Medical Aid In Dying: It Is Within Reach In New York

Some years before her death in March of 2021, Maureen Meenan had written a letter to her six adult children reminding each of them of her long-expressed intent to live independently for as long as possible. The writing was brief, but profound, as it also revealed Maureen’s desire to enter a nursing home if she became unable to care for herself. Maureen implicitly made clear that she did not want any of her children to be burdened with caring for her. As a woman who faithfully cared for those she loved, including a chronically ill husband and her own mother and father, Maureen understood the burden of these obligations and desired to spare her children a similar fate.

Unknown to Maureen at the time of her writing was how significantly her health would deteriorate with debilitating illness, pain and suffering in the last years of her life. At age 86, almost simultaneously, Maureen was challenged by the loss of her vision due to glaucoma, stage IV colon cancer, a fractured hip, affecting her ability to ambulate, and cognitive impairments, causing hallucinations and psychosis. While she faced each challenge heroically while living in an independent facility with private duty aides, her accumulating illnesses caused a steady decline in her ability to perform even the most basic activity of living without assistance. Stricken with increasing fatigue and stomach pain, then vomiting, her last week of life was aided by palliative nursing care and multiple daily injections of morphine and other medications to relieve pain and discomfort.  Her care during these last days was administered by her children. Maureen lost at the end that which was so important to her, the right to autonomy and to protect those she loved from the burden of her pain and suffering. Perhaps, if she had the option, Maureen would have wanted medical aid in dying to assist her at the end of her life, given the desires she expressed in her letter. But she did not.

Until now.  While it may be too late for Maureen, a more humane option for the terminally ill in New York is within reach this year.  Under consideration before the New York State legislature is the Medical Aid in Dying Act bill (MAID) (A995a/S2445) which accords competent adults, with six months or less to live, the right to die without protracted suffering and at the time and place of their choice.  If the law is enacted, New York would follow 11 other U.S. jurisdictions that have enacted laws providing for medical aid in dying, all addressing the loss of autonomy, dignity, and quality of life suffered by terminally ill individuals such as Maureen, who face an unnecessarily protracted and painful death.

MAID would permit qualified, terminally ill adult New Yorkers to legally obtain a prescription from their physician for lethal medications to end their life at the time they choose with peace and dignity.  It would accord those who are suffering the right to end their lives with autonomy, a fundamental right. The legislation would provide safeguards, including the following: a) a medically confirmed terminal illness that is incurable and irreversible and will likely cause death within 6 months; b) two physicians must confirm the person is terminally ill; c) a physician must inform the person of end of life choices; d) there is a mandatory mental health evaluation if either physician has a concern about the person’s mental health; e) the person’s request for aid in dying must be in writing and witnessed by 2 independent persons; f) the person’s request can be withdrawn; g) the person must self-ingest the medication; h) no physician, health provider or pharmacist is required to participate; i) and any coercion is subject to criminal prosecution; j) unused medication must be disposed of according to law. These safeguards are discussed in depth below.

It is expected that the MAID bill will be considered by the New York State legislature in the 2024 legislative session which commenced on January 3, 2024.

New York’s draft of the legislation is modeled on that of the Oregon Death with Dignity Act, which has been in effect for over 25 years.  Medical aid in dying legislation was first introduced in New York nearly thirty years ago, and, while it has not yet been enacted, the concept has endured because it remains necessary and is widely supported.  According to an April 2018 Quinnipiac University poll, 63 percent of New Yorkers support medical aid in dying. A January 2019 poll demonstrates that 56 percent of New York physicians support the concept of medical aid in dying, while 67 percent support the aid in dying legislation under consideration.

In June of 2023, Richard Lewis, then President of the New York State Bar Association, an organization representing attorneys in New York State, directed the formation of a task force on MAID to review the legal, ethical, health and public health and broader policy considerations concerning MAID.  Task force members were leaders within the legal and medical community in New York.  The task force considered input from diverse parties, including individuals, organizations, attorneys, physicians, social workers and other professionals with relevant experience. The task force also considered the testimony of those concerned or opposed to the legislation and held an open forum to afford other members of the public the opportunity to be heard.

Opponents of the law, including various disability organizations, often have referred to MAID as physician-assisted suicide, and cite their concern about the potential for coercion and abuse, particularly with respect to vulnerable persons, such as the elderly, disabled or depressed.  The pending law addressed these concerns by providing critical safeguards, including criminal liability for anyone who attempts to coerce another into use of MAID. In addition, two physicians must confirm that the person both has an incurable and irreversible illness and has a prognosis of six months or less to live, for the patient to be eligible to receive the medication.  The patient must be able to self-administer the medication, which distinguishes aid in dying from physician assisted suicide, in which a third-party administers the medication.

