On a Path to Autonomy: Death With Dignity Paves the Way

Article | 104 KY. L. J. ONLINE 35 | November 12, 2015

Joseph J. Sherman [1]

Introduction

In early October 2014, Brittany Maynard made headlines when she announced her intention to end her own life in response to her cancer diagnosis.[2] Maynard was a California woman who was diagnosed with terminal glioblastoma,[3] which is a type of highly malignant brain tumor.[4] But because California prohibits physician-assisted death (“PAD”), she and her family made the difficult decision to move to Oregon, where she could legally seek such medical care.[5] 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.[6] Her choice to end her own life, rather than to let her illness take its natural course, has generated a great deal of controversy.[7] 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 does PAD have on the future of end-of-life care?

This controversy may be partially fueled by a misunderstanding of the legal framework surrounding PAD. “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 . . . .”[8] 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.[9] The Court has declined to recognize suicide as a liberty interest, holding state bans on PAD 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.[10]

Jurisprudence around the issue of PAD has left the states to decide for themselves whether to legalize the practice. However, many people, even medical experts, do not have a clear enough grasp of jurisprudence on this subject to make an informed argument in favor of or against legalization of PAD. This note elucidates the major jurisprudence surrounding the right to refuse medical treatment, physician-assisted death, and the Oregon Death With Dignity Act. First, it will provide background on Supreme Court rulings on end-of-life issues, noting the contrived distinction between the Court’s understanding of refusal of medical treatment and its understanding of PAD. Second, it will discuss the different paths some states have taken to legalize PAD and objections others have had to its application. Third, it will analyze annually collected data on the Oregon Death With Dignity Act and demonstrate that both the Supreme Court’s analysis and other popular criticisms of PAD are misguided. Finally, this note will conclude by suggesting ways the states could encourage development in this area of the law.

I. Supreme Court Foundation: the Right to Refuse Medical Treatment and Physician-Assisted Death

There is a significant difference between the Supreme Court’s discussion of the right to refuse medical treatment and its discussion of PAD. Broadly speaking, in the case of the right to refuse medical treatment, the patient is allowed to die of whatever disease from which they suffer; medicine is not the cause of death. However, in the case of PAD, the medicine is actually the cause of death. In grappling with the distinction the Court draws, it will become clear that the distinction lacks coherence.

A. SCOTUS and the Right to Refuse Medical Treatment

The Supreme Court began addressing the right to refuse medical treatment in 1905 when it decided Jacobson v. Massachusetts.[11] In that case, a man challenged a Cambridge ordinance that mandated vaccination against smallpox in response to the growing threat of epidemic.[12] He argued that the ordinance violated his Fourteenth Amendment liberty interest.[13] The Supreme Court held that the ordinance fell within the state’s police power to protect public health.[14]

The most significant decision on the right to refuse medical treatment came in 1990 in Cruzan v. Director, Missouri Department of Health.[15] The case involved a young woman, Nancy Cruzan, whose brain was without oxygen for twelve to fourteen minutes while she waited for paramedics after an automobile accident.[16] She entered a persistent vegetative state, and it soon became clear that she would never regain full mental capacity.[17] Cruzan’s family sought to have the feeding and hydration procedures terminated, but hospital employees would not honor their request without a court order.[18] The trial court granted their request on the basis that Cruzan had a fundamental right to refuse the withdrawal of “death prolonging procedures.”[19] However, the Missouri Attorney General appealed the decision, and the Missouri Supreme Court reversed the trial court decision, denying the family’s request.[20] The court required Cruzan’s family to show by “clear and convincing evidence” that removal of feeding and hydration procedures would have been consistent with Cruzan’s wishes.[21] On appeal to the U.S. Supreme Court, the issue was whether the Constitution forbade Missouri from imposing the “clear and convincing evidence” standard.[22] Because Cruzan was an incompetent patient,[23] the Court was comfortable affirming the Missouri Supreme Court’s requirement of clear and convincing evidence that Nancy Cruzan would have wished to cease medical treatment.[24] A living will or even testimony as to conversations the patient has had about end-of-life care can suffice to establish clear and convincing evidence.[25] This requirement is a way of ensuring individual autonomy, an aspect of respect for persons embodied in the set of medical standards known as the Belmont Report.[26]

Ironically, the notion of autonomy undergirding the Court’s ultimate position on the right to refuse medical treatment is undermined in states that do not allow a path for some patients to seek physician-assisted death.[27] This result will be explored in Part III.

