by Tate Thielfoldt, AUL Legal Fellow
It has been a busy handful of years in the battle between assisted suicide and authentic end-of-life care. Fights have continued in the state legislatures over whether to legalize assisted suicide, and litigation has ensued over disability discrimination and the legal status of assisted suicide. The few states that have legalized physician-assisted suicide are now considering removing “safeguards” from their laws, which would only subject more vulnerable individuals to the inherent harms of assisted suicide. In Montana, where judicial activism has run amok and devised a “consent defense” to homicide charges for physician-assisted suicide, the state legislature has unsuccessfully reined in the judiciary. While continual efforts from assisted suicide activists have largely failed to advance their attack on human dignity, they have made some ground in a select couple of states worth noting.
The Legislative Front
The state of Washington has done away with many of the state’s purported “safeguards” in its physician-assisted suicide statute. Until recently, Washington law only allowed physicians to prescribe lethal drugs to patients seeking assisted suicide. However, on April 6, 2023, Governor Jay Inslee approved amendments which replaced “physician” with “qualified medical provider” throughout the statute. This legislative change defined qualified medical providers as a much wider array of individuals who can prescribe lethal drugs to patients, including physicians, physician assistants, and advanced registered nurse practitioners. The Washington legislature further shortened the reflection period from fifteen days between a patient’s oral requests for the lethal prescription to seven days.
Hawaii followed Washington’s lead and implemented House Bill 650. Similarly, Hawaii’s bill opened the already legalized assisted suicide procedure to advanced registered nurses. The bill also shortened the reflection period from its original twenty-day period to an even shorter five-day wait.
Vermont was another state that removed patient “safeguards” in the state’s assisted-suicide statute. After a settlement in March 2023 with a Connecticut woman claiming that the state’s residency requirement violated her constitutional rights, the state legislature shifted its attitude and opened the door to suicide tourism by passing legislation that dropped the state’s residency requirement. Since Vermont also allows the use of telemedicine for assisted suicides, the state has created a dangerous situation that inadequately protects end-of-life patients against coercion and abuse. Now, out-of-state individuals can easily access lethal drugs without having any prior relationship with a Vermont physician and without ever seeing them in person.
Similar to Vermont, Oregon’s legislature passed House Bill 2279 which will drop their physician-assisted suicide residency requirement. The bill passed in June 2023, but still needs a signature from Oregon Governor Tina Kotek. Back in 1997, Oregon was the first state to legalize assisted suicide in the country.
In Nevada, the legislature nearly became the 11th state to legalize physician-assisted suicide through legislation when their House and Senate narrowly passed Senate Bill 239. However, Governor Joe Lombardo stepped in to veto the bill earlier this month. Governor Lombardo correctly cited “expansions in palliative care services and continued improvements in advanced pain management” as his reason why assisted suicide is unnecessary in Nevada. In doing so, he became the first Governor to veto physician-assisted suicide legislation in the United States.
In Montana, due to the 2009 case Baxter v. State of Montana, the state’s supreme court has effectively legalized assisted suicide through judicial activism. Accordingly, many Montana lawmakers have sought to restrict the practice and correct Baxter’s erroneous holding. These efforts, unfortunately, were unsuccessful since Montana Senate Bill 210 failed. Had the bill made it through the legislative process, it would have statutorily prohibited the “consent defense” to a charge of homicide for physician-assisted suicide.
Efforts to legalize physician-assisted suicide in other states have failed over the years. These states include New York, Maryland, Connecticut, and Virginia, which had bills that would have legalized the practice, but failed to garner the necessary support. Massachusetts’ legislation also is notable because the Massachusetts Supreme Judicial Court just ruled on an assisted suicide case, Kligler v. Attorney General, in December 2022. In Kligler, the court held that the Massachusetts Declaration of Rights does not protect physician-assisted suicide as a fundamental right, and physicians may not use consent as a defense to manslaughter. The decision, however, did not prevent the state legislature from legalizing physician-assisted suicide through legislation. The post-Kligler assisted suicide legislation introduced this year is currently stalled in committee. As the next section details, there are a number of important cases involving assisted suicide and conscience issues.
