Dr Roger Kligler

Dr Roger Kligler

In a long-awaited decision, on Dec 19, 2022, the Supreme Judicial Court of Massachusetts rendered a shattering opinion essentially dismissing a 6-year struggle by Dr Roger Kligler, a retired Cape Code-based physician diagnosed with metasatic prostate cancer, to have MAID recognized under the State Constitution as a fundamental right.  Dr Kligler was joined as plaintiff by Dr Alan Steinbach, a practicing urgent care physician who would like to prescribe aid in dying drugs to terminally ill patients.

The Court’s decision was cold-blooded and unanticipated:  “We conclude that the Massachusetts Declaration of RIghts does not reach so fas as to protect physician-assisted suicide (sic) [and} that the law of manslaughter may prohibit physican-assisted suicide (sic) and does so , without offending constitutional protections.”

It is hard to imagine a more disappointing result.

The Court cursorily dismissed the plaintiffs’ argument that Medical Aid in Dying is not the same as suicide, trivialising the very contrasting situation between someone condemned to die because of a terminal illness but very much wishing to live, with someone otherwise with a life of indeterminate length who very much wants to die.  Because Judge Gaziano ignored this distinction, his opinion wandered through an irrelevant history of the Commonwealth’s legislative efforts to discourage suicide and punish those who encourage or persuade another to take their life.  Judge Gaziano seemed oblivious to the important distinction between someone who maliciously or negligently encourages another to take their own life which they would otherwise not do, and a medical practitioner or loved one who lovingly assists someone who, knowing full well that they have a very limited time left, has already made up their mind that the time has come.

The Court threw out Dr Kligler’s petition as without standing because Dr Kligler is not currently terminal.  This despite the fact that his cancer could at any moment enter an aggressive phase, and he would then have six months to litigate his claim.  Fortunatley,, there was a dissent which lambasted this absurd rejection of Kligler’s petitition.

As for Dr Steinbach’s claim, the Court recognised he had a valid case or controversy because he faced a credible threat of prosectuion should he carry out his intention to provide a MAID prescription.  Dr Steinbach was responding to a threat by a district attorney in Cape Cod that he would prosecute under the common law crime of involuntary manslaughter any doctor writing a MAID prescription.

The Court summarised the question before it:  “whether a charge of involuntary manslaughter would be foreclosed as a matter of law in any case of physician-assisted suicide (sic)”

Dr Steinback had argued that with MAID, the doctor’s act of writing the prescription can not be considered the proximate cause of the patient’s death (an essential element in any prosecution for manslaughter), because ultimately the patient has to take several superseding steps:  he has to fill the prescription at a pharmacy, he has to prepare the medicine (which needs to be combined) home and he has himself to self adminster the medicine, in a final act of agency.

Additionally, it is now well known that any number of patients in fact never take the medicine.  Many doctors then write the prescirption to provide comfort and a sense of autnomy to the patient, hoping that having the medicine  is like having a fire extinguisher in the house; it will provide comfort without the necessity of self administration allowing them to live out the rest of their natural life more peacefully to its natural conclusion.

Judge Gaziano would have none of that argument, arguing incongruously that the writing of the prescriptoin sets in motion a foreseeable, but not inevitable , use of the medicine which is enough to allow a prosecution for manslaughter..

Kligler v Healy is a game changer for North Carolina.  Like Mass, we in North Carolina,  do not have a stuatute crminalizing MAID.  We also do not have legislation immunizing a physician who writes a MAID prescription.  The question in NC is whether a doctor could be prosecuted for involuntary homicide snould they write a prescription  under our current legal regime.  While the Kligler case is not binding law in NC, it surely will have more than just a chilling effect on any NC doctor wishing to help a terminally ill mentally competent patient.  The Kligler case would certainly be cited by any NC Disrict Attonrey  seeking to prosecute a NC doctor.  The Klligler case thus directly contradicts the conlusions reached in the UNC Law Review article of Jan 2019 that no prosecution could stand under NC law.

This is not to say that were a doctor to write a MAID prescription adhering to the prevailing standard of care, and were a DIstrict Attorney to indict the doctor, that the jury would necessarily convict.  In fact, it seems more likely than not that the jury would acquit under most foreseeable scenarios.  Still the risk is too great for the overwhelming majority of NC-based doctors.

For those of us in NC who seek an expansion of end of life optons in  NC, it now appears that a judicial recognition of a fundamental right to MAID under the state constitution is unlikely.  Furthermore, it is now far too risky to encourage any doctor in NC to write a prescrition for MAID and face the prospect of prosecution. We will need then to double our efforts to  proceed through the legislative route.

Massachusetts