B. Physician-Assisted Death

Since Cruzan, the Supreme Court has had the chance to hear cases on PAD. Recall that the American Medical Association said “[p]hysician-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 . . . .”[28] This concept is slightly different from the issue in Cruzan, because it involves actually providing the patient with the substance that causes death, rather than removing medical treatment and allowing the patient to die naturally.[29]

In Washington v. Glucksberg, the Supreme Court addressed a general Washington statute that prohibited anyone from “knowingly caus[ing] or aid[ing] another person to attempt suicide.”[30] The statute also had the effect of preventing physicians from assisting three terminally ill patients in ending their lives.[31] The patients and physicians were challenging the statute on the grounds that it violated the Due Process Clause of the Fourteenth Amendment.[32] However, the Supreme Court held that the statute did not violate the Constitution.[33] The case was inextricably tied to suicide, and although the Court acknowledged that it assumed a right of competent patients to refuse medical treatment, it was uncomfortable with the idea of granting constitutional protection to suicide under any circumstance.[34] Chief Justice Rehnquist articulated several state interests in opposition to a policy recognizing a right to suicide:

These interests include . . . preserving human life; preventing the serious public-health problem of suicide, especially among [vulnerable populations]; protecting the medical profession’s integrity and ethics and maintaining physicians’ role as their patients’ healers; protecting [vulnerable populations] from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide toward voluntary and perhaps even involuntary euthanasia.[35]

However, this decision does not mean that PAD is unconstitutional. By refusing to strike down Washington’s ban on this practice, this decision recognizes suicide as a public health concern but provides states with the discretion to determine how to address PAD.[36]

In Vacco v. Quill, the Supreme Court addressed a New York statute that made it illegal to aid a person in committing suicide or attempting to commit suicide.[37] A group of patients challenged the statute on the grounds that it violated the Equal Protection Clause of the Fourteenth Amendment.[38] They argued that the statute banning assisted suicide had the effect of classifying people into two groups with unequal protection under the law.[39] The Second Circuit found that patients who were attached to life support machines had the option to refuse additional medical treatment to end their lives, while patients who were not attached to life support machines lacked the option to end their lives.[40] The Supreme Court ruled that the classification they described was not suspect, and that it deserved rational basis review.[41] Applying that standard, the Court held that there was a legitimate interest in distinguishing between suicide and refusal of medical treatment.[42] That distinction was based on the causal factor: does the patient die from the disease or the medicine?[43] This decision protects the integrity of the medical profession, one of the state interests mentioned in Glucksberg as well.[44]

In upholding two state bans on PAD, the Supreme Court did not decide that the practice was unconstitutional. It merely left the question open for states to decide for themselves whether to ban PAD or to legalize it. Now that the Supreme Court has made these distinctions, states must ask themselves where to go from here.

II. Different Paths to the Same Destination: Legalizing PAD

A. States That Have Legalized PAD

There are two states that legalized PAD through voter initiatives. In 1994, Oregon voters passed an initiative, the Oregon Death With Dignity Act (“ODWDA”), making it the first state in the United States to legalize PAD.[45] In 2008, Washington became the second state to endorse PAD by voter initiative.[46] The ODWDA has a number of safeguards in place to protect against abuse. Those who use the law must be at least eighteen years old;[47] they must be terminally ill, which means they have less than six months to live;[48] they must be capable of communication;[49] and they must not be suffering from any psychiatric disorder, including depression.[50] In addition, they must meet residency requirements.[51] Notably, they must also be able to administer and swallow the lethal medication themselves.[52] The physician is not permitted to administer the medication.[53] At the time of Brittany Maynard’s decision, only one state had legalized PAD by legislative act: in 2013, the Vermont legislature passed a bill to protect patient choices at the end of life.[54]

In addition, two states have legalized PAD by court ruling. In the 2009 case of Baxter v. Montana, the Montana Supreme Court heard the case of a truck driver with leukemia who wanted a prescription for medication that would end his life.[55] Montana’s homicide statute forbade “knowingly caus[ing] the death of another human being,” and there was concern that the physician would be implicated for knowing the patient would use the medication for the purpose of ending his life.[56] However, Montana also has a consent statute on the books that allows the use of a consent defense if the victim consented to whatever the charged offense may be.[57] The court ruled that the consent statute should apply rather than permitting an exception to the consent statute on the basis that PAD ran afoul of public policy concerns.[58] Montana’s road to legalizing PAD was unique; not every state could arrive there in the same manner.

