8 End of Life

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End of Life
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Americans United for Life

413
End of Life
I n May 2008, Oregon resident Barbara Wagner received a chilling re-
jection letter from her healthcare insurance company. Wagner’s state
health plan denied coverage for medication that would treat her cancer and
extend her life, but instead offered to pay for the cost-effective option of
ending her life by lethal prescription.
Wagner’s lung cancer, which had been in remission for two years, had re-
turned. Her doctor had prescribed medication to treat the cancer. The medi-
cation cost $4,000 per month. A 64-year-old retired bus driver, Wagner
could not personally afford the prescriptions. Relying on her Oregon Health
Plan, she requested coverage for the cancer medications, only to receive a
cold, flat denial. Her health insurance would not cover the $4,000-a-month
cancer drugs, but would pay $50 for an assisted suicide.
Wagner and her family were devastated. “It was horrible,” she said, tears
flooding her eyes. “I got a letter in the mail that basically said if you want
to take the pills, we will help you get that from the doctor and we will stand
there and watch you die. But we won’t give you the medication to live.”
Physician-assisted suicide was legalized by Oregon in 1994 when it enacted

its “Death with Dignity Act.” On November 4, 2008, neighboring Wash-
ington became the second state to legalize the grisly practice of physician-
assisted suicide when voters approved Initiative 1000. The Initiative took
effect in March 2009 and a 66-year-old woman recently diagnosed with
terminal pancreatic cancer was the first to legally commit suicide in May
2009.
Even more troubling, in December 2008, the First District Court of Mon-
tana became the first court in America to declare a constitutional “right to
die” for competent, terminally ill patients. The judge claimed this “right
to die” is encompassed in Montana’s constitutional rights to individual pri-
vacy and human dignity—and this “right” includes assistance from phy-
sicians and exemptions from liability for the physicians under Montana
homicide statutes. This one Montana judge effectively imposed physician-
assisted suicide on the citizens of Montana with no safeguards or appropri-
ate legislative limitations in place. She simply charged the legislature with
the task of implementing this newfound “right to die.”
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414
What is happening in Washington and, particularly, in Montana is a wake up

call to the nation and to those who want to protect the dying, the elderly, the
sick, and the disabled. Compassion and Choices, the Death with Dignity Na-
tional Center, and other euthanasia advocacy groups’ deceptive mantra claim
unbearable suffering for the terminally ill and patient choice as justifications
to further their mission—to export the practice of physician-assisted suicide
to all 50 states.
Prior to November 2008, the Death with Dignity National Center called its
targeted plan “Oregon plus One.” According to this plan, if just one other
state besides Oregon were to legalize physician-assisted suicide, it would
essentially trigger a domino effect and the rest of the nation would soon fol-
low. Washington and now Montana have possibly set the domino effect in
motion. It is critical to stop and possibly reverse a toppling toward assisted
suicide, euthanasia, and the further devaluing of human life—a continuum
on which the “right to die” has proven to become the duty to die.

415
Preserving Human Dignity at the End of Life:

A survey of federal and state laws
By Jessica J. Sage
Staff Counsel, Americans United for Life
L egal euthanasia in America seems to

many to be an impossibility, but euthana-
sia advocates are diligently at work, incremen-
Brief History of Euthanasia Advocacy
in America
tally advancing their agenda—accomplishing The euthanasia movement in America be-

both big and small victories in public opinion, gan by promoting living wills as a means to
in legislatures, and in judicially-active courts. begin a euthanasia discussion and advance
Euthanasia advocates cleverly cloak hastening public acceptance of it. Two groups, the Eu-
the deaths of America’s most vulnerable citi- thanasia Society of America and Euthanasia
zens as “Compassion and Choice.” The mar- Education Council, introduced living wills in
keting terms of “compassion” and “choice” 1967 and claimed they were necessary to give
deceptively portray self-destruction as morally patients the right to refuse unwanted medi-
correct and empowering. Unfortunately, they cal procedures in the event they later became
have gained “right to die” proponents signifi- incapacitated. Later, these groups introduced
cant momentum as Oregon, Washington, and “mercy-killing” bills—to allow doctors to give
Montana currently sanction physician-assisted disabled or dying patients lethal overdoses—in
suicide (PAS). various state legislatures without success. In
light of these failures, the living will started the
This primer is designed to educate and encour- discussion of withholding medical treatments
age lawmakers and citizens to continue the and gave euthanasia advocates a more incre-
fight against the culture of death promulgated mental and palatable step in the “right to die”
by supporters of euthanasia. As experienced in campaign.
the Netherlands, once a nation permits volun-
tary euthanasia and assisted suicide, the prin- The Hemlock Society, founded in 1980 by
ciple of “universality” or “equal treatment” Derek Humphry, sponsored “physician-aid-in-
forces one to accept ending the lives of those dying” initiatives in Washington in 1991 and
without explicit request. Touting “Death with California in 1992. Both measures permitted
Dignity” and “choice” for the terminally-ill lethal injections and assisted suicide for termi-
in insufferable pain is merely an incremental nally-ill patients, but both failed. Proponents
step in the continuum toward hastening death correctly attributed the defeats to the public’s
for the elderly, disabled, depressed, and others reluctance to allow doctors to kill patients.
deemed to have a low quality of life at any age After a time of re-strategizing, the group re-
or stage of life. branded itself first as Compassion in Dying and
more recently as Compassion & Choices—the
organization that initiated and successfully
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416
directed the assisted suicide campaigns in Or- tution forbids states from requiring “clear and
egon and Washington for PAS. convincing evidence” of a patient’s wishes
before the withdrawal of food and hydration.
Current Federal and State Laws The Court held that it does not. Rather, the
Court ruled that states may legitimately seek
Federal and state laws generally address two to safeguard patients through the imposition of
end-of-life issues: 1) the refusal of medical heightened evidentiary requirements.6 Thus,
treatment (to include the withdrawal of nutri- while patients may have a right to refuse food
tion and hydration from terminally-ill patients and hydration or have food and hydration with-
or patients in persistent vegetative states), and drawn,7 states may, in the interest of protecting
2) assisted suicide and euthanasia. While the the lives of patients, apply a clear and convinc-
United States Supreme Court did not rule on a ing standard when a guardian seeks to discon-
related case until 1990, states have legislated in tinue such life-sustaining treatments.8
these areas since the beginning of the Nation.
In fact, Anglo-American common law has ad- In 1997, the Supreme Court took its next look
dressed hastening death at the end of life for at end-of-life issues in Washington v. Glucks-
at least 700 years by punishing or prohibiting berg9 and Vacco v. Quill.10 Through these cas-
suicide, assisted suicide, and murder.1 es, the Court declared there is no federal con-
stitutional right to assisted suicide under the
State laws regarding the withdrawal of food Due Process or Equal Protection Clauses of the
and hydration were initially grounded in the Fourteenth Amendment, but implied that states
common law of tort, battery, and informed have the power to decide whether to permit or
consent.2 From this common law sprung the prohibit PAS.
right to refuse medical treatment, and the re-
fusal and withdrawal of food and hydration After examining the Nation’s long history of
was viewed as an exercise of this right. On the forbidding suicide and assisted suicide, the Su-
other hand, most states expressly prohibited preme Court in Glucksberg reaffirmed a state’s
assisted suicide and euthanasia. In fact, sev- “unqualified interest” in the preservation of
eral of the American colonies would, as pun- human life.11 Along with preserving life, the
ishment, confiscate the property of individuals state’s interests in preventing suicide include:
that committed suicide.3 While the colonies protecting the ethics and integrity of the medi-
eventually abolished such penalties, the courts cal profession; protecting vulnerable groups of
continued to condemn suicide as “a grave pub- people from coercion, prejudice, stereotypes,
lic wrong.”4 and “societal indifference”; and preventing
the slide toward euthanasia. The Court itself
Since 1990, the Supreme Court has affirmed acknowledged that PAS would be “extremely
the states’ interests in preserving life until its difficult to police and contain” and that “[bans]
natural end. In Cruzan v. Missouri Department on assisting suicide prevent such erosion.” The
of Health, the Court for the first time was pre- Court concluded that these various interests are
sented with a “right to die” issue.5 The ques- “unquestionably important and legitimate.” 12
tion before the Court was whether the Consti-

