Reynolds: Losing the Quality of Life

343

Losing the Quality of Life: The Move Toward Societys Understanding and Acceptance of Physician Aid-in-Dying

and the Death with Dignity Act

LINDSAY REYNOLDS

ABSTRACT

During the November 2012 elections, Massachusetts voters rejected the Death With Dignity initiative. Closely modeled after Oregons Death With Dignity Act (DWDA), Massachusetts is one among many other states that attempted to legalize physician aid-in-dying for the terminally ill.

This Note champions the policy behind the Oregon and Washington legislation and argues that all states should allow physician aid-in-dying from the right-to-personal-autonomy and compassionate standpoints. By first discussing the background and legalization of physician aid-in-dying, Part I outlines the Oregon and Washington DWDA statutory provisions. Part II discusses the major obstacles to the DWDAs widespread enactment in the United States. Part III analyzes statistical findings and studies, and argues that the law as it stands in Oregon and Washington provides adequate safeguards against abuse. Part IV addresses the influence and cross between religious beliefs and physician aid-in-dying. Part V elaborates on the right-to-personal-autonomy argument, and further argues that the DWDA should extend to those who do not have a terminal illness. Finally, Part VI provides a broad inquiry into the potential overlap between the law of wills and that of the right to physician aid-in-dying.

Candidate for Juris Doctor, New England Law | Boston 2014. B.S., Public Relations,

University of Idaho 2006. I would like to thank my parents, Paul and Leslye, for their

unconditional love and support, and to all of my friends who have made me laugh along the

way.

344 New England Law Review v. 48 | 343

INTRODUCTION

uring the November 2012 elections, Massachusetts voters rejected ballot Question 2, the Death With Dignity initiative.1 The Massachusetts measure closely resembled Oregons Death with

Dignity Act.2 Massachusetts is one among many states that attempted to pass legislation legalizing physician aid-in-dying for the terminally ill.3 Three statesOregon, Washington, and Vermontsuccessfully enacted legislation allowing individuals to determine the date of their death.4 Additionally, the Montana Supreme Court found that physician aid-in-dying does not violate public policy.5 This Note focuses on Oregon and Washingtons treatment of physician aid-in-dying, and champions the policy behind the Oregon and Washington legislation, arguing that all states should allow physician aid-in-dying from both right-to-personal-autonomy and compassionate standpoints.6

This Note argues that the Death with Dignity Acts (DWDA) nemesis is religion.7 The obstruction to ones right to die must end.8 Religious affiliates abuse their powertrampling on an individuals right to determine their

1 Paula Span, How the Death With Dignity Initiative Failed in Massachusetts, THE NEW OLD

AGE BLOG (Dec. 6, 2012, 6:53 AM), available at 2012 WLNR 25933598. 2 Christine Roberts, Massachusetts Voters Narrowly Defeat Question 2, Measure that Would

Have Allowed Physician-Assisted Suicide for Terminally Ill Patients, N.Y. DAILY NEWS (Nov. 7, 2012,

8:38 PM), http://www.nydailynews.com/life-style/health/mass-votes-physician-assisted-

suicide-article-1.1198305. 3 See Kathryn L. Tucker, When Dying Takes Too Long: Activism for Social Change to Protect and

Expand Choice at the End of Life, 33 WHITTIER L. REV. 109, 115 (2011) [hereinafter When Dying Takes

Too Long]. California voters considered a ballot measure with terms similar to Oregons Death

with Dignity Act, which failed to pass by a small margin. Id. After the November 2012 election,

Vermonts governor Peter Shumlin voiced his belief that Vermont would pass a death-with-

dignity law. Span, supra note 1. New Jersey is also entertaining efforts to pass similar legislation.

Lewis M. Cohen, Massachusetts Vote May Change How the Nation Dies, SLATE (Oct. 29, 2012, 7:00

AM), http://www.slate.com/articles/health_and_science/medical_examiner/

2012/10/massachusetts_death_with_dignity_2012_kevorkian_and_humphry_started_the.html. 4 State-by-State Guide to Physician-Assisted Suicide, PROCON.ORG (last updated on May 28,

2013, 3:49 P.M.), http://euthanasia.procon.org/view.resource.php?resourceID=000132. 5 Baxter v. State, 2009 MT 449, 1726, 224 P.3d 1211. 6 See When Dying Takes Too Long, supra note 3, at 12123. 7 See generally Amy M. Burdette et al., Religion and Attitudes Toward Physician-Assisted

Suicide and Terminal Palliative Care, 44 J. SCI. STUDY RELIGION 79, 7991 (2005) (discussing

religions influence on attitudes toward physician aid-in-dying and palliative care). 8 See generally Span, supra note 1 (discussing potential causes for the failure of the

Massachusetts Death with Dignity initiative).

D

2014 Losing the Qual i ty o f L i f e 345

futurethus extinguishing any hope of enacting the DWDA.9 Furthermore, a review of the past decade of the Oregon statute shows no known cases of coercion, undue influence, or harm to those who are most vulnerable.10 Despite concerns of skeptics, the sky has not fallen; [and] civilization in the Northwest remains intact . . . .11

Part I of this Note discusses the background of physician aid-in-dying, including the terminology and case law surrounding the legalization of physician aid-in-dying. Part I also outlines the Oregon and Washington DWDA statutory provisions and reported statistics since its enactment in those states. Discussion of other countries laws and views on physician aid-in-dying and euthanasia is also included in Part I. Finally, Part I concludes with a look at the DWDAs major opponents. Part II discusses the major obstacles to the DWDAs widespread enactment throughout the United States. Part III discusses further statistical findings and studies that fail to uncover any known cases of undue influence or coercion on vulnerable groups, thereby making the slippery-slope arguments unconvincing. Part III continues to argue that the law as it stands in Oregon and Washington provides adequate safeguards against such abuse. Part IV discusses religions influence on voters and the ethical and moral issues surrounding the interplay between religious beliefs and physician aid-in-dying. Part IV argues that religious affiliates needlessly abuse the freedom of religion to impinge on others rights to autonomy and their ability to make end-of-life care decisions. Part V elaborates on the right-to-personal-autonomy argument and will argue that the right to physician aid-in-dying can be found within the penumbras of the U.S. Constitution. Further, Part V argues that the DWDA should extend to those who are not terminally ill, and the Act would most likely gain more supporters if it were not exclusive in this aspect. Finally, Part VI provides a broad inquiry into the potential overlap between the law of wills and the right to physician aid-in-dying, and the aspects of the law of wills that could apply to the new law surrounding the right to die and making end-of-life care decisions.

I. Background

A. Terminology: Euthanasia, Physician-Assisted Suicide, and Aid-in-

9 See generally id. (discussing uphill battles with religious voters in Massachusetts). 10 See generally OR. PUB. HEALTH DIV., OREGONS DEATH WITH DIGNITY ACT 12 (2012),

available at http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/

DeathwithDignityAct/Documents/year15.pdf [hereinafter OR. DWDA REPORT] (summarizing

the statistics). 11 Cohen, supra note 3.


Dying

It is argued that Oregons DWDA primarily exists because the law does not permit active euthanasia; rather, the law requires the individual to self-administer the medication.12 Commentators define voluntary active euthanasia as: Intentionally administering medications or other interventions to cause the patients death at the patients explicit request and with full informed consent.13 Indeed, it was noted that euthanasia acquired strong negative moral connotations over the last century owing to assumptions that such a good death can be brought about only through violating religious, professional, and social inhibitions against killing.14

DWDA proponents, who sometimes have personal experiences with a family member dying from a terminal illness, champion using terminology such as aid-in-dying or end-of-life care, rather than the assisted suicide language used by many DWDA opponents.15 The latter is perceived to be offensive, connoting an immoral act where proponents argue to the contrarythat the DWDA allows a humane and dignified death.16 The term euthanasia strayed from its classically informed meaning and etymological roots of easy, painless, happy death.17 DWDA proponents emphasize the use of the term aid-in-dying to resemble this classical meaning.18 Moreover, the statutory language used in Oregon and Washington state that actions taken under the DWDA laws do not constitute

12 See OR. REV. STAT. ANN. 127.880 (West, Westlaw through 2013 Reg. and Spec. Sess.

legislation effective through 10/8/13) (Nothing in [the Oregon statutes] shall be construed to

authorize a physician or any other person to end a patients life by lethal injection, mercy killing

or active euthanasia.) (emphasis added). 13 ROBIN LUNGE ET AL., OREGONS DEATH WITH DIGNITY LAW AND EUTHANASIA IN THE

NETHERLANDS: FACTUAL DISPUTES 2 (2004), available at http://www.leg.state.vt.us/reports/

05Death/Death_With_Dignity_Report.htm. 14 Courtney S. Campbell, Aid-in-dying and the Taking of Human Life, 18 J. MED. ETHICS 128,

128 (1992). This argument also finds support in studying societys view of the infamous Dr.