Finally, a New Mexico state court recently issued an injunction preventing the prosecution of physicians who facilitate the end of life in competent, terminally ill patients.[59] The court based its decision on a state constitutional provision guaranteeing its citizens the rights of “enjoying . . . life and liberty . . . and of seeking and obtaining safety and happiness.”[60] The court “[could not] envision a right more fundamental, more private or more integral to the liberty, safety and happiness of . . . New Mexican[s] than the right of a competent, terminally ill patient to choose aid in dying.”[61] After declaring aid in dying a fundamental right under the state constitution, the court subjected the statutory ban on assisted suicide to strict scrutiny, ultimately striking it down.[62]

B. SCOTUS Inadvertently Provides a Shield Against Popular Criticisms

Shortly after the Glucksberg and Vacco cases, and after the passage of the ODWDA, a flurry of law review articles were written criticizing autonomy as a justification for allowing physicians to assist the terminally ill in dying.[63] In essence, they argued (1) that Americans were so invested in the value of individual autonomy that no state could ever hope to regulate PAD,[64] (2) that physicians and family members would coerce the vulnerable populations into availing themselves of Death With Dignity laws,[65] and (3) that those vulnerable populations would disproportionately avail themselves of Death With Dignity laws because of inadequate medical care, in addition to many other pressures.[66]

The American Medical Association expressly disapproves of PAD, arguing that it is “fundamentally incompatible with the physician’s role as healer . . . .”[67] But the physician’s role as a healer is ethically complex. The basic ethical principles of respect for persons,[68] beneficence,[69] and justice[70] articulated in the Belmont Report are not blackletter legal rules, but abstract concepts that bend and conflict with one another. Some medical professionals argue that the Death With Dignity movement is a “slippery slope,” pointing to other developed nations where they say the movement has gone awry.[71] In Holland and Belgium, for example, certain organizations apparently provide euthanasia to patients with clinical depression and no terminal physical illness.[72]

It is erroneous to suggest that outright euthanasia programs could exist in the legal framework of the United States. The Supreme Court has time and again recognized the interest of states in preserving human life.[73] When weighing a citizen’s liberty interests, courts are also likely to recognize a state’s “legitimate interest[] in . . . protecting vulnerable persons.”[74] These government interests can only be overcome when there is a terminal illness and medical care is futile. The United States has only been willing to allow PAD in cases where death is already imminent, and that reality is unlikely to change soon. Fears of a slippery slope associated with legalizing PAD may be keeping states from joining the company of Oregon, Washington, and Vermont. Americans sometimes have extremely negative reactions to depression-related suicide.[75] The prospect of a state law unintentionally leading to depression-related PAD might sound like playing with political fire, but those fears are unfounded.

III. Experimenting with State Policies

A. Can Refusal of Treatment and PAD Be Addressed at the Federal Level?

Amici curiae in the Glucksberg and Vacco cases argued fervently against the Supreme Court’s ultimate decision. A plethora of arguments was given. One such argument was that terminally ill patients denied the choice of physician-assisted dying may be forced to endure horrific pain and suffering and loss of dignity.[76] Another argument was that terminally ill patients denied the option of physician-assisted dying are sometimes forced to experience a violent, lonely, at times gruesome death.[77] This was the basic situation facing Brittany Maynard after her diagnosis with terminal glioblastoma. She faced painful treatments that would have destroyed her quality of life.[78] Since she was young and healthy, she also faced the prospect that her body would linger on while her glioblastoma destroyed her mind, and her family would have to watch that happen.[79] Amici for respondents in Glucksberg and Vacco also argued that terminally ill patients denied the option of physician-assisted dying may be forced to rely on family members to assist in hastening death.[80] In addition, amici were concerned that terminally ill patients denied the option of physician-assisted dying sometimes fail in their attempts to hasten death, with tragic results.[81] Maynard’s family found an alternative, though not painless, solution. To show respect for Maynard’s autonomy, they uprooted themselves from their California home and navigated an unfamiliar state legal system to secure the care Maynard needed, all the while grappling with Maynard’s prognosis.[82]

Amici also argued that the distinction between refusal of medical treatment and PAD was without meaning and irrational.[83] They pointed to the Second Circuit’s reasoning on the matter:

Withdrawal of life support requires physicians or those acting at their direction physically to remove equipment and, often, to administer palliative drugs which may themselves contribute to death. The ending of life by these means is nothing more nor less than assisted suicide. It simply cannot be said that those mentally competent, terminally-ill persons who seek to hasten death but whose treatment does not include life support are treated equally.[84]