417
In Vacco, the Supreme Court affirmed the dis- Two states—Oregon and Washington—ex-
tinction between assisting suicide and the with- pressly authorize the practice. Moreover, in
drawal of life-sustaining treatment, stating it is December 2008, a Montana trial court over-
a “distinction widely recognized and endorsed turned the state’s ban on PAS.16 However, the
in the medical profession and in our legal tra- case is pending before the Montana Supreme
ditions” and that it is important, logical, and Court. Another state—California—now re-
rational.13 The Supreme Court focused on the quires physicians to counsel their patients on
difference between causing death and allowing how to end their lives, and also requires that
someone to die of his or her underlying disease. physicians provide prescriptions for sedatives
Finally, the Court termed for patients wishing to starve
the following as “valid and or dehydrate themselves to
important public interests”: death.
prohibiting intentional kill-
ing and preserving life; pre- Unfortunately, euthanasia
venting suicide; maintain- advocates have had some
ing physicians’ role as their success in embedding their
patients’ healers; protecting distorted view of end-of-
vulnerable people from in- life issues in the minds of
difference, prejudice, and the American people. The
psychological and financial “right to die” is now a
pressure to end their lives; phrase of common house-
and avoiding a possible slide toward euthana- hold knowledge. While the issue of PAS ap-
sia.14 peared dormant in the years immediately fol-
lowing Glucksberg and Vacco, suicide propo-
That same year, Congress passed the “Assisted nents are again seeking to validate and legalize
Suicide Funding Restriction Act,” which pro- PAS in many states. Despite the explicit and
hibits the use of federal funds for items and implicit assisted suicide prohibitions in most
services “the purpose of which is to cause (or states, nine states considered legislation to le-
assist in causing) the suicide, euthanasia, or galize PAS in 2009. Efforts must be made to
mercy killing of an individual.”15 While the prevent the spread of accepting and legalizing
Act was amended in 2000, it remains a barrier suicide as appropriate “medical treatment” and
to the federal funding of PAS and euthanasia. a legitimate “choice” before it infects more
states across the nation.
Most states prohibit assisted suicide. Thirty-
five states expressly prohibit assisted suicide by Issues
statute, and another six states imply its prohibi-
tion through use of the common law or by inter- The Oregon Experience
preting their homicide statutes to apply to assis-
tance in suicide. However, five states and the On November 8, 1994, Oregon became the first
District of Columbia have neither express nor state in the Nation to authorize PAS of compe-
implied prohibitions against assisted suicide. tent, terminally-ill patients.17 Barbara Coombs
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418
Lee, President of Compassion & Choices, au- produce death within six months.19 There is no
thored and lobbied for Oregon’s PAS initiative, requirement for the physician to determine the
known as the “Death with Dignity Act” (Act). reason why a patient is requesting PAS and to
While a federal district court initially enjoined address the real issue at hand—not insufferable
enforcement of the voter initiative, the Ninth pain, but depression and fear of the unknown.
Circuit reversed. Five months following the
Supreme Court decisions in Glucksburg and Supporters of PAS offer horrific stories of ex-
Vacco, the Act took effect in 1997. treme rarity, claiming terminally-ill patients
need PAS to relieve their “unbearable pain and
In 2001, then-Attorney General John Ashcroft suffering.” Often, the terminally-ill do express
issued a directive stating that PAS is not a “le- a fear of “unbearable pain and suffering,” but
gitimate medical purpose” and that substances it is a fear of possibility, not necessarily the
regulated under the federal “Controlled Sub- realization of pain and suffering. Whereas in
stances Act” could not legally be used for PAS. actuality, the most frequently cited concerns
Supporters of PAS and euthanasia filed suit, of terminally-ill patients in Oregon’s annual
and, in 2004, the Ninth Circuit ruled that the reports are not pain and suffering, but the loss
directive was illegal and unenforceable. On of personal autonomy and bodily function and
January 17, 2006, the Supreme Court affirmed the decreased ability to participate in activities
the Ninth Circuit’s ruling, holding that Con- that make life enjoyable.20 The terminally-ill
gress did not intend for the Attorney General also fear becoming a burden to family mem-
to have such authority. However, the Court’s bers and friends and, ironically, physicians and
previous decisions denying a federal constitu- family members reinforce this fear when they
tional right to assisted suicide remained firm, introduce the option of PAS as possible medi-
but so did the implication that states have the cal treatment. The better response is to reaf-
right to determine whether to permit or pro- firm the value of the patient’s life and compas-
hibit PAS.18 sionately support them through a natural end
of their life.
Compassion & Choices is promoting Oregon’s
Act in numerous states as the model to legalize Under Oregon’s Act, physicians are only re-
PAS and claims Oregon as a success story of quired to refer a patient for counseling or a psy-
how assisted suicide is to work, but the real- chological evaluation if they suspect a “psychi-
ity in Oregon exemplifies the inadequacy and atric or psychological disorder or depression
circumvention of safeguards within the law [is] causing impaired judgment.” In the PAS
and the inherent lack of transparency in PAS reporting, the number of patients referred for
reporting. counseling has consistently declined from ten
patients in the second year to zero patients in
Undiagnosed Depression the tenth year of reporting. In Oregon, physi-
and Inadequate Waiting Periods cians tend to utilize the psychiatric evaluation
To request PAS in Oregon, a person must be: as a protective measure for themselves more
a capable adult and resident of Oregon, and than for the patient. Seemingly, as physicians
diagnosed with a terminal illness predicted to contemplated less potential liability in assisting

