On Solid Ground: In Defense of Death with Dignity

Joseph J. Sherman, KLJ Staff Editor

In early October 2014, Brittany Maynard captured the attention of Americans when she announced her intention to end her own life in response to her cancer diagnosis.[1] Maynard was a California woman who was diagnosed with terminal glioblastoma.[2] However, since California prohibits physician-assisted death, she and her family made the difficult decision to move to Oregon, where she could legally seek such medical care.[3] On November 1, 2014, Maynard carried out her plan to end her own life by taking a lethal dose of barbiturates prescribed by her doctor.[4] Her choice to end her own life, rather than to let her tumor take its natural course, has generated a great deal of controversy about physician-assisted death,[5] which is also referred to as “Death with Dignity” (hereinafter “DWD”).[6] Is it beneficent to promote an early death for the terminally ill to prevent pain and suffering? Do we overextend our role in medicine when death becomes a prescription? What implications do DWD laws have on the future of end-of-life care?

One contributing factor to this controversy may be a simple lack of information about the legal framework surrounding DWD. “Physician-assisted [death] occurs when a physician facilitates a patient’s [death] by providing the necessary means and/or information to enable the patient to perform the life-ending act.”[7] This definition is distinct from the refusal of life-saving medical care, which the United States Supreme Court has recognized as a liberty interest protected by the Constitution.[8] The Court declined to recognize a similar liberty interest for suicide, holding state bans on physician-assisted death to be constitutional as long as they neither infringe on citizens’ fundamental rights nor involve suspect classifications under the Equal Protection Clause of the Fourteenth Amendment.[9]

There are only three states that statutorily allow physician-assisted death. In 1994, Oregon voters passed an initiative making them the first state in the United States to legalize the practice.[10] In 2008, Washington became the second state to endorse DWD by voter initiative.[11] In 2013, the Vermont legislature passed a bill to protect patient choices at the end of life.[12]

Court rulings in two other states also allow for DWD. In 2009, the Montana Supreme Court ruled that doctors in Montana could not be prosecuted for assisting their patients to end their own lives.[13] In a recent New Mexico state court ruling, a district court judge issued an injunction preventing the prosecution of doctors who facilitate the end of life in competent, terminally ill patients.[14] However, the New Mexico ruling was not made by the state’s court of last resort, and the New Mexico Attorney General is considering an appeal of the decision.[15]

The American Medical Association expressly disapproves of physician-assisted death, arguing that it is “fundamentally incompatible with the physician’s role as healer.”[16] But is that always true when a patient is in great pain, suffering from a terminal illness for which treatment is futile? Some medical professionals argue that the DWD movement is a “slippery slope,” pointing to other developed nations where they say the movement has gone awry.[17] In Holland and Belgium, for example, certain organizations apparently provide euthanasia to patients with clinical depression and no terminal physical illness.[18]

However, without addressing the value of those claims, it is at least questionable to suggest that outright euthanasia programs could exist in the legal framework of the United States. The U.S. Supreme Court has time and again recognized the interest of states in preserving human life.[19] When weighing a citizen’s liberty interests, courts are also likely to recognize a state’s “legitimate interest[] in . . . protecting vulnerable individuals.”[20] These government interests can only be overcome when there is a terminal illness and medical care is futile. There is no legal foundation to the contention that the natural endpoint of the DWD movement is state-sanctioned suicide for non-life-threatening conditions. The United States has only been willing to allow physician-assisted death in cases where death is already imminent, and that is unlikely to change soon.

Since Brittany Maynard carried out her intentions to end her own life, end of life organizations have reinvigorated their advocacy efforts. Compassion & Choices, a nonprofit organization “committed to helping everyone have the best death possible,”[21] has set up the Brittany Maynard Fund to aid in the effort “to expand the death-with-dignity option to all.”[22] That expansion has touched only five states so far, but more states should take notice. When terminally ill patients have the means and the will to travel, the prohibition against physician-assisted death serves only to force already-suffering families to relocate in order to avail themselves of DWD laws elsewhere. In the absence of such means or will, many patients face a painful natural death.

