Robert Lougy in June 2016, when he was acting attorney general, at NJ Senate Judiciary hearing.

On April 1, Judge Robert Lougy, after some procedural maneuvering, dismissed a state constitutional challenge to the recent Medical Aid in Dying for the Terminally Ill Act. Peyton v. Grewal, MER-C-63-19.

The act was attacked as a violation of, among other things, article I, para. I of our state Constitution. This provision is the font of our constitutional due process, equal protection and privacy doctrines. But the court held, in a detailed opinion, that the physician-plaintiff and others did not have standing, even under our Supreme Court's relatively-relaxed doctrine, to bring the claim and, nevertheless, that the complaint did not state a claim on the merits. We expect that this type of case will go up the appellate ladder.

Our Supreme Court in its landmark 1976 In re Quinlan decision established the right, rooted in paragraph 1, of a person (in this case, the parents of an adult daughter in a persistent vegetative state) to discontinue life-sustaining treatment. There was no statutory regulation of this issue at the time, although medical, ethical and religious debates had raged for years and physicians regularly, in consultation with families, discontinued such treatment. The court acknowledged that there was a "paucity of pre-existing legislative and judicial guidance …" Over the years, the court modified the doctrine to be more common-law than constitutional in an explicit attempt to prod the Legislature to act in light of the competing opinions on the topic.

Finally, after several generations, the Legislature enacted the law challenged before Judge Lougy. After his conclusion on lack of standing, he laid out the detailed statutory process for invoking the right to end life and then addressed the constitutional claim that paragraph 1 protects plaintiffs' rights of "enjoying and defending life…" He concluded that there was no right "to protect or defend the lives of others …" which would conflict with the right recognized in Quinlan. Further, applying rational basis scrutiny, he rejected federal and state equal protection arguments, as well as the argument that an obligation to transfer medical records might infringe on physicians' federal right to free exercise of religion, as well as several other claims. Finally, he found that the act did not create a private right of action for plaintiffs.

We are in support of Judge Lougy's decision and his thoughtful and detailed opinion upholding the act. The Legislature finally heeded the obvious need, and judicial call, for detailed statutory treatment of this element of end-of-life conflicts in favor of individual autonomy. We hope the decision will be upheld on appeal.