Doctor-prescribed Suicide: Early 2016 update

By Jennifer Popik, JD, Robert Powell Center for Medical Ethics

washingtonvglucksbergreAfter last year’s unprecedented number of bills attempting to legalize assisting suicide, 2016 is again shaping up to be an active year on the euthanasia front. Despite last year’s major setback when California become the fourth state to join the ranks of states that authorize doctor-prescribed suicide, many bills this session have already been defeated.

New Jersey had a bill that was held over from 2015. But that bill, already passed in the Assembly, never received the requisite support in the Senate, and did not come up for a vote in the session that ended in January of this year. A new bill has been introduced for the new session in New Jersey.

Additionally, bills were also defeated this year in Iowa, Colorado, and Utah. In Hawaii, no hearing was scheduled in the committee by the specified deadline so it is unlikely this bill can move this session.

However, dangerous bills are still making their way through other state legislatures. The primary organization behind these efforts is Compassion and Choices–or C&C (formerly the Hemlock Society). New York, another thickly populated state like California, is very high on the pro-euthanasia agenda. Other targets include Maryland, the District of Columbia, Massachusetts, and Connecticut.

In 2015, C&C gained attention using the case of Brittany Maynard, a California woman with a brain tumor. Maynard moved to Oregon where it is legal to have a physician prescribe a lethal dose of barbiturates to end her life.

Yet as disability rights advocate and President of Not Dead Yet Diane Coleman stated, “Assisted suicide legalization isn’t about Brittany Maynard. It’s about the thousands of vulnerable ill, elderly and disabled people who will be harmed if assisted suicide is legalized.”

In addition to California, doctor-prescribed suicide is legal in Oregon, Washington, and Vermont –and it may have some legal immunity in the state of Montana, due to a court decision. Also, an appeal is pending before the New Mexico Supreme Court regarding that state’s decades-old protective law against assisting suicide.

For bills introduced in other states, C&C typically has promoted essentially the same legislative language that currently governs both Oregon and Washington. The language, developed initially for Oregon, purports to “safeguard” the practice of doctor-prescribed suicide by restricting it to the terminally ill and the competent. The so-called safeguards have been widely criticized and the most recent versions of this already dangerous legislation contain even fewer.

These proposals prey on many of our worst memories and potential fears – either having seen or dreading having to go through the experience of someone dying badly. Rather than focus attention on improving pain management, training physicians how to manage illness, or teaching doctors how to interact and communicate in a respectful manner with older patients and those with disabilities, who are often marginalized, C&C touts suicide as a “solution.”

Legislatures in multiple states have heard testimony against these bills from countless medical professionals, persons with disabilities, and those who have survived so-called “terminal” diagnosis. While abuses ranging from a patient with dementia receiving a lethal dose, to numerous non-terminally ill people getting prescriptions, to pressure from the state health plans to utilize the cheaper suicide option have been documented and exposed, the real depth of abuses is difficult to know.

The laws rely on the doctors providing lethal prescriptions to self-report. However, there is no penalty if they do not report statistics and complications.

Furthermore, doctors are not held to the ordinary standard of medical malpractice in implementing the “safeguards,” but a far lower “good faith” one. Under Oregon law, the death certificate is actually falsified so that it lists some other condition, not suicide, as the cause of death. And much to the dismay of many families who found this out too late, the law does not require families to be notified of a patient’s suicidal intent.

While, as noted, four states affirmatively legalize the practice of state-sanctioned suicide, an even greater danger is posed by the United States Supreme Court. We are in a situation, with the current Supreme Court vacancy, under which whoever gets to appoint the new Justice can definitively shift the Court’s ideological balance.

The Court in the 1997 case Washington v. Glucksberg unanimously rejected the claim that there was a constitutional “right” to assist suicide, but many of the concurring Justices suggested they agreed only because there was not yet enough evidence to show that states could not rationally fear abuses.

Official reports from California, Oregon, and other states where euthanasia is legal, despite their misleading nature, could in the future be cited to claim that fear of abuses has become irrational, thereby giving the High Court an excuse to no longer allow states the constitutional latitude to prevent assisting suicide.

Indeed, in one concurring opinion in Glucksberg, then-Justice John Paul Stevens made a point of saying that he did not intend to “foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge.”