The doctor will see you for the last time now: physician-assisted suicide in Massachusetts.

• Author: Orlando, Stephen J.

"No one knows whether death may not be the greatest of all blessings for a man, yet men fear it as if they knew that it is the greatest of evils." (1)

1. INTRODUCTION

   Under early common law, many states punished assisted suicide as murder. (2) In 1994, however, the Supreme Court of Michigan drew a legal distinction between the concepts of murder and assisted suicide. (3) Despite this distinction, forty-seven states still prohibit physicians from assisting in a patient's death. (4) The justifications for this restriction include avoiding the possibility of abuse, preventing the risk of a slippery slope to involuntary euthanasia, or preserving the integrity of the medical profession. (5) The three states that allow the practice view physician-assisted suicide (P.A.S.) as a means of promoting patient autonomy and providing a merciful end-of-life option for terminally ill patients. (6)

   Presently, Massachusetts is in line with the majority of states in prohibiting P.A.S. (7) In September 2011, Attorney General Martha Coakley certified an initiative petition to legalize physician-assisted suicide. (8) The bill, known as the Massachusetts Death with Dignity Act (DWDA), would have allowed terminally ill patients to request and receive lethal dosages of medication to end their own lives. (9) Voters narrowly rejected the bill during the 2012 general election. (10)

   This Note will focus on the effects that a bill like the proposed DWDA might have on patient care in Massachusetts. (11) Specifically, this Note focuses on the effect of legalized physician-assisted suicide on patient autonomy, elder care, and the dignity of the medical profession. (12) This Note also discusses the potential future of end-of-life care, including active euthanasia and the availability of physician-assisted suicide to minors. (13)

2. HISTORY

   1. Definitions

      Regarding end-of-life care, there are three possible means of hastening death: passive euthanasia, physician-assisted suicide, and active euthanasia. (14) Passive euthanasia involves a health care practitioner allowing a terminally ill patient to die by withholding or withdrawing life support. (15) Passive euthanasia is the only death-hastening measure currently protected by the United States Constitution. (16) It differs from physician-assisted suicide and active euthanasia because the cause of death is an underlying disease rather than an affirmative action by the patient or physician. (17)

      P.A.S., the procedure discussed in this Note, occurs when a health care practitioner intentionally provides a patient with the medical means or knowledge needed to end his or her life. (18) A typical example of P.A.S. involves a physician purposefully prescribing a lethal dose of medication for a patient, who then ingests it to end his or her life. (19)

      Active euthanasia is the process by which a health care practitioner causes the patient's death through an affirmative act. (20) While a physician engaging in P.A.S. only provides the patient with the dosage of medicine, a practitioner engaged in active euthanasia injects the dosage directly into the patient's body. (21) Presently, no state allows a doctor to practice active euthanasia. (22)

   2. From Murder to Medicine: The Development of P.A.S. in the United States

      Under early common law, many states considered assisting suicide tantamount to murder. (23) For example, in People v. Roberts, the defendant's wife suffered from multiple sclerosis. (24) Upon his wife's request, the defendant poured a lethal mixture and placed it next to her bed. (25) The defendant's wife drank the deadly cocktail and died. (26) The Michigan Supreme Court upheld the defendant's first-degree murder conviction, reasoning that his conduct amounted to a deliberate, premeditated act done with the purpose of ending another person 's life. (27) The case gained significant attention throughout the country and around the world. (28)

      Roberts remained uncontested for seventy-four years until the case of People v. Kevorkian. (29) In Kevorkian, a doctor was found guilty of murder after providing lethal dosages of medicine to two patients, Sherry Miller and Marjorie Wantz. (30) On appeal, the Michigan Supreme Court explicitly overruled People v. Roberts and held that the state could not charge Dr. Kevorkian with murder merely for assisting in the patients' suicides. (31) The court reasoned that Dr. Kevorkian's actions did not meet the necessary elements of murder. (32) Specifically, the State lacked evidence that Dr. Kevorkian acted as the direct and natural cause of the patient's death. (33) While reversing the murder charges, the court held that nothing in the United States Constitution prohibited Michigan from passing a statute prohibiting assisted suicide. (34)

