HB789: All Hands On Deck

With the introduction of HB 789 on April 11,  Rep Pricey Harrison and her colleagues Hon Fisher, Hon Meyer and Hon Insko, have done their part to advance the legislation.  The ball is now in our courts– the people, to make clear to our various State Reps across the State, that this legislation is needed and important for the long term welfare of North Carolinians.  Anyone who has been through the calvary of a protracted and painful End of Life experience of a loved one does not want to witness a repeat performance, and very few people don’t want Medical Aid in Dying at least as one more option.

HB 789 will go nowhere, UNLESS some Republican legislators come out in favor, or at least request that the bill get a hearing.

So for all supporters, now is the time to go to work.  Use any contact you have with a State Rep, especially if he or she is from the GOP, to  please urge support of HB 789, not tomorrow or next year, but NOW.

HB789, The End of Life Option Act, introduced!

North Carolina has now become the latest state considering enactment of Death with Dignity legislation.  On April 11, 2017, four State Representatives, Harrison (D-57), Fisher (D-114), Meyer (D-50) and Insko (D-56), introduced HB789, almost exactly two years after the introduction of HB611.

Dying Right NC worked closely with Representative Harrison, whose passionate advocacy for an enlightened approach to End of Life choices is inspirational.  This bill introduces several safeguards intended to address concerns expressed by the law’s opponents.

For example the bill requires both witnesses at the time a written request for an Aid in Dying drug is made, must be independent and at least one must be a resident of NC, as must be the case for the patient-applicant.  The bill also criminalizes any actions interfering with an individual’s decision to ingest an Aid in Dying drug, such as by destroying the prescription or the drug itself.  It introduces a new voluntary role of Attending Witness to be nominated by the patient applicant to be present at the time of ingestion to make sure there is not coercion or duress.

It is not clear how far HB789 will go during this legislative session.  No Death with Dignity law has been enacted in a southern, Bible belt red state, but we are confident that the majority of North Carolinians favor this bill and we will undertake to make sure their legislators are aware of their preference.

The text of the bill is provided here. Continue reading “HB789, The End of Life Option Act, introduced!”

Deconstructing Washington v Glucksberg

It is not hard to identify the high water mark for the opposition to Death with Dignity legislation: it was June 26, 1997, the day Justice Rehnquist announced a unanimous Supreme Court’s  judgment in Washington v. Glucksberg, 521 U.S. 702 (1997).  The Court twisted itself in legal knots to differentiate its holding seven years earlier in Cruzan v Missouri, 497 U.S. 261 (1990), but nevertheless promulgated a confusing, contradictory reversal of the liberal 9th Circuit’s invalidation of Washington State’s prohibition on assisted suicide.

Opponents of Death with Dignity legislation were clinking champagne flutes at what seemed like a total vindication of their cause:   every ominous prediction by naysayers was cited fulsomely;  the conflation of a whimsical suicide by a temporarily forlorn but physically intact individual with an intractably suffering hospital bed-ridden dying patient seeking to hasten the inevitable by a few weeks was complete; the timeless Anglo-Saxon Judeo-Christian ethos against self-murder was paraded out to trivialize any attempt at any time in life’s progress to attenuate suffering if it meant curtailing life; the burying under the carpet of the reality that physician assisted suicide is commonly practiced in almost all hospitals when doctors are instructed to pull the plugs of extraordinary life-sustaining measures resulting inevitably, predictably in instant death; the self-flattering pronouncements of the AMA and other medical associations that the Hippocratic Oath cannot be soiled by allowing patients to control their destiny and choose an end which curtails the ignominy of end of life suffering and humiliations.

Justice Rehnquist, an otherwise brilliant jurist, stumbled and bumbled his way through a recitation of reasons why the Constitution somehow allows an individual to die on his terms but denies him the able assistance of his physician or his loved ones to facilitate the choice.  Reading Glucksberg is like watching a champion boxer bobbing and weaving around avoiding the killer blow to the head.  There is no logic to the majority opinion; there are so many internal contradictions that the case has been ripe for overturn since its inception.

Let us deconstruct the inanity.

The Chief Justice posits the question before the Court as follows:

 “[T]he question before us is whether the “liberty” specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.”

The CJ seems to be supporting the notion that IF it there is a constitutional protection in committing suicide, if it is lawful to do so, then surely it must be lawful and constitutionally protected to get assistance in asserting a lawful, constitutionally protected right.

However, a few paragraphs later, he shifts the focus to: “[W]hether the protections of the Due Process Clause include a right to commit suicide with another’s assistance'”

This is not merely parsing words– this is reframing the question.  No longer is the issue whether one has a right on one’s own to commit suicide under the Constitution, which implies a right of assistance.  Now the question is whether  the act of getting assistance in the commission of suicide is constitutionally protected.  The emphasis has changed– we are not asking whether a single individual has the right to decide his destiny; we are now asking whether a conspiracy to commit suicide between the abettor and the abetted is protected.

