State's highest court hears arguments in Cape Cod doctor's right-to-die case

Dr. Roger Kligler, the retired Cape Cod doctor who is a plaintiff in a right-to-die case before the state Supreme Judicial Court, watched Wednesday’s oral arguments via livestream from his home in Falmouth, his golden retriever Lexi by his side.

Kligler, 70, said his suppressed immune system prevents him from entering indoor public spaces except for medical appointments, despite his six vaccinations for COVID-19.

Formerly a primary care physician in Brockton, Kligler has incurable metastatic prostate cancer.

He no longer gives in-person speeches as a member of the Cape Cod Action Team of Compassion & Choices, which brought the lawsuit against state Attorney General Maura Healey and Cape and Islands District Attorney Michael O’Keefe on behalf of Kligler and Dr. Alan Steinbach of Woods Hole.

But he remains at the center of the lawsuit that Compassion & Choices hopes will make Massachusetts history — by succeeding where state legislative efforts and a 2012 ballot initiative failed — and legalize the right of physicians to provide terminally ill patients with the means to end their lives.

“Being a doctor I know that even with hospice and palliative care people suffer at the end of life,” Kligler said after watching oral arguments.

Ending the pain: Dr. Roger Kligler speaks on his pending lawsuit and his views on end-of-life issues

Terminally ill people should be given a choice about how much suffering they are willing to endure in the last six months of their prognosis, he said.

"I'm really working for medical aid in dying," he said. "I spend at least 20 hours a week working on this."

Medical aid in dying legal in 10 states

Medical aid in dying, called MAID for short, has been legalized in Washington, D.C. and 10 states — Vermont, Maine, New Jersey, New Mexico, Oregon, Washington, California, Colorado, Hawaii and Montana, according to Compassion & Choices.

The organization said the legalization in Montana was the result of a judicial decision in a case that also went to the state’s top court.

Compassion & Choices filed the Massachusetts case against Healey and O’Keefe on behalf of Kligler and Steinbach in Suffolk Superior Court in 2016 to prevent authorities from prosecuting doctors who practice medical aid in dying.

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After losing the case, the organization appealed to the SJC, which heard oral arguments Wednesday morning.

A decision in favor of medical aid in dying, also known as physician-assisted suicide and death with dignity, would establish that the practice is not criminal in Massachusetts and that physicians cannot be prosecuted for writing prescriptions for fatal doses of sleeping pills at the request of patients at the end stage of their illness or disease.

Dr. Kligler 'does not want to die'

“Mind you, Dr. Kligler does not want to die,” plaintiffs attorney John Kappos told the Supreme Judicial Court justices Wednesday.

“He does not want to be forced to endure unbearable suffering,” he said. “It’s (the cancer) metastasized. He wants to live much longer, but he doesn’t know how much time he has. We’re talking about a compassionate option."

It shouldn’t be necessary to wait until a physician is accused of violating the law by writing a prescription for a terminally ill patient at the end of life because physicians will not risk their licenses by doing so, he said.

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Maria Granik, assistant attorney general for Massachusetts, argued on behalf of the defendants Healey and O’Keefe that a favorable decision for the plaintiffs would be a “radical expansion” of privacy or liberty rights.

There is no historical or legal precedent in Massachusetts, she said, on which to base a decision on medical aid in dying and also that the state protects the lives of all its citizens.

Consideration of the practice requires the kind of “robust public debate” better suited to the Legislature, Granik said.

In a brief filed with the court, the Massachusetts Medical Society — which takes a neutral stance on medical aid in dying — said the practice should not be put into place without a legal framework and standards, in order to avoid confusion and risk of abuse.

Part of the questions and answers during oral arguments concerned what common law is regarding involuntary manslaughter and how or whether it could be used to prosecute medical aid in dying.

Does medical aid in dying put disabled, terminally ill people at risk?

Common law evolves, Justice Serge Georges Jr. said.

One hundred years ago people were forced to die painful deaths but modern medical care has advanced so why wouldn’t the care encompass medical aid in dying, Georges said.

The state is saying it has an important interest in protecting its citizens, he said. “Who is looking out for Dr. Kligler as he’s dying, and dying painfully?”

For some organizations representing people with disabilities, medical aid in dying, which it calls assisted suicide, puts people with disabilities at higher risk of discrimination and abuse and degrades their perceived value and worth.

The Disability Rights Education and Defense Fund filed a friend of the court brief on behalf of itself and 18 other organizations, including the Arc of Massachusetts and Not Dead Yet, saying legalization of the practice “amplifies ablest beliefs about the quality and value of disabled lives while failing to address the psychological distress and social factors that are the primary causes of suicidal ideations in disabled and terminally ill people.”

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Kligler said that watching the oral arguments was emotionally riveting, especially since he has a friend who is dying of breast cancer and had to leave the state and travel with her husband to New Mexico to fulfill her wishes for medical aid in dying.

“She is not doing well. She has some friends she wants to see one last time. She should have all the comforts around her, all the people who are meaningful to her, not just the people who can fly to New Mexico to spend time with her.”

Kligler expects to hear a decision from the Supreme Judicial Court by the time the court session ends in June.

He is optimistic that a medical aid in dying bill will make it out of committee in the state Legislature, despite repeated failed attempts in the past.

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In the meantime, Kligler said he is amazed he has survived cancer for two decades, including a decade at late stage four.

Years of surgeries and radiation and other treatments have made his walks with his wife, Cathy, and connection to three adult children and five grandchildren all the sweeter.

“I’m alive. I’ve got today. I enjoy the beauty of today,” Kligler said. “Cancer is not nice to people. It will rear its ugly head and do what it does.”

Fighting for the right of terminally ill people to end their lives with the aid of their physicians has "given me an impetus to live, to get this for everyone," Kligler said.

Contact Cynthia McCormick at cmccormick@capecodonline.com. Follow her on Twitter: @Cmccormickcct.

This article originally appeared on Cape Cod Times: MA Supreme Court heard arguments in Cape Cod medical-aid-in-dying case