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Medical Aid in Dying

Medical aid in dying is an end-of-life medical practice in which a mentally capable, terminally ill adult with less than six months to live may request medication from her or his doctor for self-administration to bring about a peaceful death if her or his suffering becomes unbearable. According to data from the Oregon Health Authority which publishes annual reports on its first-in-the-nation aid-in-dying law, approximately one third of patients who qualify and receive a prescription never consume the medication.

The Oregon, Washington, Vermont and California laws expressly say that, “actions taken in accordance with [the Act] shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.” This distinguishes the legal act of medical aid in dying from the act of assisting a suicide, which is explicitly prohibited by statute in 42 states and prohibited by common law in an additional six states and the District of Columbia Assisted suicide is prohibited in every state where where medical aid in dying is authorized.

History

Glucksberg v. Washington

Dr. Harold Glucksberg, along with four other physicians, three terminally ill patients, and Compassion and Dying, brought a case against the state of Washington for banning assisted suicide. The case was filed in District Court in 1994.

Following a series of appeals, the U.S. Supreme Court decided in 1997 in a unanimous decision to uphold Washington’s ban. They cited the Due Process Clause and argued that assisted suicide isn’t guaranteed as a fundamental liberty protected by due process. The case allowed individual states to decide independently on the medical aid-in-dying issue. It set the stage for legislative efforts on the state level.

States where aid in dying is authorized

California

In 1992, the group Californians against Human Suffering proposed Proposition 161 to allow patients with less than six months to live the right to receive assistance from physicians in dying. This proposition offered more safeguards against abuse by physicians than Washington’s Initiative 119, such as special protections for patients in nursing facilities. This measure failed to pass with 46 percent of the vote.

Subsequent efforts were tried to pass assisted death legalization through the California State Legislature in 1999, 2005 and 2006, all of which failed. The California legislature passed a bill legalizing the practice in September 2015, and the bill was signed into law by Governor Jerry Brown on October 5, 2015, making California the fifth state to authorize medical aid in dying and the second to do so through the legislature. The Act began implementation on June 9, 2016. The law went into effect in June 2016.

Montana

Aid in dying is legal in Montana through a state supreme court decision. In Baxter v. Montana the Montana Supreme Court ruled in a 5-2 decision that state law allows for terminally ill Montanans to request lethal medication from a physician under existing statutes. The Attorney General of the state of Montana sought an appeal from the Montana Supreme Court, but the court, by a decision of five to two, affirmed the lower court's ruling on the state law. The Court did, however, limit the scope of the decision by not determining if the state's constitution protected the right.

Oregon

Oregon voters first approved the Death with Dignity Act (DWDA) by general election in November 1994 by a margin of 51% to 49%. Ballot Measure 16, a citizen initiative sponsored by Oregon Right to Die Political Action Committee, asked if terminally ill patients with less than 6 months to live should be able to receive a prescription for lethal drugs and included many provisions to protect against misuse, such as two oral requests and a written request from the patient. The patient must also be referred to counseling if a mental illness is suspected.

The law went into effect in October 1997 after an injunction delayed implementation. In November 1997, Measure 51 was placed on the general election ballot to repeal the Act. Voters chose to retain the Act by a margin of 60% to 40%.

Challenges

Lee v. State of Oregon

In December 1994, doctors and patients argued that the DWDA violated the U.S. Constitution’s first and fourteenth amendments in Lee v. Oregon. U.S. District Court Judge Michael Hogan placed a temporary injunction, that he later made permanent, on the Act.

In February 1997, the Ninth Circuit Court of Appeals ruled to dismiss the challenge to the Death with Dignity Act.

Measure 51, Oregon Repeal of Death with Dignity

In 1997, Measure 51 was placed on the November ballot. It failed and 60% of Oregon voters, more than the original 1994 vote, expressed their support for the Death with Dignity Act.

Oregon v. Ashcroft

U.S. Attorney General John Ashcroft issued a directive in 2001 to prevent the Oregon Death With Dignity Act from being implemented. The state of Oregon successfully sued and proceeded with implementation.

