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Vermont Alliance for Ethical Healthcare, Inc. v. Hoser

United States District Court, D. Vermont

April 5, 2017

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.


          Geoffrey W. Crawford Judge

         This 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 (transcript).)


         The 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.[1]

         Plaintiffs 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.)

         Plaintiffs 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 ¶¶ 2-3.)

         Plaintiffs 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.


         I. Rule 12(b)(1) Standard

         "A 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.

         II. Structure of Act 39

         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.

         Act 39 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 assisted suicide.

         The 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 discussion.

         The 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).

         Section 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.

         Section 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).

         Section 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.

         Section 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. § 5287(b).

         Section 5288 excludes palliative sedation (which can also hasten death) from the statutory requirements for assisted suicide.

         As 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 ...

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