In “The Legal Battle Surrounding Physician-Assisted Suicide,” I discussed the legal landscape regarding aid in dying in the wake of the high-profile activism of Brittany Maynard. “Aid in dying” (also known as “physician-assisted suicide,” “death with dignity,” and “the right to die”) is a term for when a mentally competent patient is provided with a prescription for medicine that they may choose to consume for the purpose of achieving a peaceful death in the face of an otherwise unbearable terminal illness. I concluded my analysis by suggesting that advocates of aid in dying can most effectively utilize the judicial system to advance their cause by bringing lawsuits in state rather than federal court. Further, I advocated that activists assert the right to die not only based on openings in state statutory interpretation, as was successfully done in Montana in 2009, but also by asserting distinctive fundamental rights protected by state constitutions, as was more recently accomplished in New Mexico in 2014.

Since the beginning of 2015, groups of plaintiffs in both California and New York have filed lawsuits challenging their respective states’ laws pertaining to death with dignity. In the California complaint, plaintiffs assert that the state’s statute prohibiting assisted suicide does not cover the actions of a physician providing aid in dying at the request of a mentally competent, terminally ill individual. Moreover, even if the statute were found to cover such conduct, the plaintiffs contend that the application of the statute would violate privacy, due process, equal protection, and freedom of speech rights under California law.

In the New York complaint, plaintiffs similarly seek a declaration by the court that the state’s statute prohibiting assisted suicide does not prohibit the conduct of a physician providing aid in dying to a mentally competent, terminally ill person who has requested such assistance. Further, if the statute is found to cover aid in dying, the plaintiffs assert that this would violate the equal protection and due process provisions of the state’s constitution.

Of special note, these two recent complaints present the same type of substantive due process argument that prevailed in New Mexico. According to the doctrine of substantive due process, if a state court finds that the criminalization of assisted suicide encompasses aid in dying, such a prohibition may be unconstitutional if it violates a distinctive right provided for by that state’s constitution. States, as separate sovereigns within the federalist system, can extend protections independent of, and more protective than, those mandated by the U.S. Constitution.

The court in Morris v. New Mexico found that the state’s constitutional guarantees of liberty, safety, and happiness were distinct in their protection of a competent, terminally ill patient’s decision to receive aid in dying. The court also determined that the state had failed to prove that New Mexico’s assisted suicide statute furthered a compelling state interest in its criminalization of the right to death. As a result, death with dignity was found to be legal in the state, although the decision is currently being appealed.

The complaints in California and New York both contend that the application of each respective state’s statute prohibiting assisted suicide would represent a violation of a patient’s right to privacy. California’s complaint delves into the idea by describing how the distinct right of privacy in the state is clearly established, as demonstrated by existing state precedents. The plaintiffs point out, for example, that California courts have already determined that a woman has the right to choose to terminate her pregnancy because of, in part, her “interest in retaining personal control over the integrity of her body.” Additionally, California courts cited the right to privacy as a reason to grant women the right to decide whether to bear children. The current plaintiffs assert that this distinct right to privacy covers the right to die and, as a result, the state may violate patients’ due process rights by prohibiting them from choosing aid in dying.

California’s complaint also notes that the state’s constitution guarantees the right to liberty and the pursuit of happiness and safety. These rights are similar to those which the court in Morris found to sufficiently protect the right to die.

If the California court does find that any of these rights are distinct from the U.S. Constitution when applied to the right to die, then the assisted suicide legislation will be subject to strict scrutiny, as occurred in Morris. If the government is unable to demonstrate a compelling state interest supporting the statute prohibiting assisted suicide, and does not show that the statute achieves its purpose by the least restrictive means, then the court will find that aid in dying is permitted.

These two recent lawsuits in California and New York are part of a considerable wave of judicial and legislative activism in recent years, and may represent a favorable turning of tides for advocates of aid in dying.