Judge: Disabled can’t show assisted suicide law will create ‘duty to die’

(Legal Newsline) — People with disabilities and disability rights advocates can't block Illinois' new medical assisted suicide law from taking effect, after a federal judge said they can't show the law will force people with disabilities to be subjected to pressure from doctors, health insurers to kill themselves, rather than continue to live as costly "burdens."

On Sept. 10, U.S. District Judge John J. Tharp Jr. sided with the state of Illinois, rejecting the bid by a group seeking an injunction blocking the state law that allows doctors to discuss so-called "medical assistance in dying" (MAiD) with certain terminally ill patients.

In the ruling, Tharp said claims presented by plaintiffs that the Illinois law will create what plaintiffs have called a "duty to die" for those with disabilities are "too speculative."

Their "anticipated injuries rest on the speculative premise that (the state law) will cause doctors immediately to repudiate their fiduciary duty to do no harm to their patients," Tharp wrote.

But the judge noted the law doesn't require doctors or other health care providers to discuss assisted suicide with anyone, and further limits those discussions only to patients who are considered "terminally ill."

While the challengers argue the law gives doctors and others leeway to define what "terminally ill" may actually mean in this context, the judge said the challengers' claims presume too much.

The law, Tharp said, "mandates that the standard of care remain unaltered, and requires that doctors proceeding under (the law) must explain all medical options for patients at the end of their lives and explain their risks and benefits."

"Doctors are also required to refer their patients, 'as requested and as clinically indicated' for end-of-life 'comfort care, palliative care, hospice care, pain control,' or other options," the judge said.

"Although (the challenger) assumes the ineffectiveness of these provisions, that kind of speculation does not an injury make."

The decision comes just days before Illinois' so-called End of Life Options Act (EOLOA) is set to take effect on Sept. 12.

The EOLOA law was passed by the state's Democratic governing supermajority over Republican opposition this spring. It was signed by Democrat Gov. JB Pritzker.

Supporters of the law, including Pritzker, have said the law is needed to provide people with terminal illnesses with "the option to seek medication to peacefully end their lives on their own terms in consultation with physicians."

When he signed the bill into law, Pritzker said the law would enable "patients faced with debilitating terminal illnesses to make a decision, in consultation with a doctor, that helps them avoid unnecessary pain and suffering at the end of their lives."

However, the law has now been the subject of at least three lawsuits, seeking to block it from taking effect.

Two of the challenges have been lodged by prominent Illinois Roman Catholic clerics, including Chicago's Cardinal Blase Cupich and Springfield Bishop Thomas Paprocki, as well as Catholic and other Christian hospitals, elder care services providers and other health care providers.

The challenges from the Catholic clerics and religious orders and health care organizations and practitioners center on claims that the law would force religious adherents to violate their Christian beliefs concerning the sanctity of life and prohibition on suicide, in violation of the First Amendment's protections for religious freedom.

In the challenge led by Paprocki, the state has agreed to a temporary restraining order preventing Illinois officials from forcing Catholic hospitals and doctors to refer certain patients for medically assisted suicide, at least until the judge in that case rules on the plaintiffs' request for a preliminary injunction blocking the law.

That motion, however, will also remain on hold until a federal appeals court in Chicago resolves related legal questions concerning the authority of the state to force Christian doctors and other medical professionals, as well as hospitals run by religious organizations, such as Catholic hospitals, to refer patients for abortions.

It is not known when the the U.S. Seventh Circuit Court of Appeals may rule in that case, known as Schroeder v Treto.

However, the first challenge to the Illinois MAiD law was launched by people with severe physical disabilities and disability rights advocacy groups, including the National Council on Independent Living, Not Dead Yet, the Institute for Patients' Rights, Progress Center for Independent Living and Chicago Adapt.

Medical group the United Spinal Association is also a named plaintiff.

In their lawsuit, these plaintiffs with disabilities and their allied advocate co-plaintiffs said the law will upend longstanding legal protections for people with disabilities and completely alter their relationships with their doctors.

They asserted the new regime amounts to state permission for doctors, insurers and other "private actors" to pressure those with severe disabilities to die early as a cost- and labor-saving measure.