In this passage, Judge Calabresi emphasizes the deliberate actions a physician must take in order to carry out a patient’s wishes to remove life-sustaining medical treatment. At best, the argument that removal of treatment allows a patient’s condition to cause death, and thus, that the physician has nothing to do with the patient’s death, is very weak. Indeed, the Supreme Court proposes that a physician is not acting to bring about the death of the patient in the case of refusal of life-saving treatment, and that only the patient’s condition actually causes death. “[D]eath which occurs after the removal of life sustaining systems is from natural causes . . . .”[85] But is a causation-based distinction between these two doctrines a good distinction to make? Are there other ways to conceive of the distinction? If so, do we have enough information to do it?

The Supreme Court’s distinction between these two doctrines is based on causation. It places importance on the fact that refusal of medical treatment places cause of death by the patient’s disease, but PAD makes the physician’s act the cause of death.[86] However, the Court could have chosen to place larger emphasis on the issue of certainty. Based on the annual report published by the Oregon Public Health Division, it appears that, while death by disease is certain to occur when terminal patients on life support choose to remove life support, death by medication is not certain to occur when doctors prescribe lethal medication to terminal patients.[87]

It remains unclear exactly what the Supreme Court would do with PAD jurisprudence if it abandoned the distinction between PAD and the right to refuse medical treatment. Indeed, doing away with the distinction might actually prove unfavorable to PAD advocates. Recall what Judge Calabresi said about the two practices: “[t]he ending of life by these means is nothing more nor less than assisted suicide.”[88] If the Supreme Court conceived of both practices as suicide, its prior precedents suggest that it would find no constitutionally protected interest even in the right to refuse medical treatment. However, that would only be true if the Supreme Court also continued to use a rather broad conception of “suicide” as well.

A Gallup poll indicates that Americans’ conception of PAD changes drastically depending on the language used to discuss it.[89] When described as “[a]ssist[ing] the patient to commit suicide,” only 51% of Americans think it should be allowed, and 45% of Americans think it should not be allowed.[90] However, when described as “[e]nd[ing] the patient’s life by some painless means,” 70% of Americans think it should be allowed.[91] The lenses we use to view the concept of PAD, including the lens of language, drastically affect the way we perceive this issue, and the Justices of the Supreme Court are no exception. Something about our conception of “suicide” has to change if the Supreme Court can become capable of addressing the issue in a more nuanced way. Blackletter rules make for a brute force approach to nuanced problems. But, it seems unlikely that the Supreme Court would be willing to revise its approach on these issues anytime soon. The Court’s concerns about coercion against vulnerable populations are not going anywhere, and the Court is probably also concerned about appearing brazen on the matter. In effect, the PAD issue really has been left to the states, and the states must look to one another for guidance. They would be well advised to look to Oregon.

B. Policy Indicators in Oregon

Courts have expressed some concern that PAD will lead to unseemly results for vulnerable populations, including the elderly and the disabled.[92] The ODWDA has been on the books for seventeen years,[93] which is enough time for some meaningful things to begin to be drawn from a policy analysis on the law. The Oregon Public Health Division (“OPHD”) compiles an annual report about the administration of the law,[94] and some of its findings can directly address the concerns that courts continue to articulate. While the OPHD would do well to collect more information on patient vulnerability, such as the patient’s disability status, relationships, medical care, and whether someone has to make medical decisions on behalf of the patient, the OPHD has collected data on a number of factors that demonstrate what kind of patients avail themselves of the ODWDA.[95] The majority of people using the ODWDA law reported end-of-life concerns such as loss of autonomy (91.5%), being less able to engage in activities that make life enjoyable (88.7%), and loss of dignity (79.3%).[96] Fewer people reported concerns about being a burden on family (40.0%), and very few reported concerns about the financial implications of treatment (only 3.2%).[97] These data do not seem to be representative of an exploited population. Most of the people who seem to avail themselves of the ODWDA are well educated, not undereducated.[98] It is also persuasive that, out of the 1327 people who have used the ODWDA, only 859, or 64.7%, have ended their lives using the prescribed medication.[99] This may be one of the more unintuitive results of ODWDA: the number of people who have actually used barbiturates to end their lives under the ODWDA represent a surprisingly low percentage of the law’s beneficiaries. It decreases the credibility of the suggestion that PAD entails physicians causing the death of their patients.

