JURIST Guest Columnist Valerie Vollmar of Willamette University College of Law says the Georgia legislature seems to have acted hastily without thinking through the potential consequences of its new assisted suicide law, which differs dramatically from the legislative schemes in states that allow the practice…

Most states have statutes that criminalize assisting a suicide, regardless of whether the person who assists is a family member, friend or physician and regardless of the person’s motives. The most significant exceptions are Oregon and Washington, in which voters have passed initiative measures (Oregon in 1994 and Washington in 2008) that allow a physician to prescribe lethal medication to a terminally ill patient. As of the end of 2011, a total of 596 patients had died under the Oregon Death With Dignity Act.

Montana also allows physician aid in dying, based not on statutes enacted for that purpose but on the 2009 decision of the Montana Supreme Court in Baxter v. Montana. In that case, the court concluded that Montana’s homicide statute may make a patient’s consent a statutory defense when a physician prescribes lethal medication to a terminally ill, mentally competent adult. The court also found that the “against public policy” exception to the consent defense does not apply to physician aid in dying. The majority opinion did not address whether consent can be a defense to a charge of homicide against a nonphysician in this type of situation, but Justice Warner stated in his concurring opinion that the “logic of the Court’s opinion is not necessarily limited to physicians.”

Recently, Georgia became the fourth state to confront the issue of aid in dying. The question arose following the June 2008 death of a terminally ill patient, John Celmer, allegedly with the assistance of the Final Exit Network, Inc. (FEN), a national right-to-die organization.

After Celmer died, four members of FEN were charged with assisting in a suicide, tampering with evidence (by disposing of helium tanks and an “exit hood” in a dumpster), and violation of the Racketeer Influenced and Corrupt Organizations Act(RICO). The defendants filed demurrers and motions to dismiss, claiming that Georgia’s assisted suicide statute was unconstitutional on its face in violation of several constitutional provisions, including the free speech clauses of the US and Georgia Constitutions. The Georgia Supreme Court granted immediate review in Final Exit Network, Inc. v. Georgia.

Georgia’s statute was unusual. Most state statutes simply make the act of assisting in a suicide illegal. The Georgia statute, however, criminalized the activity of anyone who “publicly advertises, offers or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of suicide and commits any overt act to further that purpose.” In other words, a particular form of public speech was an essential element of the crime of assisting in a suicide.

The Georgia Attorney General’s brief on appeal admitted that the statute was carefully drafted and intentionally enacted for the purpose of preventing a “Dr. Kevorkian type actor” from offering to assist in suicide, while leaving others free to do so. The brief added that the statute was narrowly drawn to reach “only those with a public agenda.” According to the state, the statute was not intended to apply to private decisions made by patients with their physicians and family members.

On February 6, 2012, the Georgia Supreme Court ruled that the Georgia statute was a content-based restriction on speech that did not satisfy a strict level of constitutional scrutiny. Because the statute was unconstitutional under both the US and the Georgia constitutions, the charges against the defendants were dismissed.

The Georgia legislature acted quickly to override the effects of the decision. House Bill 1114 was introduced in the state House of Representatives on February 22, passed by the House on March 7 and immediately transmitted to the Senate. The Senate made modest changes and passed revised HB 1114 on March 27. On March 29 (the last day of the legislative session), the Senate and House both approved the final version of HB 1114 (by a vote of 38 to 11 in the Senate and 115 to 53 in the House).

The new § 16-5-5(b) of the Official Code of Georgia criminalizes assisting in a suicide, but solves the constitutional defect in the prior statute by eliminating any reference to the actor’s speech:

(b) Any person with actual knowledge that a person intends to commit suicide who knowingly and willfully assists such person in the commission of such person’s suicide shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years.

Subsection (c) then identifies several types of assistance that are not criminal either for a health care provider or for any other person, if consented to:

(1) Prescribing, dispensing, or administering medications or medical procedures intended to relieve patient pain or discomfort but not to cause the patient’s death, even if the medications or procedures hasten death (“double effect”).

(2) Withdrawing or withholding medications, medical procedures, or artificial nutrition or hydration.

(3) Prescribing, dispensing, or administering medications or medical procedures to permit the process of dying pursuant to a patient’s living will, durable power of attorney for health care, advance directive for health care, or similar document.

(4) Withdrawing or withholding medications, medical procedures, or artificial nutrition or hydration pursuant to a patient’s living will, durable power of attorney for health care, advance directive for health care, written order not to resuscitate, or similar document.

(5) Advocating on behalf of a patient in accordance with subsection (c).

Under subsection (d), a health care provider who is convicted of assisting in a suicide must notify the applicable licensing board, which is required to revoke the provider’s professional license.

Section 2 of HB 1114 makes assisting in a suicide racketeering activity. Section 3 amends Georgia’s wrongful death statutes to allow an award of attorney’s fees and litigation expenses to a prevailing plaintiff in a civil action for homicide in which death resulted from a violation of § 16-5-5; in addition, the health care provider must notify the licensing board within 10 days of the judgment so that disciplinary action may be taken.

Georgia’s new law differs dramatically from the laws of Oregon, Washington and Montana. Unlike the other three states, under some circumstances Georgia apparently will permit a person who is not a health care provider to assist in a suicide, perhaps even for a patient who is not terminally ill, regardless of the person’s motives. On the other hand, in Georgia a physician who prescribes lethal medication even to a terminally ill patient may be at risk of criminal (and RICO) penalties, as well as losing his or her license to practice medicine. Further, unlike Oregon and Washington, the new Georgia law has no procedural safeguards to protect patients. In short, the Georgia legislature seems to have acted hastily without thinking through the potential consequences of HB 1114.

Valerie Vollmar is a Professor of Law at Willamette University College of Law. She writes and lectures extensively in the fields of estate planning, elder law and physician-assisted suicide. Her physician-assisted death website is one of the most frequently visited sites on the topic. She is coauthor of An Introduction to Trusts and Estates.

Suggested citation: Valerie Vollmar, Georgia’s Assisted Suicide Ban Lacks Patient Safeguards, JURIST – Forum, Apr. 18, 2012, http://jurist.org/forum/2012/04/valerie-vollmar-assisted-suicide.php.