In re Eichner (73 A.D.2d 431, 1980)

OPINION OF THE COURT

Mollen, P. J.

This appeal concerns the right of a terminally patient in a comatose and essentially vegetative staté to have extraordinary life-sustaining measures discontinued, and thereby to permit the process of death to run its natural course. The case raises issues which involve not only the life of the patient, but the interest of the State in maintaining that life. The issues are not difficult to frame, but their resolution will have a profound and far-reaching impact in a world where advances in medical technology sometimes blur the distinction between life and death. Ultimately, the question is whether the judicial system has the power to authorize termination of life-preserving measures and thereby, presumably, of life itself.

I

At the time this proceeding was commenced, Brother Joseph Charles Fox, an 83-year-old member of the Roman Catholic Order of the Society of Mary (S. M.), lay terminally ill in Nassau Hospital in a state which was described as a permanent or chronic vegetative coma. He had been in that state since October 2, 1979, when he suffered a cardiac arrest during surgery, with resulting severe and irreversible brain damage. The petitioner, Rev. Philip K. Eichner, S. M., thereafter instituted a proceeding pursuant to article 78 of the Mental Hygiene Law, inter alia, to have Brother Fox declared incompetent, and to obtain judicial approval for the withdrawal of the respirator which assisted his breathing and was believed to be solely responsible for keeping him alive.

An order approving the withdrawal of the respirator was issued by Special Term, and the District Attorney, who has opposed the petition throughout, appealed to this court. On January 24, 1980, however, shortly after the argument of this appeal, Brother Fox died of congestive heart failure despite the assistance of the respirator.

In assessing our obligations at this point, we recognize that, because the profound and difficult issues which underlie this proceeding transcend the tragedy which befell Brother Fox, they have not perished with him. We are therefore unwilling to rely on the fact of his death to avoid the task and indeed the responsibility of defining the role of the judicial system in circumstances such as those originally presented to us. It is important at the outset to address ourselves to the issue of jurisdiction and to state our conclusion that Brother Fox’s death neither renders the case moot nor ousts this court of jurisdiction to decide it.

Since the controversy here is one likely to recur and may in the future again evade review, the issues presented are plainly not moot (see United States v New York Tel. Co., 434 US 159, 165, n 6, quoting Southern Pacific Term. Co. v ICC, 219 US 489, 515; see, also, Roe v Wade, 410 US 113, 125; East Meadow Community Concerts Assn. v Board of Educ., 18 NY2d 129, 135). Moreover, regarding the jurisdictional question* we note that although petitioner relied on article 78 of the Mental Hygiene Law as a procedural vehicle, this proceeding has no true predicate in statutory law. Rather, it constitutes an appeal for the exercise of the court’s equity jurisdiction under circumstances which are unprecedented in this State. Therefore, we are not bound in this case by the same rules of survivability as are courts adjudicating a purely legal question (see, e.g., Armstrong v Du Mont Labs., 137 F Supp 659, 663; 1 Am Jur 2d, Abatement, Survival and Revival, § 75, p 105).

It is true that, ordinarily, where only the personal status of a party is involved, and death occurs, we would deem the matter abated (see 1 CJS, Abatement and Revival, § 128b). However, the order at Special Term will likely be accorded significant precedential value should, as is almost certain to occur, the same important issues arise again. Accordingly, much more is involved here than the personal status of Brother Fox. In such circumstances, absent constitutional or statutory constraints, we do not hesitate to assert our inherent judicial power under the common law to continue our jurisdiction in order to meet the exigencies of the judicial problem before us. (Woods v Lancet, 303 NY 349, 355; see, also, 15A Am Jur 2d, Common Law, § 16, p 614; cf. Basso v Miller, 40 NY2d 233, 240; People v Hobson, 39 NY2d 479, 489.) The importance of these recurring questions, the fact that they invariably arise in a setting of urgency and immediacy, and the necessity for speedy and proper adjudication in future cases demand that this court continue to exercise its jurisdiction in this case, confront the issues, and conclude the matter on its merits.

We hold that Father Eichner, as committee of the incompetent, was entitled to the relief sought upon fulfillment of certain specified conditions and, to this extent, we concur with Mr. Justice Meade’s holding at Special Term. We proceed further, however, and specify—for those cases which will arise in the future—the structural legal framework for reaching similar termination-of-treatment decisions, since we agree with Justice Meade that the decision in this case "could conceivably have serious and profound consequences for the future welfare of all the citizens of this State” (Matter of Eichner [Fox], 102 Misc 2d 184, 186 [Dec. 6, 1979] [hereafter, Decision]). We turn first to a review of the facts.

II

From the age of 16, Brother Joseph Charles Fox had lived a devout religious life in the Catholic Church. In 1970 he retired to the religious community of the Order of the Society of Mary living on the premises of the Chaminate High School. He had a close relationship with the president of the school, Rev. Philip Eichner, S. M., whom he had known since 1953 when Brother Fox was a prefect of novices during Father Eichner’s novitiate. At the time of his retirement, Brother Fox was in excellent health suffering only from an eye condition which limited his vision. He remained both mentally and physically active, taking on duties as the high school’s pastor and message co-ordinator.

In late August or early September, 1979, Brother Fox, then 83 years old, was working in the garden as was his usual practice. Apparently, in moving some large tubs of flowers, he sustained an inguinal hernia. His physician recommended that he undergo an operation and corrective surgery was scheduled for October 2, 1979. Prior to the operation, Brother Fox was in good health and entered the hospital with all expectations of a successful recovery. The operation began and was proceeding in normal fashion when, near its conclusion, Brother Fox apparently suffered a cardiac arrest. Emergency procedures were applied in an attempt to revive him. Medication and heart massage were administered while an endotracheal tube was inserted between the tongue and teeth to permit air to flow into the lungs. These measures ultimately produced results in that Brother Fox’s heart resumed beating. However, as a consequence of the interruption of the flow of oxygen caused by the cardiac arrest, Brother Fox suffered substantial brain damage. He was removed to the intensive care unit of the hospital and placed on a respirator, a mechanical breathing device used only for those who are extremely ill and in danger of dying. He slipped into a coma from which he was never to emerge and lost all comprehension of his surroundings. Moreover, with the passage of time, he showed little sign of ever regaining a state of sapience or consciousness.

