Lynda Bluestein, Bridgeport, CT

Compassion & Choices filed a federal lawsuit Thursday on behalf of a terminally ill Connecticut woman and Vermont physician with New York patients asserting that the residency requirement in Vermont’s medical aid-in-dying law violates the U.S. Constitution’s guarantee of equal treatment. The lawsuit asks the court to prohibit officials from enforcing this unconstitutional provision of the law. The lawsuit complaint is posted at https://compassionandchoices.org/docs/default-source/legal/20220825-complaint-wm.pdf

The lawsuit is the second in the nation to challenge a medical aid-in-dying law’s residency requirement. Ten of the 11 jurisdictions nationwide that have authorized medical aid in dying have a residency requirement. In March, Compassion & Choices successfully settled a similar lawsuit resulting in the suspension of the residency requirement in Oregon.

Vermont’s Patient Choice and Control at End of Life Act (Act 39) requires a patient’s physician to determine whether or not a terminally ill person who requests medical aid in dying is a Vermont resident before writing a prescription for the medication. Vermont’s medical aid-in-dying law, the first in the nation enacted by legislative action, allows terminally ill adults with the mental capacity to make their own medical decisions, and six months or less to live to peacefully end unbearable suffering. In opting for medical aid in dying, they may obtain a prescription for medication from a doctor, which they may then self-ingest at a time of their choosing.

The plaintiffs assert that the residency requirement in Vermont’s Patient Choice and Control at End of Life Act violates three clauses in the U.S. Constitution, specifically the:

1. Privileges and Immunities Clause by limiting the availability of medical aid in dying to residents of Vermont.
2. Dormant Commerce Clause by restricting interstate commerce, including medical care.
3. Equal Protection Clause by failing to provide residents and non-residents equal protection under federal law.

“I’ve had a lot of time to think about Vermont,” said plaintiff Lynda Bluestein, 75, who was diagnosed last year with Stage IIIc fallopian tube cancer and lives in Bridgeport, CT. “This is my third cancer diagnosis in three years, and, much as I love my life, I know my remaining time is limited. The good thing in all of this, if there is one, is that I am within driving range of Vermont and have both the human support and the financial resources to access medical aid in dying if I need it. Merely knowing I have that option is critical to providing me with the peace of mind to know that I will not have to suffer needlessly.”

“The only thing that would prevent Ms. Bluestein from seeking the medical option she desires is the Vermont law’s unconstitutional residency requirement,” said Kevin Díaz, the chief legal advocacy officer for Compassion & Choices. “Arbitrarily barring medical care solely on the basis of where patients live not only violates the Constitution but upends the standard of care for healthcare delivery.”

“Vermont’s medical aid-in-dying law has eased the suffering of numerous terminally ill Vermonters over the last nine years. The residency requirement prevents me from providing my non-resident patients with care consistent with their values and wishes at one of the most important moments in their lives,” said plaintiff Dr. Diana Barnard, whose practice specializes in hospice and palliative care in Middlebury, VT, where she also treats patients who live nearby in northern New York State. “It also harms my ability to provide them with the same medical standard of care that I provide for my Vermont patients.”

The majority of Dr. Barnard’s practice is dedicated to providing palliative care and consultation at Helen Porter Rehabilitation and Nursing, and the University of Vermont Health Network-Porter Medical Center, an integrated academic health system that serves more than one million residents across Vermont and northern New York. Since Vermont’s Patient Choice and Control at End of Life Act passed in 2013, Dr. Barnard has received numerous requests from non-residents seeking a prescription for medical aid in dying but has been unable to even consider them solely based on the prospective patients’ residency.

“Dr. Barnard faces potential criminal and civil penalties as well as potential medical board disciplinary actions, including the loss of her license to practice medicine, if she provides medical aid in dying to non-Vermont residents who otherwise qualify for such care under the law,” said attorney Ronald A. Shems, a partner in the Montpelier, VT law firm of Tarrant, Gillies & Shems, LLP, who is the local counsel to Compassion & Choices in the case. “Instead, she is forced to disrupt the continuum of care and attempt to refer such patients to another healthcare provider.”

“To be an effective clinician, Dr. Barnard must establish trusting relationships with patients, families, and providers at a medically complex and highly emotional time,” said attorney David B. Bassett, a partner at the law firm of Wilmer Cutler Pickering Hale & Dorr LLP and co-counsel in the case. “Medical aid in dying is the only medical procedure in Dr. Barnard’s day-to-day practice for which a patient’s lack of Vermont residency categorically denies the otherwise appropriate care that she can provide.”

In addition to Vermont and Oregon, eight other jurisdictions have medical aid-in-dying laws with residency requirements: California, Colorado, Hawai‘i, Maine, New Jersey, New Mexico, and Washington, as well as Washington, D.C.

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