419
suicides, they made less psychiatric referrals. in a depressed and fearful state.
It is also unknown if the counseling referral is
performed with any level of professional stan- Encourages Physician Shopping
dards or if it is simply a meaningless exercise. and Germinates “Suicide Specialists”
When only six percent of Oregon psychiatrists Assisted-suicide advocates portray PAS as a
surveyed said they were confident they could personal choice to be made between the patient
satisfactorily determine whether a patient was and a long-time, trusted physician—a very
competent to commit suicide absent a long- misleading picture. Helen, an Oregon woman
term relationship with a patient, the consult diagnosed with metastatic breast cancer living
simply becomes a rubber stamp. in hospice, decided to request assisted suicide.
Her own physician refused the request for un-
The Oregon Act does not protect patients at documented reasons. A second physician found
their most vulnerable. Anyone receiving a Helen to be depressed and refused her request.
prognosis for a terminal illness is in shock and Helen’s husband then called the predecessor to
understandably takes a period of time to come Compassion & Choices, Compassion in Dy-
to terms with the news. They may react from ing, and received a referral to a physician will-
an assumption that the diagnosis is correct, but ing to assist Helen’s suicide. The prescribing
what if it is not? Oregon’s Act only requires physician knew Helen for about two weeks and
the physician to make a “reasonable medical consulted neither of the other doctors before he
judgment” of six months to live. A physician’s provided the prescribed protocol resulting in
subjective determination of life expectancy is her death. 22
certainly not sufficient to make a life and death
decision, and elect to commit suicide—partic- Helen’s story demonstrates how common it
ularly when physicians are often times wrong is for a patient seeking PAS to visit multiple
in their predictions.21 Furthermore, the Act doctors to find one that is willing to prescribe
only requires a 48-hour waiting period from a the lethal drug with little knowledge of the pa-
written request for a lethal medication and the tient’s physical, emotional, and psychological
prescription and a 15-day waiting period for an state—and with little interest in counseling on
oral request. The fact that there is no require- life-enhancing alternatives. In the first three
ment that it be the same physician that receives years of Oregon’s PAS experience, reports in-
the request and then fills the prescription fur- dicated that in 59 percent of the cases patients
ther diminishes any protections these waiting had to ask two or more physicians before re-
periods supposedly offer. In other words, a ceiving a prescription for lethal drugs.23 More
request for PAS can be made to one physician troubling, as demonstrated by Helen’s case, a
who then refuses, but 2 or 15 days later a com- patient often locates a doctor specializing in
pletely different doctor—most often times one suicide through an assisted suicide organiza-
located through the assisted suicide advocacy tion such as Compassion & Choices—far from
organization—can provide the prescription. a trusted, long-time family physician.24
Clearly, these waiting periods provide no pro-
tection when some doctors are willing to spe-
cialize in suicide and take advantage of those
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420
Permits Involuntary Killing—No Witness at allow the patient the purported “right to re-
Death and Undefined Self-Administration scind” since no one will know how the death
The Oregon Department of Human Servic- actually occurred once the prescription is writ-
es (ODHS) advertises the Act as allowing ten. The death will not provoke investigation
“terminally-ill Oregonians to end their lives because the acting physician may sign the
through the voluntary self-administration of death certificate and will classify the death as
lethal medications, expressly prescribed by a “natural.” Oregon’s Act significantly fails to
physician for that purpose.”25 While the Act recognize the real and dangerous conflict of
requires patient competence and witnesses at interests inherent in both the suicide-enabling
the time of the request for PAS, there are no physician and inheriting family members at the
such requirements at the time of administration actual time of death—offering little to no pro-
of the drug. Once the lethal drug is prescribed tection for the terminally-ill.
there are no protective measures to know if the
suicide is carried out voluntarily and actually Lack of Transparency in Reporting Requirements
self-administered. The Act itself contains no Oregon’s Act permits little to no transparency
formal definition of self-administration. Rath- and renders patient choice and protections il-
er, it refers to the patient’s lusory. It allows for unprec-
administration as a form of edented liability protection
“ingest” or “ingesting” in the for doctors assisting suicides
context of protecting insur- and promotes secrecy from
ance policies from nullifica- the public. The Oregon Pub-
tion;26 and the ODHS report- lic Human Division (OPHD)
ing requirements direct the is tasked with collecting
attending physician to fill out and reporting information
its interview form within ten to ensure compliance with
days of “a patient’s ingestion the law, in order to protect
of lethal medication.”27 the welfare of those seeking
assisted suicide. But in practice, it prioritizes
Moreover, self-administration does not require immunities for physicians. The Act shields
that only the patient administer the lethal pre- doctors from “civil or criminal liability or pro-
scription. Once the prescription is filled, the fessional disciplinary action” if the physician
Act provides no protection from a third party acts in “good faith compliance” with the law.28
administering the lethal medication—with or This very subjective standard includes no con-
without the patient’s express knowledge or sideration of reasonableness or professional
consent. In addition, certain issues arise when community standards as seen in other areas of
the lethal drug does not actually cause death, the law, which is especially troubling when the
leaving the physician or family members in a outcome for lack of compliance is the death of
compromised situation of carrying out the sui- a vulnerable individual.
cide wishes through other final measures such
as suffocation. OPHD has failed to enact reporting require-
An interested or coercive third party may not ments effective to its charge or an enforce-

421
ment mechanism to ensure physicians comply those who commit suicide suffer from severe
with its oversight. As a result, the reporting depression even though it is among the most
requirements have become just a formality and treatable of psychiatric illnesses. The first step
provide less and less insight as to the ramifica- in treatment is recognizing the depression. Be-
tions of PAS, particularly when secrecy seems tween 80 and 90 percent of people with depres-
to be the objective. OPHD has epitomized sion respond positively to treatment.30 These
patient-physician confidentiality in relation to responses to treatment for depression are pro-
PAS; and the Act specifically states that the in- foundly similar for those seeking PAS; once
formation collected by OPHD “shall not be a treated, they want to continue living.
public record and may not be made available
for inspection by the public.”29 Not only is the Second, PAS is a recipe for domestic and elder
collected information protected, the accuracy abuse. The National Center on Elder Abuse
of what is collected is in question due to reli- estimates one to two million Americans age
ance upon the doctors self-reporting (and only 65 or older are injured, exploited, or otherwise
those prescribing lethal drugs), the unknown abused physically, emotionally, psychologi-
number of PAS deaths not reported, the lack of cally, or financially each year by a caregiver
witness requirements at time of death, and the or trusted individual they depend on for care or
undefined nature of self-administration within protection.31 The physicians and family mem-
the law. bers to whom a terminally-ill patient looks to
for support and protection are the same ones
The shortcomings of Oregon’s Act are not in- counseling that suicide may be the best op-
consequential, but are the subsequent and real tion.
consequences of accepting death as a choice in
medical treatment and empowering physicians Third, PAS discriminates against and degrades
to take the life of their patients—voluntarily at the lives of people with disabilities. It denies
first, but inevitably involuntary. people with disabilities the benefit of suicide
prevention and the enforcement of homicide
Acceptance of Physician-Assisted Suicide: laws.32 PAS encourages physicians and third
The Inevitable Slide Toward Euthanasia parties to make a “quality of life” determina-
tion for those they deem to be suffering or liv-
PAS Contradicts Suicide Prevention and In- ing a life that they themselves would not want
vites Abuse of Elderly and Disabled to live. The reasons cited by those request-
Allowing assisted suicide runs completely con- ing PAS are struggles people with disabilities
trary to the prevention of suicide, elder abuse, cope with every day. Once assisted suicide
and discrimination against the disabled. First, is accepted as an answer to suffering, loss of
in every other context America seeks to pre- autonomy, dependence on others, or the de-
vent suicide because it is understood to be self- creased ability to participate in enjoyment
destructive and harmful to the individual and activities of life, there is nothing to prevent
society. It is the fourth leading cause of death those life-value judgments from pervading
among those aged 18 to 65 and eleventh over- American culture and imposing those same
all in the United States. Over 60 percent of quality-of-life judgments on the disabled in-
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422
voluntarily, and at any stage of life. stories like the following have surfaced:
Switzerland and the Netherlands—Indisput- • One woman, unable to cope any lon-
able Evidence ger with the illness of her husband,
Switzerland legalized assisted suicide in 1918 gave him an ultimatum: euthanasia or
and has the most liberal law in the world. It is admission to a home for the chronical-
the only jurisdiction that permits nonresidents ly ill. Fearful of being left alone and
to travel to Switzerland to kill themselves. at the mercy of strangers, the husband
Dignitas, a Swiss suicide clinic, and its found- chose euthanasia. Despite the fact that
er, Ludwig Minelli, demonstrate the persistent the doctor was aware of the coercion,
agenda of advocates for death to challenge and he euthanized the man anyway.36
circumvent any safeguards in assisted suicide • After stabilizing a cancer patient who
laws—the objective of making suicide avail- did not desire euthanasia, a physician
able to all including the healthy but depressed. returned from the weekend to find that
Dignitas is currently under investigation for as- another physician had ended the pa-
sisting a healthy, but depressed man to commit tient’s life without her consent. That
suicide.33 It has also publicized its intention to physician admitted he did so because
help a healthy wife commit suicide beside her “she was not dying quickly enough
terminally-ill husband.34 Switzerland provides and he needed space for another pa-
the United States with a vivid lesson that ini- tient.”37
tially limiting assisted suicide to the terminally • One physician ended the life of a nun
ill is the necessary first step—the incremental without her consent because she was
step toward society accepting killing as an al- in excruciating pain and the doctor
ternative to human suffering believed her faith would prohibit her
from asking for death.38
Even more striking, the Netherlands’ clear • A hospital decided to administer le-
track record establishes that assisted suicide thal doses of sedatives to disabled and
is simply the next step toward euthanasia and terminally-ill newborns. The hospital
infanticide. PAS has been available in the guideline permitted euthanasia on in-
Netherlands since 1993.35 Euthanasia is also fants when the child’s medical team
legal for patients who explicitly request to and independent doctors agree the
be killed, as well as for those “with no free pain is untreatable, there is no hope for
will,” such as children, the severely mentally improvement, and the parents think it
retarded, and those in persistent coma. The best. Since the passage of the Nether-
Netherlands was the first nation to legalize land’s euthanasia bill in 1997, the Jus-
euthanasia—followed by Belgium—and now tice Ministry has documented 22 cases
proponents of “mercy killings” are advocating of newborn euthanasia. But judicial
for a “right to euthanasia” for people without authorities have dismissed all 22 cases
explicit request. The practice of euthanasia, and no prosecutions occurred even
with and without request, is now prominent in though infanticide is illegal. 39
both the Netherlands and Belgium, and many

