Beyond Washington v. Glucksberg: Oregon's Death with Dignity Act analyzed from medical and constitutional perspectives.

• Author: Datlof, Steven B.

INTRODUCTION

Physician-assisted suicide. An oxymoron. The concept goes against the grain. It runs counter to thousands of years of understanding of the physician's role, embodied in the timeless credo: "Do no harm."(2) It runs counter to themes that pervade western philosophy and literature. As Alexander Pope said in 1733: "Hope springs eternal in the human breast."(3) Somewhat more recently, Yogi Berra expressed the same sentiment in equally timeless fashion with the remark: "It ain't over til it's over."(4)

Yet, as medicine and technology continue to advance, public debate increasingly focuses on whether in some hopeless situations, there comes a time to acknowledge that "it's over."(5) Between eighteen to thirty percent of physicians report that they have received requests from patients for help in dying.(6) Thirty-six percent of physicians indicate that they would assist terminally ill suffering patients in ending their lives were it legal to render such aid.(7)

Currently, Oregon stands alone in allowing patient and physician to openly carry out such end-of-life decisions. The Oregon Death with Dignity Act (DWDA),(8) passed by voter referendum in 1994 and re-approved in 1997, is the only American law that authorizes a physician to aid a terminally ill, competent patient in committing suicide.(9) A similar referendum was defeated by Michigan voters in November 1999.(10) At the national level, Congress is considering legislation to bar physicians from prescribing medication for the purpose of hastening a patient's demise. (11)

While physician-assisted suicide (PAS) is thus being debated in the legislature and in the polling booth, it is also being debated in the courtroom. Laws legalizing PAS and those prohibiting it have been the subject of disputes. Courts have therefore considered the rights at issue from opposite vantage points. For example, in Lee v. Oregon,(12) a challenge to the DWDA that ultimately failed because the plaintiffs lacked standing, the question was whether a law allowing PAS infringes the constitutional rights of vulnerable individuals who might need protection from having assisted suicide imposed on them.(13) However, in Washington v. Glucksberg and Vacco v. Quill, the question was whether laws prohibiting assisted suicide violate the constitutional rights of terminally ill individuals seeking assistance in ending their lives.(14)

This Article examines several aspects of the medical and legal debate on physician-assisted suicide. Part I describes the Oregon Death with Dignity Act, the only existing American law legalizing physician assisted suicide. Understanding the provisions of the DWDA provides a concrete, practical framework for discussing the medical and constitutional issues central to the PAS debate.

Part II considers the wisdom of the DWDA in light of current medical knowledge and practice. The law allows a patient, with only a few months to live, a humane end to intolerable suffering under controlled conditions. It is carefully crafted to ensure that patient and physician deliberate about the decision over at least a fifteen-day period, thereby discouraging impulsive behavior. It renders unnecessary the occasional practice of using high doses of sedating medications putatively for palliative purposes, but with the covert, inadequately discussed purpose of hastening the patient's death.(15) However, the DWDA does not sufficiently account for the complex motivations of patients requesting suicide. In addition, the statute does not fully consider the subtleties involved in differentiating clinical depression from expected sadness in terminally ill patients. In order to address these problems, the Oregon legislature should amend the DWDA to mandate that a psychiatrist must evaluate every patient who requests assistance to end his life.

Part III of this Article examines whether the DWDA passes constitutional muster in light of the Supreme Court's recent landmark decisions in Glucksberg and Vacco. Consistent with its prevailing federalism jurisprudence,(16) the Court refrained from finding new fundamental liberty interests(17) in order to allow the state legislatures to determine policy on assisted suicide. The same approach in a due process or equal protection challenge to the DWDA logically would lead the Court to conclude that the law does not infringe upon fundamental liberty interests. The appropriate test of DWDA's constitutionality, therefore, would be the lenient "rational basis" test.(18) DWDA is rationally related to legitimate state interests. Under this test, the Court likely would uphold the Oregon statute.

To complete the analysis, Part III also considers how the DWDA would fare in the less likely event that the Court finds that a challenge to the law implicates fundamental liberty interests. In this case, the statute would be scrutinized more searchingly, and its survival would be less certain.