In the wake of Maynard’s decision, states would be wise to reconsider the benefits of DWD. Currently, most states inadvertently send a grim message to their terminally ill residents: “Leave or suffer the consequences.” That is the last message any state should want to send.

[1] E.g., Brandon Griggs, Dying Young: Why Brittany Maynard’s Story Resonates, CNN Living (Oct. 14, 2014, 4:28 PM EDT), http://www.cnn.com/2014/10/08/living/death-dignity-brittany-maynard/.

[2] Nicole Weisensee Egan, Terminally Ill Woman Brittany Maynard Has Ended Her Own Life, People Exclusive (Nov. 2, 2014, 7:35 PM ET), http://www.people.com/article/brittany-maynard-died-terminal-brain-cancer.

[3] The Brittany Maynard Fund, Compassion & Choiceshttp://www.thebrittanyfund.org/ (last visited Nov. 10, 2014).

[4] Eyder Peralta, As Planned, Right-To-Die Advocate Brittany Maynard Ends Her Life, NPR: Blog (Nov. 3, 2014, 8:27 AM ET), http://www.npr.org/blogs/thetwo-way/2014/11/03/361094919/as-planned-righ…; Egan, supra note 2.

[5] See, e.g., Peralta, supra note 4; Egan, supra note 2.

[6] See, e.g., Compassion & Choicessupra note 3.

[7] Am. Med. Ass’n, Opinion 2.211 – Physician-Assisted Suicide (1994), available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-….

[8] See Cruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261 (1990).

[9] Vacco v. Quill, 521 U.S. 793, 799 (1997); Washington v. Glucksberg, 521 U.S. 702, 719-28 (1997).

[10] Or. Rev. Stat. Ann. §§ 127.800-897 (West 2014). The United States Attorney General attempted to block Oregon’s law by determining that physician-assisted death was not a legitimate medical practice under the Controlled Substances Act. Gonzales v. Oregon, 546 U.S. 243, 249 (2006). See 21 U.S.C. §§ 801-904. However, the Supreme Court ruled that such a determination fell within the states’ traditional police powers and not with the power of the U.S. Attorney General. Gonzales, 546 U.S. at 923.

[11] Wash. Rev. Code Ann. §§ 70.245.010-904 (West 2014).

[12] Vt. Stat. Ann. tit. 18, §§ 5281-92 (West 2014). The bill was signed into law on My 20, 2013, but many substantive portions of the law will not take effect until July 1, 2016. Id.

[13] Baxter v. State, 224 P.3d 1211 (Mont. 2009).

[14] Morris v. Brandenberg, 2014 NM Dist. Ct. 2909U, ¶ PP, available at http://agoodgoodbye.com/wp-content/uploads/2014/01/199446010-Physician-a…See also Phil Milford, Right to Die with Doctor’s Help Affirmed in New Mexico, Bloomberg News (Jan. 14, 2014, 1:33 PM ET), http://www.bloomberg.com/news/2014-01-14/right-to-die-with-doctor-s-help….

[15] Milford, supra note 14.

[16] Am. Med. Ass’n, supra note 7.

[17] Ira Byock, Doctor-Assisted Suicide is Unethical and Dangerous, NY Times Opinion (Oct. 6, 2014), http://www.nytimes.com/roomfordebate/2014/10/06/expanding-the-right-to-d….

[18] Id.

[19] E.g.Cruzan, 497 U.S. at 280; Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (reaffirming the state’s interest in the preservation of fetal life articulated in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 838 (1992); Roe v. Wade, 410 U.S. 113, 163-64 (1973)).

[20] E.g.Vacco, 521 U.S. at 798. Individuals in this class might include the elderly or the mentally or physically disabled.

[21] About, Compassion & Choices, https://www.compassionandchoices.org/who-we-are/about/ (last visited Nov. 10, 2014).

[22] Compassion & Choices, supra note 3.