The Liberty to Die
On October 5, 2015, Governor Jerry Brown signed the End of Life Option Act into law, thereby legalizing physician aid in dying in California.1 The significance of this development cannot be overstated. The most populous state in the nation resolved to replace a sesquicentennial aid-in-suicide penal code with a death-with-dignity statute. Other states may soon enact similar statutes. In 2015 alone, a total of 23 states and the District of Columbia have sought to codify the practice of physician aid in dying. Eight of these states have done so for the very first time. This unprecedented legislative wave represents more than double the number of death-with-dignity bills introduced in any year since 1995 and a 6-fold increase relative to 2014. In this Viewpoint, we trace the legalization of physician aid in dying, describe its operational constructs, discuss its ongoing challenges, and consider its future.
Ryan P. Clodfelter, BA1; Eli Y. Adashi, MD, MS1
In keeping with landmark rulings of the Supreme Court of the United States, neither the “right to die” (Vacco v Quill) nor the “right to assist in dying” (Washington v Glucksberg) are protected by the US Constitution.2 Moreover, no federal laws govern these actions. It follows that jurisdiction over the legal status of physician aid in dying is the domain of the states. In a first effort to legislate aid in dying by ballot, Washington State voters in 1991 narrowly defeated Initiative 119. California’s 1992 ballot measure Proposition 161 was also defeated. In 1994, Oregon became the first state to legalize physician aid in dying after voters approved ballot measure 16, the Death with Dignity Act. The attempted repeal 3 years later was soundly defeated. In 2008, Washington voters approved a comparable ballot measure. A similar—if less restrictive construct—was passed by the Vermont legislature in 2013 and was signed into law. In a departure from the legislative path, the state of Montana effectively legalized physician aid in dying in 2009 when its Supreme Court in Baxter v Montanafound no “precedent or… statutes indicating that physician aid in dying is against public policy.”3 Collectively, these legislative and judicial efforts have given rise to a reality in which 1 in 6 US residents now lives in a state where access to physician aid in dying is an option.
The route—legislative or judicial—by which the practice of physician aid in dying is legalized carries substantial implications for both patients and physicians. The presence of an explicit death-with-dignity statute in such states as Oregon, Washington, Vermont, and California all but guarantees procedural guidelines, ample safeguards, reporting requirements, and state oversight. None of these provisions apply in the state of Montana, wherein physician aid in dying is governed by a common law precedent. The End of Life Option Act of California, modeled after its Oregon predecessor, constitutes a strictly voluntary “opt-in” construct in that “participation in activities authorized pursuant to this [law] shall be voluntary.”1Neither patients nor physicians nor health care systems are obligated to participate.
Eligible patients must be 18 years or older, residents of the state, of sound mind, and diagnosed with a terminal illness that, subject to reasonable medical judgment, will prove fatal within 6 months. Moreover, these patients must be capable of self-administering the aid-in-dying drug. To qualify, eligible patients must make 2 oral requests to a physician separated by a 15-day waiting period, which must be followed by a witnessed written request. The prescribing “attending physician” must be appropriately licensed and registered with the Drug Enforcement Administration. It is the responsibility of this physician to inform the patient of alternatives (eg, palliative care). A “consulting physician” must certify the diagnosis and reassess the mental competence of the patient in question. If either physician deems the judgment of the patient to be impaired, the patient must be referred for a psychiatric evaluation.
At the time of this writing, 38 states maintain broad statutory bans against physician aid in dying.4 Alabama, Massachusetts, West Virginia, and the District of Columbia outlaw the practice by existing common law. Yet Nevada, North Carolina, Utah, and Wyoming lack the requisite legal tools to govern the practice. Despite this prohibitive legal landscape, efforts to rewrite the status quo have been accelerating. Over the last 2 decades, Michigan (1998), Maine (2000), and Massachusetts (2012) have pursued death-with-dignity ballot initiatives, albeit without success. During the same time interval, a total of 35 states have introduced death-with-dignity bills.5 Florida, New York, Michigan, California, New Mexico, and Arkansas have been the subject of unsuccessful lawsuits seeking to legalize the practice of physician aid in dying. Two additional claims, Hooker v Slatery made against Tennessee and Morris v Brandenburg against New Mexico, remain unresolved.
The above progression notwithstanding, the notion of physician aid in dying remains controversial and contested.6 To its proponents, it represents compassion and beneficence in the face of terminal physical pain and disability and the right to exercise free choice and autonomy of will. Viewed in this light, assisting terminally ill patients in their quest to die on their own terms is one and the same with the right to refuse treatment, withdraw life-sustaining care, or avoid further sustenance. Support for this viewpoint has been expressed by the American Public Health Association, the American Medical Women’s Association, and the American Medical Student Association, among others. To its opponents, physician aid in dying violates deeply held views on the sanctity of life; distorts the imperative of the healing mission; devalues the role of palliation; and risks coercion of the elderly, disabled, destitute, and despondent. This profound ethical dilemma is reflected in the laws of most states that support physician aid in dying by allowing physicians to opt out of participating. Additional slippery-slope concerns revolve around the prospect of extending the practice of physician aid in dying to ever-expanding states of “diminished quality of life.” Advocacy for this perspective has been taken up by a coalition of sectarian associations, disability rights groups, and representatives of organized medicine. Examples of the latter include but are not limited to the American Medical Association, the American College of Physicians, and the American Geriatrics Society.
Among today’s leading moral issues, the notion remains unsettled. However, an increasing number of indicators recently suggested that the tide may be turning and that a national consensus may be emerging as indicated by the unparalleled flurry of recent state legislative activity and of the legislative outcome in California. In addition, results from the latest Gallup “Values and Beliefs” survey7 make it clear that nearly 7 of 10 people polled in the United States are now favorably disposed to the practice. This level of support increased nearly 20 percentage points over the last 2 years to its highest level in more than a decade.7 The percentage of young adults aged 18 to 34 years who support physician aid in dying increased by 19% this year alone to 81%.5 Both surveys posed the same question: “When a person has a disease that cannot be cured and is living in severe pain, do you think doctors should or should not be allowed by law to assist the patient to commit suicide if the patient requests it?”7Whether and how these trends will play out in future state deliberations remain uncertain. With the legislatures of Massachusetts and New Jersey slated to debate the issue later this year, the answers should be in before too long.
The End of Life Option Act becomes effective 91 days after the conclusion of the current extraordinary California legislative session. However, a day after the bill was signed into law, Seniors Against Suicide petitioned the state attorney general seeking an official title and summary for a referendum to overturn the measure on the November 2016 ballot. The group has until January 3, 2016, to collect the required signatures of 365 880 registered voters, a difficult task given that 2 in 3 California voters favor the new law.8 Whatever the outcome of the aforementioned repeal process, there is no ignoring the momentous effect of the End of Life Option Act on the attendant national debate. It is not beyond the realm of possibility that other states will enact comparable laws before too long.