Death, Jack Kevorkian, who released a recording of himself assisting patients with ending their

life by a form of euthanasia. See KEVORKIAN (Bee Holder Productions, 2010) (providing a more

detailed discussion of Jack Kevorkian and his efforts to legalize assisted suicide). 15 See When Dying Takes Too Long, supra note 3, at 11213, 15455. 16 Id. at 15456 (Opponents of aid-in-dying refer to the practice as assisted suicide. This

term is offensive to patients and their families, and has been rejected by a broad range of

medical and health policy groups which recognize that the term assisted suicide is inaccurate

and value laden.). 17 Campbell, supra note 14 (explaining that the term euthanasia entered the English

language in 1646 with the meaning of easy, painless, happy death). 18 See id.


suicide, and suicide shall not be used when referring to the DWDA.19 Thus, the terms aid-in-dying, dignified death, or humane death are used for this Notes purposes.20

B. The Presumption Against Taking Human Life:21 Case Law Leading to the DWDA

How has societys view of death and dying changed throughout time? Has it changed? Humans ancestors thought life is worth living22 and, arguably, the basic human instinct presumptively favors survival rather than extinction:

[T]he dominant perspective towards the taking of human life, whether by

oneself or other, as conveyed in the religious, philosophical, professional,

and legal traditions from which society gains its moral bearings . . . [states

there is] an affirmative responsibility for the protection, preservation, and

promotion of human life, and a strong presumption against the taking of

human life.23

Furthermore, liberal political cultures have, in varying degrees, recognised [sic] three principal scenarios as valid exceptions to the prohibition of taking

19 E.g., WASH. REV. CODE ANN. 70.245.180 (West, Westlaw through all 2013 legislation)

(Actions taken in accordance with this chapter do not, for any purpose, constitute suicide,

assisted suicide, mercy killing, or homicide, under the law. State reports shall not refer to

practice under this chapter as suicide or assisted suicide.); see also Scott Helman, Should

People Have the Right to Die?, THE BOS. GLOBE (Apr. 29, 2012), http://www.bostonglobe.com

/magazine/2012/04/29/massachusettts-death-with-dignity-act-that-would-legalize-physician-

assisted-suicide-expected-decided-november-

ballot/ljEGuMYnF1TAKgRTTMKYNO/story.html (explaining that under the Oregon and

Washington DWDA laws, decedents death certificates would not use the word suicide to

describe their death, rather the death certificates would list the underlying illness as the cause

of death). 20 See When Dying Takes Too Long, supra note 3, at 15455 (Leading health policy

organizations . . . also addressed the terminology issue, recognizing that the term "suicide" or

"assisted suicide" is inappropriate when discussing the choice of a mentally competent

terminally ill patient to seek medications that he or she could consume to bring about a peaceful

and dignified death.). Furthermore, using the phrase physician-assisted suicide or assisted

suicide is misleading as the Oregon statute explicitly conveys: Actions taken in accordance

[with the applicable statutory provisions] shall not, for any purpose, constitute suicide [or]

assisted suicide . . . under the law. See OR. REV. STAT. ANN. 127.880 (West, Westlaw through

2013 Reg. and Spec. Sess. legislation effective through 10/8/13). 21 See generally Campbell, supra note 14, at 130 (explaining the theory behind the

presumption against taking human life). 22 F.C.S. Schiller, Truth and Survival Value, 15 J. PHIL. PSYCHOL. SCI. METHODS 505, 513

(1918). 23 Campbell, supra note 14, at 130; see also Schiller, supra note 22.


human life, namely, self-defence [sic], capital punishment and just war.24

Arguably, early case law reflects this presumption against taking human life and champions the dominant perspective toward the taking of human life, i.e., punishing suicide or those who assist a person committing suicide.25 Controversy over the right to die dates back to England and the original thirteen American colonies.26 In English practice, followed by the original American colonies, an abettor (someone present during a suicide attempt) would often receive a harsher punishment than the suicidal offender.27

More recently, in the seminal case, Cruzan v. Director of Missouri Department of Health, the Supreme Court reviewed whether a person has a constitutional right to die.28 The Court held that competent adults have a constitutional right to refuse medical care and a state may require clear-and-convincing evidence that patients wanted their treatment terminated before it is cut off.29 Many courts and legal scholars defend the line between letting someone die and actively intervening to promote or bring about death.30 [F]or over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide.31 Those are Chief Justice Rehnquists words, writing for the Court in Washington v. Glucksberg, wherein the majority rejected the claim that the Washington law prohibiting assisted suicide violated a fundamental right

24 Campbell, supra note 14, at 130. 25 See, e.g., Gilbert v. Florida, 487 So. 2d 1185, 118687 (Fla. Dist. Ct. App. 1986) (affirming

defendants conviction for premeditated murder of his wife who had osteoporosis and

Alzheimers Disease and who, defendant contends, begged him to end her life); Aven v. State,

277 S.W. 1080, 1081 (Tex. Crim. App. 1925) ([W]hen an indictment charges that the appellant

administered the poison and caused the deceased to swallow it with intent on his part to kill

and injure here, and that he did thereby kill her with malice aforethought, this sufficiently

negatives the idea that appellant merely prepared the poison and went no further, and that the

deceased thereafter took it herself with suicidal intent.). 26 Anne Marie Su, Physician Assisted Suicide: Debunking the Myths Surrounding the Elderly,

Poor, and Disabled, 10 HASTINGS RACE & POVERTY L. J. 145, 14748 (2013). 27 Id. at 148. 28 497 U.S. 261, 261 (1990). 29 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 871 (4th ed. 2011). 30 See Yale Kamisar, Against Assisted SuicideEven a Very Limited Form, 72 U. DET. MERCY L.

REV. 735, 75455 (1995) (There are significant moral and legal distinctions between letting die

(including the use of medications to relieve suffering during the dying process) and killing

(assisted suicide/euthanasia). In letting die, the cause of death is seen as the underlying disease

process or trauma. In assisted suicide/euthanasia, the cause of death is seen as the inherently

lethal action itself.) (quoting COORDINATING COUNCIL ON LIFE-SUSTAINING MEDICAL

TREATMENT DECISION MAKING BY THE COURTS (U.S.) ET AL., GUIDELINES FOR STATE COURT

DECISION MAKING IN LIFE-SUSTAINING MEDICAL TREATMENT CASES 145 (2d ed. 1993)). 31 Washington v. Glucksberg, 521 U.S. 702, 711 (1997).


protected under the due process clause.32 The Supreme Courts decision reversed the United States Court of Appeals for the Ninth Circuit, which found that the Constitution encompasses a due process liberty interest in controlling the time and manner of ones deaththat there is, in short, a constitutionally recognized right to die.33 However, the Court left the door open for future legal protection of a right to physician-assisted death: Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.34 Oregon was the first to pass through that door with its enactment of the Death with Dignity Act.35

C. Oregons Death with Dignity Act

1. DWDA Statutory Provisions

Oregons DWDA was enacted over a decade ago.36 Still, many are not aware of its statutory provisions or what patients and physicians must do before any medications can be prescribed.37

Provisions taken from Oregons DWDA require: a written request for medication to end ones life; that is made by capable adults who are 18 or older; who were determined by both an attending physician (defined as the primary-care physician) and a consulting physician (defined as a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patients disease38) to be suffering from a terminal disease; and who voluntarily expressed their wish to die.39 A valid request must be witnessed by at least two individuals who attest that . . . the patient is capable, acting voluntarily, and is not being coerced to sign the request.40 Section 127.815 of the Oregon Revised Statutes lists the

32 CHEMERINSKY, supra note 29, at 87374 (Despite changes in medical technology and

notwithstanding an increased emphasis on the importance of end-of-life decision-making, we

have not retreated from this prohibition [of assisting suicide].) (alteration in original). 33 Compassion in Dying v. State, 79 F.3d 790, 816 (9th Cir. 1996) revd sub nom. Washington

v. Glucksberg, 521 U.S. 702 (1997). 34 Glucksberg, 521 U.S. at 735. 35 See id. at 717. 36 When Dying Takes Too Long, supra note 3. 37 See generally OR. REV. STAT. ANN. 127.815127.865 (West, Westlaw through 2013 Reg.

