How a New Jersey lawsuit could bring euthanasia to millions

How a New Jersey lawsuit could bring euthanasia to millions

Judy Govatos has heard that magical phrase, “You’re in remission,” twice, in 2015 and again in 2019. She had beaten back stage 4 lymphoma with such aggressive chemotherapy and other treatments that at one point she became too weak to to stand and rely on it in a wheelchair. She endured multiple hospitalizations, suffered infections and lost nearly 20 pounds. But she prevailed.

Ms. Govatos, 79, a retired nonprofit executive who lives in Wilmington, Del., is grateful for the extra years. “I feel incredibly lucky,” she said. She was able to attend and teach lifelong learning courses, work in her garden, and visit London and Cape Cod with friends. She spends time with her two grandchildren, “an elixir.”

But she knows the cancer may well return, and she doesn’t want to endure the pain and hindrance of further attempts to beat it.

“I don’t want to be treated to death. I want quality of life,” she told her oncologist. “If that means we have less time to live, that’s fine.” When her months run out, she wants medical assistance in dying. After a series of inquiries and consultations, a doctor prescribed her a lethal dose of a drug that she would take herself.

Euthanasia remains illegal in Delaware, despite repeated legislative attempts to pass a bill allowing it. Since 2019, however, it has been legal in neighboring New Jersey, a half-hour drive from Ms. Govatos’ home.

But New Jersey restricts euthanasia to terminally ill residents of its own state. Ms. Govatos was therefore more than willing to become one of four plaintiffs — two patients, two doctors — that New Jersey officials took to federal court.

The lawsuit, filed last month, argues that New Jersey’s residency requirement violates the Constitution’s Privileges and Immunities Clause and Equal Protection Clause.

“The law prohibits New Jersey physicians from providing the same care to their non-New Jersey patients,” said David Bassett, an attorney with the New York firm Wilmer Cutler Pickering Hale and Dorr, which filed the lawsuit with the advocacy group Compassion & Choices has .

“There is no justification that anyone has formulated for such discrimination,” he added. The lawsuit also alleges that New Jersey’s ban on doctors providing euthanasia to patients outside the state restricts interstate commerce, according to the province of Congress.

The New Jersey Attorney General’s Office declined to comment.

“I don’t want to die in terrible pain and terrible fear, and I have experienced both,” Ms. Govatos said. Even if she enrolls in hospice, many of the painkillers used cause her to faint, hallucinate, and vomit.

Being able to end her life legally is “a matter of mercy and kindness,” she said.

This is the third time Compassion & Choices has taken this route to expand access to assisted dying. Similar lawsuits were filed in Oregon in 2021 and in Vermont last year. Both states agreed to a deal and their legislatures passed revised laws removing residency requirements, Oregon in July and Vermont in May.

The plaintiffs hope New Jersey, another blue state, will follow suit. “We hope we never have to go before a judge. “Our preference is to negotiate a fair solution,” Mr. Bassett said. “This is what matters to our patient plaintiffs. They don’t have time for a full-scale legal battle.”

“It’s not the traditional process of trying to convince a state legislature that this is a good idea,” Thaddeus Pope, a law professor at the Mitchell-Hamline School of Law in St. Paul, Minnesota, said End of life haunts laws and court cases.

Eliminating residency requirements in New Jersey could have a far greater impact than in Oregon or Vermont. The sheer population density along New Jersey’s borders—nearly 20 million people live in the New York metropolitan area alone—means that medical assistance in dying would suddenly be available to many more people, and much more quickly, than would be the case by law.

With a large airport and direct flights, “it’s easier to get to Newark than to Burlington, Vermont,” Pope pointed out.

Many states where euthanasia is legal have relaxed their statutes because of findings such as those from a 2017 study in which about a third of California patients who asked a doctor for euthanasia either died before doing so were able to complete the process or became too ill to continue.

But New Jersey still uses the stricter set of steps that Oregon first codified in 1994. This means two oral requests to a doctor at least 15 days apart, a written request with two witnesses and a consultation with a second doctor; Both must confirm that the patient is eligible. After the written request, there is a waiting period of 48 hours before a prescription can be issued.

Even without having to prove residency, “it won’t be a walk in the park,” Pope said. “You can’t just drive to New Jersey, pick up the drugs and go back.”

Finding a doctor willing to write a prescription can be time-consuming, as can using one of the few pharmacies in the state to assemble the necessary medications and fill the prescription.

Although no official would check whether patients travel home with the drug, both Mr. Bassett and Mr. Pope advise that the lethal dose should be taken in New Jersey to prevent family members from being prosecuted in their home states for helping a suicide.

However, eliminating the need for dying patients to sign leases and obtain government IDs to become residents will streamline the process. “Not everyone has the will, the financial means, the physical means” to grant a residence permit, said Dr. Paul Bryman, one of the plaintiff doctors and medical director of a hospice in southern New Jersey. “These are often very disabled people.”

Recent bills introduced in Minnesota and New York do not impose residency requirements at all, Pope noted, because they could likely be challenged in court.

“I think the writing is on the wall,” he said. “I think all residency requirements will be eliminated in all states” where euthanasia is legal. There are 10, plus the District of Columbia (although legality in Montana depends on a court decision, not the legislature).

Despite the often heated debate over euthanasia laws, very few patients actually end up resorting to lethal medication, state records show. Last year, Oregon reported that 431 people received prescriptions and 278 died from using them, accounting for just 0.6 percent of the state’s deaths in 2022.

In New Jersey, only 91 patients sought euthanasia last year. About a third of those who receive a prescription never take it, perhaps sufficiently reassured by the prospect of a quick exit.

Fears of “death tourism” with an influx of patients from other states have not materialized, said John Burzichelli, a former state representative who helped shape New Jersey’s statutes through the Legislature and now supports allowing eligible nonresidents to participate make possible.

“I don’t see people lining up at toll booths to take advantage of this law,” he said.

If her cancer returns and New Jersey balks at allowing foreigners to legally end their lives there, Ms. Govatos is considering a trip to Vermont. She imagines a going-away party for a few friends and family members, with a poetry reading, music and “very good wine and wonderful food.”

But driving over the Delaware Memorial Bridge would be much easier. “It would be an incredible gift if I could go to New Jersey,” she said.

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