In 2022, we praised our state’s 2019 Medical Aid in Dying for the Terminally Ill Act in the context of our colleague Anne Singer’s decision to end her life under the provisions of the Act. This compassionate law provides significant rights to residents of New Jersey. Death with dignity is another important choice that the U. S. Supreme Court left to the states. Glucksberg v. Washington (1997). Should this deeply personal option be available to residents of other states that do not have such laws?

In a federal country like ours we are used to different policies among states ranging from how many witnesses are required for a will to whether abortion or marijuana are legal. In 2019, New Jersey joined what are now 10 other states in reversing the ban on physician assisted suicide and legalizing death with dignity.

New Jersey hospice doctors and out-of-state, terminally ill patients filed suit in Camden federal district court alleging that the Act’s limitation to NJ residents violated the federal constitution. Govatos v. Murphy, Case No. 23-cv-12601 (RMB/EAP). In what appears to be a decision of first impression in the nation, Chief Judge Renee Marie Bumb dismissed the complaint and upheld the Act’s limitation to NJ residents. Two other states stopped enforcing their residency requirements after they were sued but before any decision.

This situation, of course, reminds us of the current debate over whether women can leave states with post-Dobbs abortion bans to go to states where the procedure is legal. The two issues may raise similar religious, emotional and legal questions. In contrast to the matter of death with dignity, there is no residency requirement in New Jersey for abortion.

Bumb rejected Privileges and Immunities arguments because medical aid in dying is not “basic to the maintenance or well-being of the Union,” and applied rational basis review to dismiss fundamental rights arguments. She further held that under the Dormant Commerce Clause the NJ policy was not unconstitutional because it did not amount to economic protectionism. Finally, she determined that because plaintiffs were not a suspect class and did not assert a fundamental right, their Equal Protection claim failed.

Bumb observed that to allow the out-of-state plaintiffs access to New Jersey’s legal protection would directly contravene their home state’s criminalization of assisted suicide. Further, she accepted the state’s concern that accommodating plaintiffs might subject NJ doctors to criminal charges in the plaintiffs’ home states.

The case will now be heard by the Court of Appeals for the Third Circuit. It is less likely, although possible, that the U.S. Supreme Court will later take up the case. Often, it waits for issues to be considered by at least several circuits.

We question the strength of Bumb's acceptance of the state’s asserted interest in protecting New Jersey medical professionals from criminal prosecution in other states. We may soon have an answer to that question in the abortion context. Aside from the federal constitutional arguments, will problems result from opening up New Jersey's process to other state's residents? Are such problems different from those, if any, that arise in the abortion context?

We are not sure of the legislative debates that took place concerning the residency requirement in 2019. As noted, two states, Vermont and Oregon, decided not to enforce their residency requirements for medical assistance in dying after being sued by out-of-state plaintiffs. Maybe, in addition to a federal court’s consideration, our Legislature should at least hold hearings on the burdens on our medical system and the likelihood of criminal prosecution. It is possible that a legislative answer might make this compassionate, personal option available to people from other states.