2. THE OREGON DEATH WITH DIGNITY ACT

   The DWDA consists of six sections: General Provisions; Written Request for Medication to End One's Life in a Humane and Dignified Manner; Safeguards; Immunities and Liabilities; Severability; and Form of the Request.(19)

   The General Provisions section consists of key definitions of words and phrases used in the Act.(20) Most importantly, the definition of "terminal disease" limits the availability of assisted suicide to a narrow group of patients--those with medically confirmed incurable, irreversible disease and a prognosis of less than six months to live.(21)

   The first section also defines an "incapable" patient as one who "lacks the ability to make and communicate health care decisions to health care providers."(22) Only an adult, Oregon resident able to make and communicate these decisions, and therefore deemed "capable" may request medication according to Section 2.(23) The patient must have a terminal disease as defined by Section 1; and this condition must have been diagnosed by an attending physician and confirmed by another physician.(24) Both physicians must agree that the patient is capable and has made the request voluntarily.(25)

   Two witnesses must also attest to the capability of the patient and the voluntary nature of the request.(26) Recognizing the pressures that terminal patients face, the statute requires that at least one witness must not be a family member, a person with an interest in the patient's estate, or a person connected with the health care facility where the patient is receiving treatment.(27) Moreover, the patient's attending physician may not be a witness.(28)

   The "Safeguards" section outlines the responsibilities of the attending and consulting physicians.(29) Either physician must refer the patient for "counseling" if the doctor believes the patient is "suffering from a psychiatric or psychological disorder, or depression causing impaired judgment."(30) Thus, not every patient is referred for counseling. Upon referral, a state licensed psychiatrist or psychologist counsels the patient.(31) This mental health professional must determine that the patient is free from mental illness causing impaired judgment before the patient receives medication for the purpose of suicide.(32)

   In order to minimize impulsive behavior, the DWDA specifies that a patient must make three requests, two oral and one written.(33) There must be a waiting period of at least fifteen days between the two oral requests.(34) After the written request, there is a forty-eight hour waiting period before a prescription may be written.(35) Immediately before writing the prescription, the physician must verify that the patient is making an informed decision.(36) That is, the patient must appreciate the relevant facts and the doctor must inform the patient of his diagnosis, prognosis, and the risks and probable result of taking the medication.(37) The patient also must be informed that he may rescind his request at any time.(38)

   Section 4 immunizes health care providers from liability if they have complied with the DWDA in good faith.(39) However, coercing or exerting undue influence on a patient to request medication for the purpose of suicide is defined as a Class A felony.(40)

   The sample form of the request requires only that the patient write his name and diagnosis in the appropriate blanks, initial next to the decision made by the patient about whether to inform family, and sign at the bottom of the form.(41) The form indicates that the patient understands his diagnosis, prognosis, and the nature of his request.(42) It also indicates that he understands that the outcome of the request will be to end his life "in a humane and dignified manner."(43) This is reiterated later with the words: "I expect to die when I take the medication to be prescribed."(44)

3. THE DEATH WITH DIGNITY ACT IN LIGHT OF MEDICAL KNOWLEDGE AND PRACTICE

   Physicians are trained to view suicidal ideation as a symptom of depression.(45) Indeed, to many psychiatrists, their job in treating suicidal patients is to help patients make adjustments so that suicide no longer seems necessary.(46) Yet the DWDA contradicts these notions by reflecting the belief that some terminally ill patients who are not mentally ill may nevertheless wish to die.(47)

   The Act excludes patients "suffering from a psychiatric or psychological disorder, or depression causing impaired judgment" from participating in PAS.(48) This construction is ambiguous. Did the authors of the DWDA intend to exclude all patients with any psychiatric or psychological disorders, or did they mean to prevent access to PAS by only the subset of patients with disorders causing impaired judgment?(49) Had the authors intended to exclude all mentally ill patients with or without impaired judgment, the additional clause excluding patients with "depression causing impaired judgment" would be redundant. Moreover, studies support allowing patients with psychiatric conditions that do not impact on their...