be resolved without development of a factual record. See, e.g., City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 754 (1999); Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582, 590-91 (3d Cir. 1998). Under rational-basis review, the Penal Law prohibition is “presumed to be valid,” and must be upheld if any conceivable basis exists to support the statutory prohibition, “whether or not the basis has a foundation in the record.” Affronti v. Crosson, 95 N.Y.2d 713, 719 (2001) (quoting Heller v. 52 Doe, 509 U.S. 312, 320-21 (1993)). “A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Id. at 719. Plaintiffs attempt to manufacture a factual dispute by alleging that the State’s prohibition on suicide is not rationally related to a legitimate state interest. Br. at 39. But on a motion to dismiss, courts are not required to accept allegations that are bare legal conclusions. See, e.g., Rozen v. Russ & Russ, P.C., 76 A.D.3d 965, 969 (2d Dep’t 2010). Instead, under rational-basis review, a court may accept any of the widely recognized governmental interests that support the State’s ban on physician-assisted suicide. Regardless, plaintiffs’ specific allegations are legally insufficient to undermine the rationality of the State’s policy judgment concerning physician-assisted suicide. See Br. at 40. For example, plaintiffs rely on Oregon’s experience to argue (Br. at 40) that legalizing physician-assisted suicide will not adversely affect patient care. (See, e.g., R. 406-411 (discussing Oregon’s experience).) But Oregon’s demographic characteristics differ in many respects 53 from those of New York.20 Consequently, that State’s experience may not accurately predict the practical realities of legalizing physician-assisted suicide in New York. Ultimately, plaintiffs’ allegations concerning the purported benefits from legalizing physician-assisted suicide (see R. 431) only underscore that whether to allow that practice—and under what circumstances—is a policy judgment best left to the Legislature. The Legislature is best able to weigh the competing interests at stake here, and to balance those interests against the State’s longstanding policy of preserving all human life. In any case, the Legislature reasonably could have relied on the extensive research 20 For example, the population of New York, totaling more than nineteen million residents, is more than four times larger than Oregon, which only has four million residents. See, e.g., U.S. Census Bureau, QuickFacts, http://www.census.gov/quickfacts/table/PST0 45216/36,41,00 (providing 2016 census data for Oregon’s and New York’s populations). New York’s residents are also more racially diverse than Oregon residents. Approximately 17.6% of New York’s population is Black or African American, and 18.8% is Hispanic. Id. By contrast, only 2.1% of Oregon’s residents are Black or African American, and only 12.7% are Hispanic. Id. Moreover, 22.5% of New York’s population is foreign-born, as compared to only 9.9% of Oregon’s population. Id. . 54 and findings of the State’s Task Force—which examined in detail the consequences of legalizing physician-assisted suicide in New York—to conclude that the practice would detrimentally impact vulnerable groups, such as the poor, elderly, and disabled. POINT III PLAINTIFFS HAVE NOT STATED A VALID CLAIM UNDER THE EQUAL PROTECTION CLAUSE New York’s Equal Protection Clause “does not mandate absolute equality of treatment but merely prescribes that, absent a fundamental interest or suspect classification, a legislative classification be rationally related to a legitimate State purpose.” People v. Walker, 81 N.Y.2d 661, 668 (1993). No fundamental right is implicated here. See supra Point II.A. And plaintiffs do not allege that they constitute a suspect class. Accordingly, plaintiffs’ equal- protection claim fails as a matter of law because the State’s legitimate interest in preserving all lives is rationally related to its prohibition on suicide. See supra Point II.B. As an initial matter, the State’s prohibition on assisting a suicide does not treat similarly situated