423
While these stories seem nightmarish and un- sue in their courses of treatment.43 Yet, a 2004
likely to happen in the United States, the ac- study published in the Journal of the American
ceptance of PAS and the marketing of eutha- Medical Association points out that nearly 25
nasia in Oregon, Washington, Montana, and percent of families report their loved ones did
across the United States are already forcing not receive good care at the end of life, espe-
our terminally-ill patients into similarly coer- cially in managing pain.44 It is these bad ex-
cive situations.40 The slippery slope argument periences that make terminally-ill patients and
is very pertinent and those nations who have their families consider the possibility of PAS.
gone before reveal the illusion of “autonomy” Moreover, patients are largely ill-informed
and “choice” within the assisted suicide move- when it comes to the breadth of possibilities in
ment. Death quickly becomes, not only an op- end-of-life care.45
tion, but the best option for the elderly, termi-
nally ill, disabled, and those that some deem Addressing this problem, some believe the Su-
not worthy of life from birth. preme Court decisions denying a constitutional
right to PAS also created a right to good pallia-
To combat this slide toward euthanasia, AUL tive care.46 A movement toward better policies
has developed the “Assisted Suicide Ban and more discourse in the medical community
Act.” regarding methods for excellent end-of-life
care embodies this notion. On the state level,
Pain Management and Palliative Care the organizations exerting the most influence
on pain law and policy are the state medical
Lack of physician knowledge and skill in the boards and the hospital accreditation agencies.
assessment and management of pain is one of While significant measures are underway to
the most consistently cited barriers to effec- shape policy for better pain management, sig-
tive pain relief.41 Consider Robert Wagner, an nificant barriers still prevent many vulnerable
81-year-old nursing home resident. He cried Americans from receiving adequate relief, es-
out in pain and tears welled in his eyes. Though pecially in end-of-life care. Among the most
the ophthalmologist had only bumped Robert’s cited barriers is the simple truth that doctors
leg, the cancer in Robert’s femur had gone un- remain uneducated about palliative care and
detected, largely because his doctors and the specifically about the most current techniques
nursing home staff failed to notice that Robert in proper pain management.47 Medical schools
was in pain.42 Unfortunately, Robert Wagner’s and nursing schools are not teaching palliative
misunderstood grimace is not an isolated event. techniques to students, nor do textbooks and
Today, where good pain management is most lectures address the use of pain medications.48
needed—in the nursing homes, hospitals, and As a result, healthcare providers enter their
hospice centers serving millions of Americans, professions ill-equipped to manage chronic
many of whom die in those places—good pain pain.49
management is notably lacking.
Moreover, mistreating and undertreating pain
Terminally-ill patients repeatedly rank pain symptoms are not trivial mistakes when health-
management and symptom control as an is- care costs are considered. Yet the greatest costs
Defending Life 2010

424
of the perpetuated ignorance may be patients’ sustain her. She had not received any rehabili-
lives. Sixty-nine percent of chronic pain suf- tative measures since 1992 and her family was
ferers would request PAS if they believed their restricted from caring for her in any way. She
pain could not be managed,50 and many who was not terminally ill and did not face a certain
request PAS would “withdraw that request death in the near future. After a petition from
if their depression and pain were treated.”51 her husband and guardian, a court declared her
Evidence supports that when suicide is an ac- to be in a persistent vegetative state and or-
ceptable option, less energy is devoted to truly dered her food and water to be withheld. She
compassionate medical care including pallia- died 13 days after the execution of the order
tive services.52 Creating a system of policies from dehydration. She was 41.54
focused on palliative care is therefore antitheti-
cal to a system that accepts assisted suicide as a In 1990, the Supreme Court held that a state
“treatment alternative.”53 could choose to defer a third-party’s decision
to refuse medical treatment if there was no
While the medical profession is making posi- clear and convincing evidence of the patient’s
tive steps to improve its own practices in pain instruction to do so—the Constitution did not
management, legislation can assist these efforts require the state to substitute the wishes of
by encouraging more education, protecting close family members in the absence of express
doctors from litigation for prescribing certain patient wishes.55 Even though food and wa-
medications for pain management, and foster- ter is a basic bodily necessity for sustainment,
ing more communication between doctors and most medical professionals, and subsequently
patients about palliative options for treatments. state legislatures, now consider food and water
Such measures in the states will accelerate the to be a form of medical treatment that may be
popular trend toward confronting end-of-life refused by a patient’s express instructions. In
issues with emphasis on compassion and dig- Terri’s case, the court determined that she was
nity in life through pain management. in a persistent vegetative state and had made
reliable oral statements that she would want
To encourage pain management education, her feeding tube removed under such circum-
AUL has developed the “Pain Medicine Edu- stances.56
cation Act.”
The issue is whether nutrition and hydration
Nutrition and Hydration should be considered a medical treatment that
can be refused, and if so, under what circum-
In 2005, the case of Terry Schindler Schiavo stances. There is disagreement even among
brought the issue of artificial nutrition and hy- like-minded individuals. Some consider the
dration to the national spotlight. Terri suffered removal of food and water an act of euthanasia
a cardio-respiratory arrest resulting in severe by starvation and dehydration; while others see
neurological injuries in 1990 at the age of 26. it as a medical treatment permissibly withheld
She lived from then until March 2005 with the when a certain life condition is deemed no lon-
delivery of her food and water through a tube, ger worth sustaining.
but required no other life-support measures to