A Litigation Flank
The United Spinal Association filed a lawsuit at the end of April 2023, alleging that California’s assisted suicide statute violates federal disability rights laws. The complaint highlights California’s disregard toward the rights of people with disabilities by detailing how the law infringes upon the Due Process and Equal Protection Clauses of the U.S. Constitution and violates the Americans with Disabilities Act and Rehabilitation Act. Although the lawsuit is alleging illegal disability discrimination, it also raises public policy concerns about health equity for people with disabilities.
In Shavelson v. Bonta, an assisted suicide doctor argued that federal disability rights laws required California to permit active euthanasia of persons with disabilities who can’t administer the drugs themselves. A district court in California granted a motion to dismiss the case since it would change the assisted suicide statute to a euthanasia law. Although the assisted suicide plaintiffs appealed this ruling, they subsequently voluntarily dismissed it after the sole plaintiff-patient passed away.
In Christian Medical & Dental Associations v. Bonta, Christian Medical and Dental Associations (CMDA) challenged amendments to the California End of Life Option Act on conscience grounds. Despite having a provision for conscientious objections, the law still forced objectors to medically document a patient’s lethal drug request. This medical documentation counted as the first of two required lethal drug requests, so the doctor still was assisting the patient’s suicide. This contradicts the entire point of conscience protections, which allow physicians to exclude themselves from contentious procedures that betray their religious, moral, or ethical convictions. The district court issued a permanent injunction and ordered the State to pay CMDA’s attorney’s fees and costs, totaling $300,000.
In Lacy v. Torrez, the plaintiffs alleged that New Mexico’s assisted suicide statute infringed on medical professionals’ conscience rights. Although New Mexico permitted medical professionals to conscientiously object to the practice of assisted suicide, it then narrowly defined “practice.” This forced physicians to participate in material aspects of the procedure, including referrals and the provision of assisted suicide information. The parties agreed to dismiss the lawsuit after New Mexico amended its law to protect medical professionals against these conscience threats.
Federal Administrative Action
Earlier in the year, the Drug Enforcement Administration (DEA) proposed a rule restricting telemedical prescriptions for Schedule II drugs and narcotics in instances where the prescribing physician has not met with the patient for an in-person evaluation. Since assisted suicide prescriptions use narcotics and/or Schedule II drugs, the DEA’s proposed rule applies to these lethal drug compounds. Americans United for Life (AUL) submitted a comment supporting the proposed rule, highlighting many of the public policy issues assisted suicide poses to society and vulnerable patients. The comment covers the lack of patient protections, abuse of prescriptions, and experimental aspects of the drugs, which is why the DEA must ensure the patient at least has an in-person medical evaluation before receiving these lethal prescriptions.
Overall, there is a growing battle in front of the pro-life movement over the human dignity of individuals at the end of their lives. No amount of “safeguards” a state imposes in its assisted suicide laws will ever be sufficient to protect vulnerable patients from coercion and abuse at the hands of medical professionals. This is because no person, let alone physician, has the right to end the life of another innocent human being. All life should be protected in law, regardless of someone’s age, disability, health status, or income. Thus, as proponents of physician-assisted suicide push for the implementation of their radical legislation, pro-life advocates must be ready to oppose such efforts and speak on the harms of assisted suicide. Educating lawmakers as well as the general public of the continued ethical issues associated with assisted suicide practices is the first and most important step in overcoming this battle.
For further information on the topic of assisted suicide, AUL has published a policy report, A Time to Choose: Suicide Assistance or Suicide Prevention, which covers the major aspects of the debate. The report lays out the critical arguments against assisted suicide as a practice and why America as a nation should reject assisted suicide. AUL also provides information on the history of assisted suicide, as well as AUL’s end-of-life model legislation. Together, we can work towards an America that protects vulnerable end-of-life patients, and respects human life from conception until natural death