By Jennifer Popik, JD, Robert Powell Center for Medical Ethics
Jennifer Popik, JD
Over the past few years, battles have raged in nearly every state legislature over the controversial topic of physician-assisted suicide. Currently, bills are imminent in New Jersey and the District of Columbia. On the ballot this November in Colorado, voters will decide Initiative 145, known as the “Medical Aid in Dying Proposal.”
While these bills will pose an immediate danger to vulnerable groups within those states, there is a real threat that these laws will spread to more states quickly, or even produce a new Supreme Court challenge.
Nearly every state in the U.S. prohibits assisting in another’s suicide. However, as part of an initial effort to expand euthanasia, assisted suicide advocates, principally Compassion and Choices, have focused on pushing a carve-out that allows doctors to prescribe a lethal prescription to a supposedly terminally ill and competent patient who overdoses on the drugs. These laws frequently bear some sort of misleading moniker such as “death with dignity” or “aid in dying.”
These laws, often framed as providing merely “one more option” to those who are ill, have been widely criticized by groups from across the political spectrum. That coalition includes major medical groups, disability rights groups, elder abuse attorneys, right to life groups, and religious organizations.
In the four states* where the practice has been legalized (California, Oregon, Washington, and Vermont) these assisted suicide laws have had dangerous consequences, particularly in Oregon, where the law has been in place the longest.
In Oregon, cancer patients Barbara Wagner and Randy Stroup’s own doctors recommended treatment, but State Health Plan denied their request and reminded them of a suicide option. In practice, the lethal suicide drugs are relatively inexpensive and can be covered by insurance. Shockingly, under the current proposals, as well as under the existing laws, there is nothing to stop the government, or your insurer, from steering you to inexpensive suicide versus treatment.
Critics have noted that the Colorado Initiative, along with New Jersey’s and D.C.’s bills are ripe for abuse. Surprisingly, those who might be suffering from depression (particularly understandable on the heels of an adverse medical diagnosis) or another mental illness can obtain lethal drugs. Astonishingly, there is no mechanism in the law to ensure screening for mental health.
Further, since no relationship with the doctor is required, or is any family member required to be contacted, critics warn that many patients who could have been treated will prematurely die. And in serious departure from traditional legal protection, heirs, who can inherit more money sooner, can be involved in the suicide.
Assisted suicide is a recipe for elder and disability abuse because it may put lethal drugs in the hands of abusers. This partially explains why disability rights organizations are in the forefront of opposition.
This list of pitfalls in the proposals is by no means exhaustive – and more analysis can be found here.
If Colorado, New Jersey, or D.C. joins the rank of the four states that actively permit assisted suicide, there is a great concern about a domino effect with more states quickly joining their ranks.
Less widely discussed is that the issue of assisting suicide will almost inevitably again come before the U.S. Supreme Court. Few may remember the justices did address the issue almost twenty years ago.
In 1997, in the case of Washington v. Glucksberg, the High Court unanimously rejected the claim that there was a constitutional “right” to assist in a 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.
Moreover, 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.”
In addition to this open-ended invitation to bring a case in the future, Supreme Court Justices have also indicated that they like to look at trends.
In the 2005 Roper v. Simmons case (an unrelated juvenile death penalty case), the Court wrote, “It is not so much the number of . . . States [changing their laws] that is significant, but the consistency of the direction of the change.”
Despite their misleading nature, official reports from California, Oregon, and other states where euthanasia is legal could in the future be cited to “prove” that fear of abuses has become outdated if not irrational. The justices could conclude they would no longer allows states the constitutional latitude to prevent assisting suicide.
Presidential candidate Hillary Clinton has, in the past, commended Oregon on its leadership on legalizing assisted suicide. She has called assisting suicide “an appropriate right to have.”
If 2016 sees the election of a president and Senate likely to use the next Supreme Court vacancy to nominate and confirm a justice sympathetic to euthanasia, there is the real risk the Supreme Court might well reconsider finding a federal constitutional right to assist suicide.
It is imperative that you get in touch with friends and family in Colorado and urge them to VOTE NO this fall! In New Jersey and the District of Columbia, please urge those you know to contact their elected officials.
*A Montana Supreme Court decision allows a physician to claim the defense that a patient consented in a potential criminal or civil action.