Vermont

In May 2013, the Vermont Legislature passed the Patient Choice and Control at End of Life Act. Governor Peter Shumlin signed it into law. The law is based on, but is less restrictive than, the Oregon model.

Vermont was the first state to pass an aid in dying law through the legislative process. In January 2013 the act was introduced to the Senate, and in May 2013 it was passed by both the house and senate.

Vermont residents 18 years old or older who are mentally capable adults with a terminal illness and a prognosis of 6 months or less to live can make an oral request and obtain medication from a physician. The bill requires a second opinion, written and oral requests, and other provisions.

Washington

In 1991, a ballot question asked if terminally ill adults should be allowed to receive physician aid-in-dying. The initiative failed, receiving 46 percent of the vote.

Washington voters approved the Death with Dignity Act by general election in November 2008 by a margin of 58% to 42% "This measure would permit terminally ill, competent, adult Washington residents medically predicted to die within six months to request and self-administer lethal medication prescribed by a physician. The measure requires two oral and one written request, two physicians to diagnose the patient and determine the patient is competent, a waiting period, and physician verification of an informed patient decision. Physicians, patients and others acting in good faith compliance would have criminal and civil immunity."

In Practice

Health departments in Oregon and Washington State publicly report the most data on the use of medical aid in dying; they do so as required the statutes.

How to Die in Oregon

A documentary was produced in 2011 called How To Die In Oregon which follows a woman who uses aid in dying and interviews her family and interviews opponents of the law.

Controversy

Discussion and debate over what term to use when describing a terminally ill patient obtaining life ending medication has raged on for decades, with claims of bias and deception from both sides of the argument.

Some of the terms used for medical aid in dying are “physician-assisted suicide (PAS)”, "physician-assisted dying", "physician-assisted death", "aid in dying", "death with dignity", "right to die", "compassionate death", "compassionate dying", "end-of-life choice", and "medical assistance at the end of life".

Medical Aid in Dying v. Assisted Suicide

Suicide is a stigmatized term that refers to someone taking their own lives after struggling with mental illness. Medical aid in dying differs from this practice because a patient must be confirmed by two physicians to be terminally ill with a prognosis of 6 months or less to live and must also be confirmed by two physicians to be mentally capable to make medical decisions. Their death certificates list their underlying condition and that disease is what has taken their life. Suicide is a private act whereas aid in dying is medically authorized and typically self-administered in the presence of loved ones.

The Oregon, Washington, Vermont and California medical aid-in-dying laws specify that: “Actions taken in accordance with [the Act] shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.”

Medical Aid in Dying v. Euthanasia

Aid in dying is a medical practice by which a terminally ill, mentally capable person who has a prognosis of six months or less requests, obtains and — if their suffering becomes unbearable —self-administers medication that brings about a peaceful death.

Euthanasia, sometimes called “mercy killing,” is an intentional act by which another person (not the terminally ill or dying person) chooses and acts to cause death. Medical aid-in-dying laws expressly prohibit euthanasia. Euthanasia is illegal in the United States, whereas medical aid in dying is currently authorized in five states.

Public Opinion

Gallup

In a May 2016 Gallup poll, 69% of Americans said they agree that “when a person has a disease that cannot be cured...doctors should be allowed by law to end the patient’s life by some painless means if the patient and their family request it.”

In a May 2015 Gallup survey, 68% of Americans agreed that “individuals who are terminally ill...have the right to choose to end their own life.”

A 2014 gallup survey found that 69% of Americans think that doctors should be allowed by law to end the life of a patient who has a disease that cannot be cured “by some painless means if the patient and their family request it.”

Other surveys

A 2014 Harris Poll found that 74% of Americans agree that “individuals who are terminally ill...have the right to choose to end their own life.”

17,000 U.S. doctors representing 28 medical specialities were surveyed by Medscape on end-of-life issues. The survey found that 54% of doctors believe assisted suicide, or medical aid in dying, should be available as an end-of-life option.