A patient must make the request for medication him or herself, not through a health care agent or other surrogate. If there is a question as to whether the patient has capacity to make an “informed decision,” a mental health professional must determine the patient to be mentally competent to make the decision. To ensure that the patient’s choice is voluntary and informed, the statute provides detailed requirements for the physician’s discussion with the patient. The individual electing aid in dying maintains the right to change their mind at all steps of the process, including the right to reverse their request for the medication regardless of capacity, as well as, to decide against taking the medication.  In fact, prescribing physicians must offer the patient the right to rescind before writing the prescription.

The request must be made both orally and in writing, and the written request must be signed and dated by the patient as well as witnessed by two individuals in the  presence  of  the patient, who “attest that to the best of his or her knowledge and belief the patient has capacity, is acting voluntarily, is making the  request  for medication  of  his or her own volition and is not being coerced to sign the request.” The strict witnessing requirements include a requirement that one of the witnesses not be a relative of the patient by blood, marriage or adoption; a person who at the time of signing would be entitled to a portion of the patient’s estate of the patient upon death; or an owner, operator, employee or independent contractor of a health care facility where the patient resides or is receiving treatment. The medical and mental health professionals involved may not serve as a witness.

The bill, which would amend the Public Health Law, also includes protections for physicians, pharmacists and other health care providers. No medical professional is compelled to participate, and those physicians that choose to do so, must confirm the patient’s mental capacity and inform them of the availability of other treatment options such as hospice and palliative care.  The voluntary nature of the participation of medical professionals respects the religious and moral views of health care providers. Providers who conscientiously object to aid in dying are not required to, but may, nonetheless, choose to provide the dying person with information about aid in dying or a referral to another practitioner.

By providing immunity to health care providers who provide MAID, the proposed legislation would effectively exempt health care providers who follow the procedures in the aid-in-dying law from Penal Law Sections 120.30, and 125.15(3). Penal Law Section 120.30 makes a class E felony the promotion of a suicide attempt, defined as intentionally causing or aiding another person to attempt suicide. Penal Law Section 125.15(3) defines manslaughter in the second degree, a class C felony, as   intentionally causing or aiding another person to attempt suicide.  Thus, absent MAID legislation, under the current criminal code, a physician or pharmacist would face the possibility of criminal prosecution for medically assisting a dying patient.

Any prior effort to obtain redress for physicians who medically assist dying patients through Court action has been unsuccessful. In a seminal case, Myers v. Schneiderman, 30 NY3d 1 (2017), the New York Court of Appeals was asked to declare a constitutional right to “aid-in-dying” and an exemption from criminal prosecution for those physicians that elect to participate in the process. The Court declined both requests and, by so doing, rejected the underlying argument that an individual has a fundamental constitutional right to aid in dying.  The Court also rejected the argument that the State’s assisted suicide penal laws violate the Equal Protection clause of the State constitution because criminalizing aid-in-dying discriminates between those terminally ill patients who can choose to die by declining life sustaining medical assistance and those who cannot.

The Court’s holding in Myers relied, in part, on two seminal U.S. Supreme Court cases that upheld the constitutionality of physician assisted suicide bans, as distinct from aid-in-dying. In Washington v. Glucksberg, 521 US 702 (1997), the U.S. Supreme Court rejected an argument brought by a group of physicians that a Washington state prohibition against physician-assisted suicide violated the fundamental liberty interest of personal choice by a terminally ill adult to commit physician-assisted suicide. Myers further relied on the holding in the case of Vacco v. Quill, 521 US 793 (1997), where the U.S. Supreme Court upheld as constitutional a law enacted in New York which subjected physicians to criminal prosecution for aiding in dying. In both cases, the Supreme Court found that each state had a legitimate state interest in enacting the laws at issue, thereby rejecting the constitutional challenges presented.

In discussing the rationale for New York’s ban on physician assisted suicide, the Court of Appeals stated in Myers: “The legislature may conclude that those dangers can be effectively regulated and specify the conditions under which it will permit aid-in-dying” (Myers, supra, at 16).  Over six years later, the New York legislature is poised to accept the Court’s invitation in Myers by adopting MAID.

After careful review, the New York State Bar Association Task Force issued its report and recommended, in early January, that the New York State Bar Association adopt a position in support of the pending MAID bill. On January 19, 2024, the New York State Bar Association’s House of Delegates voted to support MAID. The MAID bill currently has 84 sponsors in the New York State legislature and is pending in the health committee. It is time that this bill goes to a full vote of the legislature. It is time that New York State affords terminally ill persons an option to end pain and suffering in a humane and considerate way. Every living being deserves the fundamental right to a dignified end-of-life without pain and suffering.


Colleen M. Meenan, J.D. is the Founding & Managing Partner of Meenan & Associates, LLC. For over thirty-two years, she has focused on employment discrimination/litigation, with a secondary focus on guardianships and issues related to elder abuse. Maureen Meenan is her beloved mother.  The author offers her profound thanks to all those who have worked tirelessly for so long to enact MAID in New York State.

New York Office
299 Broadway, Suite 1310
New York, NY 10007
By Appointment Only

Tampa office
1725 East Fifth Avenue
Tampa, FL 33605
By Appointment Only