When Father Eichner was informed of Brother Fox’s dire condition, he arranged to have him examined by two neurosurgeons. Upon their negative prognosis, Father Eichner approached the hospital authorities and requested that Brother Fox be removed from the respirator. The authorities declined to comply with this request without a direction from the court and consequently Father Eichner, supported by Brother Fox’s surviving relatives and members of the religious community, petitioned the court for relief pursuant to article 78 of the Mental Hygiene Law. Father Eichner asked to be appointed the committee for Brother Fox and to be permitted to authorize discontinuance of the life-support system.

In his supporting affidavit, Father Eichner stated that Brother Fox had not regained consciousness since the hernia surgery on October 2, 1979 and that the 83-year-old man was being sustained by the use of "extraordinary life support systems” in Nassau Hospital. Father Eichner further stated his belief that Brother Fox had been rendered "incompetent without any sapient or conscious thought and without any hope for same in the future.” Furthermore, according to Father Eichner, Brother Fox had expressed the wish that if he ever entered into a state where his brain was rendered permanently incapable of sapient or rational thought "the use of extraordinary life support systems” should be discontinued and "nature * * * allowed to take its course.” Father Eichner expressly predicated his request for termination of such "extraordinary” life-support systems on Brother Fox’s constitutional right to privacy. Father Eichner noted that, since the medical authorities had refused to allow the exercise of that right, he was constrained to institute this proceeding for court authorization to withdraw such extraordinary and artificial life-sustaining systems.

Supporting the verified petition were affidavits by, inter alia, the attending physician, Dr. Edward Kelly, and a neurosurgeon, Dr. Nicholas Poloukhine, detailing the extent of irreversible brain damage suffered by Brother Fox, as well as the over-all gravity of his medical condition; specifically, he had "suffered a cardio-respiratory arrest” resulting in "diffuse cerebral and brain stem anoxia”; he was terminally ill, remaining comatose "in a permanent vegetative state * * * and will not, in the future, come out of his permanent vegetative state”. Father Eichner’s verified petition was also supported by an affidavit by Norbert Mechenbier, the nephew of Brother Fox, who was acting in a representative capacity for the next of kin. He urged that Father Eichner be appointed for the purpose of withdrawing the extraordinary life-support systems.

Pursuant to the direction of the Justice presiding at Special Term, a copy of the petition was served upon the Attorney-General of the State of New York and the District Attorney of Nassau County, as well as upon Brother Fox’s relatives. Of these, only the District Attorney of Nassau County sought an opportunity to be heard. He arranged for two specialists to examine Brother Fox, and thereafter submitted papers in opposition to Father Eichner’s request to remove Brother Fox from the respirator. Special Term further ordered the appointment of a guardian ad litem for the alleged incompetent.

Special Term subsequently conducted a hearing and took testimony relating both to Brother Fox’s medical condition and to his statements purportedly demonstrating a desire not to be kept alive through extraordinary means.

At the hearing, which was held November 14-16, 1979, the petitioner, Rev. Philip Eichner, S. M. testified that he is an ordained Roman Catholic priest, a member of the Order of the Society of Mary and president of the Chaminade High School as well as superior of the religious Community of the Marianists which resides on the premises of the high school. As a community, the members take vows of poverty, chastity and obedience, and live what Father Eichner termed a "common life” together.

Father Eichner averred that he had known Brother Fox since 1953 and that Brother Fox had taken his vows and lived a devout religious life for 66 years. The petitioner had occasional contact with him until 1970, when Brother Fox asked to join the Chaminade community in retirement. Brother Fox was accepted and initially acted as the pastor and message coordinator of the school. He was a "vibrant” person who, except for an eye condition, enjoyed "excellent” health, remaining both mentally and physically active.

With respect to Brother Fox’s views on the use of "extraordinary” life-sustaining measures, Father Eichner testified that in 1976, during the time that "the Karen Quinlan situation” was topical, the members of the Chaminade community engaged in extended discussions as to its significance, particularly in relation to the official position of the Catholic Church as expressed by the allocutio of Pope Pius XII and adopted by the New Jersey Church authorities. Father Eichner indicated that Brother Fox was an "active” participant in those discussions, agreeing with the position expressed by these religious authorities. In particular, Father Eichner recalled one incident when he heard Brother Fox expressly declare that he "would not want any of this extraordinary business * * * to be done for him.”

Finally, Father Eichner testified that the basis of his application was that Brother Fox "is in a static vegetative state and there is no possibility of recovery” of cognitive brain function.

Rev. Francis T. Keenan, S. M., the Provincial Superior of the Society of Mary, testified that he had been associated with Brother Fox since the witness’ noviate in 1951. With respect to the Chaminade community’s discussions of the Quinlan case, Father Keenan testified that about two months prior to the hearing date Brother Fox had said to him, "Well, why don’t they just let us go? I want to go.” The witness also observed that "Brother Joseph would be a person who would revere the person of the Pope a great deal and the teaching of the church a great deal, and since Pius XII has been very clear on this issue, he would accept it.”

Norbert Mechenbier, a nephew of Brother Fox, testified that he had discussed the petition with the nine other surviving blood relatives of Brother Fox. On October 16, 1979, after the operation, Mechenbier had visited Brother Fox in the hospital. Based on the statements of the medical staff, Mechenbier and his relatives favored withdrawal of the respirator unless there was a possibility of improvement beyond "a vegetative state”.

Substantial medical testimony was also taken. Dr. Edward Kelly, the attending physician and surgeon who performed the operation, testified as to the details of the surgery and Brother Fox’s subsequent medical condition. In mid-September, Dr. Kelly had recommended surgery for Brother Fox to repair an "inguinal hernia”, a protrusion of the contents of the abdomen through the abdominal wall. This operation, characterized as routine, was scheduled for October 2, 1979. Such a procedure normally lasts approximately 50 minutes, and the first 40 minutes were, in fact, "uneventful”. However, with the surgery largely completed, a "major catastrophe” occurred: Dr. Kelly noticed a "commotion” at the head of the table in the area where the anesthesiologist stood; it was ascertained that Brother Fox had suffered cardiac arrest. Although manifestation of the signs of cardiac arrest may be sudden, the onset of arrest itself is not, and no one could say with a reasonable degree of medical certainty exactly how much time had elapsed from the onset of the arrest to its apprehension. Subsequently, as a consequence of the arrest, blood ceased to oxygenate Brother Fox’s body and this resulted in brain damage, which ordinarily increases in proportion to the duration of the cardiac arrest. Dr. Kelly testified to and described the "heroic measures” which were undertaken following the arrest. These procedures ultimately were successful in restoring cardiac function, although between one and two minutes of additional time elapsed before the achievement of the results, the exact passage of time remaining unknown.