and Spec. Sess. legislation effective through 10/8/13) (outlining specific safeguards a

physician and patient must abide by prior to a prescription being delivered). 38 Id. 127.800(4) (Westlaw). 39 Id. 127.800805 (Westlaw). 40 Id. 127.810(1) (Westlaw). Furthermore, a witness cannot be: a blood relative; spouse or


responsibilities of the attending physician, which include but are not limited to: determining if the patient suffers from a terminal disease, is capable, and made the request voluntarily;41 ensuring the patient is making an informed decision;42 referring the patient to another physician for a second opinion and confirmation; recommending the patient notify next of kin; informing the patient that he or she may rescind the request at any time and in any mannerand offer[ing] the patient an opportunity to rescind at the end of the 15 day waiting period pursuant to ORS 127.840; [c]ounsel[ing] the patient about the importance of having another person present when the patient takes the medication . . . and of not taking the medication in a public place; verifying the patients informed decision before writing the prescription; and dispensing the medications directly.43 The patient must reiterate their oral request to end their life to his or her attending physician no less than fifteen (15) days after making the initial oral request and, at the time of the second request, the attending physician shall offer the patient an opportunity to rescind the request.44 Finally, the statute provides immunity to civil and criminal liability or professional disciplinary action;45 however, the statute also provides potential liabilities.46

2. 2012 Statistics

Pursuant to Oregons Death with Dignity Act, the Oregon Health Authority (OHA) is required to annually review a sample of records, which reflect current statistics on various DWDA factors including how many people obtained life-ending medication, who actually used the medication, and a consensus of who is electing to take the medication.47 Included in the 2012 annual report are the following findings:

adopted child; a person entitled to any portion of the estate upon the patients death; an owner,

operator or employee of a health-care facility where the qualified patient is receiving medical

treatment or is a resident; or the attending physician at the time of the request. Id. 127.810(2)

(Westlaw). 41 Id. 127.815(1)(a) (Westlaw). 42 Id. 127.815(1)(c) (Westlaw). The physician must inform the patient of: the medical

diagnosis; prognosis; potential risks associated with taking the medication prescribed; [t]he

probable result of taking the medication to be prescribed; and [t]he feasible alternatives, including,

but not limited to, comfort care, hospice care[,] and pain control. Id. (emphasis added). 43 OR. REV. STAT. ANN. 127.815 (West, Westlaw through 2013 Reg. and Spec. Sess.

legislation effective through 10/8/13). 44 Id. 127.840 (Westlaw). 45 Id. 127.885(1)(2) (Westlaw). 46 Id. 127.885, 127.890 (Westlaw). 47 See id. 127.865; OR. ADMIN. R. 333-009-0010 (West, Westlaw through rules published in

the Oregon Bulletin dated August 1, 2013); OR. DWDA REPORT, supra note 10, at 12, 46.


Since the law was passed in 1997, a total of 1,050 people have had DWDA

prescriptions written and 673 patients have died from ingesting

medications prescribed under the DWDA [(64%)]. . . . Of the 77 DWDA

deaths during 2012, most (67.5%) were aged 65 years or older; the median

age was 69 years. As in previous years, most participants were white

(97.4%), well educated (42.9% had at least a baccalaureate degree), and had

cancer (75.3%). . . . Excluding unknown cases, all (100%) had some form of

health care insurance, although the number of patients who had private

insurance (51.4%) was lower in 2012 than in previous years (66.2%), and

the number of patients who had only Medicare or Medicaid insurance was

higher than in previous years (48.6% compared to 32.1%). . . . The three

most frequently mentioned end-of-life concerns were: loss of autonomy

(93.5%), decreasing ability to participate in activities that made life

enjoyable (92.2%), and loss of dignity (77.9%). . . . During 2012, no referrals

were made to the Oregon Medical Board for failure to comply with DWDA

requirements.48

Finally, the Oregon Public Health Divisions report indicates that roughly one-third of those who received DWDA prescriptions died without taking the prescribed medication.49

D. Washingtons Death with Dignity Act

On November 4, 2008, Washington voters passed Initiative 1000, which went into effect on March 5, 2009.50 Washington enacted the DWDA after Oregon, however in 1991 Washington voters were the first in the nation to consider allowing aid-in-dying legislation.51 DWDA advocates in Washington have been at the forefront of the fight for the right to die.52

1. Statutory Provisions and Recent Statistics

Washingtons DWDA statutory provisions closely resemble Oregons with a few small differences.53 Washington, like Oregon, requires the States

48 OR. DWDA REPORT, supra note 10 at 23. 49 See id. at 1 fig. 1 (showing an interesting look at a chart diagram of DWDA prescription

recipients compared with DWDA deaths for each year beginning in 1998 to 2012). 50 WASH. STATE DEPT OF HEALTH, DEATH WITH DIGNITY ACT REPORT 12 (2011), available at

http://www.doh.wa.gov/YouandYourFamily/IllnessandDisease/DeathwithDignityAct.aspx

[hereinafter WASH. DWDA REPORT]; see also Cyndi Bollman, A Dignified Death? Dont Forget

About the Physically Disabled and Those Not Terminally Ill: An Analysis of Physician-Assisted Suicide

Laws, 34 S. ILL. U. L.J. 395, 403 (2010). 51 Kathryn L. Tucker, In the Laboratory of the States: The Progress of Gluckbergs Invitation to

States to Address End-of-Life Choice, 106 MICH. L. REV. 1593, 1607 (2008) [hereinafter In the

Laboratory of the States]. 52 See id. 53 See, e.g., WASH. REV. CODE ANN. 70.245.150 (West, Westlaw current with all 2013


Department of Health to annually review and report statistical information collected pursuant to the State statute.54

The Washington State Department of Healths 2011 report made some

key findings on the DWDA.55 During the first year the DWDA took effect in 2009, there were sixty-five participants who were prescribed medication, of which sixty-three people died.56 In 2010, eighty-seven people requested life-ending medication, of which eighty-four died.57 In 2011, 103 patients were prescribed life-ending medication,58 of which ninety-four individuals died, seventy after ingesting the medication.59 The ninety-four participants who died in 2011 had end-of-life concerns, including: loss of autonomy (87%); loss of dignity (79%); and loss of the ability to participate in activities that make life enjoyable (89%).60 In 2011, 94% of the participants were Non-Hispanic White; 46% achieved a baccalaureate or higher; 78% contracted cancer; private insurance covered 34%; Medicare or Medicaid covered 40%; and a combination of private insurance and Medicare or Medicaid covered another 13%.61

E. The Remaining States

Why were Oregon and Washingtonstates in the Pacific Northwestable to pass the DWDA while states in the Midwest or the East could not?62 Cultural differences?63 Location?64 As mentioned earlier, Massachusetts voters rejected the Death with Dignity Act initiative in the November 2012 election.65 The law proposed in Massachusetts closely resembled Oregon and Washingtons DWDA, and would have allowed physicians to prescribe

legislation) (requiring that medication unused under the DWDA be disposed of by lawful

means); see also Bollman, supra note 50, at 40204 (2010) (discussing the Washington and

Oregon statutes). 54 See 70.245.150 (Westlaw).

55 WASH. DWDA REPORT, supra note 50, at 4. 56 Id. 57 Id. 58 Id. at 1. 59 Id. 60 Id. at 4. 61 WASH. DWDA REPORT, supra note 50, at 5. 62 See Cohen, supra note 3. 63 See generally Helman, supra note 19 (identifying the strength and popularity of the

Catholic Church in Massachusetts as a hurdle for local supporters of the DWDA). 64 See Cohen, supra note 3. 65 See Span, supra note 1.


end-of-life medication to qualified patients.66 Despite early polls showing at least 60% voter support for the Massachusetts law, many speculate as to why voters rejected it.67 A member of a public-relations and lobbying firm, which opposed passing the DWDA in Massachusetts, hypothesized: If the proponents could pass this in 40-percent-Catholic Massachusetts, theyd be running through the other states within five years . . . .68 And the states are certainly lined up to do so.69 Legislative attempts occurred in Maine, New Hampshire, and New Jersey.70 Kansas and Pennsylvania are currently drafting bills favoring aid-in-dying laws similar to Oregon and Washingtons laws.71

F. International Perspective on Physician Aid-in-Dying: The Netherlands, Switzerland, and the United Kingdom

When Oregon passed its DWDA in 1994, only two countries legalized methods of aid-in-dying: the Netherlands and Switzerland.72

The Kingdom of the Netherlands is a constitutional monarchy.73 It harbors some of the most liberal laws in the world including laws associated with hashish, marijuana, and prostitution.74 In 2002, the Netherlands ceased punishing euthanasia.75 The Netherlands defines euthanasia as the termination of life by the administration of drugs by a physician at the request of a patient.76 The Act, introduced in April 2002, states that physicians who perform euthanasia are no longer punishable provided they have acted according to the due care criteria and reported the patients death

66 Compare 2012 Information for Voters: Full Text of Question 2, SECRETARY OF THE

COMMONWEALTH OF MASSACHUSETTS, http://www.sec.state.ma.us/ele/ele12/ballot_questions_

12/full_text.htm#two (last visited Nov. 21, 2013), with OR. REV. STAT. ANN. 127.815127.865

(West, Westlaw through 2013 Reg. and Spec. Sess. legislation effective through 10/8/13), and

WASH. REV. CODE ANN. 70.245.150 (West, Westlaw current with all 2013 legislation). 67 See Span, supra note 1. 68 Id. (quoting Joe Baerlein from the firm Rasky Baerlein). 69 See Helman, supra note 19. 70 Id. 71 Death with Dignity Around the U.S., DEATH WITH DIGNITY NATL CTR. (last updated Sept.