425
Those in favor of life are searching for ways power to save and sustain your life, the living
to protect vulnerable individuals within this will asks a patient to express what care a doc-
context and the broader context of “futile care tor may permissibly withhold. The persistent
theory” that is rapidly penetrating hospital care efforts of the healthcare community, lawyers,
protocols. Futile care theory holds that a doctor and policymakers to require a living will may
may unilaterally withhold medical treatment be done with good intentions, but, in reality, it
because the doctor believes the quality of life creates and projects an attitude that some lives
of the patient is not worthwhile or is simply not are not worth saving—even if done so under
cost effective, despite the wishes of the patient the guise of patient choice and autonomy.
or patient’s family. This theory contradicts the
“choice” and “patient autonomy” arguments, Advance directives are intentioned for a per-
but is akin to euthanasia as it rejects the ethic son to control—to a certain degree—future
that all humans are equal and worthy of pro- healthcare decisions in the event he or she
tection and adopts one where doctors decide later becomes unable to do so. The first type
which lives are worth saving and sustaining. 57 of advance directive implemented was the liv-
ing will, which is a legal document indicating
Although some advance directive initiatives what treatments may be withheld if a patient
like living wills exacerbate these issues—par- faces a specified condition and is unable to
ticularly with the withdrawal of medical treat- make the decision. It was introduced and
ments including food and water—other options promoted by many euthanasia advocates at-
can provide some significant protections. In tempting to initiate discussion on euthanasia
the absence of any form of advance directive, and the notion that some lives are simply not
some states are creating rebuttable presump- worth saving.
tions in favor of continuing food and water and
restricting the powers of healthcare proxies or A second type of advance directive is a dura-
surrogates from removing artificial nutrition ble power of attorney for healthcare decisions.
and hydration. This legal document empowers an appointed
agent to act on the behalf of the principal in
Advance Directives making healthcare decisions should the prin-
cipal be unable to make those decisions. As-
“I’m not dead yet” has become a necessary suming one selects a person who shares the pa-
statement by the disabled and those facing po- tient’s values on life and life-saving measures
tentially life-threatening conditions. Charlotte and is formidable enough to be an effective ad-
Allen shares her experience with undergoing vocate, the agent is better able to address future
surgery for an early stage of breast cancer. She healthcare decision than any written document
felt harassed by the hospital staff to fill out a liv- of instructions.
ing will instructing healthcare providers under
what conditions she would want to be resusci- Advance directives serve an important pur-
tated, and whether she would want a ventilator pose in planning for the future. Without a
or feeding tube if it became necessary.58 Rather healthcare proxy, patients will find that many
than assume a doctor will do everything in his healthcare providers and institutions will make
Defending Life 2010

426
important decisions for them or a court may in a terminal condition and unable to
appoint a guardian completely unfamiliar with make the decision to refuse certain
the patient or their wishes. The International medical treatment. A durable power
Task Force on Euthanasia and Assisted Suicide of attorney for healthcare is a docu-
recommends a Protective Medical Decision ment, signed and witnessed (or nota-
Document, which names a durable power of rized), designating an agent to make
attorney and specifically prohibits euthanasia healthcare decisions for the principal
and assisted suicide.59 if the principal is temporarily or per-
manently unable to do so. A combi-
Many states continue to promote advance di- nation advance directive provides an
rectives and guidance for “do not resuscitate agent specific instructions to follow in
orders” —some to the benefit of patients and healthcare decisions if the person is
others to the detriment. Yet, a study published unable to so.
by the Archives of Internal Medicine found
that 65 percent of physicians would not nec- • Assisted suicide is the act of suicide
essarily follow a living will if, for example, with the help of another party. Phy-
its instructions conflicted with the doctor’s sician-assisted suicide (PAS) specifi-
own ideas of the patient’s prognosis or ex- cally involves the help of a physician
pected quality of life.60 Many states encour- in performing the act of suicide. Such
age advance directives and some are creating assistance usually entails the prescrib-
registries to promote the adherence to them ing or dispensing of controlled sub-
by the medical community. As the culture of stances in lethal quantities that hasten
death becomes more and more pervasive, it death.
is critical to take protective measures against
the underlying presumption of withholding • Euthanasia involves the killing of one
certain medical treatments, inclusive of nu- person by or with the physical assis-
trition and hydration, and the propagation of tance of another. Voluntary euthana-
futile care theory. sia is the ending of one life by another
at the patient’s request. Nonvoluntary
Key Terms euthanasia describes “a physician’s
ending the life of a patient incapable
• Advance directive is a legal document of giving or refusing consent.”61 In-
expressing an individual’s healthcare voluntary euthanasia describes the
decision preferences in the circum- termination of a competent patient’s
stance where he or she becomes inca- life without his or her consent.62
pacitated or unable to make those de-
cisions. A living will is a declaration, • Futile care theory proposes that phy-
signed and witnessed (or notarized), sicians may unilaterally disregard re-
instructing physicians and healthcare quests for life-sustaining treatment
providers as to what treatments to made by a patient or a family mem-
withhold or withdraw if the person is ber if the quality of the patient’s life

427
is deemed not worth living. Advo- and comfortably as possible.”71 “Medi-

cates—including bioethicists, mem- care regulations require that hospice
bers of the medical academies, and patients must have a prognosis of less
social engineers—have drafted and than six months if the disease runs its
proposed mandatory treatment guide- normal course.”72 In the U.S., approx-
lines on how to deny requested life- imately 3,300 hospices serve about
sustaining care—which have been 950,000 people each year.73
adopted and put into practice by some
hospitals.63 • Opioids are “strong pain medications
derived from opium, or synthesized to
• Pain is an unpleasant sensory and behave like opium derivatives. Ex-
emotional experience associated with amples of opioids include morphine,
actual or potential tissue damage codeine, oxycodone, methadone, and
or described in terms of such dam- fentanyl.”74
age.64 Acute pain is a temporary re-
sult of identifiable injury or disease.65 • Palliative sedation entails adminis-
Chronic pain is a state in which pain trating sedatives to terminally-ill, con-
persists beyond the usual course of an scious patients whose pain cannot be
acute disease or healing of an injury, or otherwise relieved to alleviate suffer-
that may or may not be associated with ing, but with the effect of inducing un-
an acute or chronic pathologic process consciousness. The phrase “palliative
that causes continuous or intermittent sedation” is preferred over “terminal
pain over months or years.66 Chronic sedation” in order to make clear the in-
pain may be malignant—i.e., caused tent of administering the drug is not to
by cancer—or nonmalignant.67 induce unconsciousness.75
• Palliative care is “an approach [to • Double effect is a traditional doctrine

medicine] that emphasizes pain relief, justifying palliative sedation. The
symptom control, and spiritual and doctrine holds three requirements: 1)
emotional care for the dying and their the action itself (e.g., sedation) is not
families,”68 rather than curing the un- morally wrong, 2) the secondary effect
derlying disease. It generally entails (e.g., respiratory depression or death)
the use of analgesic medications, such is not merely a means to accomplish
as codeine and morphine.69 However, the intended benefit (e.g., pain relief),
other pain relief techniques, such as and 3) proportionality exists between
physical therapy and neurosurgery, are the intended effects and the unintended
also used.70 secondary effects (e.g., established by
the condition of the patient and con-
• Hospice is “support and care for per- sent of the patient or proxy.)76
sons in the last phase of an incurable
disease so that they may live as fully • Persistent vegetative state is a clini-
Defending Life 2010

