Medical treatment rights of older persons and persons with disabilities: 1993-94 developments.

• Author: Avila, Daniel

This article reviews legal developments from the beginning of October 1993 to the end of December 1994. It addresses assisted suicide and health care access and decisionmaking with particular concern for the interests of persons with disabilities.

Assisted Suicide

In the past year several courts issued opinions on the constitutionality of criminal prohibitions of assisted suicide, and one state enacted by initiative a statute decriminalizing assisted suicide in certain circumstances, which was then challenged in court by opponents of assisted suicide. These developments raise questions regarding the interests of persons with disabilities, particularly those diagnosed as having terminal conditions.

Kevorkian & Hobbins (Michigan) and Quill v. Koppell (New York)

Proponents of assisted suicide challenged laws in three states providing for criminal penalties against suicide assistance by asserting a constitutional right to request and to deliver suicide assistance. The Michigan Supreme Court and a federal district court in New York found that the United States Constitution did not recognize such a right.(1) However, a federal district court in the state of Washington found for the plaintiffs and invalidated that state's criminal prohibition on constitutional grounds.(2)

The original claimants in these cases consisted of (1) persons with terminal conditions alleging a desire for the option to commit suicide by consuming a lethal overdose of drugs,(3) (2) several physicians willing to prescribe lethal drug overdoses, (3) a physician investigated by a grand jury but not indicted for prescribing a lethal drug overdose for a patient who used the drugs to kill herself,(4) and (4) a former physician facing criminal charges for allegedly assisting in several suicides by providing lethal amounts of medications or poisonous gases.(5)

The claimants asserted that prior decisions on abortion and the refusal of medical treatment by the United States Supreme Court supported their claim of a constitutional right to assisted suicide.(6) The court in Washington agreed that such a right was protected by the U.S. Constitution's fourteenth amendment,(7) while the Michigan and New York courts rejected this claim because a right to suicide was neither "implicit in the concept of ordered liberty nor deeply rooted in history and tradition."(8) The losing parties in all these cases filed or planned to file appeals at the time this article was written.

These cases present an issue of particular concern to persons with disabilities. The claimants in each case asserted a right to assisted suicide for persons with terminal conditions.(9) The court in Compassion in Dying concluded that assisted suicide was a protected right for this class of persons because, in its opinion, the state had an interest in preventing suicide "for young people and others with a significant natural life span ahead of them" but had no overriding interest in protecting persons with terminal conditions.(10) The court asserted that

this case is not about people for whom suicide would abruptly cut life

short. Plaintiffs in this case are people suffering through the final stage

of life with no hope of recovery. As to them, preventing suicide simply

means prolonging a dying person's suffering, an aim in which the State

can have no interest.(11)

A similar condition-based standard was employed by a trial court in one of the criminal cases heard by the Michigan Supreme Court. In People v. Kevorkian,(12) the trial court created the following standard for determining when an individual would possess a fundamental right to commit suicide:

[W]hen a person's quality of life is significantly impaired by a medical

condition and the medical condition is extremely unlikely to improve,

and that person's decision to commit suicide is a reasonable response to

the condition causing the quality of life to be significantly impaired,

and the decision to end one's life is freely made without undue

influence, such a person has a constitutionally protected right to

commit suicide.(13)

The Michigan Supreme Court rejected this standard and held that the state's interest in protecting persons from suicide was unqualified:

In this regard, we observe that a right of personal autonomy cannot

exist independent of a recognition of human dignity, and that it would

violate the concept of human dignity to measure the value of a person's

life by that person's physical and mental condition.... Further, because

all persons possess a basic right to personal autonomy, regardless of

their physical or mental condition, there would be no principled basis

for restricting a right to commit suicide to the terminally ill. The

inevitability of death adds nothing to the constitutional analysis.(14)

The National Legal Center for the Medically Dependent & Disabled, Inc., represented several amici in the Compassion in Dying and Hobbins cases.(15) The amici asserted that persons with disabilities, including those with terminal conditions, benefited from state laws against assisted suicide that applied to all persons regardless of condition. They opposed an interpretation of the U.S. Constitution that would force states to create a condition-based exception to criminal prohibitions of assisted suicide. They argued that such an exception would stigmatize persons within the class as lives not worthy of equal protection. They also contended that constitutionalizing a right to assisted suicide would render such a right inherently expansive and would result in the eventual removal of criminal and civil protections from other categories of persons with disabilities based on quality of life considerations.

Lee v. Oregon (Oregon)

A similar issue has arisen in a lawsuit challenging the constitutionality of an Oregon statute decriminalizing assisted suicide for persons with terminal conditions that was adopted by voter initiative in November 1994. Oregon voters approved Ballot Measure 16, the Oregon Death with Dignity Act, by a margin of fifty-one percent to forty-nine percent.(16) The act provides:

An adult who is capable, is a resident of Oregon, and has been

determined by the attending physician and consulting physician to be

suffering from a terminal disease, and who has voluntarily expressed his

or her wish to die, may make a written request for medication for the

purpose of ending his or her life in a humane and dignified manner in

accordance with this Act.(17)

The act grants physicians legal immunity against criminal and civil sanctions(18) for providing "a prescription [of medication] to end . . . life in a humane and dignified manner"(19) to persons with "an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six (6) months."(20)

A group of physicians, persons with terminal conditions, and owners and operators of residential care facilities have sued in federal court to enjoin the act from going into effect.(21) According to the plaintiffs:

This action seeks a declaratory judgment of unconstitutionality and

unlawfulness of recently-enacted Oregon Ballot Measure 16 ... which

permits physicians to assist persons who have the disability of a

terminal disease to commit suicide.... By making an exception to the

laws of Oregon protecting individuals from injury to themselves and

from assistance in suicide, Ballot Measure 16 violates the constitutional

guarantees to persons who have the disability of a terminal disease of

the equal protection of the law and due process with regard to the

fundamental right of an individual to live and his or her liberty interest

in receiving life-sustaining treatment. Measure 16 also violates the free

exercise of religion rights under the First Amendment to the United

States Constitution and the Religious Restoration Act, and the First

Amendment right to association, of individuals who are morally

opposed to assisted suicide but will be subject to having assisted suicide

performed in facilities which they own or operate, and of health care

providers who do not wish to advise patients of their right to assisted

suicide in admitting them or obtaining informed consent, and of

physicians who do not wish to be complicit in assisted suicide by

transferring medical files to a physician who has agreed to assist a

patient in suicide. Ballot Measure 16 also violates the Americans with

Disabilities Act (ADA), and, to the extent the statute applies to federally

funded programs, Section 504 of the Rehabilitation Act of 1973, by

discriminating against persons with disabilities. Ballot Measure 16 is

also unconstitutionally vague and denies equal protection of the law, in

violation of the Due Process Clause of the Fourteenth Amendment,

because it creates an arbitrary, unreasonable...