Justice Rehnquist then goes on at some length to demonstrate that suicide has been anathemas as long as good Christians and good Americans have legislated on the matter, and of course, if it is illegal to commit an act, it is illegal to abet that act.  The CJ writes:

“[O]pposition to and condemnation of suicide-and therefore, of assisting suicide-are consistent and enduring themes of our philosophical, legal and cultural heritages… More specially, for over 700 years, the Anglo American common law tradition has punished or otherwise disapproved of both suicide and assisting suicde.”

One may wonder why the fixation on the last 700 years of jurisprudence and tradition?  Simply because the Court is loath to find a substantive due process unenumerated rights only in this fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.  Which is one reason why Justice Scalia was a bit nonplussed that the court would sanction gay marriage in Obergefell v Hodges, 576 US ___(2015 when it had been illegal in every state and every country for most of the prior 700 years.  But as to suicide and its concomitant ancillary of assisted suicide, Justice Rehnquist found compelling the near universal condemnation… except at the time of writing his opinion, suicide was illegal in exactly zero states.  Every state had done away with the prohibition and legal jeopardies of suicide or attempting suicide.

In a sense, Rehnquist was hoist on his own petard.  If the  long tradition of condemnation of suicide was the bedrock upon which a crime of abetting the illegal act of suicide was premised, then, in the logic of the Chief Justice, once states had removed the legal stigma from suicide, it becomes hard to justify a continued illegality of assisting someone to do something which is both legal and well within his constitutional prerogatives.

Justice Rehnquist then proceeds to bend his argument into pretzel like contortions.  How to differentiate Cruzan v Missouri, in which the self-same Chief Justice accorded a comatose, incurably afflicted, bedridden patient the constitutional  right to have her life-sustaining machines disconnected so as to lead inevitably, if not immediately to death?   Knowing that the only thing keeping her lungs breathing, her heart pumping, her kidneys flushing are electrically generated machines and knowing that her own organs are no longer functioning, unplugging the machines is as much an act of suicide as is taking a prescribed dosage of lethal medicine, with the caveat that the medicine takes longer to act.  Justice Rehnquist seeks refuge in a verbal sleight of hand.  What Nancy Cruzan was doing was withdrawing life sustaining treatment; what Dr Glucksberg was trying to do was to precipitate the death of his patient.  Forget the reality that in both cases, a severely compromised life expectancy is merely accelerated.  Forget that in the case of Dr Glucksberg we know that his patients were terminal and had less than 6 months to live; whereas Nancy Cruzan could have surivied on life support for  decades.

Justice Rehnquist’s final ploy is beloved in the elective branches of government: kick the can down the road.  As he puts it, let’s let the laboratory of the states wrestle with this issue because far be it for us mere mortal justices to interpret the Constitution before others have done the heavy lifting  for us.  So the CJ conveniently cites a parade of horrors should Death with Dignity legislation come to pass:  the disabled and other vulnerable communities will be abused; only the poor and uninsured will avail themselves of such laws; people in the prime of their lives suffering a temporary setback under the cloud of a depression will rush to sign up for these laws; unscrupulous people will coerce the unwilling to end their lives.

Of course, all these horrors are impossible under the language of the laws which have since 1997 been enacted.  And this year we have 20 years of robust data from Oregon to disabuse all the naysayers.

And ironically just as the CJ was crowing how almost all states have rejected Death with Dignity legislative proposals, since Glucksberg the dam has burst and state after state and country after country have finally listened to their populations who overwhelmingly want assurances that they won’t be forced to suffer unnecessarily in extremis at the end of their lives, but will have the option of choosing the time and manner.  Ironically Washington State itself, from whence the Glucksberg case originated, followed in quick succession by Vermont, Montana, California, Colorado, and DC, plus the Netherlands, Luxembourg, Colombia and Canada, have enacted comprehensive Death with Dignity legislation.

Anyone reading Glucksberg today with all its hemming and hawing, and its far more compelling concurrences by O’Connor, Stevens and Souter, can see the writing on the wall.  This is a case ripe for reversal.





The Semantics of Decision-Making

Language shapes perception.  It becomes the reality by which we judge circumstances and draw conclusions.  Thus when people use the term “Physician Assisted Suicide”  (“PAS”), it suggests an almost nefarious collaboration between a doctor and a depressed patient.  It assimilates individuals in two antipodal situations:  the first, an able-bodied, physically healthy but mentally deranged or at least impaired individual with no physical obstacles to a continued life who is dealing with a temporary set-back; the second, a mentally competent but physically incapacitated, terminally ill person, increasingly decrepit and often suffering incurable excruciating pain whose days on earth are circumscribed to at best a few months.

Can one really call acts to end life in both situations identical or even so similar that they warrant the same descriptor.  One individual has every possibility of continuing to live perhaps for years or decades; the other is condemned by a terminal illness to a few months.  One’s act often strikes us as the height of irrationality; the other seems a rational response to the inevitable.