428
cal diagnosis of a condition in which Myth: PAS allows terminally-ill patients a

an individual has lost cognitive neuro- choice and preserves autonomy and dignity.
logical function and awareness of his Fact: PAS “will ultimately weaken the auton-
or her surroundings with certain char- omy of patients at the end of life.”82 Not only
acteristics of maintaining sleep-wake is human dignity found in more than a healthy
cycles, responding to stimulation in body and autonomous lifestyle, but “the dig-
only a reflexive way, and showing no nity of human life itself precludes policies that
evidence of meaningful response to would allow it to be disposed of so easily.”83
the environment.77 Additionally, many PAS patients are coerced
into suicide because of familial pressures and
Myths & Facts a desire not to be a burden on their families.84
They often feel a need to justify their deci-
Physician-Assisted Suicide and Euthanasia sions to stay alive.85 This is not the essence of
choice, autonomy, or human dignity.
Myth: Allowing assisted suicide will not en-
courage the slide toward euthanasia. Safe- Myth: To say that “the so-called right to die
guards and procedures can be put into place to all too easily becomes a duty to die”86 is mere
ensure that PAS is only available for compe- rhetoric.
tent, terminally-ill patients. Fact: The non-partisan New York State Task
Fact: In addition to the tragic example of the Force on Life and the Law issued that state-
Netherlands is the fact that PAS is already ment after examining end-of-life issues for
available to terminally-ill patients in Oregon almost 10 years. The 25-member task force,
that are not enduring “unbearable pain and suf- comprised of prominent physicians, nurses,
fering.” For example, if PAS is accepted for lawyers, academics, and representatives of nu-
the terminally-ill without intractable pain, then merous religious communities, held differing
those Americans with severe chronic pain who, views on PAS and euthanasia. However, the
unlike the terminally-ill, must live with such group unanimously concluded that the dangers
severe pain for many years to come, would also of PAS vastly exceed any possible benefits.87
have a legitimate claim to PAS.78 Thus, there is
no reason not to expect PAS to be available to Moreover, the duty to die is already being
severe chronic pain sufferers, then non-severe played out in Oregon, where the state is actively
chronic pain sufferers, and then to those suffer- promoting assisted suicide over medical care.
ing from psychological pain or distress, as in In just one month in 2008, at least two differ-
the Netherlands.79 After examining the issues ent terminally-ill patients were denied medical
surrounding PAS and voluntary euthanasia, the treatment under the state health insurance plan,
British House of Lords concluded that it would and instead were told that the state would pay
not be possible to secure limits on its use.80 It for the patients’ suicides.88 The message was
also does not appear that barricading one group clear: We won’t treat you, but we will help you
of patients from PAS while allowing another die. The duty to die cannot be much clearer.
group of patients to use PAS would pass con-
stitutional muster.81

429
Pain Management and Palliative Care dosages are carefully monitored, the chances
of causing an overdose in a suffering patient
Myth: The availability of PAS will not inhibit are extremely unlikely.97 “[E]mpirical stud-
the availability of palliative care. ies have failed to show an association between
Fact: Palliative care actually “languishes as a increases in doses of sedatives during the last
consequence” of the easy availability of PAS hours of life and decreases in survival. There-
and euthanasia.89 Physicians are likely to grant fore, when dosed appropriately to relieve spe-
requests for PAS before all avenues of pallia- cific symptoms, such palliative medications
tive care have been explored.90 In addition, do not appear to hasten death.”98 In fact, mor-
physicians are not pushed to better educate phine use may prolong life by enabling a suf-
themselves on palliative care, and researchers fering patient to breathe more easily and effec-
spend less time looking for better palliative tively.99
medications and techniques.91
Myth: Even a patient in severe pain can reach
Myth: PAS is preferable because palliative a maximum tolerable dose for morphine.
medications result in unbearable side effects Fact: “Because of drug tolerance and individ-
and may hasten death anyway. ual responses to therapy, ceilings on dosage are
Fact: Fears about side effects and the hasten- not appropriate.”100
ing of death are unfounded.92 In fact, those
patients with severe pain actually become tol- Myth: Because pain is a subjective experi-
erant of palliative medicines, minimizing side ence, no broad policies can improve manage-
effects.93 There is also no evidence that pain ment of individual cases.
medications hasten death if such medications Fact: While pain is different for each indi-
are used correctly.94 In addition, doses can be vidual, there are objective ways to evaluate a
increased to alleviate intensified pain as dis- patient’s suffering. By establishing a system
eases progress.95 of pain management, such as that the JCAHO
standards require, better services are provided.
Myth: Opioids may cause addiction, even in Objective evaluations of pain include: “the con-
patients experiencing severe pain. sistency of the patient’s complaints and history
Fact: “[I]t is a fact that when narcotics are pre- during the evaluation; the course of the illness
scribed for the legitimate purpose of treating as documented in the medical records; the ex-
pain, they essentially never cause addiction. In tent of objective findings, if any, due to injury
studies of addiction with a total population of or illness; findings of physical capabilities that
over 24,000 patients, only seven could be doc- contradict the patient’s reports of limitations;
umented as having become totally addicted as and the presence of symptom magnification
a result of receiving opioids for pain relief.”96 and somatization.”101
Myth: Opioids pose a great risk for respira- Myth: Pain is an unfortunate and untreatable
tory depression leading to hastened death, even consequence of certain illnesses.
when monitored carefully. Fact: More than 90 percent of cancer pain can
Fact: Where the pain is well-assessed and be controlled with proper treatment102 and ap-
Defending Life 2010

