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The Advocate

New York Did Not Lose in Court. It Agreed to Wait.

The July 30 order protecting four orders of Catholic nuns was entered by consent. That distinction is the whole story.

New York Did Not Lose in Court. It Agreed to Wait.

Begin with what the order did not say, because that is where the misreading starts.

On July 30 a federal judge in the Northern District of New York entered a temporary restraining order protecting four orders of Catholic nuns and several Catholic health ministries from the state's new assisted dying law. The headlines called it a shield, a sparing, a judge stepping in. All of that is roughly true and all of it leaves out the operative word on the document itself.

The word is consent. New York agreed to the order. The state was not overruled. It said, in effect, we will not apply this law to these plaintiffs while the court decides whether to enter a preliminary injunction.

That distinction is the whole story, and it cuts in both directions.

Here is the ground. The Medical Aid in Dying Act, Senate bill S138, was signed by Governor Kathy Hochul on February 6 and took effect on August 5. It permits an adult New York resident who is terminally ill, mentally capable, and expected to live six months or less to request medication to end their own life. The statute requires review by an attending physician, a consulting physician, and a mental health professional. It builds in a five day waiting period and a recorded oral request. The patient self administers, and may rescind at any point.

Becket filed suit on July 17 on behalf of the Carmelite Sisters for the Aged and Infirm, the Dominican Sisters of Hawthorne, the Missionary Sisters of St. Benedict, and the Little Sisters of the Poor, along with the Diocese of Rockville Centre and several Catholic health ministries. The case is Carmelite Sisters for the Aged and Infirm v. James. Their claim is not that New York may not pass this law. It is narrower: that the law compels them to counsel patients on assisted suicide, to help determine whether a patient qualifies for lethal medication, and to direct patients to providers who will prescribe it.

Now concede the fair point, because it is a real one. New York wrote conscience provisions into this statute. Kelly Gillespie, who directs the Center for Health Law Studies at Saint Louis University, notes that the law lets individual providers and religious institutions decline to participate, and appears to let religious organizations bar the practice inside their own walls. Anyone telling you the state simply ordered nuns to kill their patients is not describing the text.

The dispute is one layer down, and it is the layer that matters in almost every conscience case in American law. Does a duty to inform, or a duty to transfer, count as participation? Gillespie's answer is that no one knows yet. "We've got conflicting rights and duties and obligations that the law is trying to sort out," she said. That is the honest state of the question.

So what did July 30 actually accomplish? It bought time and nothing else. A consent temporary restraining order resolves no merits. No court has held that the transfer requirement burdens religious exercise. No court has held that it does not. The preliminary injunction hearing had been set for August 3 and is expected to be rescheduled. Religion News Service reports New York's response is due September 8, with the plaintiffs' reply due September 15, and those dates have not been confirmed against the docket here.

Which means the protection these ministries currently enjoy exists because the state chose not to fight yet. It can be withdrawn. It expires on a judge's schedule, not a legislature's.

Here is the part worth sitting with. A conscience protection that survives only by the other side's forbearance is not yet a right. It is a courtesy. The Little Sisters of the Poor have been through three rounds at the Supreme Court and can tell you the difference between the two.

And the principle has to run both ways or it is not a principle. If the state may not compel a Catholic nursing home to route a patient toward a lethal prescription, then it also may not compel a secular hospice to refuse one on somebody else's religious grounds. The conscience that gets protected in Carmelite Sisters is the same conscience that protects a physician whose convictions run in the opposite direction from the plaintiffs'. That is the trade, and it is a good one.

Medical aid in dying is now authorized in the District of Columbia and a dozen states by Straight Arrow's enumeration, though Religion News Service counts thirteen states, and Montana's authorization comes from a state court ruling rather than a statute. The counting is genuinely unsettled. The direction is not.

What you can do: read the consent order rather than the coverage of it, and watch September. If a preliminary injunction issues, these ministries have something durable. If it does not, the question of what New York may require of them reopens on the day the temporary order lapses.

Free to read, and free to forward to the person in your life who thinks this was already settled. If you want more of it, membership is what pays for the reading.

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