JURIST Guest Columnist Kimberly Mutcherson of Rutgers School of Law-Camden, discusses the controversy over whether there should or must be a constitutional right allowing the terminally-ill to engage in physician assisted deaths …

“Despite decades of agitation, public education, lobbying and sporadic media attention, the right for a terminally-ill person to die by her own hand with the assistance of a physician remains elusive in the vast majority of the US. In 1997 Oregon became the first state in the country to enact legislation making it legal for adults to consent to ending their own lives with the assistance of a physician. Since that time, only four other states, Vermont, Washington, New Mexico and Montana [PDF], have followed Oregon’s lead by statute or case law. In the rest of the country, a right for terminally-ill patients to receive assistance in dying is not legally protected and providing such assistance can lead to criminal prosecution.

Public interest in the issue of choices-in-dying waxes and wanes, but hit a recent high when Brittany Maynard, a 29 year old woman dying from brain cancer, announced that she was moving from her home in California to Oregon so that she could avail herself of what for her were the benefits of the Oregon Death with Dignity Act. In the months between deciding that she wanted the option of taking her own life and the day that she ingested the medication that killed her, Maynard engaged in a media blitz with the assistance of Compassion & Choices, an organization committed to securing the right to aid in dying for all. Maynard’s message spread around the country and sparked renewed interest in the controversial question of whether a state should or, as a matter of constitution law, must allow terminally-ill people to end their lives when it is their choice to do so.

Despite passionate advocates, laws that grant physicians and patients the latitude to arrange for a patient to self-ingest life ending medications are unpopular in state legislatures. Maynard’s home state of California has been considering such a bill in the wake of her death. That bill, the End of Life Option Act, is presently winding its way through the California Senate. If enacted, the act would allow physicians to prescribe a lethal dose of medication to a terminally-ill patient. The bill’s safeguards are many, starting with the requirements that the qualified individual has been diagnosed with a terminal illness and that she is an adult who is competent to make a decision about ending her life. Terminal illness means the individual must be six months away from death—a diagnosis that a consulting physician must confirm. Thus the right to assistance in dying would not extend to individuals based solely on age or a condition of disability. The ability to get a prescription under the bill also requires competence meaning that “the individual has the ability to make and communicate an informed decision to health care providers. …” Individuals with a diagnosis of depression or another psychiatric or psychological disorder that interfered with the ability to make an informed decision would not be eligible for a prescription.

Under the act, no person could be forced to participate in an assisted suicide arrangement, and a request for a prescription could not be made under the authority of a power of attorney, health care proxy or by a conservator. To receive the prescription, the qualified individual would need to make two oral requests at least 15 days apart as well as a written request to the attending physician. The written request must be signed by two witnesses, only one of whom can be related to the qualified individual by blood, marriage or adoption or be entitled to recover a portion of the qualified individual’s estate. Similarly, only one of those two crucial witnesses can be an owner, operator or employee at a health facility where the qualified individual resides or is receiving her medical treatment. On multiple occasions the physician providing the medicine is required to determine that all of the bill’s requirements are met. This includes attempting to ensure the voluntariness of the qualified individual’s request by asking, outside of the presence of others, whether the individual is being coerced into requesting the medication and offering the individual multiple opportunities to change her mind about receiving the medication.

Other parts of the bill invalidate contractual provisions or portions of a will that would affect a request for aid in dying medication. Insurance companies are forbidden from taking actions that could encourage individuals to seek their own deaths by requesting aid-in-dying medication. Altering or forging a request or concealing or destroying a rescission of a request is a felony as is coercing or exerting undue influence on an individual to request assistance in dying.

Just as the qualifying individual’s participation must be voluntary, so must the physician’s participation be voluntary. Therefore, no one is bound to prescribe medication to a patient who wants to end her own life. Similarly healthcare employers may prohibit their employees from participating in aid-in-dying activities while on the premises of their employer or when conducting the employer’s business. Finally, the bill requires that the state public health officer review a sample of records on an annual basis and create reporting requirements for physicians, so as to set forth a basis for providing an annual compliance report to the public.

Given the safeguards built into these bills, advocates could plausibly argue that the web of procedure is sufficiently daunting so as to make it unduly burdensome for a terminally-ill patient to avail herself of the bill’s protections. Lengthy and daunting process notwithstanding, opponents of such bills argue that the safeguards are insufficient. There are profound religion based concerns about assistance in dying such as those expressed by the US Conference of Catholic Bishops[PDF]. Beyond religious concerns about the sanctity of life, many disability right activists fear that the language supporting right to die bills denigrates and devalues the very productive lives of those living with disabilities. They worry that such laws will expand to focus on people living with disabilities whose quality of life is so often undervalued. From this perspective, creating opportunities for suffering people to end their suffering is not about autonomy and dignity but about “disability discrimination, a profit-oriented health care system and a legal system that does not guarantee the equal protection of the law.” And the concerns about physician assisted death do not end with a worry about slippery slopes for no matter how extensive the safeguards in a law, it can never be guaranteed that a person is not subtly coerced into believing that her family and friends would be better off if she would hasten her own dying. We might be especially concerned that this would be the case for elderly patients faced with end of life decisions and terminal illness.

While the Affordable Care Act has made the healthcare landscape much less uneven and unfair than it was in the past, it is not clear that healthcare reform has contributed to an expansion of access to high-quality end-of-life care for those who want it. The costs associated with hospice can be significant from round-the-clock home health aides, to expensive equipment, to lost productivity for family members. Our healthcare reimbursement system does not always make adequate provision to support this expensive and resource intensive care that a dying person might require. Further, there is no consistent oversight of home hospice workers, both for their own benefit or the benefit of their patients, so the quality of care can be sporadic, assuming that a family can even afford such care. In a setting in which the government cannot or does not support those who want to live as well as possible until the time that they die, it is no surprise that people are suspicious of state efforts to make that dying quicker and more convenient.

In 1997 in Washington v. Glucksberg, the US Supreme Court held that Washington state’s prohibition on assisted suicide did not violate the Due Process Clause of the US Constitution and that the Constitution did not contain a fundamental right to die. The court pointed out that states had a long history of refusing to find that any individual ever had an interest in dying sufficient enough to overcome the state’s interests in preserving life. As the medical apparatus that can extend life grows ever more effective, there will continue to be those individuals for whom it is not enough to say “no” to more treatment, but who seek to be more proactive in bringing about their own end on their own terms. No doubt, the autonomy and dignity concerns inherent in a discussion of assisted suicide are worthy of respect. Though laws that allow for assistance in dying are a controversial and complex mechanism that must be vigorously monitored, they are one of many tools that some dying patients want as they contemplate both how and when they will move beyond their dying bodies.

Kimberly Mutcherson is a Professor of Law at Rutgers School of Law-Camden. Her scholarly work focus on issues intersecting health, bioethics and family law with a focus on assisted reproduction.

Suggested Citation: Kimberly Mutcherson, Dignity in Life as in Death, JURIST – Academic Commentary, May 3, 2015, http://jurist.org/academic/2015/05/kimberly-mutcherson-right-to-die.php.