Dr. Kelly testified that Brother Fox was removed to the intensive care unit and placed on a respirator, a mechanical breathing device characterized as an "extraordinary” method of life support and utilized "only in intensive care units for those patients who are extremely ill, critically ill, and in danger of dying”. Brother Fox had lapsed into a coma with attendant lack of comprehension of surroundings and "[i]n general * * * a loss of all the functions that we think [of] as intelligence.” Dr. Kelly believed that the coma had been induced by "anoxia”, lack of oxygen to the brain, following cardiac arrest and consequential brain damage.

Informed by Dr. Kelly of Brother Fox’s grave condition, Father Eichner went to the hospital, saw Brother Fox, and arranged to have him examined by two neurosurgeons. Based upon their negative prognosis, Father Eichner approached hospital authorities for permission to withdraw the life-support system, but was informed that his request would not be honored without prior judicial approval. Discussions followed with some of Brother Fox’s relatives, as well as with members of the religious community, and Father Eichner eventually decided to seek legal recourse.

In the interim, members of the medical staff continuously monitored and evaluated Brother Fox’s medical status. Dr. Kelly saw Brother Fox on a daily basis. As of November 13, 1979, the date prior to his testimony, Dr. Kelly found that the patient had "decerebrated”. "He has lack of cerebral function. He is in a coma. He has convulsive episodes that need medication for control and has required that since the date of surgery. He does not respond to stimuli, and he has what we call autonomic, vegetative function, that of kidney function, intestinal function which are working, but he has no knowledge.”

Dr. Kelly’s opinion was that Brother Fox was in "a deep coma with a substantial loss of respiratory function” caused by "secondary to diffuse cerebral and subcortical anoxia”, i.e., lack of oxygen to the brain. The patient had lapsed into an "irreversible” and "permanent vegetative” coma; Dr. Kelly was able to state with a reasonable degree of medical certainty that Brother Fox was neither capable of sapient or rational thought, nor would he be in the future. Dr. Kelly did not believe that Brother Fox could live apart from the respirator. The physician then indicated that after the onset of coma, every patient reaches a "plateau” of improvement, or neurological state of "stabilization”. With respect to certain "improvements” observed in Brother Fox’s condition in the six weeks since the surgery—viz. disappearance of certain "myoclonic” convulsions with the aid of medication, rare instances of spontaneous respiration, and sensory response to stimuli— Dr. Kelly opined that such improvements had "nothing to do with higher brain functions * * * [Brother Fox] would remain a vegetable.”

Dr. Nicholas Poloukhine, a neurosurgeon, likewise examined Brother Fox and testified as to the results of his examination. Dr. Poloukhine had initially observed Brother Fox in the intensive care unit of the hospital on October 12 and 13, later on the 17th of the month, and also on the morning of the hearing—November 14, 1979. Although he could not determine the exact period between the onset of the arrest and the success of the resuscitation, he estimated it at perhaps five minutes in toto based on Brother Fox’s neurological responses. The first two minutes of oxygen deprivation caused by the arrest were "absolutely critical”. In agreement with Dr. Kelly, Dr. Poloukhine believed that Brother Fox was in a condition of "irreversible coma, secondary to diffused cerebral and sub-cortical anoxia” and would eventually die as a result thereof. Ascertainable and irreversible damage had occurred in the areas controlling "sapient function” of the brain. However, "with intensive support care, the patient may * * * remain in a so-called 'permanent vegetative state’.” Dr. Poloukhine held to his original opinion that Brother Fox was "unable to function in a sapient or rational manner, and will not in the future come out of his permanent vegetative state.” The neurological improvements observed in the six weeks since surgery—rare instances of spontaneous respiration reflected by the patient’s "bucking” of the respirator, and the disappearance of myoclonic convulsions—had nothing to do with cognitive function and did not change his mind.

In opposing the petition, the District Attorney sought to establish that Brother Fox was "improving” neurologically, or in the alternative that it was too early to determine his condition because he had yet to reach a state of neurological "stabilization”. Toward this end the District Attorney presented two physicians who had conducted a neurological examination at his request. Dr. Eli Goldensohn, a neurologist, reviewed Brother Fox’s records and noted "slight improvement” between October 12 and October 17. At the time of Dr. Goldensohn’s examination of November 6, he observed some spontaneous respiratory efforts and response to painful stimuli. When asked if the patient was stabilized in a neurological sense, the physician stated that his "impression” was that he was not "absolutely stabilized”. Dr. Goldensohn testified as to the varying degrees of coma. "Brain death” is that state wherein an individual cannot breathe on his own, has no reflexes other than spinal ones, and has an electroencephalogram (EEG) indicating a complete absence of spontaneous electrical activity in the cortex. Since Brother Fox’s EEG showed "minimal activity”, he did not meet the criteria of "brain death” at the time of the hearing. A "vegetative state”, on the other hand, "is a state where the individual is partially responsive * * * but * * * has no significant cognitive functions * * * [although he] does have some primitive cerebral reflexes.” Brother Fox was in such a state at this time although Dr. Goldensohn was not certain whether this condition had stabilized. His prognosis was that the chances were "extremely remote” and that it was "entirely improbable” that Brother Fox would ever regain consciousness. The witness believed death would follow in days or weeks if Brother Fox were no longer assisted by the respirator. Any improvements had been in the area of reflexes, not sapient function.

Dr. Richard Beresford, a neurologist, also examined Brother Fox, and his medical opinion was consistent with that of his colleagues. Specifically, he concluded that Brother Fox had entered into a vegetative state and it was "highly improbable” that he would ever regain cognitive function. While there was one case in the medical literature of a 43-year-old man who had fully recovered from a similar vegetative state after 17 months, this was an unexpected "deviation from the normal”.

Finally, the guardian ad litem, Robert C. Minion, Esq., testified in favor of granting the relief sought by Father Eichner, including authorization to withdraw the respirator. His report to this effect was also admitted into evidence.

