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Article Excerpt
It has now been ten years since the Supreme Court handed down Glucksberg and Quill, rulings on laws that forbid "assisted suicide." In that time, normative and legal developments in the fields of law, medicine, and psychology have changed the landscape of the discourse on the choice of a mentally competent, terminally ill individual to choose to self-administer medications to bring about a peaceful death. Although the Court rejected petitioners' claims that state laws denying them the ability to end their terminal illnesses through self-administered medication violated the Constitution, it left states with the opportunity to experiment with legislation that would allow terminally ill individuals the choices they had previously sought through litigation. Oregon's experience with its Death with Dignity Act, which grants terminally ill, mentally competent individuals the choice to end their lives through self-administered medication, has proven that such laws provide comfort not only to those who, faced with the prospect of a horrible death from a terminal illness, choose to end their lives in a peaceful and dignified manner, but also to those to ultimately choose not to. Additionally, Oregon's experience shows that the fears that originally attended the "assisted suicide" debate are unfounded so long as proper procedures are in place. Because Oregon's Death with Dignity Act has proven both useful and harmless, this Article concludes that it is time for other states to follow Oregon's lead and enact their own legislation to allow their citizens an alternative to what otherwise could be a prolonged and painful death from terminal illness.
TABLE OF CONTENTS INTRODUCTION I. THE CONSTITUTIONAL LANDSCAPE A. Where Did Glucksberg and Quill Leave Us? B. Aggressive Pain and Symptom Management II. THE OREGON EXPERIENCE: HAS THE LABORATORY SERVED ITS FUNCTION? A. Challenges to the Death with Dignity Act B. Implementation and Its Implications C. The Laboratory Has Served Its Function III. ARE OTHER STATES READY FOR AN ASSISTED DYING LAW? A. Support and Opposition B. The Back Alley: Facing the Reality of Leaving Aid in Dying Unregulated C. The California Effort CONCLUSION
INTRODUCTION
Invoking continued debate, the U.S. Supreme Court concluded its 1997 decision in Washington v. Glucksberg with these words: "Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society." (1)
The debate has indeed continued these past ten years, and there have been two particularly significant developments worthy of close examination. First, Oregon has been implementing its Death with Dignity Act (2) ("Dignity Act") since 1997. This law empowers terminally ill, mentally competent adult Oregonians to control the timing and manner of their deaths, subject to careful procedures. A fraction of dying patients confront a dying process so prolonged and marked by such extreme suffering and deterioration that, even with excellent pain and symptom management, they determine that hastening impending death is the least-bad alternative. The data show that passing this law has harmed no one and has benefited both the relatively few patients in extremis who make use of it, and a great many more who draw comfort from knowing this option is available.
Second, an important evolution has occurred in the terminology used to discuss the choice of a mentally competent, terminally ill patient to self-administer medications to bring about a peaceful death. It is increasingly recognized that it is inaccurate to consider this choice to be "suicide." The Dignity Act itself states that such actions "shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law." (3) The Oregon Department of Human Services, which reports on the implementation of the Dignity Act, rejects referring to this as "assisted suicide" or "physician assisted suicide."
From a mental health perspective, "suicide" and the choice of a dying patient to hasten impending death in a peaceful and dignified manner are starkly different. (4) The American Psychological Association has recognized that "the reasoning on which a terminally ill person (whose judgments are not impaired by mental disorders) bases a decision to end his or her life is fundamentally different from the reasoning a clinically depressed person uses to justify suicide." (5)
Many medical experts (6) and legal experts (7) have also come to recognize that the term "suicide" or "assisted suicide" is inappropriate when discussing the choice of a mentally competent, terminally ill patient to seek medications that he or she could consume to bring about a peaceful and dignified death. The term "assisted suicide" has been replaced with more accurate and value-neutral terms such as "aid in dying" or "physician-assisted dying." (8) The only active opponents of this evolution in terminology are opponents of the practice who continue to malign the choice for aid in dying by labeling it "suicide."
It is timely now, ten years after Glucksberg, to assess the lessons learned from the experience in Oregon, and to consider if the laboratory ought to and/or can be expanded beyond Oregon, as well as the likelihood that such expansion will occur. Part I of this Article reviews the constitutional landscape in the wake of Glucksberg and Vacco v. Quill. (9) Part II describes the Oregon statute, the legal challenges it has survived, and the record of its implementation. Finally, Part III reviews the support and opposition to aid-in-dying laws nationwide and concludes that there are substantial prospects that other states will enact laws similar to Oregon's.
I. THE CONSTITUTIONAL LANDSCAPE
A. Where Did Glucksberg and Quill Leave Us?
In an effort to establish that competent, dying patients have the right to openly choose a humane, physician-assisted death, laws prohibiting assisted suicide in New York and Washington were challenged on federal constitutional grounds in the cases of Vacco v. Quill (10) and Washington v. Glucksberg. (11)
In these cases, patients and physicians challenged the assisted suicide laws to the extent that they prohibited doctors from providing medications to competent, dying patients that the patients could use to hasten death if they so chose. (12) Liberty and equality guaranteed by the Fourteenth Amendment of the U.S. Constitution formed the basis of the claims. (13) Two federal courts of appeals, including the Ninth Circuit sitting en banc, agreed that statutes preventing patients from exercising this option were unconstitutional. (14) The Supreme Court reversed these decisions, but left the door open to both future legislative reform and a future successful constitutional claim. (15)
The opinions, both majority and concurring, invited legislative reform. The majority did so in the passage quoted at the beginning of this Article, and Justice Souter's concurring opinion stated an explicit preference for legislative action in this area. He wrote that "[t]he Court should ... stay its hand to allow reasonable legislative consideration," (16) and that "the legislative process is to be preferred."" Similarly, Justice O'Connor's concurrence demonstrated her concern that state legislatures be given the first opportunity to address the issue: "States are presently undertaking extensive and serious evaluation of physician-assisted suicide and other related issues.... In such circumstances, the ... challenging task of crafting appropriate procedures for safeguarding ... liberty interests is entrusted to the 'laboratory' of the States...." (18)
In the course of these cases' movement through the courts, the subject of a dying patient's right to choose to hasten impending death by self-administering medications--prescribed by a physician for this purpose--stimulated a tremendous amount of public education and debate. (19) In support of the patients and physicians in Glucksberg and Quill, many citizens of Washington and New York shared their stories in an amicus brief to the Supreme Court, detailing the suffering of loved ones who did not have access to medications that they could self-administer to hasten death when their dying process became intolerable. (20) Countless citizens began the discussion about physician-assisted dying in the wake of the publication of these stories. Media of many varieties also addressed the issue. (21)
B. Aggressive Pain and Symptom Management
In Glucksberg and Quill, several members of the Court suggested that patients may have a right to aggressive pain management. In a concurring opinion joined by Justice Breyer, Justice O'Connor stated that "a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death." (22) She further wrote that "[t]here is no dispute that dying patients ... can obtain palliative care, even when doing so would hasten their deaths." (23)
Thus Justices O'Connor and Breyer answered a question that the parties had not actually posed, appearing to recognize a constitutional right to adequate pain medication--including the practice of terminal or palliative sedation. (24) In the years since the decisions issued, the practice has become steadily incorporated in end-of-life care, and authoritative literature in medical journals...
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