430
proximately 95 percent of all chronic pain in only child would be better off dead. But by
the terminally ill can be likewise controlled,103 2005, he regained consciousness, demonstrated
commonly through use of opioids. his good sense of humor and remembered ev-
erything from before his accident.106 In many
Myth: If a physician prescribes or adminis- instances, patients will wake instantaneously
ters high doses of medication to relieve pain without any warning within the first month of
or other discomfort in a terminally ill patient, being in a persistent vegetative state. Gener-
resulting in death, he or she will be criminally ally, the first year holds the best odds for pa-
prosecuted. tients emerging from PVS: Children have 60
Fact: If the death was not intended, such treat- percent chance of recovery while adults have a
ments are not murder or assisted suicide.104 50 percent chance.107
Myth: In the small percentage of cases where Myth: The refusal of medical treatment is al-
a patient cannot be kept conscious while ad- ways at the decision of the patient or the pa-
ministering pain relief, there are no legal op- tient’s family.
tions and assisted suicide is necessary. Fact: Futile care theory is becoming more
Fact: Palliative sedation is legal, even in states prevalent among hospital policies and proce-
not authorizing assisted suicide, to relieve in- dures which promotes unilateral decisions by
tractable symptoms.105 attending physicians to withdraw or withhold
medical treatment if a life is considered un-
Nutrition and Hydration worthy of preserving against the wishes of the
and Advance Directives patient and the patient’s family.
Myth: When food and hydration is withdrawn,

the patient dies from an underlying disease or Endnotes
1
Washington v. Glucksberg, 521 U.S. 702, 711 (1997).
condition. 2
Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 269
Fact: When food and hydration are withdrawn, (1990).
3
See Glucksberg, 521 U.S. at 712.
the person dies of starvation and dehydration. 4
Id. at 141.
It is not that they are in the process of dying, 5
Cruzan, 497 U.S. at 277.
but a deliberate decision is made to remove 6
Id. at 280-81.
7
The Court stated that the “logical corollary of doctrine of in-
food and water in order to no longer sustain the formed consent is that the patient generally possesses the right
life—one deemed not worth living. not to consent, that is, to refuse treatment.” Id. at 270.
8
Id. at 284.
9
521 U.S. 702.
Myth: A persistent vegetative state (PVS) is a 10
521 U.S. 793 (1997).
certain diagnosis and the person has no chance 11
Glucksberg, 521 U.S. at 728 (citing Cruzan, 497 U.S. at 282).
12
Id. at 702, 729-35.
of recovery. 13
Vacco, 521 U.S. at 800-01. See also id. at 808 (stating that
Fact: It is a clinical diagnosis based on subjec- “the two acts are different” and referring to the distinction as a
tive assessments from an attending physician. “longstanding and rational distinction”).
14
Id. at 801, 807-809.
Louis Viljoen was diagnosed as PVS in 1996 15
Pub. L. No. 105-12, 111 Stat. 23-28, at § 2(b).
following an accident and there were many 16
Baxter v. State, No. ADV-2007-787 (2008).
times when his mother wondered whether her
17
The initiative was voted on by Oregon citizens and was only

431
narrowly approved. 30
National Statistics, American Foundation for Suicide Pre-
18
See Gonzales v. Oregon, 546 U.S. 243 (2006); Washington v. vention (2006), available at http://www.afsp.org/index.
Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 cfm?fuseaction=home.viewpage&page_id=050FEA9F-B064-
(1997). 4092-B1135C3A70DE1FDA (last visited June 10, 2009).
19
Oregon Death with Dignity Act, Or. Rev. Stat. §§ 127.800, 31
National Center on Elder Abuse, A Response to the Abuse of
.805 (1997). Vulnerable Adults (Washington, DC 2000).
20
In fact, in March 2008 Oregon disingenuously reported that 32
Nearly all end-of-life issues—access to competent health care,
more patients in 2007 were concerned with inadequate pain con- adequate pain relief, in-home personal care, peer counseling,
trol than in previous years. However, if one looks at the sum- family support—have been issues of disability rights for de-
maries for the preceding years, in 2007 there was actually a 15 cades. Brief of Amici Curiae Disability, et al. at 3-4, Baxter v.
percent drop from 2006 in patients expressing a concern about Montana, (No. 09-0051).
pain control. See, e.g., Oregon Department of Human Services, 33
Steven Ertelt, Dignitas Assisted Suicide Clinic in Switzerland
Summary of Oregon’s Death with Dignity Act—2007 (2008), Probed, Killed Man With Depression, LifeNews.com, May 25,
available at http://www.oregon.gov/DHS/ph/pas/docs/year10. 2009, available at http://www.lifenews.com/bio2858.html (last
pdf (last visited June 11, 2009); Oregon Department of Human visited May 27, 2009).
Services, Summary of Oregon’s Death with Dignity Act—2006 34
David Brown, Dignitas founder plans assisted suicide of
(2007), available at http://www.oregon.gov/DHS/ph/pas/docs/ healthy woman, TIMESONLINE, Apr, 3, 2009 available at
year9.pdf (last visited June 11, 2009); Oregon Department of http://www.timesonline.co.uk/tol/news/world/europe/arti-
Human Services, Eighth Annual Report on Oregon’s Death cle6021947.ece (last visited June 15, 2009).
with Dignity Act 14 (2006), available at http://www.oregon. 35
New York State Task Force on Life and the Law, When Death
gov/DHS/ph/pas/docs/year8.pdf (last visited Jun 11, 2009); Or- is Sought: Assisted Suicide and Euthanasia in the Medical Con-
egon Department Human Services, Seventh Annual Report on text 2 (1994) [hereinafter Task Force].
Oregon’s Death with Dignity Act 15 (2005), available at http:// 36
Herman Hendin, Seduced by Death: Doctors, Patients, and
egov.oregon.gov/DHS/ph/pas/docs/year7.pdf (last visited June Assisted Suicide 142 (1998).
11, 2009); Oregon Department of Human Services, Sixth Annual 37
Id. at 19.
Report on Oregon’s Death with Dignity Act 14 (2004), available 38
Id. at 141.
at http://egov.oregon.gov/DHS/ph/pas/docs/year6.pdf (last June 39
Alexandra Colen, Dutch Government Sanctions Infanticide,
11, 2009). The Brussels Journal, Sept 25, 2005 available at http://www.
21
Nina Shapiro, Terminal Uncertainty: Washington’s new brusselsjournal.com/node/297 (last visited June 16, 2009).
“Death With Dignity” law allows doctors to help people commit 40
In his book Seduced by Death, Herbert Hendin relates the
suicide—once they’ve determined that the patient has only six story of Louise, who suffered from an unnamed degenerative
months to live. But what if they are wrong? Seattle Weekly, Jan neurological disorder. Id. at 50-56. Death appeared imminent,
14, 2009, available at www.seattleweekly.com/content/printVer- and Louise requested that her doctor assist in her suicide. When
sion/553991 (last visited June 9, 2009). Louise had second thoughts, her mother, a friend, her doctor, a
22
Herbert Hendin & Kathleen Foley, Physician-Assisted Sui- reporter, and a member of Compassion in Dying (now Compas-
cide in Oregon: A Medical Perspective, 106 Mich. L. Rev. 1616 sion & Choices) all acted to convince her that suicide was the
(2008). right decision. Id.
23
DHS, Oregon’s Death with Dignity Act: Three years of legal- 41
Ben A. Rich, The Politics of Pain: Rhetoric or Reform?, 8
ized physician-assisted suicide, Feb. 22, 2001, Table 3, avail- DePaul J. Health Care L. 519, 523 (2005).
able at http://egov.oregon.gov/DHS/ph/pas/docs/year3.pdf (last 42
Last Acts Program of the Robert Wood Johnson Foundation,
visited June 9, 2009). Means to a Better End: A Report on Dying in America Today 33
24
The Oregon branch of Compassion & Choices acknowledged (2002), available at http://www.rwjf.org/files/publications/other/
its involvement in 79 percent of reported assisted-suicide deaths. meansbetterend.pdf (last visited October 24, 2008).
Compassion in Dying of Oregon, Summary of Hastened Deaths, 43
Jane E. Brody, Facing Up to the Inevitable: In Search of a
Data attached to Compassion in Dying of Oregon’s IRS Form Good Death, New York Times, Dec. 30, 2003, at F5.
990 for 2003. 44
Joan M. Teno et al., Family Perspectives on End-of-Life Care
25
About Us, Oregon Department of Human Services available at at the Last Place of Care, 291 JAMA 88 (2004).
http://www.oregon.gov/DHS/ph/pas/about_us.shtml (last visited 45
Maria J. Silveira et al., Patients’ Knowledge of Options at the
June 13, 2009). End of Life: Ignorance in the Face of Death, 284 JAMA 2483
26
Or. Rev. Stat. § 127.875. (2000) (“A national poll conducted by the American Medical As-
27
Reporting Requirements of the Oregon Death with Dignity sociation in 1997 found that 40% of respondents did not know
Act, Oregon Department of Human Services available at http:// it is legal to give pain medicine that could have the additional
www.oregon.gov/DHS/ph/pas/oars.shtml (last visited June 13, effect of hastening death (double effect), and 35% were not fa-
2009). miliar with the terms hospice or palliative care.”) (emphasis in
28
Or. Rev. Stat. § 127.885. original).
29
Or. Rev. Stat. § 127.865. 46
Mark E. Chopko, Responsible Public Policy at the End of Life,
Defending Life 2010