Ill

In a thoughtful and extensive opinion issued on December 6, 1979, Special Term made findings of fact and conclusions of law and granted the relief sought by Father Eichner, The two key findings of fact were (102 Misc 2d 184, 188, 189, 193):

(1) that "[a]s a result of diffuse cerebral and subcortical anoxia brought on by cardiac arrest suffered on October 2, 1979, Brother Fox lost the ability to then respirate spontaneously and fell into a comatose, vegetative state in which he has since been maintained through use of a respirator * * * He is in a chronic vegetative and akinetic mute state as a result of which only certain lower vegetative functions operate. The higher functions of the brain, the so-called cognitive and sapient functions, have been lost and it is highly improbable that they will ever return. To the extent that any further improvements may occur, they will relate only to Brother Fox’s vegetative functioning * * * It was the unanimous conclusion of the physicians who testified in this case, that, to a reasonable degree of medical certainty, there is no reasonable possibility that Brother Fox will ever return from the state he is now in to a condition in which the cognitive and sapient powers of the brain—the ability to feel, see, think, sense, communicate, feel emotions and the like—operate. The prognosis is that Brother Fox, whether on or off the respirator, will die”; and

(2) that "Brother Fox opposed the continued use of life supporting systems like respirators when the chance of recovery from a persistent vegetative state is largely nonexistent and, were he competent at this moment, he would order a termination of the life supporting respirator.”

Special Term’s primary conclusion of law was that Brother Fox was entitled to have the respirator withdrawn as an exercise of his common-law "right of bodily self-determination”, and although he could not personally exercise that right due to his incompetence, his committee, Father Eichner, could exercise it for him since his wishes had been made sufficiently clear, citing Matter of Quinlan (137 NJ Super 227, revd 70 NJ 10, cert den sub nom. Garger v New Jersey, 429 US 922), and Superintendent of Belchertown State School v Saikewicz (— Mass —, 370 NE2d 417). Special Term, however, declined to recognize the right of bodily self-determination as one of constitutional dimension under the so-called "right of privacy”, reasoning that the refusal of Nassau Hospital to accede to Father Eichner’s request to terminate the respirator did not constitute "State action” for the purpose of the Fourteenth Amendment. Accordingly, Special Term:

(1) adjudicated Brother Fox an incompetent within the meaning of the Mental Hygiene Law;

(2) appointed the petitioner, Father Eichner, as the committee of the incompetent;

(3) directed that Father Eichner be authorized and empowered to terminate the use of the respirator sustaining Brother Fox upon fulfillment of two conditions: (a) that Father Eichner "secure from a physician or physicians of his choice an opinion that the condition of Brother Joseph Charles Fox continues in a chronic vegetative state with no reasonable medical possibility that he will ever regain any sapient or cognitive function” and (b) that in "scheduling the physical examination described immediately above” Father Eichner shall provide the District Attorney of Nassau County at least 48 hours notice in order to give him an opportunity to have a "representative or representatives present for the purpose of observing what transpires”;

(4) directed that upon compliance with the conditions described above, and the resulting withdrawal of the respirator, "such action shall not give rise to either civil or criminal liability on the part of any participant, whether committee, physician, hospital or others”; and

(5) expressly confined the authorization to the withdrawal of the respirator alone.

An order to this effect was entered on December 12, 1979.

The District Attorney has appealed from this order. Briefs were submitted and oral argument was heard. Subsequently, on January 24, 1980, while the decision on this appeal was pending, Brother Fox died. As previously noted, however, the controversy does not thus come to an end; we retain jurisdiction and address ourselves to the merits.

Distilling the District Attorney’s excellent brief into its basic elements, his argument is as follows:

(1) this court does not have the power to grant the relief ultimately sought in this proceeding—withdrawal of the respirator—at least in the absence of legislation;

(2) if this court possesses such power, neither the Constitution nor the common law gives a terminally ill patient, who is incompetent by virtue of being in a permanent vegetative coma, the right to be withdrawn from a respirator; and

(3) even if such a right exists, there was no expression of Brother Fox’s intent sufficient to warrant the exercising of that right inasmuch as his purported statements of intent—as testified to by Father Eichner and Father Keenan—were inadmissible hearsay; that is to say, in essence, there is no mechanism by which this right to refuse treatment can be exercised by one other than the incompetent himself. These essentially are the issues presented to this court.

IV

The genesis of this case, of course, goes far beyond the operation on Brother Fox that came to a tragic conclusion. Ultimately, we must face the fact that technological advances in medicine have generally outpaced the ability of the judicial system to deal comprehensively with them in a manner consistent with the fulfillment of social policy objectives. Subjects that only 15 years ago were within the exclusive domain of such visionaries as Ray Bradbury, Arthur C. Clarke and Isaac Asimov—genetic recombination, microsurgery, transplantation of organs and tissues—are now very real, straining the traditional boundaries of the law. Indeed, even the venerable doctrine of stare decisis becomes ineffectual in that it suggests institutional reliance on old answers at a time when the questions themselves have passed beyond the imagination of the judicial sages who formulated the precedents. And while technological advances in medicine have achieved what to laymen are no less than miracles, it is equally true that "the struggle of medical science against death has resulted in its own peculiar horrors” (Collester, Death, Dying and the Law: A Prosecutorial View of the Quinlan Case, 30 Rutgers L Rev 304). We speak of a technology that is capable of sustaining an individual in a permanent and irreversible coma for an indefinite period of time. It was the problems spawned by such technological achievements that prompted the ad hoc committee of the Harvard Medical School in 1968 to propose a re-examination of the very definition of death: "From ancient times down to the recent past it was clear that, when the respiration and heart stopped, the brain would die in a few minutes; so the obvious criterion of no heart beat as synonymous with death was sufficiently accurate. In those times the heart was considered to be the central organ of the body; it was not surprising that its failure marked the onset of death. This is no longer valid when modern resuscitative and supportive measures are used. These improved activities can now restore life’ as judged by the ancient standards of persistent respiration and continuing heart beat. This can be the case even when there is not the remotest possibility of an individual recovering consciousness following massive brain damage.” (Ad Hoc Committee of Harvard Medical School to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 337, 339; see, also, Matter of Quinlan, 70 NJ 10, 26-28, supra; Matter of Dinnerstein, — Mass App —, 380 NE2d 134, 135-136, n 2.)

