Gavel-court-legal-law-lawsuit
Laws in California, Colorado, Oregon, Vermont, Washington State, and Washington, D.C., allow physician aid-in-dying, also known as physician-assisted suicide and death with dignity. (Some oppose the use of the word “suicide,” a point we’ll return to shortly, but here I’ll use these terms interchangeably.) In Montana, a court decision provides protection from prosecution to physicians who assist patients in dying. All told, almost 20% of Americans live in a jurisdiction where they can access life-ending drugs, prescribed by a physician, if they are terminally ill and meet other eligibility requirements. Several of these laws are currently facing legal challenges.

According to the National Conference of State Legislatures, death with dignity legislation has been considered, but not passed, in at least 20 states. Oregon was the first state to allow physician-assisted suicide, in 1997, but the pace has quickened in the last few years. Colorado legalized the process last year via ballot initiative. The California and Vermont laws passed in 2015 and 2013, respectively. D.C.’s law is on the books but won’t be fully implemented until October 1st.

All state death with dignity statutes have guidelines for participating patients and physicians, such as eligibility and reporting requirements. According to one organization supporting physician aid-in-dying laws:

to qualify under Death with Dignity statutes, you must be an adult resident of a state where such a law is in effect, . . . mentally competent, i.e. capable of making and communicating your healthcare decisions; and diagnosed with a terminal illness that will lead to death within six months, as confirmed by two physicians. The process entails two oral requests, one written request, waiting periods, and other requirements.

None of the laws requires a physician or health care facility to participate.

Because of reporting requirements, we have statistics on how many patients have taken advantage of death with dignity laws and some of their characteristics. For example, in Washington State, in 2016:

  • Of 248 participants (as they are called in the state’s report), 240 are known to have died, 192 after ingesting the medication
  • Prescriptions were written by 140 different physicians and dispensed by 47 different pharmacists
  • The youngest was 33 years old; the oldest, 98
  • 77% had cancer; 8% ALS or similar neuro-degenerative disease; 16% had heart, respiratory and other diseases
  • Loss of autonomy (87%), loss of ability to participate in activities that make life enjoyable (84%), and loss of dignity (68%) were their chief concerns
  • 88% died at home and 77% were enrolled in hospice care

In California, for the first 6 months of the program (which started in June, 2016):

  • 258 patients started the “end-of-life option process;” 111 died after ingestion of the prescribed medication (for some, status is still pending).
  • 191 prescriptions were written by 173 physicians
  • 84% were receiving hospice and/or palliative care
  • 59% had cancer; 18% had ALS or other neuromuscular disorder; 15% had heart or lung disease
  • 87% were at least 60 years old

According the Los Angeles Times, patients and health care professionals are seeing an unexpected benefit from the new law:

[P]hysicians across the state say the conversations that health workers are having with patients are leading to patients’ fears and needs around dying being addressed better than ever before. They say the law has improved medical care for sick patients, even those who don’t take advantage of it.

Dr. Bob Uslander, a specialist in palliative and hospice care interviewed for the article, said he thinks the “unprecedented interest” surrounding the new law will lead to more thoughtful end-of-life planning, such as more people drafting advanced care directives.

Statistics from Oregon quoted in the article seem to bear out the conclusion that a state’s having an assisted suicide law promotes conversation about end-of-life options: while only 1 out of 640 terminally ill patients took lethal medications, 1 of 50 talked to their physician about it and 1 in 6 talked to their families about it.

The American Medical Association opposes physician aid-in-dying, but some state medical societies have taken a neutral stance when assisted suicide laws were debated. The Catholic Church, some Congressional Republicans and anti-abortion groups oppose these laws as well. According to the LA Times, in California, Catholic and church-affiliated hospitals (13% of all acute care hospitals in the state), forbid physicians affiliated with their hospitals from prescribing aid-in-dying medications. But most Americans support aid-in-dying laws. For 15 years, between 66 and 69% of Americans have responded affirmatively to the following question:

When a person has a disease that cannot be cured, do you think doctors should be allowed by law to end the patient’s life by some painless means if the patient and his family request it.

