A Free-Exercise Challenge to NY's Medically Assisted-Suicide Law

A group of Catholic healthcare providers has filed a federal lawsuit seeking to enjoin enforcement of New York's new Medical Aid in Dying Act. Among other things, the plaintiffs allege that the Act, which takes effect next month, violates their rights under the First Amendment's Free Exercise Clause.

The litigation is at a very early stage. New York has not yet responded. Still, if the statutory regime operates as the plaintiffs allege, they appear to have a pretty good free exercise argument.

The controversy concerns a practice supporters call medical aid in dying and opponents call medically assisted suicide. I will generally use the latter term because it more directly describes the act the statute authorizes: a physician provides medication that a patient may administer to himself to end his life.

New York's existing Palliative Care Information Act requires physicians and nurse practitioners to offer terminally ill patients information and counseling about end-of-life care options. The new Act authorizes an additional option: a mentally capable adult diagnosed with a terminal illness may request medication to end his life.

The plaintiffs argue that, taken together, the statutes will require medical providers to offer information and counseling about this option. Providers unwilling to counsel patients themselves must, they say, arrange for someone else to do so, or refer or transfer the patient.

The lead plaintiffs are the Carmelite Sisters for the Aged and Infirm, an order that cares for elderly and dying people. The Carmelites object not only to prescribing the medication or allowing its use on their premises--in fact, the law does not require the Carmelites to do either. The Carmelites believe that counseling, referral, and transfer would themselves constitute impermissible cooperation with an immoral practice.

Assuming the law requires what the plaintiffs allege, that forced cooperation would probably qualify as a substantial burden on their religious exercise. Under Hobby Lobby, courts generally may not second-guess a sincere religious judgment about complicity. A court could not simply tell the Carmelites that counseling or referral is too remote from the patient's ultimate decision to count as religiously objectionable.

But substantial burden is only the beginning. Under Employment Division v. Smith, a neutral and generally applicable law ordinarily does not trigger strict scrutiny.

The Carmelites argue the new law does not apply generally because it exempts hospices, which also care for terminally ill patients and address end-of-life decisions. If hospices are exempt while Catholic nursing homes are not, comparable institutions receive different treatment. New York will presumably argue that hospices are not similarly situated, perhaps because they play a different role in patient care or enter the process after broader treatment decisions have already occurred.

If the Carmelites are correct and the law does not apply generally, strict scrutiny would apply. New York would have to show that requiring the Carmelites themselves to provide or arrange the counseling is the least restrictive means of ensuring that patients receive accurate information. That may be difficult. The state could provide a website, telephone service, written notice, independent counseling system, or list of participating providers.

In short, if the Carmelites' account of the facts and the law proves correct, their Free Exercise Clause claim seems a strong one.

Behind this case is a profound disagreement about end-of-life care. Supporters emphasize autonomy and compassion for people facing severe suffering. Opponents see medically assisted suicide as inconsistent with the duty to protect life and care for patients.

These decisions are often excruciating for patients, families, doctors, and caregivers. Abstract principles can seem inadequate in such circumstances.

But that is not the issue the court is being asked to decide. The question is narrower: whether New York may require religious institutions to participate in medically-assisted suicide in ways that violate their faith.

I discuss the case in a new Legal Spirits Short Take, available here.