Increasingly, more are drawn to the view that, as one writer put it, the "ultimate horror is not death but the possibility of being maintained in limbo, in a sterile room, by machines controlled by strangers” (Steel, The Right to Die: New Options in California, 93 Christian Century [July-Dec. 1976], as quoted in Comment, North Carolina’s Natural Death Act: Confronting Death With Dignity, 14 Wake For L Rev 771; see, also, Heifetz and Mangel, The Right To Die, 9-11; Raible, The Right to Refuse Treatment and Natural Death Legislation, Medicolegal News, vol 5, no. 4, at p 7). The plain fact is that medical technology capable of maintaining individuals indefinitely in a state of irreversible coma has blurred the definition of death and raised questions quite without parallel in the annals of medico-legal jurisprudence. Thus, while the law has traditionally regarded death as an event, i.e., the cessation of circulatory and respiratory functions, medical science has come to recognize death as a process. Several pre-eminent medical panels—including the previously alluded to ad hoc committee of Harvard Medical School—have attempted to resolve this dilemma by postulating new criteria for the determination of death, commonly referred to as "brain death”. This solution, however, has not as yet been accepted as legally conclusive of the issue in this State (but see, Matter of New York City Health & Hosps. Corp. v Sulsona, 81 Misc 2d 1002, 1003, 1005-1007 [construing the term "death” under Public Health Law, § 4301, covering anatomical gifts to mean "brain death” in accordance with current medical standards]; see, also, the discussion of Sulsona, at Tests of Death for Organ Transplant Purposes, Ann. 76 ALR3d 913).

This new technology also raises complex questions of appropriate medical "ethics”, and bears moral,-religious and philosophical implications. Choices must be made. When should the respirator be withdrawn? How much effort, if any, should be expended to delay the inevitable moment of death for the incurably and terminally ill? The resolution of such questions will affect not only the patient, but his family, the medical community, and our society as a whole. The Quinlan court summed the problem up best by observing simply that the "matter is of transcendent importance” (Matter of Quinlan, 70 NJ 10, 19, supra).

It is also appropriate to preface analysis of the more complex issues by acknowledging the interest that the District Attorney bears in this proceeding. Conduct which results in the death of a human being who is medically alive quite obviously implicates criminal homicide statutes (see, e.g., Penal Law, § 120.30; § 125.00; § 125.15, subd 3; § 125.25, subd 1, par [b]). Such conduct may take the form of an act, or an omission to act where an affirmative duty to act is imposed by law (see Penal Law, § 15.00, subds 1, 3, 4, 5). The actor’s motive, no matter how kindly, is legally irrelevant, and this remains true notwithstanding the fact that the consent of the deceased had been obtained, or that the actor firmly believed his conduct to be morally justified (see 2 Wharton’s Criminal Law [14th ed], § 137; Repouille v United States, 165 F2d 152, 153-154; see, also, Penal Law, § 120.30; § 125.15, subd 3). Euthanasia, referred to colloquially as "mercy killing”, is consequently proscribed by the criminal law, and any physician who, acting on his own, removes a life-sustaining respirator arguably commits some form of homicide. No one dare question the existence of a strong public policy that values and protects the sanctity of life (see, e.g., Becker v Schwartz, 46 NY2d 401, 411). Charged with upholding the integrity of the criminal law, the District Attorney is duty bound to concern himself with the conduct of those who propose to do that which seemingly violates that public policy. Moreover, since the ultimate relief sought necessarily would include an injunction against criminal prosecution (Decision, pp 205, 206; see, also, Matter of Quinlan, 70 NJ 10, 55, supra; cf. Penal Law, § 35.05, subd 1), the interests of judicial economy, as well as simple common sense, require the District Attorney be joined in advance, rather than have him attempt to prosecute a criminal case after the patient has died. Such joinder was likewise consistent with the notice provision of the statute (see Mental Hygiene Law, § 78.03, subd [d]; cf. Matter of Torsney, 66 AD2d 281, 286-287, revd on other grounds 47 NY2d 667).

Following closely the question of the District Attorney’s interest in this proceeding is the true threshold issue of the case: should the courts act at all? The District Attorney argues that Special Term acted in excess of its authority by "fashioning a remedy” which rests entirely on a "court-created legal fiction” particularly inappropriate because it was formulated "in the utter absence of any guiding legislation.” In effect, the District Attorney urges that because the results of withdrawing the respirator—which in all likelihood would have hastened Brother Fox’s death—are irreversible, and because the public consequences are so profound, the relief sought may not be granted without specific legislative authority. Actually, the question is composed of two separate elements: (1) do the courts have the adjudicatory power to act; and (2) if they do, should that power be exercised in this proceeding absent legislation. That the court has the power to entertain and adjudicate this proceeding cannot be doubted. The State has a legitimate interest in asserting its parens patriae powers over the mentally incompetent, both to provide care and to safeguard the best interests of those who are physically unable to care for themselves (see Addington v Texas, 441 US 418, 426; O’Connor v Donaldson, 422 US 563, 575; Matter of Lublin v Central Islip Psychiatric Center, 43 NY2d 341, 345; Matter of Weberlist, 79 Misc 2d 753, 756; Superintendent of Belchertown State School v Saikewicz, 370 NE2d, at p 427; Note, The Tragic Choice: Termination of Care for Patients in a Permanent Vegetative State, 51 NYUL Rev 285, 309; Byrn, Compulsory Lifesaving Treatment for the Competent Adult, 44 Fordham L Rev 1, 24). It suffices for purposes of subject matter jurisdiction that section 78.01 of the Mental Hygiene Law grants jurisdiction to the Supreme Court "over the custody of a person and his property if he is incompetent to manage himself or his affairs by reason of age * * * mental illness, or other cause”, thus allowing the court to act in his best interests. In a more general context, the court’s jurisdiction derives from the fact that the Supreme Court is a court of "general original jurisdiction in law and equity” as provided in the New York State Constitution (art VI, § 7, subd a; see, also, Judiciary Law, § 140-b; Matter of Seitz v Drogheo, 21 NY2d 181, 184).

