State Sen. George Borrello, R-Sunset Bay, speaks during a news conference recently in Albany.

Gov. Kathy Hochul will have a decision to make now that Medical Aid in Dying legislation has passed the state Senate.

S.138 passed the state Senate by a 38-27 vote on Monday, largely along party lines, with state Sen. George Borrello, R-Sunset Bay, among those voting against the bill. The state Assembly passed a companion bill in May by an 81-67 vote after more than five hours of debate. Andrew Molitor and Joe Sempolinski, the region’s state Assembly members, were among those who voted against the bill.

Borrello said he has issues with basic safeguards he said isn’t included in the bill – including a waiting period, a prior relationship between a patient and a doctor and allowing medication to be prescribed through telehealth without an in-person exam required. Borrello also said there isn’t a process in place to track or secure the drugs once they’re dispensed and no requirement for a mental health evaluation to ensure the patient is of sound mind. There is an optional assessment that can be done remotely.

“That’s the real problem with this bill, folks,” Borrello said on the Senate floor Monday. “We need real oversight. I’m opposed to it anyway, quite frankly. We should not be in the business of state authorized suicide. Period. But if you want to make this bill better, make sure there is accountability and oversight so that the things I just described are not going to happen. Because they may not have happened elsewhere doesn’t mean it won’t happen here because this bill goes farther than any other assisted suicide bill in this nation. It is irresponsible. We should not pass this and the governor should not sign it.”

Medical aid in dying is already permitted in 10 states, including California, Colorado, Hawai’i, Maine, Montana, New Jersey, New Mexico, Oregon, Vermont and Washington, as well as Washington, D.C. Vermont and Oregon permit any qualifying American to travel to their state for the practice, according to the Associated Press, while at least 12 states had pending bills that would legalize the practice. New York was among that group.

Only about 8,700 people have used physician-assisted death since Oregon became the first state to legalize it in 1997, according to the advocacy group Compassion & Choices. Most are cancer cases; others include heart and respiratory diseases. A third of people prescribed the medications don’t end up using them, according to a 2024 Associated Press report.

At least two states have gone in the opposite direction. Kansas passed legislation last year to further criminalize those who help someone with their physician-assisted death. West Virginia asked voters last November to enshrine its current ban into the state constitution, with the proposition passing 50.49% to 49.56%.

The Medical Aid in Dying Act would provide a mentally competent, terminally ill adult who has been given a prognosis of six months or less to live the ability to request medication from their treating physician for medical aid in dying. The legislation includes safeguards, which would require both an oral request and a witnessed written request for the medication, as well as requiring at least two physicians to determine that the patient has the capacity to make an informed decision on this request. Insurers would be prohibited from recommending or providing information on medical aid in dying to patients, including alongside denial of coverage notices for other treatments. Insurers would only be permitted to provide patients with information on medical aid in dying when the patient or their physician expressly requests such information or within general coverage information. Additionally, the legislation would provide legal protections for the patients and their physicians.

The bill creates a process that would begin with a patient’s request for medication that would end their life. That request has to be both oral and written, signed and dated by the patient and witnessed by at least two adults. Witnesses could not include the patient’s attending physician, consulting physician or the mental health professional who provides a capacity determination that is required under Paulin’s bill.

Patients can rescind their request for life-ending medication at any time and an attending physician can’t write a prescription for life-ending medication without first offering the patient a chance to reverse the request. If a physician thinks a patient lacks decision-making capacity to make an informed decision the doctor is required to refer the patient to a mental health professional to make a determination. A patient deemed unable to make an informed decision would not be allowed to end their life. Before medication is prescribed, there must be a written request form on file as well as a declaration from witnesses.

The law exempts physicians, pharmacists and other health care professionals from civil, administrative or criminal liability, though lawsuits could still be brought in cases of negligence, recklessness or intentional misconduct. Health care professionals are also not under any duty or contract to participate in giving the medication to a patient. Paulin’s bill exempts a physician, nurse, pharmacist or other health care provider from having to participate in the provision of medication to a patient, though care providers that won’t participate have to transfer or arrange for the transfer of a copy of the patient’s relevant medical records to a new health care provider.

A private health care facility may prohibit the prescribing,.dispensing, ordering or self-administering of medication under the article while the patient is being treated in or while the patient is residing in such facilities. Health care facilities that adopt a prohibition would have to transfer patients who want to use medication to end their lives to another facility that is “reasonably accessible” and willing to comply with the patient’s request. Employees of health care facilities that have adopted a prohibition against participating in medication-assisted suicide can face penalties from the facility, as long as employees have been notified of the prohibition in writing.

“You know, we have proposed a lot of irresponsible laws in the five-plus years that I have been here,” Borrello said. “We want to give the impression that New York is progressive and we have to do things further than any other state. And now we’re talking about giving people the right to commit suicide with the state’s sanction. And we’re still going to prove that we’re the most progressive. This bill is horribly irresponsible.”