With these statistics in mind, the concerns legal scholars had about PAD in 1998 no longer pose much cause for concern. Vulnerable populations did not disproportionately avail themselves of the ODWDA; rather, the exact opposite happened.[100] Since vulnerable populations did not disproportionately avail themselves of the ODWDA, the argument that physicians and family members will coerce vulnerable populations into utilizing the ODWDA also seems less convincing.[101] Critics also argued that Americans’ preference for individual autonomy would make it impossible to regulate PAD in any meaningful way.[102] To the contrary, Oregon has been doing it successfully for more than a decade.

The Supreme Court reasons that PAD cases are distinguishable from cases about refusing medical treatment because when patients refuse life-saving treatment, their disease kills them, but when a physician prescribes medication to assist patients in committing suicide, prescribed medication kills them. Yet, in more than one-third of Oregon cases, when a physician prescribes lethal medication to a patient, the patient’s disease is still the cause of death. This result is illustrative of a realization that the American justice system contemplates end-of-life issues in fundamentally the wrong way.

When terminally ill patients seek a prescription of lethal medication, they are not merely receiving the assurance of a peaceful end of life. Rather, these patients are being given something precious that they lost when they were first diagnosed with their terminal illness—their autonomy. In their amicus brief in Vacco, Americans for Death With Dignity and the Death With Dignity Education Center said, “When we enter a hospital for the last time, we may have the strength, and technically, the legal right to end our lives if we wish. But once in the medical system, we often lose the ability to help ourselves.”[103]

C. Lessons Learned in California

California’s absence of Death With Dignity laws led to Brittany Maynard’s difficult choice to leave her home state and resettle in Oregon.[104] After international attention was focused on the process she underwent to end her life in the manner she chose, California appears to have learned its lesson. A bill originating in the California Senate, called the End of Life Option Act,[105] reached the desk of Gov. Jerry Brown and was signed on October 5, 2015.[106] In his letter to the members of the California legislature, he invoked Brittany Maynard’s memory.[107] He also noted that, in making his decision to sign the bill into law, he considered “heartfelt pleas” from Maynard’s family and Archbishop Desmond Tutu, as well as advice from a Catholic Bishop, two of his own doctors, former classmates, and friends.[108] Clearly, PAD is an uncomfortable issue to think about deeply, but we can make the right decision as a community when we have sufficient information at our disposal.

Conclusion

The Supreme Court is not impervious to a simple shortage of available information. Everyday Americans are not the only ones confused about the legal issues surrounding end-of-life care. For now, the Supreme Court has drawn a causation-based distinction between the refusal of medical treatment and PAD, which has the effect of allowing patients who rely on life-sustaining care to die, but barring terminally ill patients from doing the same, even when they are in great pain. However, statistical information about the utilization of PAD across different states might provide invaluable quantitative information about causation. If Oregonians are not unique, and the rest of the country presents a similar pattern with regard to patient choices, the Supreme Court may have to revisit its distinction between PAD and refusal of medical treatment. In cases involving the removal of life-sustaining care, the Supreme Court has emphasized autonomy. The next time a PAD case reaches the Supreme Court, we should hope that there is enough quantitative evidence to show that the same emphasis on autonomy is due for the terminally ill. In the wake of Brittany Maynard’s decision, states would be wise to reconsider the benefits of PAD. Currently, most states inadvertently send a grim message to their terminally ill residents: “leave or you will suffer the consequences.” California has learned the hard way that no state should send that message.


 

[1] J.D. Candidate 2016, University of Kentucky College of Law. Joseph Sherman also serves on the Kentucky Law Journal Editorial Board as the Online Content Editor.

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

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

[4] Brain Tumor Information, Am. Brain Tumor Ass’n, http://www.abta.org/brain-tumor-information/types-of-tumors/glioblastoma.html (last visited Mar. 20, 2015).

[5] Video: Brittany Maynard’s Legacy: One Year Later, The Brittany Maynard Fund, http://www.thebrittanyfund.org/.

[6] Egan, supra note 3; Eyder Peralta, As Planned, Right-to-Die Advocate Brittany Maynard Ends Her Life, NPR: The Two-Way (Nov. 3, 2014, 8:27 AM), http://www.npr.org/blogs/thetwo-way/2014/11/03/361094919/as-planned-right-to-die-advocate-brittany-maynard-ends-her-life.

[7] See Egan, supra note 3; Peralta, supra note 6.