That the court has the obligation to exercise that power in this proceeding is equally apparent, for not to do so would constitute an abdication of our fundamental judicial responsibility to resolve a real and immediate problem with which we have been confronted. If Father Eichner could not turn to the judicial process for guidance, where or to whom could he turn? The answer to the District Attorney’s call for judicial restraint pending action by the Legislature is simply that legislative action has not occurred, may not occur for years, or perhaps (given the emotional component of the issue) may not occur at all. Unlike the cases cited by the District Attorney, this proceeding does not raise issues upon which the Legislature has already expressed its views, implicitly pre-empting contrary judicial resolutions (see, e.g., People v Broadie, 37 NY2d 100, 117-118, cert den 423 US 950). Nor in addressing these issues do we seek to alter the course of prior legislative paths, or to usurp the power or function of the Legislature. The principle of judicial restraint and the oft-heard admonitions against legislating by the judiciary remain valid and are concepts to be borne in mind and given adherence. However, when appropriate litigants present the court with a vital problem involving private rights as well as public policy, we would be remiss if we declined to act. Clearly, it would be desirable for the State Legislature to address itself to these issues which are so interwoven with fundamental questions of public policy. But the fact is that it has not done so. And, in circumstances such as those at bar, the best interests of the patient, the anguished family and friends, the medical community, the hospital institutions, and the community at large, all demand a solution having the sanction of law. We note that there are no precedents in this State which militate against a judicial resolution of this problem. There is no body of stare decisis; thus, the "continuity of law” will not be disrupted. To the extent that the decisions of sister States provide guidance, no obstacle to judicial action is presented (Matter of Quinlan, 70 NJ 10, supra; Superintendent of Belchertown State School v Saikewicz, 370 NE2d 417, supra).

That the problem raises what may ultimately be discerned as moral questions does not mandate a contrary result. The law which embodies social policy inevitably reflects moral judgment to some degree (compare Matter of Quinlan, supra, p 40, with People v Easley, 42 NY2d 50, 56). And, in this regard, the words of Justice Benjamin N. Cardozo are particularly apt: "You may say that there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. I am not disposed to deny this, but in my view it is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere, and the custom of the constitution has lodged it in the judges. If they are to fulfill their function as judges, it could hardly be lodged elsewhere. Their conclusions must, indeed, be subject to constant testing and retesting, revision and readjustment; but if they act with conscience and intelligence, they ought to attain in their conclusions a fair average of truth and wisdom.” (Cardozo, The Nature of the Judicial Process, 135-136; see, also, Baron, Medical Paternalism and the Rule of Law: A Response to Dr. Reiman, 4 Amer J L & Med 337.)

The Court of Appeals has long recognized the particularly urgent need for judicial vigilance in safeguarding the rights of incompetents, noting in analogous circumstances that "we cannot overlook the rights of institutional residents, especially those incapable of eloquent expression and abstract thought. These people deserve a fair hearing” (Matter of Brown v Ristich, 36 NY2d 183, 191-192). So too, many collateral issues of penal law violations, malpractice, life insurance and estate litigation lie near the surface of controversies such as these, presenting additional reasons for the courts to act (see Cantor, Quinlan, Privacy and the Handling of Incompetent Dying Patients, 30 Rutgers L Rev 243). These considerations have all contributed to our conclusion that this court must address itself to the issues (see, also, Satz v Perlmutter, 362 So 2d 160, affg 362 So 2d 260 [Fla]).

This is not to say, however, that an act of the Legislature would not be most welcome and appropriate. No one seriously doubts that the "Legislature has far greater capabilities to gather relevant data and to elicit expressions of pertinent opinion on the issues at hand” (Matter of Higby v Mahoney, 48 NY2d 15, 18-19). It is manifest to this court, however, that the consequences of our refusing to confront the issues would far outweigh the risks inherent in filling the void.

V

Turning our attention to the substantive legal problems, we begin by recognizing that, while the right of an incompetent patient to refuse medical treatment or to have it withdrawn may be subject to some controversy, by contrast, the right of a competent patient to do so is not. There exists a solid line of case authority recognizing the undeniable right of a terminally ill but competent individual to refuse medical care, even if it will inexorably result in his death. The underlying motive for the patient’s decision is irrelevant. Its legal underpinnings have been carefully considered and variously described. The Court of Appeals has affirmed that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his body” (Schloendorff v Society of New York Hosp., 211 NY 125, 129 [Cardozo, J.]). Similarly, it has been stated that "it is the individual who is the subject of a medical decision who has the final say and that this must necessarily be so in a system of government which gives the greatest possible protection to the individual in the furtherance of his own desires” (Matter of Erickson v Dilgard, 44 Misc 2d 27, 28 [Meyer, J.]). In this regard, one United States District Court, in considering whether the terminally ill had a right to elect unconventional methods of treatment such as the use of the drug Laetrile, remarked that it was "uncontrovertible that a patient has a right to refuse cancer treatment altogether” (Rutherford v United States, 438 F Supp 1287, 1299, remanded 582 F2d 1234, revd 442 US 544; accord Union Pacific Ry. Co v Botsford, 141 US 250, 251; Matter of Melideo, 88 Misc 2d 974, 975 [Lazer, J.]; Matter of Long Is. Jewish-Hillside Med. Center v Levitt, 73 Misc 2d 395, 397; Matter of Nemser, 51 Misc 2d 616; Satz v Perlmutter, supra; Superintendent of Belchertown State School v Saikewicz, 370 NE2d, at p 424; Lane v Candura, — Mass App —, 376 NE2d 1232, 1236; Matter of Osborne, 294 A2d 372 [D. C.]; Matter of Estate of Brooks, 32 Ill 2d 361; Palm Springs Gen. Hosp. v Martinez, Dade County Cir Ct, July 2, 1977, Civ No. 71-12687; Matter of Yetter, 62 Pa D & C 2d 619; see, also, Note, "Last Rights”: Hawaii’s Law on the Right to Choice of Therapy for Dying Patients, 1 Hawaii L Rev 144, 153-157; Note, The Tragic Choice: Termination of Care for Patients in a Permanent Vegetative State, 51 NYUL Rev 285, 306-308; Byrn, Compulsory Lifesaving Treatment for the Competent Adult, 44 Fordham L Rev 1, 2-16). Essentially, it was this right of a competent patient to refuse medical care that Special Term recognized, denominating it the "right of bodily self-determination” (Decision, p 203).

