United States District Court, D. Vermont
VERMONT ALLIANCE FOR ETHICAL HEALTHCARE, INC.; CHRISTIAN MEDICAL & DENTAL ASSOCIATIONS, INC., Plaintiffs,
WILLIAM K. HOSER, in his official capacity as Chair of the Vermont Board of Medical Practice; MICHAEL A. DREW, M.D., ALLEN EVANS, FAISAL GILL, ROBERT G. HAYWARD, M.D., PATRICIA HUNTER, DAVID A. JENKINS, RICHARD CLATTENBURG, M.D., LEO LECOURS, SARAH McCLAIN, CHRISTINE PAYNE, M.D., JOSHUA A. PLAVIN, M.D., HARVEY S. REICH, M.D., GARY BRENT BURGEE, M.D., MARGA S. SPROUL, M.D., RICHARD BERNSTEIN, M.D., DAVID LIEBOW, D.P.M., in their official capacities as Members of the Vermont Board of Medical Practice; JAMES C. CONDOS, in his official capacity as Secretary of State of Vermont; and COLIN R. BENJAMIN, in his official capacity as Director of the Office of Professional Regulation, Defendants.
OPINION AND ORDER RE: DEFENDANTS' MOTION TO
DISMISS AND PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
(DOC. 31 AND 32)
Geoffrey W. Crawford Judge
lawsuit is filed by physicians and other health providers who
seek to enjoin the state, including the Vermont Board of
Medical Practice and the Office of Professional Regulation,
from taking any professional disciplinary action against them
arising from the provisions of Vermont's Patient Choice
and Control at End of Life Act (Act 39) (18 V.SA.
§§ 5281-5293), Vermont's informed consent
statute (12 V.SA. § 1909), and the Vermont Patient's
Bill of Rights (18 V.SA. § 1871). Defendants move to
dismiss the plaintiffs' complaint for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1), and for failure to state a claim for which relief
may be granted under Rule 12(b)(6). (Doc. 31 at 1.) The court
heard argument on the motion on November 8, 2016. (Doc. 46
following facts are drawn from the Plaintiffs' complaint.
In 2013, Vermont enacted Act 39. 18 V.SA. §§
5281-5293. The Act authorizes physicians to prescribe a
lethal dose of medication to terminally-ill Vermonters who
meet certain conditions and wish to end their lives. (Doc. 1
¶ 42.) The passage of Act 39 was controversial because
suicide, even for the terminally ill, is anathema for many
people, especially those holding traditional religious
beliefs. For others, Act 39 represents a validation of
personal autonomy consistent with their moral beliefs. As
this case demonstrates, the dispute over assisted suicide,
now permitted in five states and the District of Columbia, is
far from over.
are two medical organizations, one Vermont-based and the
other national, whose members are opposed to
physician-assisted suicide for religious and ethical reasons.
These members include doctors, nurses, pharmacists and other
licensed health-care providers. (Doc. 1 ¶¶ 6-7, 10,
12.) Plaintiffs seek an injunction against the members of the
Vermont Board of Medical Practice, the Vermont Secretary of
State, and the Office of Professional Regulation enjoining
defendants from initiating disciplinary proceedings or other
criminal or civil action which might arise from a refusal to
inform patients of the choices available under Act 39. (Doc.
1 at 31, ¶ 7.) Plaintiffs claim that unless their
religious principles are protected, their members will be
forced to leave Vermont to practice in states that have not
enacted similar legislation. (Doc. 1 ¶ 13.)
do not claim that any disciplinary action has been taken
against their members. (See Doc. 39 at 5.) Rather,
by declaration, the plaintiff organizations have identified
two physicians, a nurse, and a pharmacist (not identified by
name) who fear such action will occur in the future. (Doc. 1
¶¶ 14-18.) Although the plaintiffs recognize that
Act 39 includes explicit protection for physicians who elect
not to participate in assisted suicide, they allege that
Defendants have adopted an "expansive reading" of
Act 39 requiring "all healthcare professionals to
counsel for assisted suicide." (Doc. 1 ¶¶
make claims under the First Amendment (both free speech and
free exercise of religion) as well as the Fourteenth
Amendment (void for vagueness). Additionally, they claim that
Defendants have violated a provision of the Church
Amendments, 42 U.S.C. § 300a-7(d) and a provision of the
Affordable Care Act, 42 U.S.C. § 18113, prohibiting
state agencies receiving federal funds from promoting
physician-assisted suicide or discriminating against those
who object to the practice. Finally, they assert free speech,
free exercise and due process claims under the Vermont
Constitution (Ch. I, Art. 13). They seek declaratory and
injunctive relief under federal and state law.
Rule 12(b)(1) Standard
district court properly dismisses an action under
Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction
if the court 'lacks the statutory or constitutional power
to adjudicate it'" Cortlandt St. Recovery Corp.
v. Hellas Telecomms., S.A.R.L., 790 F.3d 411, 417 (2d
Cir. 2015) (quoting Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000)). Where, as here, a Rule
12(b)(1) motion is "facial"-i.e., "based
solely on the allegations of the complaint or the complaint
and exhibits attached to it"-the plaintiff has no
evidentiary burden in opposing the motion. Carter v.