[8] AMA Council on Ethical and Judicial Affairs, Formal Op. 2.211 (1994), http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page (discussing Physician-Assisted Death).

[9] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990).

[10] Vacco v. Quill, 521 U.S. 793, 799 (1997); Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[11] See Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).

[12] Id. at 12-14.

[13] Id. at 14.

[14] Id. at 35, 39.

[15] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990).

[16] See id. at 266.

[17] Id. at 266-67. At this point, the Cruzan’s situation could be referred to as a case of “scientific futility”: treatment cannot achieve the medical result expected by the family, which is a full recovery. See Barbara A. Noah, Politicizing the End of Life: Lessons from the Schiavo Controversy, 59 U. Miami L. Rev. 107, 128 (2004). “Ethical futility” occurs when treatment actually no longer serves the underlying interests of the patient. The latter of these situations is more difficult to identify and address when the patient in incompetent. Id. For a discussion of the differences between scientific and ethical futility in the case of end-of-life case for Terry Schiavo, see id. at 126-31 (2004).

[18] Cruzan, 497 U.S. at 267.

[19] Id. at 268 (internal quotation marks omitted).

[20] See id. at 261, 268, 336.

[21] Id. at 285.

[22] Id. at 269.

[23] Id. at 265. The Supreme Court assumed without deciding that there was a constitutionally protected liberty interest in the refusal of medical treatment in cases involving competent patients. Id. at 279. However, the Court did not decide that incompetent patients had a similar unqualified right. Because the wishes of incompetent patients cannot readily be determined absent some outside evidence, it is difficult to respect the autonomy of an incompetent patient.

[24] See id. at 282.

[25] See id. at 268-69.

[26] See Nat’l Comm’n for the Prot. of Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research 4 (1978) (finding that respect for a person’s autonomy is a basic ethical conviction), http://videocast.nih.gov/pdf/ohrp_belmont_report.pdf [hereinafter “The Belmont Report”]. The Belmont Report was developed in 1974 by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research to identify basic ethical principles that should guide the conduct of research involving human subjects. Mary Bernadette Ott & Gary Yingling, Guide to Good Clinical Practice ¶ 840 (2013), Westlaw CLINPRAC. It relied, in part, on the Nuremberg Code, which was written by Nuremberg Trial judges after World War II in response to Nazi atrocities committed during the war. See id. Although the Belmont Report was written to address ethical principles with respect to research on human subjects, modern medical practitioners hold its ethical principles dear even in general practice, even where practice might not connote “research” in the minds of most laypersons. Perhaps this is because the federal definition of “research” is quite broad. According to the Code of Federal Regulations, “[r]esearch means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” 45 C.F.R. § 46.102(d) (2015). “Activities which meet this definition constitute research for purposes of this policy, whether or not they are conducted or supported under a program which is considered research for other purposes. For example, some demonstration and service programs may include research activities.” Id. Indeed, regardless of whether the American Medical Association considers general practice to be “research,” it clearly and explicitly respects the concept of informed consent, which is an aspect of respect for persons, one of the three ethical principles articulated in the Belmont Report. See Ott & Yingling, supra. The Belmont Report is not blackletter law, but rather is a set of professional standards, originally intended only for research, but given broader application professionally. See id.

[27] See The Belmont Report, supra note 26, at 4-6.; infra Part III.B.

[28] AMA Council on Ethical and Judicial Affairs, Formal Op. 2.211 (1994), http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page.

[29] Compare id., with Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990).

[30] Washington v. Glucksberg, 521 U.S. 702, 706-07 (1997).

[31] Id. at 707.

[32] Id. at 708-09.

[33] Id. at 709.

[34] See id. at 723 (citing Cruzan, 497 U.S. at 279).

[35] Glucksberg, 521 U.S. at 703-704. Vulnerable populations in this case include “the young, the elderly, and those suffering from untreated pain or from depression or other mental disorders,” as well as “the poor, . . . disabled persons, [and] the terminally ill . . . .” Id.

[36] See id. at 730, 735.

[37] Vacco v. Quill, 521 U.S. 793, 796 (1997).

[38] Id. at 793.

[39] See id. at 798, 800.

[40] Id. at 798.

[41] Id. at 800-01.

[42] Id.

[43] Id. at 801.

[44] Id. at 808-09 (citing Washington v. Glucksberg, 521 U.S. 702, 703-04 (1997)).

