While there was much to celebrate as 2025 drew to an end, with victories for the MAID movement in Delaware, Illinois and finally New York, less noticed was a critically important and potentially game-changing appellate court decision from the 3rd Circuit in New Jersey.   Faced with the constitutionality of New Jersey's residency requirement in its MAID law, the court summarily rejected the obvious intentions of the Founding Fathers in Article IV, Sec 2, Clause 1:  The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.  

The key purpose of the Privileges and Immunities ("P&I") Clause was to help fuse into one Nation a collection of independent sovereign States.³ Under the prevailing view of the Clause, its central requirement is that in any state every citizen of any other state is to have the same privileges and immunities which the citizens of that state enjoy.⁴ In other words, the Clause prevents a state from discriminating against citizens of other states in favor of its own.⁵ The Clause’s concerns implicate not only individual rights to nondiscriminatory treatment, but also the structural balance essential to the concept of federalism.⁶

One has to imagine that at the time of the founding in the 1780s, the United States was really 13 autonomous countries, each jealous and protective of their resources, with inhabitants of each state feeling greater loyalty to the state in which they had been born and raised, than in this new overarching Federal encroachment.  It would have been easy then for the states to remain balkanized.

Instead the Constitutional drafters inserted a clause facilitating the free transfer of labor and capital across state boundaries.  This is especially relevant in terms of the ability to practice a profession or earn a living.

Currently a doctor in New Jersey is free to treat a patient from out of state for any medical procedure.  New Jersey does not say that doctors can only fix broken bones for patients from the Garden State; no doctor must ask his patient if they are state residents before proceeding to treat the flu or provide a shingles vaccine.  To the contrary, such an imposition would be both medically unsound ( imagine an out of state patient who happens to have a car accident in New Jersey-- would the ambulance have to race him to his home state?)and economically counterproductive.

Two states have recognized the folly and unconstitutionality of a residency requirement: Oregon and Vermont.  They eliminated their residency requirement because they recognized the unconstitutionality of the requirement.  Yet in the case of Bryman v Gov Murphy (et al), No. 24-2947 (3rd Cir Dec 2025), a unanimous 3 court panel joined Judge Stephanos Bibas in a regrettable

fishing expedition to invent issues with the law which are not present.   His argument turned the notion of comity upside down by arguing, not that each state should show comity to citizens of another state, but rather that New Jersey should be allowed to cede some of its autonomy to the restrictions of another state.  The argument is that what if an out-of-state patient receives a MAID prescription in NJ and then decides to return to Pennsylvania where MAID is not allowed:  would that put the NJ doctor in peril?

Of course the obvious answer is that the New Jersey doctor could make it a condition of treatment that the patient remain in New Jersey to ingest the medicine if and when he should want  This in fact is the practice in both Vermont and Oregon.

A further inane argument of Judge Bibas is that if Pennsylvania has decided that MAID should be illegal, isn't it something of an affront to Pennsylvania if New Jersey allowed Pennsylvanians. citizens to drive over the river to obtain MAID services; this is as logical as suggesting that when Pennsylvanians drive into New Jersey they should obey Pennsylvania  laws as to speed limits or the availability of medical marijuana.  Each state is a sovereign and should not handicap citizens from other states in enjoying those rights available to locals.

Furthermore, Judge Bibas with no authority whatsoever rejects a SCOTUS decision Doe v Bolton, 410 US 179 (1973) which specifically states that the P&I clause protects people who travel to other states for medical care :"[j]just as [it] protects persons who enter other States to ply their trade" 410 US @ 200.  In other words, the Supreme Court relied on the P&I clause to state the obvious-- the clause is intended t allow out of state persons who seek medical attention in another state, just as it protects them seeking any commercial activity in an other state . Judge Bibas simply assumes the case was overruled by Dobs v Bolton, even though nothing in Dobbs explicitly does so.

The reality is that Judge Bibas acted like a superlegislature.  He does not personally like MAID-- his opinion refers to the procedure with the telltale language of "physician assisted suicide", a term which only opponents use and which is in no way used in the New Jersey statute which is called the Medical Aid in Dying for the Terminally Ill Act  And by golly, he will do his best to limit its breadth.

This opinion is more than damaging; it is cruel.  Had the Court validated the obvious unconstitutionality of a residency requirement, it would have had implications for every other state with MAID legislation.  It would have been a binding precedent which would have allowed millions of terminally ill patients to avail themselves of the closest state where MAID is available.  For North Carolinians, it would have meant a one hour flight from Charlotte or RDU to LGA or JFK or Newark airports  to seek a peaceful end that their ALS or cancer was preventing.  Adding insult to injury, the 3-judge panel was comprised of a Trump, Biden and Clinton appointee, which made asking for an en banc review counter indicated.

The unanimity of the Court's opinion was a body blow to millions of suffering Americans.