As for other countries, voluntary euthanasia is legal in the Netherlands, Belgium, Columbia, and Luxembourg. Assisted suicide is legal in Switzerland, Germany, Japan, and Canada. What’s the difference?

Physician-assisted suicide entails making lethal means available to the patient to be used at a time of the patient’s own choosing. By contrast, voluntary active euthanasia entails the physician taking an active role in carrying out the patient’s request, and usually involves intravenous delivery of a lethal substance.

Some, including the American Public Health Association, take issue with the word “suicide,” preferring “aid-in-dying” or “physician-assisted death.” The advocacy organization Death with Dignity explains why:

Because the person is in the process of dying and seeking the option to hasten an already inevitable and imminent death, the request to hasten a death isn’t equated with suicide. The patient’s primary objective is not to end an otherwise open-ended span of life, but to find dignity in an already impending exit from this world. They’re participating in an act to shorten the agony of their final hours, not killing themselves; cancer (or another common underlying condition) is killing them.

Opposition supports legal and legislative challenges

Opponents are turning to the courts and to Congress to fight aid-in-dying laws. In California, several physicians and a Tennessee-based conservative organization called the American Academy of Medical Ethics (AAME), which also opposes abortion and same-sex relationships, filed suit, challenging the constitutionality of the state’s End of Life Option Act. (The AAME appears to have a close relationship with another conservative medical group, the Christian Medical & Dental Associations, which opposes state legislation banning so-called “conversion therapy.” They share a chief executive.) Plaintiffs are represented by the Life Legal Defense Foundation, which gained some notoriety for its involvement in the legal defense of criminal charges and a civil action against anti-abortion activist David Daleiden, of the Planned Parenthood (heavily edited) videos fame.

The suit claims the law violates the equal protection and due process clauses of the U.S. Constitution by treating terminally ill patients differently from others. According to the plaintiffs, while protective interventions are legally required when others are a potential harm to themselves, the same is not required when a terminally ill person requests life-ending drugs. The California Attorney General’s office, which is defending the law, argued that the plaintiffs are alleging hypotheticals, not facts, and that, rather than depriving patients of anything, the law actually gives them a right, protected by the many safeguards in the statute. Earlier this summer, the judge denied the state’s motion for judgment on the pleadings, which sought to resolve the issues without further proceedings, allowing the case to proceed to trial.

In Vermont, the Christian Medical & Dental Associations and another organization representing physicians and other health care providers who oppose, on religious and ethical grounds, physician-assisted death for the terminally ill, sought an injunction against state authorities from taking any action against them under the provisions of Vermont’s law permitting physician-assisted dying.

The plaintiffs alleged that their refusal to inform patients of the choices available under the law could subject them to disciplinary action by the state medical board or criminal or civil action. The state denied any such action would take place and sought to dismiss the suit. The judge found that the law imposed no affirmative obligation on the plaintiffs to recommend or prescribe a lethal dose of medication to a patient. The plaintiffs also alleged that they might nevertheless be required by the state’s informed consent law, which obligates physicians to inform patients about all choices and options relevant to medical treatment, to tell terminally ill patients about the availability of lethal medications and that failure to do so could subject them to sanctions. However, because both the plaintiffs and the state agreed that a referral to a website in response to a patient’s positive inquiry is sufficient to satisfy the state’s informed consent requirements, the judge found, again, that the plaintiffs were under no threat of adverse action and dismissed the suit on jurisdictional grounds, there being no “case or controversy” for the court to adjudicate.

(For readers wanting more information, the court’s order dismissing the suit contains a detailed description of how Vermont’s assisted suicide statute, which is typical of such laws, works.)