[45] See Or. Rev. Stat. §§ 127.800-890, 127.895, 127.897 (Westlaw, current with 2015 Reg. Sess. legislation effective through Oct. 5, 2015), https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx.

[46] Wash. Rev. Code Ann. §§ 70.245.010-220, 70.245.901-904 (Westlaw, current with all laws from the 2015 Regular Session and 2015 1st, 2nd, and 3rd Special Sessions), http://apps.leg.wa.gov/rcw/default.aspx?cite=70.245&full=true. Washington’s Death With Dignity statute was written to be substantially similar to the ODWDA. Anne Marie Su, Physician Assisted Suicide: Debunking the Myths Surrounding the Elderly, Poor, and Disabled, 10 Hastings Race & Poverty L.J. 145, 155-56 (2013).

[47] Or. Rev. Stat. § 127.805.

[48] Id. at § 127.800-805.

[49] Id. Communication does not necessarily entail speaking. As long as the patients can communicate in some way, the law is satisfied. Id.

[50] Id. at § 127.825.

[51] Id. at § 127.860. Only Oregon residents can avail themselves of the ODWDA. Residency does not require living in Oregon for any particular duration but does entail verification by driver’s license, lease of apartment or proof of home ownership, voter registration, or payment of taxes. Id.

[52] See id. at §§ 127.815, 127.880.

[53] Id. at § 127.880.

[54] Vt. Stat. Ann. tit. 18, §§ 5281-92 (Westlaw, current through the First Session of the 2015-2016 Vermont General Assembly), http://legislature.vermont.gov/assets/Documents/2014/Docs/BILLS/S-0077/S-0077%20As%20Passed%20by%20Both%20House%20and%20Senate%20(Unofficial).pdf. The bill was signed into law on May 20, 2013, but many substantive portions of the law will not take effect until July 1, 2016. Id. Vermont’s PAD law was also written to be similar to the ODWDA; however, its statutory mandates are set to expire after three years, leaving in their place professional medical standards. Kathryn L. Tucker, Vermont’s Patient Choice at End of Life Act: A Historic “Next Generation” Law Governing Aid in Dying, 38 Vt. L. Rev. 687, 688 (2014). California has now also legalized PAD by legislative act. See infra Part III.C.

[55] Baxter v. Montana, 224 P.3d 1211, 1214 (Mont. 2009).

[56] Id. at 1215 (quoting Mont. Code Ann. § 45-5-102 (Westlaw, current through chapters effective July 1, 2015, 2015 session)).

[57] Id.

[58] Id. at 1218-22. Although the majority opinion based its decision on statutory interpretation, the concurrence also made an argument based on a state constitutional law provision that respects the right of all humans to individual dignity. Id. at 1227-33 (Nelson, J., concurring).

[59] Morris v. Brandenberg, 2014 N.M. Dist. Ct. 2909U, ¶ PP, http://agoodgoodbye.com/wp-content/uploads/2014/01/199446010-Physician-aid-in-dying-Ruling.pdf; see also Phil Milford, Right to Die with Doctor’s Help Affirmed in New Mexico, Bloomberg Business (Jan. 14, 2014, 1:33 PM), http://www.bloomberg.com/news/articles/2014-01-14/right-to-die-with-doctor-s-help-affirmed-in-new-mexico.

[60] Morris, 2014 N.M. Dist. Ct., ¶ EE.

[61] Id. ¶ HH.

[62] Id. ¶¶ KK, NN, PP.

[63] See, e.g., Patrick M. Curran, Jr., Note, Regulating Death: Oregon’s Death With Dignity Act and the Legalization of Physician-Assisted Suicide, 86 Geo. L.J. 725, 725 (1998).

[64] Id. at 734-36.

[65] Id. at 739-41.

[66] Id. at 741-42.

[67] AMA Council on Ethical and Judicial Affairs, supra note 8.

[68] The Belmont Report, supra note 26, at 4-6.

[69] Id. at 6-8.

[70] Id. at 8-10.

[71] See, e.g., Ira Byock, Doctor-Assisted Suicide Is Unethical and Dangerous, N.Y. Times: Room for Debate (Sept. 4, 2015, 2:25 PM), http://www.nytimes.com/roomfordebate/2014/10/06/expanding-the-right-to-die/doctor-assisted-suicide-is-unethical-and-dangerous.

[72] Id.

[73] E.g., Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 280 (1990); 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), and Roe v. Wade, 410 U.S. 113, 163-64 (1973)).