Health Port Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016).
The court's task is to determine whether the pleadings
allege "facts that affirmatively and plausibly suggest
that [the plaintiff] has standing to sue." Id.
(alteration in original) (quoting Amidax Trading Grp. v.
S. W.I.F. T SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (per
curiam)). In ruling on a facial Rule 12(b)(1) motion, the
court must accept as true all material allegations of the
complaint, and must construe the complaint in favor of the
plaintiff. See id.
Structure of Act 39
is primarily a grant of immunity in various forms to
physicians who may prescribe lethal medication and to other
health care workers such as nurses or pharmacists who assist
in these cases. See 18 V.S.A. § 5283(a).
Physicians and other groups receive protection from potential
professional discipline, civil liability, and criminal
charges for conduct that conforms to the Act's process
for ensuring that a patient's decision to end his or her
life is voluntary and informed and that the patient's
medical condition meets clinical criteria for an end-stage
terminal illness. 18 V.S.A. §§ 5283-5285, 5290. The
court reviews the provisions of Act 39 in detail below.
opens with a definitional section not relevant to the issues
before the court. 18 V.S.A. § 5281. The next provision,
§ 5282, addresses two issues. First, the provision
states that a patient's right to receive information
about palliative care and to disclosure of foreseeable risks
and benefits of medication, assured by 18 V.S.A § 1871
and 12 V.S.A. § 1909(d) respectively, remain in effect.
These rights "exist regardless of the purpose of the
inquiry or the nature of the information." 18 V.S.A.
§ 5282. The court interprets this sentence to mean that
a patient is still entitled to receive information about
palliative care and about the risks and benefits of all
available treatment even if he or she has inquired about
second sentence of § 5282 provides that a physician who
engages in discussions about "such risks and
benefits"-meaning the risks and benefits of palliative
care and medication-has not engaged in "assisting in or
contributing to a patient's independent decision to
self-administer a lethal dose of medication."
Id. This sentence also confers immunity on a
physician who has engaged in discussion with a terminally-ill
patient pursuant to 18 V.S.A § 1871 or 12 V.S.A. §
1909(d). The provision provides that "such discussions
[under existing standards of informed consent] shall not be
used to establish civil or criminal liability or professional
disciplinary action." Id. That is to say, if a
physician discusses the treatment options available to a
patient, the physician cannot be subject to civil or criminal
liability or professional disciplinary action for this
next provision, § 5283, is the heart of Act 39. This
provision confers immunity on a physician who prescribes a
lethal dose of medication to a terminally-ill patient. 18
V.S.A. § 5283(a). To qualify for this immunity, a
physician must observe the provision's precautions
against providing assistance in ending life to a patient who
does not qualify. These include a second opinion requirement,
separate rules for written and oral requests, and other
measures intended to document and ensure that the
patient's choice to end her life is voluntary.
Id. § 5283(a)(1)-(15). Section 5283 concludes
by noting that the provision does not "limit civil or
criminal liability for gross negligence, recklessness, or
intentional misconduct." Id. § 5283(b).
5284 relieves all providers from any duty to intervene to
prevent a patient from taking a lethal dose of medication.
Neither civil liability nor a criminal charge can arise
"solely for being present when a patient with a terminal
condition self-administers a lethal dose of medication."
Id. § 5284.
5285 provides protection to physicians and others who object
to participating in assisted suicide. This provision states
that no physician, nurse, pharmacist, or other person shall
be under a duty to "participate in the provision of a
lethal dose of medication to a patient." Id.
§ 5285. An employer cannot take action against its
employees for providing lethal medication or for refusing to
do so. Id. § 5285(b). The provision concludes
by preserving civil remedies for negligence and intentional
torts. Id. § 5285(c).
5286 permits a health care facility to prohibit its
physicians from writing prescriptions for lethal medication
intended for terminally-ill patients in residence.
Id. § 5286. This provision authorizes an entire
hospital, such as a religiously-based institution, to opt out
of participating in assisted suicide. Id.
5287 removes any adverse consequences for life insurance
protection. Id. § 5287(a). The second sentence
of § 5287 bars insurers from considering a
physician's involvement (or not) with the Act's
provisions when issuing malpractice coverage. Id.
5288 excludes palliative sedation (which can also hasten
death) from the statutory requirements for assisted suicide.
originally enacted, Act 39 also contained two additional
provisions, sections 5289 and 5290. Both of these provisions
provided a much simpler process for establishing a voluntary,
informed decision to seek physician assisted suicide. 18
V.S.A. §§ 5289, 5290 (repealed 2015). These
provisions were originally intended to take effect in 2016
and would have replaced the more complicated provisions just
described. Instead, the legislature ...