A COMPARATIVE VIEW OF THE LAW, ETHICS, AND POLICIES SURROUNDING MEDICAL AID IN DYING IN THE UNITED STATES AND NETHERLANDS.

• Published date: 22 March 2020
• Author: Blakey, Delaney
• Date: 22 March 2020

INTRODUCTION

The Hippocratic Oath, recorded as early as the first century A.D., contains one of the oldest recordings related to the idea of medical aid in dying. (1) The classic version of the Hippocratic Oath reads: "I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect." (2)

This note will compare the state of the law surrounding medical aid in dying in the United States and the Netherlands. Medical aid in dying is currently legal in eight American states and the District of Columbia. (3) In all nine United States jurisdictions that currently allow medical aid in dying, the only form of medical aid in dying that is available is what is commonly known as physician assisted suicide. (4) Physician assisted suicide is a type of medical aid in dying by which lethal means arc made available to patients for their personal use at a time of their choosing. (5) By contrast, euthanasia entails the physician taking an active role in causing the death of the patient, typically by administering a concoction of intravenous drugs that lead to death. (6) Due to a prohibition on active voluntary euthanasia, the patient must be able to complete, on their own, a voluntary act to self-administer the life ending medication. (7) The Netherlands has taken medical aid in dying even further, legalizing active voluntary euthanasia. (8) This note will explore the history of and justifications for medical aid in dying laws in the United States and the legal history surrounding the issue in the Netherlands and attempt to provide insight into how the law should develop in the future.

I. BACKGROUND

The debate surrounding medical aid in dying is not new. Dr. Jack Kevorkian, colloquially known as Doctor Death (9) and recognized as one of the central figures surrounding the debate regarding physician assisted suicide and euthanasia in America, (10) brought the debate to the national forefront in the 1990s when he famously aided in ending the lives of over 130 of his patients. (11) A few years after Dr. Kevorkian brought the debate to the attention of the public, Oregon became the first American state to legalize medical aid in dying when its citizens voted by a margin of just over 1% to pass the Death with Dignity Act in 1994. (12) Although most of the developments in the law surrounding medical aid in dying in the United States started coming to fruition in the 1990s, this issue has been at the foreground of the minds of doctors and laymen alike since well before the end of the twentieth century. (13)

A. Medical Aid in Dying in the United States

In 1828, New York became the first American state to adopt a statute outlawing physician assisted suicide, (14) with many states and territories later following New York's example. (15) Around the end of the nineteenth century, people began to advocate for the use of morphine and other analgesic drugs as a means of euthanizing people in severe pain. (16) In 1905, a bill was defeated in Ohio that would have legalized active voluntary euthanasia. (17) In 1906, a similar bill that would have legalized the active voluntary euthanasia of terminally ill adults as well as the involuntary euthanasia of "deformed" and "idiotic" children was also defeated in Ohio. (18) During the Great Depression of the 1930s, public support for mercy killings began to grow. (19) However, the 1940s saw public opinion shift in the other direction. (20)

The next major development came in the 1970s with the rise of acceptance of patients' autonomy, and in 1972, the United States Senate held the first public hearings on euthanasia. (21) In in re Quinlan, the New Jersey Supreme Court upheld the right of the parents of a woman who fell into an irreversible comatose state to cease the administration of her life sustaining medicine and remove her respirator. (22) This case became a "touchstone for legal struggles in other states. (23)

The Hemlock Society, a prominent advocacy group in the right to die movement, was formed in 1980. (24) By the early 1990s, the right to die movement was again gaining public support. (25) In 1993, Jack Kevorkian was on the cover of TIME Magazine, (26) and the very next year, Oregon's Death with Dignity Act was passed with the support of the majority of Oregon voters. (27)

Despite the slight increase in public support for medical aid in dying legislation, the right to die movement in the United States has historically gained traction very slowly. (28) In the nearly two and a half decades since Oregon's Death With Dignity Act passed, only seven more American jurisdictions have followed Oregon's example. (29) Moreover, the Supreme Court ruled in Washington v. Glucksberg (30) and Vacco v. Quill (31) that there is no constitutionally protected right to die. This seemed to signal the demise of Oregon's law until, in 2006, the Supreme Court upheld the Oregon Death with Dignity Act, holding that although there is no constitutionally protected right to die, the decision should be left up to the states. (32)