17, 2013), http://www.deathwithdignity.org/advocates/national. 72 See HOW TO DIE IN OREGON (Peter Richardson 2011), available at http://www.howto

dieinoregon.com/see-the-film.html. 73 Lara L. Manzione, Is There a Right to Die?: A Comparative Study of Three Societies (Australia,

Netherlands, United States), 30 GA. J. INTL & COMP. L. 443, 452 (2002). 74 Id. at 453. 75 See J.A.C. Rietjens et al., Judgment of Suffering in the Case of a Euthanasia Request in the

Netherlands, 35 J. MED. ETHICS 502, 502 (2009). 76 Id.


to one of the five regional euthanasia review committees.77 A euthanasia review committee consists of a legal expert, a physician, and an ethicist, who are assisted by a lawyer.78 The assessment of whether a patients suffering is unbearable, a criteria that must be met by general physicians, is most problematic for physicians in the Netherlands.79 A study of these physicians decisions found:

What can be objectively determined is the underlying disease and the

accompanying symptoms and loss of function. However, the question of

whether the symptoms of suffering become unbearable, and if so when,

ultimately depends on the experience of the person who is suffering, and

hence is an individual matter. Suffering is determined by the patients

personality, physical and mental perseverance, history and perceptions of

the future. Therefore, what is still bearable to one person may be

unbearable to another.80

It is important to contrast euthanasia from physician aid-in-dying.81 As explained in Part I.C, the key aspect of Oregon and Washingtons laws is that the medication must be self-administered, thus the patients are ultimately responsible for ending their own lives.82 In the Netherlands, the physicians administer the medications, which ultimately end the patients life.83

Swiss law condones aid-in-dying and allows non-physicians to perform the life-ending act.84 The Swiss rely on charitable organizations to help with their aid-in-dying.85 Exit, a charitable organization in Switzerland, helped Swiss individuals who wish to end their lives with dignity since 1982.86 Another prominent Swiss organization, Dignitas, began extending its services abroad in 1998. Dignitas thereby does not require Swiss citizenship to qualify for aid-in-dying and anyone willing to fly to Zurich may apply for

77 Id. 78 Id. 79 See id. 80 Id. at 50203. 81 See When Dying Takes Too Long, supra note 3, at 15456 (opining that the term aid-in-

dying should be favored over the term assisted suicide). 82 OR. REV. STAT. ANN. 127.885 (West, Westlaw current with 2013 Reg. and Spec. Sess.

legislation effective through 10/8/13); WASH. REV. CODE ANN. 70.245.020 (West, Westlaw

current with all 2013 legislation). 83 See Rietjens et al., supra note 75. 84 Samia A. Hurst & Alex Mauron, Assisted Suicide and Euthanasia in Switzerland: Allowing a

Role for Non-Physicians, 326 BRIT. MED. J. 271, 271 (2003). 85 Renske Heddema, One-Way Ticket to Switzerland, SWISS NEWS, May 1, 2007, at 16, available

at 2007 WLNR 26642429. 86 Id.


its services.87 As of 2007, Exit does not accommodate foreigners outside of Switzerland.88 Both organizations insist on a rational and premeditated decision by the patient before taking steps to grant the patients wish to end his or her life.89 Furthermore Exit, following in Dignitass footsteps, now considers assisting patients with Alzheimers and psychiatric disorders.90

For nearly a century, the Swiss distinguished between selfish and altruistic motives to assist others with their deaths.91 A person could face up to five years in prison if caught helping an individual commit suicide for selfish reasons.92 By contrast, if individuals help a friend to die for altruistic reasons, they face no legal consequences.93 This practice came into existence with the Swiss Criminal Code in 1941, allowing Swiss citizens to develop an efficient system of so-called self-aid.94 The Swiss government supported this practice believing that Swiss citizens are sovereign and should retain the final say in matters affecting their lives.95

Citizens in countries that ban assisted aid-in-dying are known to take advantage of Switzerlands relaxed law surrounding euthanasia and assisted aid-in-dying.96 Currently, in the United Kingdom suicide is not punishable, but assisting someone to commit suicide is a crime.97 As a result, many British citizens travel to Switzerland, where the Dignitas clinic assists them with hastening their death.98 Since 2002, Dignitas helps approximately eighteen British citizens a year with aid-in-dying.99

Currently, the Netherlands, Belgium, Luxembourg, Switzerland, and three states in the United States are the only locations permitting physician aid-in-dying.100 Recently, Canada joined the group when a British Columbia

87 Id.; see also Rohith Srinivas, Exploring the Potential for American Death Tourism, 13 MICH.

ST. U. J. MED. & L. 91, 10607 (2009). 88 See Heddema, supra note 85; Srinivas, supra note 87, at 106. 89 Heddema, supra note 85. 90 Id. 91 See Srinivas, supra note 87, at 106 (In those days, the publicly endorsed motives for

acceptable suicide were romance and honor, not poor health.). 92 Heddema, supra note 85. 93 See id. 94 Id. 95 Id. 96 See Carol C. Cleary, From Personal Autonomy to Death-On-Demand: Will Purdy v. DPP

Legalize Assisted Suicide in the United Kingdom?, 33 B.C. INTL & COMP. L. REV. 289, 28990 (2010). 97 Id. at 289. 98 Philippa Roxby, Assisted Suicide: 10 Years of Dying at Dignitas, BBC NEWS (Oct. 20, 2012),

http://www.bbc.co.uk/news/health-19989167. 99 Id. 100 Assisted-Suicide Ban Struck Down by B.C. Court, CBC NEWS, http://www.cbc.ca/news/


Supreme Court judge declared Canadas laws against physician aid-in-dying unconstitutional because they discriminate against the physically disabled.101 Five plaintiffs brought the suit seeking the legal right to physician aid-in-dying.102 In the 395-page ruling, the Supreme Court judge noted that suicide itself is not illegal in British Columbia; therefore, the law contravenes the Canadian Charter of Rights and Freedoms103 by denying physically disabled people the same rights as able-bodied people who can take their own lives.104 The judge went further to explain that any risks associated with allowing physician aid-in-dying are very largely avoided through carefully designed, well-monitored safeguards.105 The lawyer for the Canadian Attorney General argued that those who are particularly vulnerable are the elderly, disabled, and people who may worry about being a burden to society and safeguards are not effectively protecting vulnerable people in jurisdictions where assisted suicide is already allowed.106 Nevertheless, the judge suspended the rulings effect for one year to give Parliament time to take the necessary steps to draft and consider new legislation.107

II. The States Major Obstacles to Enacting the Death with Dignity Act: Religion Confusion, and Fear of the Unknown

Arguably, at the core of the debate around physician aid-in-dying are three main factors that stand in the way of the DWDAs broad enactment amongst the states: (1) religion; (2) confusion about the DWDAs actual statutory provisions; and (3) fear of the unknown and unanswered questions associated with the DWDA.108

canada/british-columbia/story/2012/06/15/bc-assisted-suicide-ruling.html (last updated Jun. 15,

2012, 6:22 PM) [hereinafter Assisted-Suicide Ban Struck Down]. 101 Id. 102 Id. 103 Robert A. Sedler, Constitutional Protection of Individual Rights in Canada: The Impact of the

New Canadian Charter of Rights and Freedom, 59 NOTRE DAME L. REV. 1191, 1194 (1984) (comparing

the Canadian Charter of Rights and Freedom to the U.S. Constitution). 104 Id. (The impact of that distinction [between suicide and physician-assisted suicide] is

felt particularly acutely by persons . . . who are grievously and irremediably ill, physically

disabled or soon to become so, mentally competent and who wish to have some control over

their circumstances at the end of their lives . . . .). 105 Id. 106 Id. 107 Assisted-Suicide Ban Struck Down, supra note 100. 108 See Katie Hafner, In Ill Doctor, a Surprise Reflection of Who Picks Assisted Suicide, N.Y.

