Roger Kligler, a retired physician in Falmouth, Massachusetts, has lived with prostate cancer for nearly two decades. As a physician himself, Roger has dealt firsthand with cancer his entire life, and knows exactly how devastating its various symptoms and treatments can be. In his own words, “three different cancer treatments have failed . . . [My wife Cathy and I] have had to reckon with the knowledge that from this point forward, any additional treatments will almost certainly be less effective and induce more of the painful and exhausting side effects that I have already withstood for so long.” Roger believes that he “should have the freedom to say how much suffering is too much during [his] final days,” so he decided to pursue just that. Roger Kligler’s Op-Ed, “The Death I Want,” published in Boston Magazine, explains Kligler’s desire for medical aid in dying.
On October 24, 2016, Roger Kligler and Alan Steinbach, M.D., a physician who would be willing to write prescriptions for medical aid in dying but fears prosecution (“Plaintiffs”), filed a Complaint with the Superior Court of Suffolk County, Massachusetts, seeking a judicial declaration that medical aid in dying is not criminal in Massachusetts, and if it is prohibited under common law, the prosecution of any physician providing medical aid in dying should be found unconstitutional.
On November 6, 2018, we filed a Motion for Partial Summary Judgment, arguing that plaintiffs have standing to bring the lawsuit, terminal patients seeking access to medical aid in dying should not be treated differently from terminal patients who receive terminal sedation from their physicians, there is no threat of harm to third parties if medical aid in dying were allowed, and that Massachusetts’ free speech laws protect the right to discuss medical aid in dying.On March 26, 2019, the court heard oral arguments.
On December 31, 2019, the court dismissed the suit. We appealed immediately. However, the court did rule in our favor in one of the six counts in the lawsuit: physicians are free to advise terminally ill patients about this end-of-life care option to peacefully end unbearable suffering in the 10 jurisdictions where it’s authorized: California, Colorado, Hawai‘i, Maine, Montana, New Jersey, Oregon, Vermont, and Washington, and Washington, D.C.
In affirming plaintiff’s right to counsel terminally ill patients about the full range of end-of-life care options, Suffolk County Superior Court Judge Mary K. Ames concluded:
“…the plaintiffs are correct that the law of involuntary manslaughter does not prohibit such provision of information and advice … where MAID [medical aid in dying] is legal … In concluding that MAID is not authorized under Massachusetts law, the court notes that there appears to be a broad consensus that this issue is best not addressed by the judiciary” (see pages 11, 23 of ruling posted here). For more information about the ruling, please see the press release here.
Massachusetts Supreme Judicial Court
Until recently, the case had been stalled in the appellate process due to the impact of COVID-19. However, the appeal has now been taken up by the Massachusetts Supreme Judicial Court with oral arguments set for March 9, 2022. As we await a decision on the appeal, Compassion & Choices continues to work to ensure all individuals have access to the care they want at the end of life.