Two physicians are urging a Massachusetts Superior Court to reject a motion to dismiss their lawsuit asserting current state law allows doctors to write prescriptions for medical aid in dying for terminally ill adults because one defendant in the suit has threatened to prosecute prescribing doctors for murder.
That is one of the arguments in a complaint filed on Wednesday urging the court to reject a motion to dismiss the lawsuit by Compassion & Choices and two Barnstable County physicians, Roger Kligler and Alan Steinbach. Dr. Kligler, a Falmouth resident, who was diagnosed with stage 4 metastatic castrate-resistant prostate cancer and wants the option to get a prescription for medication he can decide to take to die peacefully in his sleep if his suffering becomes unbearable. Dr. Steinbach, a Woods Hole resident, wants to be able to write prescriptions for aid-in-dying medication without fear of prosecution.
“Defendants [Attorney General Maura Healey and Cape and Islands District Attorney Michael O’Keefe] argue that there is no actual controversy that requires the court’s determination of this case because there is no threat of prosecution,” the complaint states. “Defendants are wrong. The DA himself has stated that medical aid in dying would result in the charge of murder,” citing a story published in the Cape Cod Times on Oct. 26, two days after the suit was filed on Oct. 24.
“The severity of the punishment in this case makes it unreasonable to require a physician to advise about or prescribe medical aid in dying and face a potential criminal prosecution before challenging the application of criminal laws to medical aid in dying,” the complaint concludes. “If, as the defendants argue, the courts should decline to consider issues important to public policy, such restriction on courts would reduce the judiciary into a second-class branch of government that can only deal with unimportant issues.”
The plaintiffs’ full complaint opposing the motion to dismiss the lawsuit is posted at: www.compassionandchoices.org/wp-content/uploads/2017/01/17-1-25-Plaintiffs-Opposition-to-Motion-to-States-Motion-to-Dismiss-WM-1.pdf
The defendant’s motion to dismiss the lawsuit is posted at: www.compassionandchoices.org/wp-content/uploads/2017/01/Kligler-CIDA-Motion-to-Dismiss-Memorandum.pdf