TIMES, Aug. 12, 2012, at A1, available at 2012 WLNR 17071211.


A. Religious Leaders Use Fear to Control Society

The Roman Catholic Church is one of the most prominent, outspoken DWDA opponents.109 The Church considers suicide a sin and therefore encourages terminally ill patients to consider hospice care instead.110 In anticipation of the November 2012 election in Massachusetts, DWDA opponents spent close to $5 million in their campaignoutspending DWDA proponents by approximately $4 million.111 The majority of the oppositions campaign contributions came from Catholic organizations and archdioceses from around the country.112 DWDA supporters commented on the opposition groups spending, arguing that [i]ts so easy to scare people on this issue; thats what happened in Massachusetts . . . . Fear-based arguments work.113

B. Confusion Surrounding the DWDA

I think our society is very confused about liberty. I dont think it makes sense to force women to carry children they dont want, and I dont think it makes sense to prevent people who wish to die from doing so.114 These are author Andrew Solomons insightful thoughts when asked about his response to a Frontline report called The Suicide Plan.115 Solomon supported his mothers decision to elect physician aid-in-dying after fighting cancer.116 Opponents of the right to die often express as outrage what they appear to experience as anxiety; they can express as moral rigor what is in fact merely fear.117

Furthermore, the DWDA and legalization of physician aid-in-dying causes physicians to question their role in society and their duty to patients.118 Some physicians also convey their opposition to physician aid-

109 See id. 110 See id. 111 Span, supra note 1. 112 Id. 113 Id. 114 Andrew Soloman, Liberty and the Right to Die in America, Comment to The Shadow Side of

Assisted Suicide, FRONTLINE (Nov. 13, 2012, 9:10 PM), http://www.pbs.org/wgbh/pages/

frontline/social-issues/suicide-plan/the-shadow-side-of-assisted-suicide/. 115 Id. 116 Id. 117 Id. 118 Cf. Joan C. Callahan, Book Review, 64 Q. REV. BIOLOGY 37273 (1989) (reviewing RUTH

MACKLIN, MORTAL CHOICES: ETHICAL DILEMMAS IN MODERN MEDICINE (1987)) (The primary

goal of medical practice is health; and, historically, practitioners have often pursued this goal

at the expense of other moral values, including the autonomy or self-determination of


in-dying.119 Many believe that writing prescriptions for life-ending medication is antithetical to doctors role as healers.120 Many physicians struggle with the idea of killing their patients based on a prognosis.121

ANALYSIS

III. Enactment of the DWDA Does Not Create a Slippery Slope

At the forefront of the slippery-slope arguments are concerns for vulnerable citizensthe elderly, disabled, minorities, uneducated, and poor.122 The concerns include that: individuals will fall victim to coercion or undue influence; the legalization of physician aid-in-dying is a slippery slope; it will extend to those who are not terminally ill; and active euthanasia will be legalized (allowing a physician to actually administer the life-ending medication rather than self-administration).123

Approximately nineteen years ago, voters in Oregon passed the DWDA.124 Since the law passed in 1997, a total of 1,050 people were written life-ending prescriptions and 673 of those recipients were reported to actually use the prescriptions.125

In an article titled Legal Physician-Assisted Dying in Oregon and the Netherlands: Evidence Concerning the Impact on Patients in Vulnerable Groups, Margaret P. Battin, along with four other authors, posed the following questions:

Would accepting or legalising [sic] physician-assisted dying at a patients

explicit request weigh more heavily on patients in vulnerable groupsthe

elderly, women, the uninsured, the poor, racial or ethnic minorities, people

with disabilities, people with sometimes stigmatised [sic] illnesses like

AIDS, and others? Would vulnerable patients be especially heavily

targeted? Would these patients be pressured, manipulated, or forced to

request or accept physician-assisted dying by overburdened family

patients.). 119 See Hafner, supra note 108. 120 Id. 121 See HOW TO DIE IN OREGON, supra note 72 (depicting physicians internal struggles with

prescribing life-ending medication for their patients and how they ultimately choose to adhere

to the patients wish). 122 Steven Ertell, Canadas Assisted Suicide Ban Struck Down in Court, LIFE NEWS (June 15,

2012, 3:51 PM), http://www.lifenews.com/2012/06/15/canadas-assisted-suicide-ban-struck-

down-in-court/. 123 See Kamisar, supra note 30, at 73740. 124 See Margaret P. Battin, Physician-Assisted Dying and the Slippery Slope: The Challenge of

Empirical Evidence, 45 WILLAMETTE L. REV. 91, 91 (2008). 125 OR. DWDA REPORT, supra note 10, at 2.


members, callous physicians, or institutions or insurers concerned about

their own profits?126

In her follow-up article, Battin found that the target study provided no evidence that people in the vulnerable groups listed above were abused.127 The data demonstrate that the option of physician-assisted dying has not been unwillingly forced upon those who are poor, uneducated, uninsured, or otherwise disadvantaged.128

Scholars in other states who perform studies on Oregons DWDA admit that the law does not pose threats to the vulnerable.129 A report was prepared for the Vermont Legislature in 2004 after conducting a thorough review of Oregons experience, which concluded that it is quiet [sic] apparent from credible sources in and out of Oregon that the Death With Dignity Act has not had an adverse impact on end-of-life care and in all probability has enhanced the other options.130 Further, scholars agree that Oregons experience did not furnish any known cases of coercion or undue influence on a patient who elected for physician aid-in-dying: I worried about people being pressured to do this . . . . But this data confirms . . . that the policy in Oregon is working. There is no evidence of abuse or coercion, or misuse of the policy.131

The studies showing lack of abuse provides support for the argument that there are adequate safeguards in place.132 The requirements listed in Oregon and Washingtons DWDA statutes, outlining the necessary steps a patient must take when submitting a request for the medication, are extensive and closely adhered to by the medical field.133 The highly acclaimed 2011 documentaryHow to Die in Oregonoffers an insight into the interactions between patients seeking DWDA medication and their doctors.134 It is evident that physicians and patients take the decision to elect

126 Battin, supra note 124, at 102. 127 See id. at 104. However, the study did find a heightened risk for people with AIDS. Id. at

105. 128 In the Laboratory of the States, supra note 51, at 1604. 129 Id. 130 LUNGE ET AL., supra note 13, 3; see also In the Laboratory of the States, supra note 51, at 1605.

Vermont recently signed into law Act No. 39, An Act Relating to Patient Choice and Control at

End of Life on May 20, 2013, legalizing physician aid-in-dying. A State-by-State Guide to

Physician-Assisted Suicide, PROCON, http://euthanasia.procon.org/view.resource.php

?resourceID=000132 (last updated May 28, 2013). 131 In the Laboratory of the States, supra note 51, at 1605 (internal quotation marks omitted). 132 See id. at 1603 (The experience in Oregon has demonstrated that a carefully drafted law

does not place patients at risk.). 133 See HOW TO DIE IN OREGON, supra note 72. 134 See id. How to Die in Oregon received critics praise and won various awards including


physician aid-in-dying very seriouslyit does not happen overnight.135 It is emphasized throughout the process of receiving the medication that, at any time, the patient is free to rescind their decision with no questions asked.136 However, as shown in parts of the documentary, the mere fact that physician aid-in-dying is presented as an end-of-life care option upset some patients.137 The documentary touches upon individual cases where insurance companies cover the costs for life-ending medication under the DWDA, yet are unwilling to cover the large healthcare costs associated with treating various terminal illnesses.138 This raises American healthcare issues and its interaction with the DWDA, a topic that is outside the scope of this article; still, an important inquiry.139

The threat to vulnerable groups failed to materializeas the statistics listed in the Oregon and Washington reports clearly reflect.140 Therefore, the lack of evidence showing coercion or undue influence makes the slippery-slope argument unconvincing.141

IV. Wherein the Sin Lies: Religious Pressures Must Be Met with Education About Physician Aid-in-Dying and What It Does for Those Who Request the Medication142

Often, patients and their families turn to religion and spirituality for a

prestigious Sundance Film Festival awards. See Educational DVD, HOW TO DIE IN OREGON,

http://www.howtodieinoregon.com/educational-dvd.html (Whatever your position on

physician-assisted suicide, you should see the movie How to Die in Oregon . . . the movie raises

important questions about end-of-life care, physician-assisted suicide, and the way in which we

as a society deal with (or refuse to deal with) the inevitability of death and dying.). 135 See HOW TO DIE IN OREGON, supra note 72. 136 See id. 137 See id. 138 See id. 139 See Kamisar, supra note 30, at 76869 (The moral issue of our day is not whether to

enable or prevent a few individuals dying in the comfort of their home in the presence of their

private physicians. The moral issue of our day is whether to do something about our immoral

system of care, in which treatment is dispensed according to a principle best characterized as

that of economic apartheid.). 140 See supra notes 4849, 5659 and accompanying text. 141 See supra notes 4849, 5659 and accompanying text; Battin, supra note 124, at 104. 142 This Note is not suggesting that religious groups should be unable to voice their

opinion about physician aid-in-dying, for they possess a constitutional right to freedom of

speech and freedom of religion. See, e.g., CHEMERINSKY, supra note 29, at 125066 (The Supreme