They noted the law particularly ends a presumption by those with disabilities that their doctors remain committed to the millennia-old "ethical obligation to do no harm."

The individual plaintiffs asserted they will suffer emotional and psychological harm under the law because the law loosens protections preventing them from being bombarded with suggestions from doctors and others about the "benefits" of suicide, compared to costs they will incur undergoing the treatments and interventions they need to continue living.

"Without any such safeguards, or objective parameters for eligibility, there will be an inevitable evolution from EOLA's 'right to die' to a 'duty to die' for individuals whose disabilities are a costly burden or who lack the resources for extended medical care," the plaintiffs wrote in their lawsuit.

"Under EOLA, people with life-threatening disabilities, as a discrete class, will be highly vulnerable to pressure from insurers and hospitals and even physicians to consent to the early loss of their lives."

They have further argued the law will encourage discrimination in the state's suicide prevention efforts, by establishing a "two-track system" for suicide prevention under which suicide prevention for those with disabilities will be weighed against their quality of life considerations. Essentially, they said the system would generally seek to prevent suicide for most people, but for those with "life-threatening disabilities" it would seek instead to "facilitate their deaths."

In response, attorneys for the state argued argued the law includes safeguards to prevent the EOLOA law from being used to coerce those with disabilities to prematurely end their lives.

The state has noted in court that the law only opens medical assisted suicide options to those with terminal diagnoses of no more than six months to live. Further, they asserted, the law doesn't allow anyone other than the patient to decide whether to move forward with the assisted suicide. And, the state asserted, the law requires that the patient undergoing the assisted suicide must be capable of administering the lethal drugs themselves.

In court arguments, plaintiffs asserted the definition of "terminally ill" can prove slippery. And the judge noted differing states with similar medically assisted suicide laws have enshrined different definitions.

New York, for instance, says those who have six months to live "with or without" life-saving medical interventions could be eligible for assisted suicide, or MAiD. California and other states, however, limit eligibility only to those who doctors consider to be too foregone for their death to be prevented by medical treatments.

Further, Tharp noted that "reasonable minds can, and do, differ" on the question of whether assisted suicide violates physicians' first duty to "do no harm" to their patients. He noted proponents of MAiD have argued that assisted suicide "promotes the duty to 'do no harm' rather than erases it because failing to alleviate pain and suffering would itself be a cause of harm."

But in this instance, Tharp said he believed Illinois' law is akin to California's definition, and can't be used to persuade those who otherwise would survive with medical treatments to kill themselves.

So, he said, the individual plaintiffs can't argue the law will force any doctors to encourage suicide, or force anyone to undergo assisted suicide.

The claims, he said, "rest on ... speculation that physicians in Illinois will decide, en masse, to abandon their existing duties to their patients." The challengers, he said, have "not persuaded the Court that this is anything other than speculation."

The judge said this means the individual plaintiffs lack standing to sue the state to block the law. And if the individual plaintiffs lack standing, so, too, do the disability rights advocacy groups and other organizations, whose standing depends on their individual members having standing to sue.

In his ruling, Tharp also specifically rejected the organizations' claims that the Illinois law will force advocates for the disabled and others to spend more time and money on counseling services and other programming to discourage those with disabilities not to kill themselves.

Even if they do so, the judge said, that will be their choice and cannot be linked to the Illinois MAiD law.

And they judge said, any "reluctance" by the groups to continue such messaging, allegedly because they fear consequences from the state, would also be self-inflicted, "based on a misreading of the statute that would allow for prosecutions directly under the Act, which are not available, and for conduct discouraging the disabled from committing suicide—distinct from what the Act contemplates as punishable, which is intentionally or knowingly coercing or exerting undue influence on a patient with respect to end-of-life choices."

The judge gave the challengers 30 days to amend their complaint to establish standing to sue, or face dismissal of their lawsuit entirely.

The plaintiffs are represented in the action by attorney Thomas H. Geoghegan, and others with the firms of Despres Schwartz & Geoghegan, of Chicago; and Rosen Bien Galvan & Grunfeld, of San Francisco.