persons differently. Under 55 New York law, all mentally competent, terminally ill patients may “refuse unwanted lifesaving medical treatment” and “no one is permitted to assist a suicide” or receive such assistance. Vacco, 521 U.S. at 800 (emphasis in original). All terminally ill patients are therefore treated the same under the law. “[L]aws that apply evenhandedly to all unquestionably” do not violate equal protection. Vacco, 521 U.S. at 800. In any event, permitting an illness to run its course, even when death is inevitable, is distinct from intervening with a prescribed medication to hasten death. “[W]hen a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.” Id. at 801. Put another way, “whereas suicide involves an affirmative act to end a life, the refusal or cessation of life-sustaining medical treatment simply permits life to run its course, unencumbered by contrived intervention.” Kevorkian, 447 Mich. at 472-73. The distinction between these acts accordingly reflects the “distinction between ‘misfeasance’ and ‘nonfeasance’” or “between active 56 misconduct and passive inaction,” which “is deeply rooted in the law of negligence.” Id. at 471. Plaintiffs attempt to minimize this distinction by arguing that other lawful end-of-life options similarly involve affirmative acts that precipitate death. Br. at 32. They cite, as an example, a type of palliative treatment that consists of providing “intravenous administration of [pain] medication, and withholding of nutrition and hydration” to a terminally ill patient who has lost the ability to eat and drink on her own: a practice often called “terminal sedation.” Id. But as plaintiffs’ descriptions of terminal sedation make clear, that practice merely allows a physician to ease a patient’s pain when the patient has refused life-sustaining medical treatment.21 See Glucksberg, 521 U.S. at 780. (See also R. 37 (¶ 41).) The active administration of the pain medication may 21 Plaintiffs are likewise mistaken in attempting to analogize physician-assisted suicide to “[r]emoving a ventilator” or “the withdrawal” of hydration. Br. at 32 (emphasis added). In both of those cases, the patient is exercising a right to refuse medical treatment, which is not the same as receiving life-ending treatment. See, e.g., Council on Ethical & Judicial Affairs, Am. Med. Ass’n, Physician-Assisted Suicide 2 (Dec. 1993). 57 present a risk of death—as is true of numerous medical procedures—but death is not the intended consequence of the treatment. See Council on Ethical & Judicial Affairs, Am. Med. Ass’n, Physician-Assisted Suicide 2 (Dec. 1993). As the Council for Ethical and Judicial Affairs of the American Medical Association has explained, “[t]he intent of the palliative treatment is to relieve pain and suffering, not to end the patient’s life.” Id. New York has thus consistently and rationally recognized a distinction between “a right to refuse medical treatment and a right to commit suicide (or receive assistance in doing so).” Matter of Bezio, 21 N.Y.3d at 103. This distinction is likewise “widely recognized and endorsed in the medical profession and in our legal traditions.” Vacco, 521 U.S. at 800. For example, many states that recognize the right to refuse medical treatment also expressly disapprove of assisted suicide in the same statute providing for the refusal right.22 22 See, e.g., Ala. Code § 22-8A-10 (1990); Ariz. Rev. Stat. Ann. § 36-3210 (1994); Ark. Code Ann. § 20-17-210(g) (1991); Fla. Stat. § 765.309(1) (1996); 755 Ill. Comp. Stat. Ann. § 35/9(f) (1988), id. 58 Based on this well-accepted distinction, the United States Supreme Court has rejected a federal equal-protection challenge to New York’s prohibition on physician-assisted suicide. See Vacco, 521 U.S. at 797, 800-801, 807-08. This Court should reach the same conclusion as a matter of state law. The State Constitution’s Equal Protection Clause “is no more broad in coverage than its Federal prototype.” Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 530 (1949); accord Matter of Esler v. Walters, 56 N.Y.2d 306, 313-14 (1982). In “New York cases arising under the equal protection clauses of the Federal and State Constitutions it has not been suggested § 40/50 (1991); Ind. Code §§ 16-36-1-13, 16-36-4-19, 30-5-5-17(b) (1990); Ky. Rev. Stat. Ann. § 311.639 (1994); Me. Rev. Stat. Ann. tit. 18-A, § 5-813(c) (1995); Md. Health-Gen. Code Ann. § 5-611(c); Mass. Gen. Laws ch. 201D, § 12 (1990); Minn. Stat. § 145B.14 (1989); Mo. Rev. Stat. § 459.055(5) (1985); Mont. Code Ann. § 50-9-205(7) (1995); Neb. Rev. Stat. § 20-412(7) (1995); Nev. Rev. Stat. § 449.670(2) (1991); N.C. Gen. Stat. § 90-320(b) (1993); Ohio Rev. Code Ann. § 2133.12(D) (1994); Okla. Stat. tit. 63, § 3101.12(F) (1992); R.I. Gen. Laws §§ 23-4.10-9(f), 23-4.11-10(f) (1991-1992); S.C. Code Ann. § 44-77-130 (1993); S.D. Codified Laws § 34-12D-20 (1994); Tex. Health & Safety Code Ann. §§ 166.047, 166.050, 166.096 (1989- 1995); Va. Code Ann. § 54.1-2990 (1994); W. Va. Code §§ 16-30-2, 16-30C-14, 16-30-15 (1993-2000); Wis. Stat. § 154.11(6) (1983). 59 that the reach of the latter differed from that of the former.” Stuyvesant Town Corp., 299 N.Y. at 530-31. Contrary to plaintiffs’ argument (Br. at 44-45), they did not raise a factual issue warranting further development when they alleged (R. 36 (¶ 38)) that the cause of death of a patient who chooses “aid-in-dying” is the underlying terminal illness, and not the lethal medication ingested by the patient prior to death. In addition to presenting a legal conclusion, that allegation is plainly at odds with settled legal understandings of causation.23 And on a motion to dismiss, a court “need not accept legal conclusions or factual allegations that are inherently incredible or flatly contradicted by documentary evidence or well-established law.” Bumbury, 62 A.D.3d at 624. Moreover, where there is no dispute as to the facts of the conduct at issue—as here, where all parties agree as to the actions 23 For example, under plaintiffs’ theory of causation, a terminally ill patient whose death results from a negligent act would have no cause of action for negligence because “what has brought the patient to the threshold of death is her underlying disease,” and not the negligent act that precipitated her death (Br. at 45, n. 21); but see, e.g., Maurer v. U.S., 668 F.2d 98, 99-100 (2d Cir. 1981). 60 in which plaintiffs wish to engage—“the question of legal cause may be decided as a matter of law.” See Derdiarian v. Felix Constr. Corp., 51 N.Y.2d 308, 315 (1980). * * * * * The State does not deny that physician-assisted suicide— including the practice that plaintiffs term “aid-in-dying’—implicates complex legal, moral, and ethical concerns. Nor does it condemn the actions of States that have chosen to make this option available to those facing the rigors of terminal illness. But the question of whether physicians should be permitted to provide individuals with the means to take their own lives is a quintessential policy judgment that should be made by a legislature. As the Appellate Division correctly observed, “the political branches of government” are best suited to addressing “the question of whether aid-in-dying should be considered a prosecutable offense.” Myers, 140 A.D.3d at 65. 61 CONCLUSION For the reasons stated above, this Court should affirm the Appellate Division’s decision and order. Dated: New York, NY January 27, 2016 BARBARA D. UNDERWOOD Solicitor General ANISHA S. DASGUPTA Deputy Solicitor General VALERIE FIGUEREDO Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent By: ____________________________ VALERIE FIGUEREDO Assistant Solicitor General 120 Broadway New York, NY 10271 (212) 416-8019 Reproduced on Recycled Paper AFFIRMATION OF COMPLIANCE Pursuant to the Rules of Practice of the New York Court of Appeals (22 N.Y.C.R.R.) § 500.13(c)(1), Valerie Figueredo, an attorney in the Office of the Attorney General of the State of New York, hereby affirms that according to the word count feature of the word processing program used to prepare this brief, the brief contains 11,339 words, which complies with the limitations stated in § 500.13(c)(1). ______________________________ Valerie Figueredo