Court consistently has held that excluding such religious speech [situations concerning the

governments ability to restrict private religious speech on government property] violates the

First Amendments protection of freedom of speech because it is an impermissible content-


source of comfort, guidance, and support.143 It is crucial for society to understand the overlap between religion and end-of-life care decisions if there is any hope that most states will enact the DWDA.144

Studies show that church-attendance frequency and dedication to religion are associated with conservative attitudes towards, and general acceptability of, suicide and physician aid-in-dying.145 Further, religious affiliates may experience pressure to conform to group ideology.146 Generally, religious followers exercise one of two broad points of view when discussing religion and physician aid-in-dying.147 A study found that Protestant groups . . . emphasize the individuals right to control end-of-life care, and therefore are essentially proponents of physician aid-in-dying.148 The underlying principal behind these beliefs is that God has granted humanity the right of personal choice and that this authority must extend to matters of life and death and that individuals should have the right to choose in a terminal situation their death with spiritual and medical counsel.149 In contrast, other religions believe that physician aid-in-dying is a usurpation of Gods authority and claim that God holds absolute dominion over matters of life and death and the transition from life to death.150 Herein lies the problem for DWDA advocates.151 The overarching fear imposed by certain religious leaders that if an individual elects physician aid-in-dyinga sin in the churchs eyesthen the individual will suffer the consequences in the afterlife.152 Religious beliefs should not trump the beliefs of patients and their desire to end their own pain and suffering.153

V. Personal Autonomy

To live as a self-governing individual is the essence of the value of autonomy, so that to be autonomous is the core of a valuable human

based restriction of expression.). 143 Burdette et al., supra note 7, at 91. 144 See id. at 79. 145 Id. at 90. 146 Id. at 91. 147 Id. at 80. 148 See id. 149 Burdette et al., supra note 7, at 80. 150 Id. 151 See id. at 90. 152 See K. Praveen Parboteeah et al., Ethics and Religion: An Empirical Test of a

Multidimensional Model, 80 J. BUS. ETHICS 387, 390 (2008) ([B]elievers in God are less likely to

act unethically because of the fear of being caught by an omniscient God and being punished.). 153 See generally id.


existence.154 The conflict surrounding personal-autonomy rights is longstanding.155 Historically, many of the laws concerning the right to privacy exhibited a peculiar tendency to gravitate around sexuality . . . the network of decisions and conduct relating to the conditions under which sex is permissible, the social institutions surrounding sexual relationships, and the procreative consequences of sex.156 There is nothing sexy about terminal illness.157 However, there are conceptual arguments that arose in abortion and reproductive cases, which should be applied to the right-to-die argument and the fight for autonomy:158

Ultimately, the question of whether there should be a right to physician-

assisted death, like all difficult constitutional questions, turns on ones

view of constitutional interpretation and the role of the judiciary. Should

this be regarded as one of the most important aspects of personhood and

autonomy, as the Ninth Circuit concluded? Or is this a matter

appropriately left to the political process, as the Supreme Court ruled?159

Proponents of physician aid-in-dying turn to various constitutional provisions arguing that the right to die and the right to personal autonomy are present in the Constitution and are thus constitutional rights.160 In Griswold v. Connecticut, the Court found the right to privacy was a fundamental right implicit in many of the Bill of Rightss specific provisions, such as the First, Third, Fourth, and Fifth Amendments.161 Justice Douglas, writing for the majority, explained:

The foregoing cases suggest that specific guarantees in the Bill of Rights

have penumbras, formed by emanations from those guarantees that help

give them life and substance. Various guarantees create zones of privacy

. . . . These cases bear witness that the right of privacy which presses for

154 Tanya K. Hernndez, The Property of Death, 60 U. PITT. L. REV. 971, 976 (1999) (quoting

John Christman, Introduction to THE INNER CITADEL: ESSAYS ON INDIVIDUAL AUTONOMY 3, 18

(John Christman ed., 1989)). 155 See generally CHEMERINSKY, supra note 29, at 83376 (discussing longstanding

constitutional issues surrounding personal autonomy and protection of Medicare decisions). 156 See Kamisar, supra note 30, at 76162. 157 See, e.g., HOW TO DIE IN OREGON, supra note 72. 158 See generally Susan Frelich Appleton, Assisted Suicide and Reproductive Freedom: Exploring

Some Connections, 76 WASH. U. L.Q. 15, 15 (1998) (discussing the connections between the right

to physician aid-in-dying and reproductive freedoms). 159 CHEMERINSKY, supra note 29, at 876. 160 See, e.g., Washington v. Glucksberg, 521 U.S. 702, 702 (1997); Brief of the Washington

State Psychological Association et al. as Amici Curiae Supporting Respondents at 67,

Washington v. Glucksberg, 521 U.S. 702 (1997) (Nos. 96-110 & 95-1858). 161 381 U.S. 479, 48485 (1965). Jack Kevorkian, the infamous Dr. Death, argued that the

right to die existed in the penumbras of the Ninth Amendment. See KEVORKIAN, supra note

14.


recognition here is a legitimate one.162

The decision to request life-ending medication is a private choice.163 Patients should legally be allowed to make the decision and keep physician aid-in-dying as an option without taking matters into their own handswhere the patients decision to end their own life will most likely be unregulated, performed in a dangerous manner, and potentially cloaked with guilt and shame.164

Switzerlands law is unique because it focuses on whether the aid-in-dying is for selfish or altruistic reasons.165 Moreover, prosecution follows if doubts are raised on the patients competence to make an autonomous choice.166 The altruistic-versus-selfish motive for assisting suicide is an important distinction.167 Opponents argue that physicians are assisting patients suicide by prescribing the life-ending medication and advancing a pro-death agenda.168 The physicians role in society, the argument

162 Griswold, 381 U.S. at 48485 (holding that the Connecticut law criminalizing

contraceptive use violated the right to privacy by prohibiting married couples from using

them); see also Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (If the right of privacy means

anything, it is the right of the individual, married or single, to be free from unwarranted

governmental intrusion into matters so fundamentally affecting a person as the decision

whether to bear or beget a child.). 163 Cf. Mark C. Niles, Ninth Amendment Adjudication: An Alternative to Substantive Due

Process Analysis of Personal Autonomy Rights, 48 UCLA L. REV. 85, 12324 (2000) (contending that

under a Ninth Amendment analysis, any government action that significantly burdens personal

autonomy should be deemed unconstitutional for violating the right to privacy). 164 See, e.g., Helman, supra note 19. In a story reported in the Boston Globe, Lester Angell,

an independent spirit, a civil engineer and conservative Republican who believed in self-

reliance, and who lived outside Orlando, developed prostate cancer, which metastasized and

caused him great pain. Id. He underwent treatment and made it through a few years. Id. Then

on March 14, 1988, at age 81, he fell as he tried to enter his bedroom. Id. His wife could not lift

him, so she called the EMTs who helped him into bed. Id. The EMTs planned to return in the

morning and bring him to the hospital for evaluation. Id. Angell subsequently used a pistol to

end his life, fearing that it was the last night that he would be in control of his own fate. Id. 165 See Abstracts, 18 ISSUES L. & MED. 293, 293 (2003) [hereinafter Abstracts] (summarizing

Samia A. Hurst & Alex Mauron, Assisted Suicide and Euthanasia in Switzerland: Allowing a Role for

Non-Physicians, 326 BRIT. MED. J. 271 (2003)) (Article 115 of the Swiss penal code considers

assisting suicide a crime only if the motive is selfish.). Even further, the Swiss code does not

require the involvement of a physician, nor that the patient be terminally ill. It only requires

that the motive be unselfish. Id. 166 Id. Resources for palliative care in Switzerland are not yet available to all terminally ill

patientsa concept that supports opponents who argue against decriminalizing euthanasia,

and also against assisted suicide. Id. at 294. 167 See, e.g., id. at 293. 168 See Ira Byock, Why Assisted Suicide Is No Realm for Physicians, Comment to The Shadow Side


continues, is a healer who protects and preserves life.169 Opponents also attribute the selfish motives behind physician aid-in-dying to insurance companies, arguing that insurance will pay to end a patients life but they will not pay for the patient to live, i.e., cover medical bills for terminal-illness treatment.170