Unfortunately, this did not end the matter. The plaintiffs and Attorney General then entered into a Consent Agreement in which they stipulated that state law did not require physicians to counsel or refer patients to the physician-assisted dying process unless the patient specifically inquired about it. Terminally ill patients and two organizations supporting death with dignity laws, who had been allowed to join the suit, were not informed of the Consent Agreement and objected by filing a Motion to Strike the Agreement. They argued that, while the court may have ruled that the plaintiffs were under no threat of adverse consequences because the parties agreed referral to a website was sufficient to discharge a physician’s obligation, it never ruled that the law itself imposes no duty on a physician to affirmatively inform patients of all options, including physician-assisted death. Thus, the plaintiffs and Attorney General had no right to try use backdoor methods to force that interpretation into the court records via their Agreement. The Attorney General’s office then reversed course and said it had no objection to striking the Agreement. The court has yet to rule on the pending motion.

In Washington, D.C., the district’s assisted suicide law is under attack from House Republicans, using Congress’s authority to oversee the District in an attempt to block, or at least cripple, its implementation. After an out-an-out attempt to block the law failed, Republicans are now trying to use the appropriations process to cripple the law’s implementation by barring funding for it. These efforts brought rebukes from both Democrats and D.C. officials, among them Rep. Mike Quigley (D-Ill.):

When it comes to issues like who can carry a gun and where, or who can marry whom, Republicans are ardent supporters of states’ rights; but when it comes to a woman’s right to choose or assisted suicide, suddenly the decisions of local elected officials are superseded by members of Congress.

New York attempts judicial route to establish right

Not all of the recent lawsuits seek to inhibit physician aid-in-dying. Patients, physicians and advocacy organizations in New York filed suit seeking a declaration that a state statute prohibiting “assisting” a “suicide” did not apply to a physician providing aid-in-dying, relying on the same claimed distinction between the two quoted earlier in this post. They also argue that the statute violated the rights of privacy and equal protection guaranteed by the New York State Constitution. They lost at the trial level and on their first appeal.

The appellate court rejected the plaintiffs’ argument that there was a distinction between “aid-in-dying” and “suicide,” deciding that, whatever terminology was used,

The word ‘suicide’ has a straightforward meaning and a dictionary is hardly necessary to construe the thrust of Penal Law §§ 120.30 and 125.15 [the statutes prohibiting suicide assistance]. It is traditionally defined as ‘the act or an instance of taking one’s own life voluntarily and intentionally,’ especially ‘by a person of years of discretion and of sound mind’ (Merriam-Webster’s Collegiate Dictionary [11th ed 2003], suicide). Whatever label one puts on the act that plaintiffs are asking us to permit, it unquestionably fits that literal description, since there is a direct causative link between the medication proposed to be administered by plaintiff physicians and their patients’ demise.

The court also rejected the argument that state constitutional protections prohibit the application of the state’s criminal law to physician-assisted suicide. Like the U.S. Supreme Court, the New York court held that, while there is a right to refuse medical treatment, even if it hastens death, there is no right to assistance in taking one’s life.

Interestingly, New York’s highest court agreed to consider the case and heard oral arguments on May 30th. Several organizations filed amicus briefs, including the National Association of Criminal Defense Lawyers, the American Medical Students Association, the American Medical Women’s Association and the American College of Legal Medicine, supporting the plaintiffs in their appeal. A decision is pending.

With public approval of physician aid-in-dying at near 70% and some physician organizations ending long-standing medical establishment opposition, it would appear the number of states legalizing it should increase. Much of the active opposition is from religious groups. Interestingly, these groups are also the ones most adamantly opposed to same-sex marriage and abortion rights, both of which are also supported by a majority of Americans. While the former has gained legal recognition despite objections, the latter is under increasing attack, with state legislatures and Congress whittling away at reproductive freedoms. It remains to be seen whether aid-in-dying legislative efforts and favorable judicial treatment strengthens or weakens as these cultural forces play themselves out. Science-based medicine can end suffering by hastening death but cannot answer the question whether it should do so.

Posted by Jann Bellamy

Jann J. Bellamy is a Florida attorney and lives in Tallahassee. She is one of the founders and Board members of the Society for Science-Based Medicine (SfSBM) dedicated to providing accurate information about CAM and advocating for state and federal laws that incorporate a science-based standard for all health care practitioners. She tracks state and federal bills that would allow pseudoscience in health care for the SfSBM website.  Her posts are archived here.