Since Oregon voted to legalize physician assisted suicide in 1994, Washington, Vermont, The District of Columbia, Colorado, Hawaii, and California have passed similar laws. (33) Montana is the only jurisdiction that has legalized medical aid in dying through court ruling, and still has no statute presently recorded. (34) California's medical aid in dying law, the "End of Life Options Act," (35) took effect in 2016 after the highly publicized end of life journey of 29 year old Californian, Brittany Maynard. Maynard, suffering from terminal brain cancer moved from California to Oregon, leaving her home and family behind, in order to be free to utilize Oregon's medical aid in dying legislation at what she decided was the proper time. (36) Her story gained national attention after People magazine posted a highly popular article about her life on their website (37) and she completed a video campaign with the activist organization Compassion and Choices. (38)

Maynard's story garnered a lot of attention for the right to die movement in California and around the country. (39) As of February 28, 2020, there are sixteen states considering adopting medical aid in dying legislation. (40) Publication of Brittany Maynard's story is correlated with increased support for the Death with Dignity movement. (41)

All of the American jurisdictions that have legalized medical aid in dying have done so through slow, methodical, and thoughtful processes, being careful to place severe restrictions on the use of lethal prescription drugs. The Oregon Death with Dignity Act ("The Act") served as the model for the states that have passed similar laws subsequently. (42) While some differences, of course, exist between the state statutes, for the purposes of this note, I will examine only the Oregon law in detail, introducing only briefly the laws of other states in order to point out any distinctive characteristics.

The Act defines who is eligible to end their life through the use of a combination of lethal prescription drugs as well as the process for obtaining those life ending prescriptions. (43) An eligible patient is a capable adult who is over the age of 18, is a resident of the state of Oregon, has been determined by their physician and a consulting physician to be suffering from a terminal disease, and has voluntarily expressed his or her wish to die. (44) The patient must receive a terminal diagnosis from an attending physician and be referred to a consulting physician who concurs with the primary physician's diagnosis. (45) If either the attending physician or consulting physician find the patient is suffering from a psychiatric or psychological disorder or depression, either physician may refer the patient for counseling. (46) No life-ending medication may be used until the counselor determines the patient is not suffering from a psychiatric or psychological disorder causing impaired judgment. (47) Once it has been confirmed the patient is terminally ill by two physicians, is of sound mind, and voluntarily wants to end their life, the patient may request a life-ending prescription. (48)

The written request for the life ending medication must be witnessed by two people who testify that the patient is capable, acting voluntarily, and not being coerced. (49) At least one of the witnesses cannot be a relative, a person who is entitled to any of the patient's estate, or an employee of the heath care facility where the patient is receiving his or her treatment. (50) In addition, the primary physician cannot sign as a witness. (51) The Act also establishes waiting periods to ensure the patient has time to reconsider their choice to end his or her life. (52)

The other jurisdictions that have enacted legislation legalizing physician assisted suicide have, for the most part, modeled their own laws on Oregon's Death with Dignity Act. Of these jurisdictions, the State of Montana is the only state to have legalized physician assisted suicide through court ruling. (53) The Montana State Supreme Court, however, did not answer the broader question of whether the right to access to physician assisted suicide is a right guaranteed by the State of Montana's constitution, choosing to decide the case on narrower grounds. (54)

The California End of Life Option Act, (55) modeled heavily on the Oregon Death With Dignity Act, contains a unique "sunset" clause, which states: "This part shall remain in effect only until January 1, 2026, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2026, deletes or extends that date." (56) This means that ten years after its enactment, the law will either have to be revised or extended. (57)

B. Medical Aid in Dying in the Netherlands

The Dutch people have taken medical aid in dying much farther than the few American jurisdictions that have legalized it in some way. In the Netherlands, not only is physician assisted...