However, the DWDAs focus is ending patients suffering and respecting the autonomous choice to end their own lives.171 The statutes provide safeguards to ensure that a patient is making an informed, well thought-out decision that can be rescinded at any time, in any manner.172

Another aspect of the DWDA, which gives credence to altruistic motives behind physician aid-in-dying, is the fact that Oregon and Washingtons DWDA statutes do not require the patient to notify family members of the patients medication request.173 However, the notification-to-family-members statutory provision sparked controversy amongst the DWDA opponents.174 Opponents argue that patients should be required to notify their next of kin about their medication request because family members deserve to know.175 Yet, opponents also argue that family members are likely to unduly influence and coerce loved ones, forcing them to request life-ending medication because the patients terminal illness is considered to be a burden to the family.176 The DWDA statutes allow patients to make the

to Assisted Suicide, FRONTLINE (Nov. 13, 2012, 9:10 PM), http://www.pbs.org/wgbh/pages/

frontline/social-issues/suicide-plan/the-shadow-side-of-assisted-suicide/#seg1 (The

admonition against killing other people is the bedrock of civilization.). 169 Id. 170 See Helman, supra note 19. 171 See OR. REV. STAT. ANN 127.805(1) (West, Westlaw through 2013 Reg. and Spec. Sess.

legislation effective through 10/8/13). Indeed, the statutory language under the DWDA focuses

on a patients request to end his or her life in a humane and dignified manner. Id. This

language implicitly supports the altruistic approach to physician aid-in-dying rather than

selfish motives since the focus is on allowing one to die with dignitynowhere is there

language basing the prescription of medication on a physicians motives. Id. 172 See, e.g., 127.810, 127.815, 127.830, 127.840, 127.845, 127.850 (Westlaw). 173 127.835; WASH. REV. CODE ANN. 70.245.080 (West, Westlaw current with all 2013

legislation). 174 See e.g., Helman, supra note 19 (reporting the story of Deborah O'Hara-Rusckowski, an

opponent to the DWDA, and her experience with her dying mother who outlived the doctor's

prognosis by two years, which O'Hara-Rusckowski claims allowed her to share one last

intimate moment with her mother); see OR. REV. STAT. ANN. 127.835 (West, Westlaw current

with 2013 Reg. and Spec. Sess. legislation effective through 10/8/13). 175 See Helman, supra note 19. 176 See id. (reporting that opponents to the DWDA argue that a patients decision to ingest

the medication was backed by her family and health maintenance organization and exerted

undue influence); see also HOW TO DIE IN OREGON, supra note 72.


choice for themselves without requiring others to weigh in on the decision; nevertheless, if the patients wish to include family members or friends, they are at liberty to do so.177 The DWDAs overarching goal is to accommodate patients needs, wishes, and desiresan altruistic motive.178 The statutory safeguards are in place to confirm patients requests and work to ensure patients are fully informed and aware of what they are asking.179 Patients desires and right to personal autonomy are, and should remain, the focus of the law.180

A. Physician Aid-in-Dying Should Not Be Limited to the Terminally Ill

The DWDA introduces the concept of physician aid-in-dying by limiting its availability to the terminally ill.181 But should physician aid-in-dying be limited to the terminally ill?182 Arguably, if the DWDA included those who are not terminally ill, the DWDA would attract more supporters.183 Janet Adkins, a fifty-four year old who was recently diagnosed with Alzheimers disease, became Dr. Jack Kevorkians first public assisted suicide twenty-two years ago.184 Not only were there many negative responses from the public, but many physicians who were familiar with Adkins at the time of her death were also outraged.185 Adkins was seen as a vital, athletic, engaged woman with mild dementia who still maintained a good quality of life.186 However, Adkins explained in a note right before her death that she did not want to put her family through the hardship and difficulty of watching someone they love become a complete stranger.187 As is the case with many Alzheimers patients, Adkins was physically strong but was losing control of her mind.188 For those afflicted with Alzheimers disease, the capacity to

177 See HOW TO DIE IN OREGON, supra note 72. 178 See OR. REV. STAT. ANN. 127.805 (West, Westlaw current with 2013 Reg. and Spec. Sess.

legislation effective through 10/8/13). 179 See 127.810, 127.815, 127.830, 127.840, 127.845, 127.850 (Westlaw). 180 See HOW TO DIE IN OREGON, supra note 72. 181 See 127.805(1) (Westlaw). 182 See, e.g., Abstracts, supra note 165 ([The Swiss penal code] does not require the

involvement of a physician, nor that the patient be terminally ill.). 183 See generally Bollman, supra note 50, at 412 (noting that the law fails to consider patients

who are not terminally ill, but are in perpetual agony). 184 Soo Borson, Confronting the End with an Unsound Mind, Comment to The Shadow Side of

Assisted Suicide, PBS (Nov. 13, 2012, 9:10 PM), http://www.pbs.org/wgbh/pages/front

line/social-issues/suicide-plan/the-shadow-side-of-assisted-suicide/#seg2. 185 See id. 186 Id. 187 Id. 188 Id.


elect for physician aid-in-dying diminishes long before the person is technically in the diseases terminal phase because of its psychological effects.189 Adkins knew the effects of the disease and wanted no part of it; therefore, she chose to elect physician aid-in-dying before she was unable to do so.190

There are many cases showing the negative effects of Alzheimers disease and the hardships families endure when their loved ones do not even recognize them.191 Many, like Adkins, ask to end their lives knowing they will soon not recognize those closest to them.192 Yet, the DWDA in Oregon and Washington are only available to the terminally ill.193 Similarly, what about those who possess the mental capacity to choose physician aid-in-dying, but cannot self-administer the medication as required? In a broad sense, and looking at the issue of physician aid-in-dying through the lens of personal autonomy, the concept is simple: allow people the freedom and respect of determining when their quality of life is not worth bearing, whether because of a mental or physical deterioration.194

VI. Do You Have More Control Over Your Life After Death?

A. A Comparison of the Law and Underlying Policy of the Law of Wills and Its Focus on the Donors Intent: Why Cant We Treat Individuals Life Choices Like We Treat Individuals Choices After Death?

The Court in Washington v. Glucksberg found that the right to physician-assisted suicide was not a fundamental right, relying heavily on our countrys history, tradition, and its adversity to legalizing any form of suicide.195 It, therefore, begs the question, what established body of law comprised of centuries of legal doctrine and practice can provide guidance

189 Id. 190 Borson, supra note 184. 191 Id. 192 See, e.g., Gilbert v. Florida, 487 So. 2d 1185, 1187, 1192 (Fla. Dist. Ct. App. 1986)

(affirming conviction of defendant who shot his wife, afflicted with Alzheimers Disease, after

defendant felt he needed to end her suffering). 193 OR. REV. STAT. ANN. 127.805(1) (West, Westlaw current with 2013 Reg. and Spec. Sess.

legislation effective through 10/8/13); WASH. REV. CODE ANN. 70.245.020(1) (West, Westlaw

current with all 2013 legislation). 194 See, e.g., Bollman, supra note 50, at 412 (Bioethicists are generally committed to the

notion that competent individuals have the right to determine their own fates, especially with

regard to personal matters of profound individual importance, so long as the rights of others

are not violated in the process.). 195 521 U.S. 702, 703 (1997).


on how society and the courts should perceive physician aid-in-dying?196 One potential inquiry is into the ancient law of wills.197

The law of wills is largely statutory and based on varying state law.198 However, states mostly agree on the basic points concerning wills, trusts, and estates.199 Respect for the transferors (or decedents, testators, settlors, etc.) expectations is a recurring theme.200 At first glance this may seem like a simple concept.201 However, in the history of cases dealing with contested wills, judges are faced with considering shifting societal norms as a backdrop to determining the testators intent.202 Further, the testator must possess sufficient mental capacity to execute a will.203 Possessing sufficient mental capacity to execute a will requires that the testator: (1) know the nature and extent of the testators property, (2) know the persons who are the natural objects of his bounty . . . [,] and (3) understand the disposition being made of his property by his will.204 Those contesting a will, however, can claim the testator was suffering from an insane delusion or general incapacity as grounds for invalidating the will.205 An insane delusionwhich bears on testamentary capacityis one to which the testator adheres against all evidence and reason to the contrary.206 For example, an Arizona court judge rejected a testators will because he found her belief to be without foundation or basis in fact . . . [and] her beliefs were too bizarre to be real.207 However, what was once considered bizarre, may be completely normal or understandable in todays society: societal norms and expectations are ever-changing and what used to be considered grotesquee.g., racial integration, gay marriage, or posthumously

196 See id. 197 See generally WILLIAM M. MCGOVERN ET AL., WILLS, TRUSTS, AND ESTATES 197200 (4th ed.

2010) (discussing the law of wills, trusts, and estates). 198 Id. at 27. 199 Id. 200 Id. at 36. 201 See id. 202 See id. at 39 (According to Blackstone, when judges find that an older decision is most

evidently contrary to reason, they do not pretend to make a new law, but to vindicate the old

one from misinterpretation. For if it be found that the former decision is manifestly absurd or

unjust, it is declared, not that such a sentence was bad law, but that it was not law.). 203 MCGOVERN ET AL., supra note 197, at 316. 204 Id. 205 See id. 206 JESSE DUKEMINIER ET AL., WILLS, TRUSTS, AND ESTATES 168 (Vicki Been et al. eds., 8th ed.

