Death with Dignity in the United States

Death with Dignity Legislation and Cases in the U.S. States

Based on Vanessa Rancaño´s article “An Ethical Tightrope”, published in California Lawyer.

California’s End of Life Option Act is modeled after Oregon’s Death with Dignity Act, the first legislation of its kind in the country. The Oregon measure was put forward on a statewide ballot in 1994, and it barely passed with 51 percent of votes. Legal actions delayed implementation until October 1997. The following month voters soundly defeated a ballot initiative that would have repealed the act, and eventually the U.S. Supreme Court rejected challenges to it. (See Ore. Rev. Stat. §§ 127.800127.897; Gonzales v. Oregon, 546 U.S. 243 (2006).)

Only two other states have enacted similar laws: Washington voters adopted one in 2008 (Wash. Rev. Code § 70.245), and Vermont’s legislature passed the Patient Choice and Control at End of Life Act in 2013 (Vt. Stat. Ann., tit. 18, §§ 52815292).

Courts in two more states have opened the way to medical aid in dying: The Montana Supreme Court paved the way by ruling that state law shields doctors from prosecution; and a decision in New Mexico (now on appeal) affirmed that terminally ill patients have a fundamental right to aid in dying under the state constitution and that doctors are protected from prosecution. (See Baxter v. State, 354 Mont. 234 (2009); Morris v. Brandenburg, No. D-202-CV 2012-02909 (N. Mex. Dist. Ct., 2d Jud. Dist. (Cnty. of Bernadillo) ruling issued Jan. 13, 2014).) California’s bill, if approved, could make it the sixth state to allow the practice.

Medical aid in dying

In “A Merciful End: The Euthanasia Movement in Modern America”, historian Ian Dowbiggin traces the roots of the movement back a century. He writes that burgeoning interest in the wake of World War II was overshadowed by the medical killings in Nazi Germany—which targeted some 100,000 disabled adults and children. By the 1960s, however, support was beginning to coalesce. In the years since, advocates have unified and split, organizations have formed and dissolved, and legalization campaigns have found varying degrees of success.
Gallup polls show a majority of Americans have supported physician-assisted euthanasia for terminally ill patients for the past 20 years.

If Oregon’s official data offers any insight, complications from the medication are rare: Of 859 patients there who have taken the lethal prescriptions in the nearly 18 years since the law took effect, just 22 regurgitated the medication and 6 regained consciousness before finally dying.

Oregon data confirms that less than two-thirds of patients in the state who obtained a lethal prescription there since the law passed have actually used it. The state has not, however, identified a single instance of misuse.

Oregon does have an exceptionally high suicide rate—around 17 per 100,000 people versus a national average of 13 per 100,000. However, this was the case long before the state’s Death with Dignity Act took effect. Around 1999, shortly after implementation, rates did climb in Oregon, but they shot up around the country, too. Oregon’s trend continually mirrors the national trend, just at a higher level.

Oregon’s population of whites (78 percent) is twice as high as California’s. But Oregon’s data shows that 97 percent of patients who die from taking lethal medication there are white. Forty-six percent have college degrees and 60 percent have private health insurance.

In Switzerland, where assisted suicide has long been legal, a study published last year examined concerns that disadvantaged or vulnerable people were more likely to die this way. The study, published in the International Journal of Epidemiology, found that the practice was “more likely in women and those in situations that may indicate greater vulnerability such as living alone or being divorced, but also more common in people with higher education and higher socio-economic position.”

The second argument Tucker presents in Brody is constitutional: that the state’s guarantee of privacy extends to this issue, as a New Mexico court held in the Morris v. Brandenburg case she helped litigate. “The California Supreme Court has observed that ‘there is a body of law evolving that appears to respect a person’s choice of how and when to die.’ (People v. Deere, 41 Cal. 3d 353 (1985)),” the complaint states. It continues: “This Court is called upon to clarify the rights of mentally competent, terminally ill patients regarding just how much suffering they must endure before death arrives, and the intertwined right of physicians to respect, in the exercise of their professional judgment, the wishes of [such] patients who request aid in dying.”