Breathing life into the right to die: Oregon's Death with Dignity Act.

• Author: Bushong, Stephen K.

Terminal illness, by definition, leads to death. It can also lead to unbearable pain, suffering, and financial hardship. As a result, dying people occasionally seek to end their own lives, sometimes enlisting the aid of friends and loved ones, but other times violently and alone.

What, if anything, should society do about this situation? Is it morally and ethically acceptable to end a life prematurely, even in extreme circumstances? There are no easy answers to these questions of ethics and social policy, which have been debated for centuries and will continue to be debated for as long as people live and die. This article will not attempt to answer those questions. Rather, this article analyzes the legal issues that arose when one state attempted to address these difficult questions through legislation.

In November 1994 a majority of Oregon voters decided that competent, terminally ill adults should be allowed to decide for themselves whether death through lethal medication, obtained legally from their doctors, was preferable to continuing their battle with terminal illness. They approved Ballot Measure 16, the Oregon Death with Dignity Act (DWDA), the first law of its kind to be enacted in this country. Opponents of the DWDA promptly filed suit, and a federal district court judge entered a preliminary injunction that prevented the act from taking effect until the court had an opportunity to fully consider the issues raised in that case. The court later entered a permanent injunction.(1)

Part I of this article describes the DWDA and places it in historical and legal context. Part 11 describes the constitutional and statutory arguments advanced by the opponents of the law. Part Ill analyzes those arguments in detail, concluding that the DWDA is a legitimate policy choice that, if enacted as it has been in Oregon, does not violate any constitutional or statutory requirements.

Oregon's Death with Dignity Act

Historical Background

The modern legal debate over the right to die essentially began in 1976, with the case of Karen Ann Quinlan.(2) Ms. Quinlan was involved in a tragic automobile accident that left her in a vegetative state at the age of twenty-two.(3) Her family sought to terminate artificial respiration, but the hospital, fearing civil or criminal liability, refused to do so without a court order.(4) The lower court declined to authorize the termination of artificial respiration, but the New Jersey Supreme Court reversed, holding that the constitutional right of privacy was broad enough to encompass a patient's right to decline medical treatment under certain circumstances, including Ms. Quinlan's unfortunate case.(5)

Since that time there have been numerous cases across the nation addressing the issue of initiation or removal of artificial life support systems.(6) In addition, at least thirty-eight states have adopted some version of the Uniform Rights of the Terminally Ill Act,(7) Codifying the right of competent patients to refuse medical treatment even if that decision will hasten their death.(8)

The United States Supreme Court first addressed the issue of a constitutional "right" to die in the Cruzan case.(9) Nancy Cruzan was involved in an automobile accident that resulted in serious brain damage, which left her in what the Court described as a "persistent vegetative state," with virtually no chance of regaining her mental faculties.(10)

Her parents asked the hospital to terminate artificial nutrition and hydration procedures, which would have resulted in Nancy's death, but Missouri law required clear and convincing evidence of the patient's wishes before such procedures could be terminated.(11) The hospital did not have clear and convincing evidence of Nancy's wishes, so it declined to honor the parents' request without court approval.(12) The case proceeded to the Supreme Court to decide "whether Cruzan has a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment from her under these circumstances."(13)

The Supreme Court first acknowledged that its prior decisions "support the recognition of a general liberty interest in refusing medical treatment."(14) The Court went on to say that "determining that a person has a `liberty interest' under the Due Process Clause does not end the inquiry; `whether respondent's constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interest.'"(15)

After balancing these interests, the Court concluded that Missouri's law requiring clear and convincing evidence of the patient's wishes did not violate due process, so the state could "choose to defer only to those wishes, rather than confide the decision to close family members."(16)

Three courts have subsequently decided a question left unresolved by Cruzan--whether terminally ill persons have a constitutional right to the assistance of a physician in terminating their lives.(17) In each of those cases, the courts concluded that there is no constitutional right to a physician's aid in dying. Each court noted that the issue of physician-assisted suicide was a policy choice, to be decided by the people or legislature of each state, and not a matter of constitutional requirement.(18)

The Oregon Alternative

Oregon voters made that policy choice by adopting the DWDA through the state's initiative process. The DWDA allows terminally ill adult patients to "make a written request for medication for the purpose of ending his or her life in a humane and dignified manner."(19) This request must be witnessed by at least two individuals who can attest that "the patient is capable, acting voluntarily, and is not being coerced to sign the request."(20) At least one of these witnesses cannot be a relative or other person who could be financially affected by the patient's death.(21)

The act does not require any physician to honor the patient's request. But if a physician chooses to honor the request, she can proceed to write the requested prescription and avoid civil and criminal liability if she acts in accordance with the safeguards set forth in Section 3 of the act.(22) Those safeguards include (1) an initial determination by the attending physician that the patient has a terminal disease, is capable, and has made the request voluntarily;(23) (2) disclosure by the attending physician to the patient of the medical diagnosis, prognosis, risks, probable result, and any feasible alternatives;(24) (3) confirmation by a second physician of the diagnosis and the fact that the patient is capable and acting voluntarily;(25) 4) counseling whenever the attending physician or consulting physician suspects that the patient may be suffering from a psychological disorder or depression causing impaired judgment;(26) (5) family notification (at the option of the patient);(27) (6) a requirement that the patient make at least two oral requests and one written request;(28) (7) a fifteen-day waiting period between the initial request and the writing of the prescription;(29) and (8) a right to rescind the request at any time regardless of the patient's mental state.(30)

If all of these safeguards are met, the patient chooses to proceed with the request, and the physician chooses to comply with the request, the physician will not be subject to civil or criminal liability or professional disciplinary action for participating in the patient's death.(31) Honoring the patient's request does not mean that a particular hospital or health care provider is required to participate. To the contrary, the DWDA specifically protects the choice of health care providers to decline to participate or otherwise carry out the patient's request.(32)

Constitutional and Statutory Objections to the DWDA

The opponents of the DWDA have filed an action in federal court challenging the validity of the act.(33) They contend that the DWDA violates the equal protection clause and the due process clause of the fourteenth amendment,(34) freedom of religion and freedom of association protected by the first amendment,(35) Title 11 of the Americans with Disabilities Act ADA),(36) and the Religious Freedom Restoration Act (RFRA).(37)

The constitutional claims are based on preexisting statutory provisions that could otherwise apply to terminally ill persons who express a desire to end their lives. For example, although suicide itself is not illegal in Oregon, intentionally assisting in a suicide is a felony-manslaughter in the second degree.(38) In addition, the use of physical force to intervene to thwart a suicide attempt is justifiable and not punishable as a criminal offense.(39) And a person who is considered "dangerous to self" because of a mental disorder is considered "mentally ill" and therefore subject to civil commitment.(40)

Opponents of the DWDA contend that these statutes provide protections and presumptions against self-harm that are impermissibly withdrawn by the DWDA. They suggest that the withdrawal of such protections only for terminally ill people violates the equal protection clause and the ADA.(41)

They also contend that the safeguards in the DWDA are inadequate to ensure that a patient's decision to invoke the act is truly voluntary and is not the result of depression or undue influence.(42) The lack of adequate safeguards, they contend, constitutes a violation of the due process clause.

Opponents of the DWDA also claim that the act's definition of terminal disease is unconstitutionally vague, in violation of the due process clause.(43) And they assert that the act violates the first amendment and RFRA because it requires health care providers who oppose the act for religious reasons to either participate in a patient's assisted suicide contrary to their religious beliefs or force the patient to transfer to another provider.(44)

The DWDA Is a Legitimate Policy Choice That Does Not Violate Any Constitutional or Statutory...