[74] E.g., Vacco, 521 U.S. at 798. The Supreme Court has found that individuals in this class include the elderly or the mentally or physically disabled. Washington v. Glucksberg, 521 U.S. 702, 704 (1997).

[75] See, e.g., Henry Rollins, Henry Rollins: Fuck Suicide, L.A. Weekly Music (Aug. 21, 2014), http://www.laweekly.com/music/henry-rollins-fuck-suicide-5016770. (responding to the suicide death of Robin Williams).

[76] Brief for Surviving Family Members in Support of Physician-Assisted Dying as Amici Curiae Supporting Respondents at 9-11, Washington v. Glucksberg, 521 U.S. 702 (1997) (Nos. 96-110, 95-1858), 1996 WL 722032.

[77] Id. at 12-15.

[78] Brittany Maynard, My Right to Death With Dignity at 29, CNN Opinion (Nov. 2, 2014, 10:44 PM), http://www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/.

[79] Id.

[80] Brief for Surviving Family Members in Support of Physician-Assisted Dying, supra note 77, at 16-22.

[81] Id. at 22-24.

[82] See About Brittany Maynard, The Brittany Maynard Fund, http://www.thebrittanyfund.org/about/ (last visited Mar. 23, 2015).

[83] Brief for Surviving Family Members in Support of Physician-Assisted Dying, supra note 77, at 28-29.

[84] Quill v. Vacco, 80 F.3d 716, 729 (2d Cir. 1996), rev’d, 521 U.S. 793 (1997) (emphasis added).

[85] Vacco, 521 U.S. at 801 (quoting In re Colyer, 660 P.2d 738, 743 (Wash. 1983)).

[86] Physicians are not allowed to help patients take the lethal medication. Patients must be capable of doing it themselves. See infra, Part III.B.

[87] See infra, Part III.B.

[88] Vacco, 80 F.3d at 729.

[89] Lydia Saad, U.S. Support for Euthanasia Hinges on How It’s Described, Gallup: Politics (May 29, 2013), http://www.gallup.com/poll/162815/support-euthanasia-hinges-described.aspx.

[90] Id.

[91] Id.

[92] See, e.g., Washington v. Glucksberg, 521 U.S. 702, 731-32 (1997).

[93] Or. Pub. Health Div., Oregon’s Death With Dignity Act–2014 (2015), https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year17.pdf.

[94] Id.

[95] See generally Or. Pub. Health Div., supra note 94. In 2014, 105 people ended their lives using the ODWDA. Id. at 1. Of those people, 95.2% were white, 45.7% were married at their time of death, and 47.6% had a baccalaureate degree or higher, compared with 5.7% who had less than a high school diploma. Id. at 4. Since ODWDA was enacted, 859 people ended their lives using the law. Id. at 2. Of those people, 97.1% were white and 46.1% were married at their time of death. Id. at 4. Moreover, 45.9% had a baccalaureate degree or higher, compared with 6.0% who had less than a high school diploma, and 72.1% had at least some college education. See id. These demographics do not seem to disproportionately represent a vulnerable population. In fact, the demographics seems to indicate a certain degree of affluence among those availing themselves of the law.

[96] Id. at 5.

[97] Id.

[98] See id. (reporting that, since the ODWDA went into effect, of the patients who used the law, 45.9% had a baccalaureate degree or higher, compared with 6.0% who had less than a high school diploma, and 72.1% had at least some college education.).

[99] See id. at 2.

[100] Compare Curran, supra note 64, at 741-42 (expressing concern that the ODWDA would disproportionately impact minorities, the disabled, and women), with Or. Pub. Health Div., supra note 94, at 4-5 (suggesting that the majority of those taking advantage of the law are well-educated and white).

[101] See Curran, supra note 64, at 739-40.

[102] Id. at 734-36.

[103] Brief for Americans for Death With Dignity and the Death With Dignity Education Center as Amici Curiae Supporting Respondents at 18-19, Vacco v. Quill, 521 U.S. 793 (1997) (No. 95-1858, 96-110), 1996 WL 709335.

[104] About Brittany Maynard, supra note 83.

[105] S.B. 128, 2015 Gen. Assemb., Reg. Sess. (Cal. 2015), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB128.

[106] See Letter from Edmund G. Brown, Jr., Governor of Cal., to the Members of the Cal. State Assemb. (Oct. 5, 2015), https://www.gov.ca.gov/docs/ABX2_15_Signing_Message.pdf.

[107] Id.

[108] Id.