In some cases, however, the right to refuse medical treatment may be overridden by countervailing "compelling State interests.” Thus, for example, an individual may not refuse to be vaccinated where his refusal presents a threat to the community at large. (See Jacobson v Massachusetts, 197 US 11.) Moreover, the State’s general interest in the preservation of life, coupled with its responsibility to act as parens patriae for minors or incompetents, may sometimes require that treatment be accepted. Thus, in Long Is. Jewish-Hillside Med. Center v Levitt (supra, p 398) the court, asserting its power of parens patriae, ordered a life-saving operation for an 84-year-old man who had become confused and unable to consent for himself (accord, Matter of Sampson, 65 Misc 2d 658, affd 37 AD2d 668, affd 29 NY2d 900; Matter of Weberlist, 79 Misc 2d 753, 756, supra; John F. Kennedy Mem. Hosp. v Heston, 58 NJ 576; State v Perricone, 37 NJ 463, cert den 371 US 890; Holmes v Silver Cross Hosp. of Joliet, 340 F Supp 125; cf. Roe v Wade, 410 US 113, 152-156, supra [State’s interest in potential life allowed it to proscribe abortions in third trimester of pregnancy]; see, also, Cantor, Quinlan, Privacy, and the Handling of Incompetent Dying Patients, 30 Rutgers L Rev 243, 248-250). The interests of the State are also strongly implicated where the patient is responsible for the support of minor children and where refusal to accept treatment threatens to bring about their "abandonment”. Thus, in Matter of President & Directors of Georgetown Coll. (331 F2d 1000, 1008), treatment was ordered over the refusal of the 25-year-old mother of a seven-month-old child (see, also, United States v George, 239 F Supp 752). It has also been said that the State has a compelling interest in maintaining the ethical integrity of the medical profession by protecting physicians against the compelled violation of their professional standards and against exposure to the risk of civil or criminal liability (see, e.g., Matter of President & Directors of Georgetown Coll., supra; United States v George, supra, p 754; Byrn, Compulsory Lifesaving Treatment for the Competent Adult, 44 Fordham L Rev 1, 29-33). And, lastly, it has long been recognized that the State has an interest in discouraging irrational and wanton acts of self-destruction which violate fundamental norms of society (see Superintendent of Belchertown State School v Saikewicz, 370 NE2d at p 426, n 11, supra; Matter of President & Directors of Georgetown Coll., supra; Annas, Reconciling Quinlan and Saikewicz: Decision Making for the Terminally Ill Incompetent, 4 Amer J L & Med 367, 373-374, n 19; Note, Suicide and the Compulsion of Lifesaving Medical Procedures: An Analysis of the Refusal of Treatment Cases, 44 Brooklyn L Rev 285; Byrn, Compulsory Lifesaving Treatment for the Competent Adult, supra, citing, inter alia, Hales v Petit, 75 Eng Rep 387 [C. B. 1562]).

It seems clear that predicated upon the foregoing principles of common law, had Brother Fox been fully competent after surgery and had he refused the assistance of a respirator, his wishes would have had to be honored, absent any countervailing compelling State interest. We believe, however, that his right to refuse treatment when competent rests on a far more fundamental principle of law: the constitutional right to privacy. In the landmark decision of Roe v Wade (410 US 113, 117-118, supra), a pregnant woman challenged the constitutionality of the Texas criminal abortion statute which permitted abortions only when necessary to save the life of the mother. In striking the statute, the Supreme Court recognized that the right of personal privacy encompassed the decision to abort, subject only to the triggering of State interest in protecting "potential life” at some point in its development (410 US, at pp 154, 162-163). Addressing that issue, the court declared (p 152): "The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back * * * to Union Pacific R. Co. v Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” This right has been discerned within the penumbras of the Bill of Rights, and from the language of the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution (id.). However, "only personal rights that can be deemed 'fundamental’ or 'implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy” (Roe v Wade, supra, p 152). While the parameters of this right are still not certain, the Supreme Court has focused on 'matters relating to marriage, procreation, contraception, family relationships, and child rearing and education” (Paul v Davis, 424 US 693, 713). Mr. Justice Douglas, speaking of the constitutional right of privacy, declared that "the freedom to care for one’s health and person” falls within its purview (Doe v Bolton, 410 US 179, 213, concurring opn), adding that the "right of privacy has no more conspicuous place than in the physician-patient relationship” (id., p 219). We believe that the essence of this right is autonomy over matters of personal integrity, including control over one’s body, and that such a right is fundamental within the meaning of the Fourteenth Amendment (see Doe v Bolton, 410 US, at p 219, supra, Douglas, J., concurring; Kelley v Johnson, 425 US 238, 251, Marshall, J., dissenting; see, also, Beardsley, Privacy: Autonomy and Selective Disclosure, as reprinted in Privacy, Nomos XIII 56-57 [Pennock and Chapman ed, 1971]; Note, On Privacy: Constitutional Protection for Personal Liberty, 48 NYUL Rev 670, 700; G. Hughes, The Conscience of the Courts: Law and Morals in American Life, 71). Indeed, such a right is simply one facet of the right "to be let alone” (Olmstead v United States, 277 US 438, 478, Brandeis, J., dissenting), and is consistent with the Supreme Court’s observation that " 'outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases’ ” (Kent v Dulles, 357 US 116, 126). Roe acknowledges that pregnancy—and its termination —so fundamentally affect the integrity of a woman’s body that the constitutional right to privacy necessarily extended to her "decision whether or not to terminate her pregnancy” subject only to countervailing compelling State interests (Roe v Wade, 410 US, at p 153). By parity of reasoning, the constitutional right to privacy, we believe, encompasses the freedom of the terminally ill but competent individual to choose for himself whether or not to decline medical treatment where he reasonably believes that such treatment will only prolong his suffering needlessly, and serve merely to denigrate his conception of the quality of life. The decision by the incurably ill to forego medical treatment and allow the natural processes of death to follow their inevitable course is so manifestly a "fundamental” decision in their lives, that it is virtually inconceivable that the right of privacy would not apply to it. Individuals have an inherent right to prevent "pointless, even cruel, prolongation of the act of dying” (Matter of Dinnerstein, 380 NE2d, at p 137). Stated in simpler and more fundamental terms, as a matter of constitutional law, a competent adult who is incurably and terminally ill has the right, if he so chooses, not to resist death and to die with dignity (see Rutherford v United States, 438 F Supp 1287, 1299, supra; Satz v Perlmutter, 362 So 2d 160, 162, supra; Superintendent of Belchertown State School v Saikewicz, 370 NE2d, at p 426; Matter of Quinlan, 70 NJ 10, 39-40, supra; see, also, Cantor, A Patient’s Decision to Decline Life-saving Medical Treatment: Bodily Integrity versus the Preservation of Life, 26 Rutgers L Rev 228; Paris, Compulsory Medical Treatment and Religious Freedom: Whose Law Shall Prevail?, 10 U San Francisco L Rev 1; Note, The Tragic Choice: Termination of Care for Patients in a Permanent Vegetative State, 51 NYUL Rev 285, 294).