2009). 207 In re Estate of Killen, 937 P.2d 1368, 1373 (Ariz. Ct. App. 1996).


conceived childrenmay now be socially acceptable.208 Judges should be cognizant of gray areas in what could be considered an insane delusion or a result of undue influence, and what may be at the forefront of a shift in societys perceived notion of acceptable behavior.209

An illustrative case is In re Kaufmanns Will,210 decided in the mid-1960sa time when the fight for gay rights was intensifying.211 In that case, the family of Robert Kaufmann, who suspected Kaufmann was involved in a homosexual relationship with a man named Walter, sued to set aside Kaufmanns will on the grounds of undue influence.212 Kaufmann was a multimillionaire by inheritance who sought an independent life away from his family and moved from Washington to New York City in 1948, where he met his partner, Walter.213 Kaufmann executed a document that gave Walter the power a legal spouse would wield over matters concerning Kaufmans estate.214 After two jury trials, both finding undue influence, a majority of New Yorks appellate division agreed that there was sufficient evidence to find undue influence, which tainted all prior wills and gifts to Walter.215

More recent court opinions have shown that courts do not consider the testators sexuality when analyzing undue influence. 216 Thus, a lesson can be learned upon reviewing history of case law surrounding will contests and applied to the adjudication of potential claims involving undue influence and physician aid-in-dying.217 Legislatures and judiciaries must be cognizant of shifting societal norms when grappling with arguments surrounding physician aid-in-dying.218 Using the acceptance of gay rights as an example,

208 Compare id. (noting that the trial court rejected an experts opinion that although the

testator suffered from paranoid delusions, she still had testamentary capacity), with

DUKEMINIER ET AL., supra note 206, at 73 ([I]ntestacy rights of cohabitating partners are in

flux.). 209 See, e.g., In re Kaufmanns Will, 247 N.Y.S.2d 664, 68891 (N.Y. App. Div. 1964) (Witmer,

J., dissenting), affd, 205 N.E.2d 864 (N.Y. 1965). 210 Id. at 664. 211 See, e.g., Gay Rights Timeline, TIME, http://www.time.com/time/interactive/

0,31813,1904681,00.html (last visited Nov. 21, 2013). In 1965, a significant figure in the gay-rights

movement, Dr. Frank Kennedy, launched the first public protests by gays and lesbians with a

picket line at the White House. Id. 212 DUKEMINIER, supra note 206, at 192. 213 Id. at 191. 214 Id. at 192. 215 Id. 216 See, e.g., Evans v. May, 923 S.W.2d 712, 714 (Tex. App. 1996) (declining to hold that the

decedents 30-year relationship with his lifemate constituted undue influence). 217 See, e.g., DUKEMINIER, supra note 206, at 19192. 218 See, e.g., id.


as society gains more exposure to the concept of allowing individuals to die humanely and with dignity, there is a chance that pro-DWDA legislation will have a more substantial presence in the vast majority of states in the future.219

Adopting the mentality of the courts attempts to adhere to testators intentions in the law of wills could only benefit future case law involving physician aid-in-dying.220 As this Note discusses above, societys acceptance of physician aid-in-dying is in its infancy.221 Changing a deeply imbedded train of thoughti.e. committing or assisting suicide as inherently wrongtakes time.222 However, if a majority of states legalized physician aid-in-dying, it would be important for courts to keep in mind evolving societal norms.223 For example, if aggrieved family members brought a lawsuit against physicians who prescribed life-ending medication under a DWDA statute, the courts main inquiry should be whether the decedent truly intended to take the life-ending prescription medication without external undue influence.224 Judges unfamiliar with the concept of physician aid-in-dying, or who are internally conflicted about accepting the legalization of physician aid-in-dying, nevertheless may need to yield to societys expectations when reviewing whether a physician lawfully prescribed medication under a DWDA.225

The law of wills also pertains to the right to impose conditions on the disbursement of assets to beneficiaries of a will, i.e. the dead hand control, a right ancillary to the right to pass property to heirs.226 One could argue that courts give great deference to decedents autonomy when they are allowed

to impose condition in their wills that may conflict with the beneficiaries

autonomy.227 Yet, courts allow these provisions, which adhere to the dead

219 See Span, supra note 1 (If the proponents could pass [the DWDA] in 40-percent-

Catholic Massachusetts, theyd be running through the other states within five years . . . .). 220 See generally MCGOVERN ET AL., supra note 197 (explaining the functions and formalities

of wills). 221 See HOW TO DIE IN OREGON, supra note 72. 222 See Washington v. Glucksberg, 521 U.S. 702, 703 (1997). 223 See, e.g., DUKEMINIER, supra note 206, at 19192. 224 See generally id. at 180200 (discussing undue influence in the context of wills). 225 See, e.g., id. at 19192. 226 See, e.g., id. at 2728. 227 See John H. Merryman, Comment, Policy, Autonomy, and the Numerus Clausus in Italian

and American Property Law, 12 AM. J. COMP. L. 224, 225 (1963) (If one is to speak of individual

autonomy in property matters it is obvious that he must specify whose autonomy is in question.

The owner of property is only one of the parties concerned. The more power of dead hand

control he is given the less autonomy is enjoyed by subsequent generations with respect to that

property.).


hand control concept.228 Apparently, the law respects a persons wishes concerning their property and assets more than it does their wishes concerning their own body.229

The deep-rooted law of wills can offer guidance when forecasting potential issues surrounding future legalization of physician aid-in-dying in the majority of states.230 The underlying principal imposing the testators intent as a guiding force to interpreting wills, trusts, and estate documents can, by analogy, translate into courts adhering to individuals decisions and intent to end their life with dignity.231

This is a broad inquiry into the potential overlap of wills, trusts, and estates law and the laws surrounding physician aid-in-dying.232 As with any developing area of law, new and unforeseen issues arise.233 This section intends to invoke discussion and compare well-established areas of law with new, innovative lawsuch as the legalization of physician aid-in-dyingand to compare and contrast areas of law society is accustomed to.234

CONCLUSION

Physician aid-in-dying is not a problem, its a solution. A solution for those whose quality of lifefor one reason or anotherdiminished to a point where it is unbearable to continue living and the will to die dominates. The Federal Government has not enacted assisted-suicide laws.235 These laws are generally proposed at the state level.236 Four states rightfully chose to respect an individuals choice by permitting their citizens to keep control at the end of their lives, leaving forty-six states and D.C. that refuse their citizens the freedom to die with dignity.237 It is an individual decisionnot

228 See, e.g., Shapira v. Union Natl Bank, 315 N.E.2d 825, 832 (1974) (holding that

conditions in testators will are reasonable restrictions upon marriage, and valid). 229 Cf. RESTATEMENT (THIRD) OF PROPERTY 10.1 (2003). 230 See generally MCGOVERN ET AL., supra note 197 (discussing the law of wills). 231 See HOW TO DIE IN OREGON, supra note 72. 232 See generally MCGOVERN ET AL., supra note 197 (providing an overview of the law of

wills, estates, and trusts). 233 See HOW TO DIE IN OREGON, supra note 72 (portraying various issues associated with a

patient exercising his or her right to physician aid-in-dying under Oregons Death with Dignity

Act). 234 See id. 235 State-by-State Guide to Physician-Assisted Suicide, PROCON (last updated on May 28, 2013),

http://euthanasia.procon.org/view.resource.php?resourceID=000132. 236 Id. 237 Moreover, states that criminalize physician-assisted suicide impose penalties ranging

from felonies to charges of manslaughter. See State-by-State Guide to Physician-Assisted Suicide,


that of the church, government, or any other person. Religious leaders and affiliates should not abuse their freedom-of-religion rights by intruding on personal autonomy rights of others. It is a personal decision, which the law should recognize and respect.

PROCON (last updated on May 28, 2013), http://euthanasia.procon.org/view.resource.php?

resourceID=000132.

Reynolds: Losing the Quality of Life

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