It is for this reason that the preferred term of art for the type of legislation we are seeking is Medical Aid in Dying or Death with Dignity or Physician Assisted Dying.  To use the word “suicide” to describe what competent patients facing a terminal illness choose as their exit plan is to trivialize the courage and strength of character involved.

We all can imagine talking a would-be suicide off the ledge:  “Don’t do it!  You have a family that loves you…this too will pass… you have your health… all is not lost!”  And those pleas are founded in reason, fact and logic.

But what do you say to a bedridden emaciated, dying person hooked up to feeding tubes or a respirator, lapsing in and out of consciousness form the daily regime of morphine to stifle temporarily the otherwise constant pain?  There would be a cruelty to lie to the patient that somehow the cancer will miraculously go away when every day it takes a larger toll; you know the person’s quality of life will only deteriorate and that the patient will never again be able to walk or run or enjoy life the way he once did.

Two vastly different situations warrant vastly different descriptions.

Let us examine then the statutory prohibitions in 40 states against Assisted Suicide, often deemed a felony which can result in lengthy prison time.  The first such law in the US was enacted in New York in December 1828.  This was a rather logical addition to the criminal code because at that time, suicide itself was a serious crime with grave repercussions for the heirs of the decedent.  The prohibition on suicide was largely a reflection of the common Judeo-Christian religious condemnation of self-murder as interfering with God’s plan.  Clearly if committing an act is illegal, abetting that act should logically also be illegal.  And so it was.  In every jurisdiction in the country, suicide was statutorily illegal and assisting someone in the commission of that crime was thus deemed a felony offense.

We have come a long way since theology alone dictated the whims of our legislators.  Now, suicide, albeit a tragedy and a national disgrace, is legal in every state and there are no legal repercussions for the heirs (with the exception that most life insurance policies are invalidated).  How then is it logical or even rational to state that although an individual may commit a certain act with impunity, anyone who aids that person in committing that legal act may go to jail for abetting the commission of, not a crime, but of a lawful action.  Should it be illegal to help someone do something lawful?

Even if we were to accept that what is right for the individual is impermissible for the abettor, clearly there are differences warranting legislative precision.

Again let us imagine two different situations.  Abel has just been dumped by his girlfriend.  In tears, he calls upon his estranged brother Cain for counsel.  Cain, knowing that he will inherit the totality of their parent’s patrimony if his brother Abel is out of the picture, takes advantage of Abel’s distraught and fragile state of mind and readily accedes to Abel’s jeremiad of self-pity.  When Abel mentions feeling suicidal, Cain suggests that would be the best solution and then hands him a loaded revolver with which Abel then shoots himself.

In another scenario, Jill lies in bed as she has for over a year, in a semi-comatose and constantly deteriorating situation:  incontinent, hooked up to intricate medical technology, in constant pain, unable to move her cancer-ravaged body without excruciation and exhaustion.  She was once a champion equestrian, fiercely autonomous and independent.  Now she languishes dehumanized, humiliate, dependent on nurses,  and loved one for all her daily needs.  Her doctor has been brutally honest that the cancer is incurable, inoperable and terminal.  She has at most 6 months to live.  She asks her loving sister Jane to facilitate her end by passing her an extra large dose of morphine.  She passes quietly surrounded by those who love her best.

In both cases, the state could prosecute Abel, the evil, sinister, malevolent brother and Jane, the loving, caring sister as equally guilty felons.  But query whether Jill is committing suicide when hastening her death by a few months given the inevitability of the outcome compared with Abel who has many years ahead of him if only he could get over his depression.

Words matter– it is irresponsible to deem Medical Aid in Dying as anything other than Good Samaritanism with the patient’s ultimate and rational wishes at heart.

Judge Gorsuch: A SCOTUS nominee opposed to Medical Aid in Dying?

For those of us committed to enactment of Medical Aid in Dying legislation across the country, the writings of Judge Gorsuch give us pause.  In a full length book and several law review articles, Gorsuch is unambiguous in his disdain for such laws.  He views the practice, based on worst case scenarios extrapolated from a limited data sampling as of 2002 of the Oregon and Dutch experience, as a parade of horribles.  And yet, in 2017, we now have a score years of statistics compiled by the Oregon Department of Health, which show zero cases of abuse, error, euthanasia or discrimination.  It is as if Judge Gorsuch in 2002 said to the proponents of Medical Aid in Dying:  “I am pretty sure your little experiment will fail in a torrent of predictable horrors, so there is no need to continue, but if you do, I, and my fellow skeptics, will be watching!”

We can hope Judge Gorsuch is a man of his word, because the dis-sync between his predicted outcomes and the actual results is so dramatic that he should be invited to revisit his writings and update his conclusions.  Either Judge Gorsuch was an ideologue hiding in an empiricist’s clothing, or he is in fact a rational jurist who lets the facts determine his beliefs.

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