Seeking justice in Minnesota

On April 16, 2018, the Final Exit Network (FEN) filed a lawsuit in federal district court against the State of Minnesota.  The suit asks the court to declare that Minnesota’s law prohibiting speaking to a person about how to hasten her own death is a violation of the free speech clause of the First Amendment of the US Constitution.  The suit seeks, also, to void FEN’s conviction under the statute, and to bar the State of Minnesota from again initiating a prosecution of FEN, and its personnel, under the statute based solely on the utterance of “speech” that “enables” a suicide.

Where Minnesota law prohibits “assisting” in a “suicide,” even including the self-deliverance of competent, grievously suffering adults, the Supreme Court of Minnesota interprets the word “assisting” to prohibit FEN’s volunteer Exit Guides from giving information to FEN’s members, even if the volunteers neither physically assist in a person’s death, nor provide the means.

In May 2015, FEN was found guilty of assisting in the suicide of a Dakota County, Minnesota, resident based on this interpretation of the term “assist,” even though FEN’s volunteers provided no physical help and did not provide the equipment used by the person who took her own life.  FEN was fined the maximum penalty of $30,000, and assessed nearly $3,000 in restitution costs.

The Court of Appeals of Minnesota affirmed the conviction.  The Supreme Court of Minnesota refused to review the case, and the Supreme Court of the United States denied FEN’s petition for writ of certiorari, the name for its review procedure in such cases.

While it is a violation of the Minnesota Statute (§ 609.215, subd. 1) for anyone who “advises, encourages, or assists” in a “suicide,” which includes a voluntary and rational choice to hasten one’s death in the face of irremediable and intolerable suffering, the Minnesota Court of Appeals held in a ruling obtained before FEN’s trial that the “advises” and “encourages” clauses of the statute were both unconstitutional restraints on FEN’s right to freedom of speech under the First Amendment, and authorized further prosecution solely under the “assists” clause of the Statute.

In an unrelated case, the Supreme Court of Minnesota agreed with the Court of Appeals that the “advises” and “encourages” clauses violated the First Amendment on its face, and those words were severed from the statute and could not be used to convict anyone of the crime of assisting in a suicide.

FEN was prosecuted then under the sole criterion left, the “assists” language of the statute, which was deemed to include any speech that “enables” a suicide, even if there was no physical assistance provided to carry out the suicide and no means were provided.  In this case, inert gas was used, a method described in Derek Humphry’s book Final Exit.

As explained in FEN’s lawsuit, “The jury was thus compelled to convict FEN based on its open practice of providing instructions to its members, including the decedent. This information was available to anyone in America, either online, or at bookstores, or in public libraries. In all of these places, a citizen may obtain the very same information that FEN imparted to the woman who committed suicide, specifically the use of helium. The conviction was supported solely by the fact that FEN’s volunteer personnel told the decedent where to find the publicly available information for herself.”

It seems irrational to prohibit speech that is identical to the words in a book that is readily available in libraries, bookstores, and online.  It would be at least understandable if the state sought to prevent encouraging suicide (something FEN does not do), but the court eliminated that word from the statute, leaving only the prohibition against assisting in a suicide by telling a person how taking his own life can be done.

As I wrote earlier concerning this case, during argument in the Court of Appeals of Minnesota, one of the judges asked the prosecutor:  If someone walks into a library in Minnesota and says to the librarian, “I am ready to die. Can you show me where to find this library’s copy of Final Exit?” could the librarian be prosecuted under the assisting suicide statute?  The state’s prosecutor replied that if the librarian shows the patron where to find Derek Humphry’s book, and the patron then follows the book’s information to take her own life, the librarian would have committed a felony.

But much more than free speech is involved in this case:  the liberty of sick and suffering Minnesotans to control their own lives and their own deaths is at stake.  A federal court ruling in FEN’s favor would be a step in preserving both free speech and the liberties to which we all are entitled.

FEN is represented in this lawsuit by Robert Rivas, Sachs Sax Caplan, P.L.,Tallahassee, FL, and Paul Engh, Minneapolis, MN.