by Maggie Datiles
It has been nearly fourteen years since the Oregon Death with Dignity Act was approved by a narrow margin in November 1994. This year, state bills and ballot initiatives attempting to legalize and create a state constitutional right to physician-assisted suicide (PAS) have been introduced, and challenges against state criminal homicide laws prohibiting assisted suicide have been filed. Despite national and international data and studies demonstrating the dangers that assisted suicide poses to the sick, disabled and elderly, assisted suicide proponents continue to press forward with efforts to spread the practice beyond the borders of Oregon. The medical community has come out against the PAS, but advocates have ignored its advice and recommendations. Meanwhile, disability groups and civil rights organizations consistently oppose the spread of assisted suicide. Although physician-assisted suicide is currently allowed only in the state of Oregon, legalization of the practice has emerged as an area of renewed interest.
State of the States: Where Are We Now?
In Washington v. Glucksberg (1) and Vacco v. Quill (2), the United States Supreme Court (USSC) ruled that there is no federal constitutional right to assisted suicide. The Court pointed out that state bans on assisted suicide are nothing new, but rather, “they are longstanding expressions of the States’ commitment to the protection and preservation of all human life.” Opposition and criminalization of assisted suicide “are consistent and enduring themes of our philosophical, legal, and cultural heritages” (3).
Following this legal tradition, the majority of the states have prohibited assisted suicide. Presently, forty-four states prohibit assisted suicide, in direct correspondence with Anglo-American legal history (4). Thirty-eight states expressly prohibit assisted suicide by statute (5); six states prohibit assisted suicide by implication, through either adopting the common law of crimes or by interpreting their homicide statutes to apply to assistance in committing suicide (6); five states and the District of Columbia do not have statutes prohibiting assisted suicide, do not recognize the common law of crimes and have no applicable judicial decisions on assisted suicide (7); and one state allows assisted suicide under certain circumstances (8).
Moving Beyond Oregon: Washington State’s Initiative 1000
Initiative 1000, modeled after Oregon’s Death with Dignity Act, is likely to be on the ballot in November 2008 and would legalize assisted suicide in Washington. This initiative poses obvious dangers because the ballot title and summary do not adequately inform voters of the severe, direct and adverse consequences of the measure. Specifically, the ballot title and summary do not inform voters that 1. mental health evaluation (i.e. screening and treatment for depression or other mental illness) is not required; 2. family notification of a member’s request for assisted suicide is not required; 3 there are no penalties for physicians who fail to report assisted suicides, or who file inaccurate reports; and 4 physicians are granted complete immunity from liability for violating any or all patient safeguards.
A survey conducted by Moore Information of Portland, Oregon in April 2008 illustrated that 55% of participants supported Initiative 1000 after reading the ballot title and summary language. However, after participants were informed of the actual effects of the initiative (e.g., that lethal drugs will be prescribed to the depressed without treatment for depression; that abuses cannot be investigated; that family will not be notified; and that physicians are granted total immunity), the percentage of participants supporting Initiative 1000 dropped to 44%.
The language of the ballot title and summary of Initiative 1000 are clearly not in compliance with RCW 29A.72 and Article II, Sections 19 and 37 of the Washington Constitution, which require that the language of a ballot title adequately inform voters of the general and specific effect of the proposed legislation. (9)
Both Democrats and Republicans have spoken outwardly against Initiative 1000. Sen. Margarita Prentice (D) stated that Initiative 1000 “has virtually no protection for low-income and vulnerable people from being pressured into prematurely ending their life . . . This very dangerous initiative never would have passed the legislature.” Prentice also publicly asserted that under Initiative 1000, “physicians can prescribe lethal drugs to patients who are depressed or mentally ill,” and that “there is nothing to protect those suffering from psychological distress.” In the same vein, Sen. Joe Zarelli (R) stated that Initiative 1000 is bad public policy, and would “create conflicting ethics” for participating physicians. Gov. Chris Gregoire has also come forward in opposition to Initiative 1000.