   3. Do Fear the Reaper: States Banning P.A.S.

      A number of states have avoided the issue faced by the Michigan Supreme Court by passing statutes classifying assisted suicide as manslaughter. (35) The majority of states, however, have passed statutes specifically criminalizing the act of assisting in another's suicide. (36) A handful of states, including Massachusetts, have simply ignored this issue and continue to punish assisted suicide under common law. (37) Nevada, Utah, and Wyoming have declined to punish assisted suicide under common law or through a statute, but none have affirmatively legalized the practice. (38)

      The first rationale for prohibiting physician-assisted suicide is the fear that a terminally ill patient is incapable of making a rational, informed decision about ending his or her life. (39) Opponents of P.A.S. argue that it is extremely difficult, if not impossible, to determine whether a terminally ill patient is choosing death rationally or as a result of pain or financial pressure. (40) Studies revealing significant under-diagnosis of depression in terminally ill patients support the concern that many seemingly competent patients are actually too emotionally unstable to make an informed decision. (41) Additionally, many patients may make the decision to end their lives based on fears about mounting medical bills. (42) Rather than promoting patient autonomy, P.A.S. would force patients to make decisions that they are mentally unable to handle. (43)

      A second reason for banning P.A.S. is the idea that the procedure violates the integrity of the medical profession. (44) Opponents argue that legalizing P.A.S. transforms doctors from healers into killers, perverting the role of medicine and violating the Hippocratic Oath. (45) Some states have begun to address this concern by proposing legislation that would allow a physician to refuse to perform medical procedures that contradict his or her fundamental beliefs or conscience. (46) Critics of this argument point out that much of the original language of the Hippocratic Oath is outdated and no longer applicable to current medical practices. (47)

      The third argument for banning P.A.S. is preventing a slippery slope towards involuntary euthanasia. (48) The concern is that by legalizing P.A.S., the right to die would quickly become an obligation to die. (49) Opponents of P.A.S. point out that this fear is particularly alarming with regard to elderly and disabled patients, whose lives may be viewed as less valuable and potentially "disposable" even against the wishes of the patient. (50) In support of this position, a 2010 poll revealed that sixteen percent of physicians would halt life-sustaining treatment of a patient at the request of the patient's family, even if the physician believed it was premature. (51)

   4. Swing and Miss: Failed Attempts to Legalize P.A.S. in the United States

      Despite the underlying concerns leading to a ban on assisted suicide by most of the country, twenty-five states presented legislative proposals to legalize P.A.S. between 1994 and 2011. (52) In 2000, Maine nearly legalized P.A.S. (53) Voters rejected the proposal by a vote of fifty-one percent to forty-nine percent. (54) Strong opposition by both the Maine Medical Association and religious groups contributed to the bill's defeat. (55)

   5. States Legalizing P.A.S.

      In 1994, voters made Oregon the first state to legalize P.A.S. by passing the Oregon Death with Dignity Act (ODDA). (56) The ODDA was the first successful attempt to legalize P.A.S., and it did not come without controversy. (57)

      The ODDA includes a number of restrictions and limitations designed to address concerns about patient abuse and duress. (58) The ODDA does not mandate P.A.S. and allows any physician or hospital to refrain from engaging in the practice. (59)

      In the first year of availability, twenty-three patients requested and received lethal prescriptions. (60) Fifteen died from the prescription; six died from their underlying illness; two were alive at the end of the year. (61) Patients from the first year primarily cited a fear of losing autonomy or control over bodily functions as the reasons for their decision to request medication. (62)

      In the second year, thirty-three patients received lethal prescriptions. 63 Twenty-six patients died from the dosage, while five died from their underlying illness. (64) Two patients were still alive at the conclusion of the study. (65) The patients' primary reasons for choosing P.A.S. included loss of autonomy (81%); decreased ability to participate in enjoyable activities (81%); desire for control over the manner and time of death (74%); loss of control of bodily functions (68%); and physical suffering (53%). (66)

      Despite initial concerns that the ODDA would open up floodgates to patient suicide, utilization of the procedure remained relatively low during the first ten years of availability. (67) Fears that Oregon's Act targeted the poor and uneducated appear to have been misguided, as studies revealed that a majority of patients choosing P.A.S. were well educated and financially stable. (68) Although divorced and single adults request P.A.S. more than married patients, data...