Dr. Roger M. Kligler et al. 
Maura T. Healy  et al.  No. 137155
May 31, 2017
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTIONS TO DISMISS
K. Ames, Justice of the Superior Court.
plaintiffs filed this suit claiming that the Massachusetts
Constitution protects the rights of mentally competent
terminally ill patients and their doctors to engage in
physician assisted suicide. This matter is before the court
on the Defendant (DA)'s Motion to Dismiss and the
Attorney General's Motion to Dismiss pursuant to
Mass.R.Civ.P. 12(b)(6). For the reasons discussed below, the
motions are DENIED .
following facts are taken from the Complaint and, at this
stage, and as the law requires, are assumed to be true for
purposes of this motion. Plaintiff Roger Kligler, M.D. is a
competent adult who has been diagnosed with Stage 4
Metastatic Castrate-Resistant Prostate Cancer, for which he
began treatment in July of 2016. Based on this diagnosis and
treatment, his prognosis is a median of twenty-five months to
live, with a range of seven to fifty-seven months. Dr.
Kligler seeks physician assistance to obtain lethal
medication so that he may have the option to end his life
peacefully. Plaintiff Alan Steinbach, M.D. is a licensed
physician who treats competent terminally ill patients,
including Dr. Kligler, with no chance of recovery. Some of
these patients have expressed a desire not to live in a state
of palliative sedation and are not receiving medical
interventions that can be withdrawn. If requested, Dr.
Steinbach would provide information and advice to and would
write prescriptions for lethal medication to be
self-administered by competent terminally ill adults, giving
them the option to bring about a quick and peaceful death.
However, Dr. Steinbach is deterred from doing so by the fear
of criminal prosecution.
Kligler and Steinbach filed this action against Attorney
General Maura Healey (" the AG") and Cape and
Islands District Attorney Michael O'Keefe (" the
DA") on October 24, 2016. Count I of the complaint seeks
a declaratory judgment that " manslaughter charges are
not applicable to physicians who follow a medical standard of
care and write a prescription to terminally ill, competent
adults who request such aid and may choose to self-administer
the medication consistent with the practice of 'Medical
Aid in Dying.' " 
II alleges that application of the common law of manslaughter
to a physician who engages in the conduct described above
violates the Massachusetts Constitution because the law is
impermissibly vague. Count III alleges that application of
the manslaughter law to such a physician impermissibly
restricts the constitutional right to privacy, autonomy and
bodily integrity, and Count IV alleges that it impermissibly
restricts the plaintiffs' fundamental liberty interests.
Counts II, III, and IV each request a declaration " that
physicians who follow a medical standard of care and write a
prescription pursuant to the practice of Medical Aid in Dying
to terminally ill, competent adults who request such aid do
not violate criminal law, including the common-law crime of
manslaughter." Each count also seeks an injunction
prohibiting the AG and the DA from prosecuting physicians who
engage in that conduct.
alleges that application of the law of manslaughter to a
physician who provides information and advice about Medical
Aid in Dying to competent terminally ill patients who
voluntarily ingest lethal prescribed medication constitutes
an unlawful restraint on the constitutional right to freedom
of speech by hindering physicians' ability to discuss
medically appropriate end of life treatment options. Count V
seeks a declaration that giving such advice is not
manslaughter and an injunction prohibiting the AG and the DA
from prosecuting physicians who inform, advise, or counsel
patients about Medical Aid in Dying.
Count VI alleges that application of the manslaughter law to
physicians who follow a medical standard of care and provide
Medical Aid in Dying violates the constitutional right to the
equal protection of law by treating differently terminally
ill adults who wish to receive Medical Aid in Dying and
terminally ill adults who wish to hasten death by withdrawing
life-sustaining treatment. Count VI seeks a declaration that
physician assisted suicide is not manslaughter as well as an
injunction against prosecution.
and the DA move to dismiss the complaint on the ground that
it fails to state a claim for declaratory relief. When
evaluating the legal sufficiency of a complaint pursuant to
Rule 12(b)(6), the court must accept as true all of the
factual allegations of the complaint and draws all reasonable
inferences from the complaint in favor of the plaintiff.
Coghlin Elec. Contractors, Inc. v. Gilbane Building
Co., 472 Mass. 549, 553, 36 N.E.3d 505 (2015);
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636,
888 N.E.2d 879 (2008). However, the court need not accept as
true legal conclusions cast in the form of factual
allegations. Schaer v. Brandeis Univ., 432 Mass.
474, 477, 735 N.E.2d 373 (2000). To survive a motion to
dismiss, a complaint must contain factual allegations which,
if true, raise a right to relief above the speculative level.
Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222,
223, 950 N.E.2d 853 (2011); Iannacchino v. Ford Motor
Co., 451 Mass. at 636. The plaintiff's allegations
must be more than mere labels and conclusions and must
plausibly suggest, not merely be consistent with, an
entitlement to relief. Coghlin Elec. Contractors, Inc. v.
Gilbane Building Co., 472 Mass. at 553.
LACK OF ACTUAL CONTROVERSY
and the DA first contend that dismissal of the complaint is
required because this Court cannot grant declaratory relief
in the absence of an actual controversy. Thus, this Court
must decide whether it has jurisdiction to allow the
complaint to proceed to a determination on the merits. The
Declaratory Judgment Act provides in relevant part:
the superior court . . . may on appropriate proceedings make
binding declarations of right, duty, status and other legal
relations sought thereby, either before or after a breach or
violation thereof has occurred in any case in which an actual
controversy has arisen and is specifically set forth in the
pleadings . . .
G.L.c. 231A, § 1. Although the purpose of this statute
is remedial and it is to be liberally construed, declaratory
relief is not available if there is no actual controversy.
Gay & Lesbian Advocates & Defenders v. Attorney
Gen., 436 Mass. 132, 134, 763 N.E.2d 38 (2002). An
actual controversy means a real dispute caused by one
party's assertion of a legal right in which he has a
definite interest and the denial of such assertion by another
party with a definite interest in the subject matter, where
the attendant circumstances plainly indicate that unless the
matter is adjusted, the parties' antagonistic claims will
almost immediately and inevitably lead to litigation.
Id. ; Bunker Hill Distrib., Inc. v. District
Atty. for Suffolk Dist., 376 Mass. 142, 144, 379 N.E.2d
1095 (1978). The defendants contend that there is no actual
controversy here because no one has threatened to prosecute
Dr. Steinbach for manslaughter.
application of criminal statutes lies with the prosecutor in
the first instance and he cannot be compelled to render
advisory opinions at the behest of private citizens.
Bunker Hill Distrib., Inc. v. District Atty. for Suffolk
Dist., 376 Mass. at 147. Accordingly, where the
prosecutor has neither threatened the plaintiff with
prosecution nor indicated to the plaintiff that he views
particular conduct to be in violation of a criminal statute,
there is no actual controversy. Gay & Lesbian
Advocates & Defenders v. Attorney Gen., 436 Mass. at
134; Bunker Hill Distrib., Inc. v. District Atty. for
Suffolk Dist., 376 Mass. at 144-45. Cf. Benefit v.
Cambridge, 424 Mass. 918, 921-22, 679 N.E.2d 184 (1997);
Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct.
1209, 39 L.Ed.2d 505 (1974).
complaint in this case does not allege that either the AG or
the DA has threatened to prosecute Dr. Steinbach or asserted
an interpretation of the manslaughter law that encompasses
the conduct in which he wants to engage. Nonetheless, in
deciding a Rule 12(b)(6) motion, the court may consider
matters of public record and matters of which it may take
judicial notice. Schaer v. Brandeis Univ., 432 Mass.
474, 477, 735 N.E.2d 373 (2000). The court may take judicial
notice of a fact that is not subject to reasonable dispute
because it can be readily determined from sources whose
accuracy cannot reasonably be questioned. Mass.G.Evid. §
201(b)(2) (2016). According to the Cape Cod Times,
Cape & Island District Attorney Michael O'Keefe has
opined that state law prohibits medically-assisted dying and
the resulting charge would be murder. In addition, the
New Boston Post reports that O'Keefe has
expressed his belief that physician assisted suicide is
illegal until the Legislature passes a law telling him
otherwise. The court may take judicial notice of
the existence and content of a published newspaper article,
particularly when the content is not being considered for the
truth of the matters reported. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 569 n.13, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007); Kosilek v. Spencer, 889
F.Supp.2d 190, 215 n.6 (D.Mass. 2012), rev'd on merits of
claim, 774 F.3d 63 (1st Cir. 2014), cert. den., 135 S.Ct.
2059, 191 L.Ed.2d 958 (2015). Cf. Bogertman v. Attorney
Gen., 474 Mass. 607, 616, 53 N.E.3d 627 (2016).
O'Keefe's statements are offered not for their truth
but rather, to show his state of mind and the effect of his
words on a reasonable physician. Notably, the defendants do
not claim that the statements attributed to O'Keefe in
the newspaper are inaccurate, nor do they contend that it is
improper for the court to consider those statements in ruling
on the motion to dismiss. Rather, they argue that the
plaintiffs have taken O'Keefe's statements out of
context because when he made them, he had not yet been served
with the complaint in this matter and was not commenting on
the specific facts of this case. The defendants emphasize
that O'Keefe subsequently ...