Baxter v. State: Bringing the Fight against Assisted Suicide to the Courts
In addition to ballot initiatives, proponents of physician-assisted suicide have filed a lawsuit (in October 2007) in Montana, attempting to strike down a ban on the practice. Assisted suicide advocates claim that various sections of Article II of the Montana Constitution guarantee a “fundamental right” of terminally ill patients to physician-assisted suicide. Plaintiffs cite the right of privacy; the right of individual dignity; the right to due process of law; the right to equal protection of the laws; and the right to seek safety, health, and happiness in all lawful ways as state constitutional rights which encompass a right to assisted suicide.
In addition to establishing a state constitutional right to physician-assisted suicide, Plaintiffs also seek to strike the state’s criminal homicide laws prohibiting physicians from assisting in suicide. Plaintiffs seek a declaratory judgment declaring these provisions to be unconstitutional as applied to physicians performing assisted suicides.
The judicial history in Montana shows that the courts have broadly interpreted state constitutional rights such as the right to privacy. This does not bode well for the case against physician-assisted suicide. Assisted suicide opponents must work harder than ever to fight against the legalization of physician-assisted suicide in Montana.
Legislative Efforts to Legalize Physician-Assisted Suicide
Both California and Vermont introduced bills that would, as the bills were initially drafted, effectively legalize physician-assisted suicide. California’s AB 2747 and Vermont’s H. 804 would legalize assisted suicide in an indirect way. According to the language of the bills as introduced, the bill would establish a right to palliative sedation and a subsequent right to refuse nutrition and hydration. In effect, a patient would have the right to starve/dehydrate themselves (i.e., commit suicide) whilst in a state of sedation, to avoid feeling the pain of the starvation and dehydration. This is a round-about way of legalizing physician-assisted suicide and establishing a right to physician-assisted suicide. California medical groups, disability groups, and hospice centers have strongly opposed the California bill. Both the California and Vermont bills are examples of how pro-suicide advocates are pursuing new and creative ways to promulgate their agenda.
In 2007, at least four states (AZ, CA, HI, and VT) considered bills legalizing physician-assisted suicide,while at least four states (HI, IL, KS and NY) considered bills strengthening prosecutors’ options and/or punishment options in cases involving assisted suicide. At least four states have considered bills legalizing physician-assisted suicide so far this year.
Despite a long legal history and tradition of opposition and condemnation of assisted suicide, the vast majority of Americans today are unaware of the implications and adverse effects of legalizing assisted suicide. Gripped by fear of death and loss of autonomy, many Americans sympathize with physician-assisted suicide proponents. The passage of the Oregon Death with Dignity Act in 1994 with 51% of the vote marks the first and only victory for suicide advocates. Riding on that victory and on the sympathy of Americans who are unaware of the true nature of assisted suicide, advocates continue to press forward with efforts to expand the practice of assisted suicide throughout America and push for the slide toward euthanasia. It is clear, now more than ever, that Americans must continue to fight against the legalization and spread of physician-assisted suicide in order to protect society’s most vulnerable – the elderly, the sick, and the disabled.
This article originally appeard in the Culture of Life Newsletter (http://s44498.gridserver.com/content/view/478/). Posted with permission.
(1) 521 U.S. 702 (1997).
(2) 521 U.S. 793 (1997).
(3) Glucksberg at 710.
(4) Mailee R. Smith, “Physician-Assisted Suicide: The inevitable slide toward euthanasia,” Defending Life 2008: A State-by-State Legal Guide to Abortion, Bioethics, and End-of-Life, published by Americans United for Life. Available at http://www.aul.org/PAS (last accessed July 8, 2008).
(5) AK, AZ, AK, CA, CO, CT, DE, FL, GA, IL, IN, IA, KS, KY, LA, ME, MD, MI, MN, MS, MO, MT, NE, NH, NJ, NM, NY, ND, OK, PA, RI, SC, SD, TN, TX, VA, WA, and WI.
(6) AL, ID, MA, NC, VT, and WV.
(7) DC, HI, NV, OH, UT and WY.
(9) Amicus Curiae Brief on Behalf of John E. Peyon, Jr., and Patricia Peyton, and Washington State Catholic Medical Association in Coalition Against Assisted Suicide v. Washington, available at http://www.aul.org/xm_client/client_documents/briefs/CoalitionAgnstAssistedSuicidevStateofWA.pdf (last accessed July 8, 2008).
(10) Sections 45-5-102, 45-5-103 and 45-5-104 Montana Code Annotated.