In reaching this conclusion, we firmly agree with the major sister State decisions on this difficult issue: Matter of Quinlan (supra) and Superintendent of Belchertown State School v Saikewicz (370 NE2d 417, supra). The well-publicized Karen Quinlan case presented circumstances quite similar to those at bar: The 22-year-old Ms. Quinlan lapsed into a coma from unknown causes, suffering irreversible brain damage. Her death was forestalled by the prompt use of an artificial respirator which maintained her breathing. After several months of watching his daughter remain technically "alive” but in a chronic vegetative coma, Mr. Quinlan petitioned the New Jersey Superior Court to appoint him guardian for the ultimate purpose of withdrawing the respirator, an act that all parties—erroneously as it happened—believed would result in her death (see 137 NJ Super, at pp 236-239). The New Jersey Supreme Court, in reversing the trial court’s rejection of the petition, concluded, as we do, that the constitutional right to privacy "is broad enough to encompass a patient’s decision to decline medical treatment under certain circumstances, in much the same way as it is broad enough to encompass a woman’s decision to terminate pregnancy under certain conditions” (Matter of Quinlan, 70 NJ 10, 40, supra, citing Roe v Wade, 410 US 113, supra). The Saikewicz court was presented with an entirely different problem. Joseph Saikewicz, a 67-year-old profoundly retarded ward of the State of Massachusetts, was terminally ill with acute myeloblastic monocytic leukemia. Chemotherapy, which statistically caused remission in 30 to 50% of the cases for periods ranging from 2 to 13 months, "was the medically indicated course of treatment [although] it would cause Saikewicz significant adverse side effects and discomfort” (Superintendent of Belchertown State School v Saikewicz, 370 NE2d, at p 419). Based upon the patient’s inability to provide informed consent for the chemotherapy treatment, as well as his inability to understand the treatment to which he would be subjected, the Superintendent of Belchertown State School petitioned the Probate Court for the appointment of a guardian for the ward. The guardian’s recommendation was that " 'not treating Mr. Saikewicz would be in his best interests’ ” (id., p 419). In analyzing whether the incompetent could decline potentially life-prolonging treatment if such were in his "actual interests and preferences” (id., p 431), the court recognized, as did Quinlan, that the constitutional .right to privacy obtained. The constitutional guarantee, the court noted "encompasses the right of a patient to preserve his or her right to privacy against unwanted infringements of bodily integrity in appropriate circumstances” (id., p 424). On this point, we agree with the Saikewicz court.

Special Term, however, was of the view that the constitutional right to privacy was not involved in this proceeding for want of the requisite element of "State action”, i.e., that Nassau Hospital was acting as a "private” entity within the meaning of the Fourteenth Amendment, and its refusal to withdraw the respirator could never trigger constitutional ramifications (Decision, p 199). We cannot abide by Special Term’s analysis with respect to this question. True, there is case authority for the proposition that actions by a hospital are not State action (see, e.g., Schlein v Milford Hosp., 561 F2d 427; see, also, Greco v Orange Mem. Hosp. Corp., 513 F2d 873, cert den 423 US 1000). But, in determining whether "State action” is present, the test does not focus on the entity qua entity. Rather, the existence of "State action” for Fourteenth Amendment purposes depends on "whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself’ (Jackson v Metropolitan Edison Co., 419 US 345, 351 [emphasis supplied]; see, also, Moose Lodge No. 107 v Irvis, 407 US 163, 176-177). Thus, in Schlein v Milford Hosp. (supra), where the challenged activity was the rejection of staff privileges for a physician—an "activity” having minimal if any connection with the State—the court had little difficulty in rejecting the Federally based due process claim (see, also, Barrett v United Hosp., 376 F Supp 791, 803, affd 506 F2d 1395). In stark contrast, it is the implied presence of the State, potentially capable of imposing criminal penalties and civil liability upon the hospital or medical staff, that has prompted this controversy. That the District Attorney has asserted what is essentially an adversary position in support of the hospital reflects this. State action was found to be present in Roe because the Texas statute imposed criminal sanctions for the performance of an abortion. Similarly, if the District Attorney’s views prevail, the homicide statutes of this State would impose criminal penalties upon those who discontinue life-sustaining measures for Brother Fox. Furthermore, physicians are licensed by the State Board of Regents and, hence, their continued right to practice may be jeopardized by State action taken as a consequence of their conduct in termination-of-treatment situations. Indeed, the State’s parens patriae responsibility to provide continuing supervision over the affairs of an incompetent pursuant to the Mental Hygiene Law is sufficient to establish the existence of State action herein. (Cf. Parham v J. R., 442 US 584.) Consequently, we find that Nassau Hospital’s rejection of Father Eichner’s request constituted State action within the meaning of the Fourteenth Amendment.

Accordingly we conclude that, were Brother Fox competent, he could refuse medical treatment not only as an exercise of his common-law right to bodily self-determination, but also pursuant to his constitutional right to privacy. Although the two are quite clearly equivalent in effect since they compel the same result, the difference between them is something more than mere semantics. Common-law rights can be abrogated by statute in the exercise of the State’s police powers subject only to due process requirements (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 301 et seq.; cf. Penn Cent. Transp. Co. v New York City, 438 US 104, 123-124; Spears v Berle, 48 NY2d 254, 261-262; Matter of Subway-Surface Supervisors Assn. v New York City Tr. Auth., 44 NY2d 101, 109-110; Modjeska Sign Studios v Berle, 43 NY2d 468, 473-475; Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483, 489). Constitutional rights on the other hand cannot be so abrogated (see Roe v Wade, 410 US 113, 155, supra; Kramer v Union Free School Dist., 395 US 621, 627; Shapiro v Thompson, 394 US 618, 634). It suffices for purposes of this analysis, however, that these two rights func