Debunking the Myths of Medical Aid in Dying

Among the many hoary predictions of MAID opponents is the notion that enacting Death with Dignity legislation will usher in a culture of suicide.  During the debate in the late 1990s in Oregon and Washington, one often read dire predictions that passage of the legislation would make those states suicide meccas and that soon the local medical communities would be swamped by folks availing themselves.  One prognosticator suggested that as many as 10% of all deaths in Oregon would be under the framework of the Oregon Death with Dignity Act.

Twenty years on, the data reveal outcomes vastly different.  Death with Dignity is very rarely used– in Oregon of the 25,000 annual deaths by cancer, for example, less than 200 individuals use the statute, or less than 1%.  And of course this exclude the thousands of others who die of terminal illnesses in the calculation.

The reality is that Death with Dignity is working just as its proponents suggested:  it is very rarely used, few doctors are called upon to participate, even fewer end up writing prescriptions, it has not engendered an increase in suicide among physically healthy individuals; it has increased recourse to hospice and palliative care; it has helped to take End of Life decision-making out of the closet and empowered people to exercise a modicum of autonomy when a disease is otherwise limiting outcomes.

A recent article in JAMA and UPenn Medical School make clear that Death with Dignity legislation does not lead to the nefarious consequences which its detractors predict, even today.

Read here

 

A few words from our M.D. Board Members

Our two Board members have recently been published arguing the logic and compassion underpinning Death with Dignity legislation, such as HB789.  Dr William Hazzard had his Letter to the Editor of the Winston Salem Journal published in early June in which he discusses the case of his sister Ra, who used the law in Oregon because of its unavailability here in NC.

Dr Hazzard’s op-ed

And Dr Haider Warraich, on the occasion of the British edition of his book Modern Death, published an excerpt in the Guardian detailing the travails of Karen Ann Quinlan who was perhaps the first public face of a terminal patient seeking redress through a compassionate death.

Dr. Warraich’s Guardian excerpt here

California’ End of Life Option Act: One Year In

On June 9, 2016 California’s version of Death with Dignity legislation (a/k/a Medical Aid in Dying), the End of Life Option Act, went into effect, following a contorted enactment over the course of several years.  Thanks in large part to the moving testimonial of 29-year-old Brittany Maynard to the legislature and to Jesuit Governor Jerry Brown, California became the 5th state (after Oregon, Washington, Vermont and Montana) to adopt a law allowing an individual to choose the time and manner of his/her death once diagnosed with a terminal illness, without the risk of criminal prosecution or civil judgment against the prescribing physician or pharmacist.

One noteworthy observation:  in its first year, California recorded 258 instances where the process was initiated.  There were 191 lethal prescriptions filled but only 111 people decided to ingest the medicine.  That suggests that as many as 42% of those who went through the application process to the extent of having the prescription filled, used the medicine not to end life, but to provide a sense of autonomy and control at a time when a disease has robbed them of almost everything which makes life worthwhile: hope and self-direction.

We shall see if California’s initial experience bears itself out going forward.  But after 20 years of data in Oregon, we can suspect this first year is not an aberration.  In Oregon, 38% of filled prescriptions under Oregon’s Death with Dignity Law are not used.  Again, individuals find comfort knowing that at hand they have a medical dosage which will quickly and painlessly accelerate the end if the pain or hopelessness becomes overwhelming.  Until that time, there is a sense of self control which in itself is a comfort.

You may wonder why this is worth contemplating.  In the 1997 companion cases of Washington v. Glucksberg, 521 US 702 (1997)  and Vacco v Quill, 521 US 793 (1997), Chief Justice Rehnquist, writing for a unanimous Supreme Court, sought to differentiate the withholding of medical treatment from the dispensing of a lethal dose of medicine.  Without the benefit of any data upon which to make an assessment, the Chief Justice wrote that a physician who withdraws care pursuant to an express patient demand “purposefully intends, or may so intend, only to respect his patients’s wishes”.  Whereas a doctor assisting suicide “must necessarily and indubitably intend primarily that the patient be made dead.”

This clearly is incorrect.  In the first instance in both cases, the doctor is merely “primarily respecting his patient’s wishes”.  Surely in both cases, the doctor would much prefer the patient be cured and healthy.  But the doctor is asked to provide a service: withholding medicine, “pulling the plug”, writing the lethal prescription.  Will the ultimate consequence be an acceleration of the inevitable death:  yes, in general.  But not all plugs pulled result in immediate death, not all withheld medicine will immediately kill the patient, and now we know, not all written lethal prescriptions will be taken.

The doctor writing a prescription under Oregon and California or any other state’s Death with Dignity laws can well anticipate that over a third, maybe 40% of his or her patients, will never take the medicine.  They will keep the medicine on their nightstand as a symbol of their last act of decision-making and destiny-determination.  At a time of hopelessness and despair, allowing a dying patient a modicum of autonomy and control might prove a liberating experience.

Justice Rehnquist pronouncement in Vacco v Quill has been proven in error.  It is important to highlight his mistake because Justice Gorsuch in his eloquent book against “Assisted Suicide” cites Justice Rehnquist approvingly.   Glucksberg and Quill are both ripe for reversal, given the evolution of the Death with Dignity movement across the country.  We now have further evidence contradicting the AMA’s refrain in opposition.

For more on the one-year mark in California Click here

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.