432
75 Det. Mercy L. Rev. 557, 574-75 (1998). 56

Greer, George W., Circuit Judge (2000-02-11). “In re: the
47
S. Rep. No. 106-299 (2000) (“The problem is not that modern guardianship of Theresa Marie Schiavo, Incapacitated,” File No.
medicine is incapable of controlling pain, but that too many clini- 90-2908GD-003”. Florida Sixth Judicial Circuit. http://abstrac-
cians are inadequately trained in the most up-to-date techniques. tappeal.com/schiavo/trialctorder02-00.pdf. pp. 9-10 (last visited
In a survey of 1,177 physicians who had treated a total of more Jun 11, 2009)
than 70,000 patients with cancer in the previous six months, 76 57
See Wesley Smith, Forced Exit Euthanasia, Assisted Suicide,
percent cited lack of knowledge as a barrier to their ability to and the New Duty to Die 176-191 (Encounter Books 1997).
control pain.”); Andrea Petersen, Negotiating the Terms of Your 58
Charlotte Allen, BACK OFF! I’M NOT DEAD YET. I Don’t
Death: Medical Advances Give Patients More Control Over Want a Living Will. Why Should I? The Washington Post, Oct
How and When they Die, Wall Street Journal, May 10, 2005, 14, 2007 B01 available at http://www.washingtonpost.com/wp-
at D1 (“[A] number of more advanced pain treatments have been dyn/content/article/2007/10/12/AR2007101201882.html (last
developed in recent years. And perhaps more significantly, pal- visited Jun 11, 2009).
liative-care centers are finding success treating the dying with 59
Advance Directives, International Task Force on Euthanasia
medications not necessarily meant for terminal illnesses.”). and Assisted Suicide available at http://www.internationaltask-
48
See e.g., S. Rep. No. 106-299, supra (“Perhaps ‘the biggest force.org/advdir.htm (last visited Jun 11, 2009).
obstacle’ to adequate pain treatment of pain . . . is ‘ignorance’: 60
Robin Marantz Henig, Will We Ever Arrive at the Good Death?,
Few medical schools or residency programs require training in New York Times Magazine, Aug. 7, 2005 at 26.
pain management, and many rank-and-file physicals [sic] are un- 61
Hendin, supra, at 91 (emphasis added).
aware of modern advances in palliative care.”);. 62
Id. at 92.
49
See e.g., Rabow, supra, at 771 (“In general, students and phy- 63
Smith, supra note 57, at 177, 185.
sicians feel ill prepared to provide end-of-life care.”) See also 64
Federation of State Medical Licensing Boards, supra, at 7.
Kwekkeboom et al., supra, at 91 (“In a recent survey of 352 65
Wishik, supra, at 36.
practicing nurses, 66% rated their knowledge of end-of-life care 66
Federation of State Medical Licensing Boards, supra, at 7.
as fair or poor. . . .62% of oncology nurses rated their basic nurs- 67
ing school education on end-of-life care as inadequate. 68
Henig, supra, at 26.
50
Joseph P. Pestaner, End-of-Life Care: Forensic Medicine v. 69
Task Force, supra, at 37.
Palliative Medicine, 31 J.L. Med. & Ethics 365, 369 (2003). 70
For a more in-depth explanation of palliative care, see Ameri-
51
Herbert Hendin, Seduced by Death 24-25 (1997), cited in cans United for Life, Brief of Amicus Curiae in Support of Peti-
Washington v. Glucksberg, 521 U.S. 702, 730 (1997). tioners at 7-9, Gonzales v. Oregon (Sup. Ct. No. 04-623), avail-
52
See e.g., Brief for Amicus National Hospice Organization able at http://www.aul.org/xm_client/client_documents/briefs/
at 18, Vacco v. Quill, 521 U.S. 793 (1997), and Washington v. GonzalesvOregon04-623.pdf (last visited Oct. 24, 2008).
Glucksberg, 521 U.S. 702 (1997) (“[T]he acceptance of assisted 71
Center to Advance Palliative Care Manual: How to Establish
suicide as a way to deal with terminal illness would undercut a Palliative Care Program (C. F. Von Gunten et al., eds. 2001),
further efforts to increase the public’s awareness of hospice as a available at http://64.85.16.230/educate/content/elements/nhp-
life-affirming option.”); Chopko, supra, at 581-82 (“[I]mprove- codefinition.html (last visited Oct. 24, 2008).
ments [in pain relief techniques] could be dramatically undercut 72
Henig, supra, at 26.
if assisted suicide were to become accepted practice . . . .”). See 73
Id.
also Herbert Hendin, Med. Dir., Am. Found. Suicide Prevention, 74
Last Acts Program of the Robert Wood Johnson Foundation,
Remarks for the President’s Council on Bioethics (Mar. 3, 2005), Means to a Better End: A Report on Dying in America Today 33
available at http://bioethicsprint.bioethics.gov/transcripts/ (2002), available at http://www.rwjf.org/files/publications/other/
march05/march03full.html (last visited Oct. 24, 2008) (“Eu- meansbetterend.pdf (last visited Oct. 24, 2008).
thanasia, intended for the exceptional case, became an accepted 75
Bernard Lo & Gordon Rubenfeld, Palliative Sedation in Dying
way of dealing with serious or terminal illness in The Nether- Patients: “We Turn to It When Everything Else Hasn’t Worked”,
lands. Palliative care became one of the casualties. Hospice 294 JAMA 1810, 1812 (2005).
care lagged behind that of other countries. Dutch deficiencies 76
Id.
in palliative care have been attributed by Dutch palliative care 77
Keith Andrews, Misdiagnosis of the vegetative state: retrospec-
experts to the easier alternative of euthanasia.”). tive study in a rehabilitation unit, BMJ 313: 13-16 (6 Jul 1996)
53
See e.g., L. C. Kaldjian et al., Internists’ Attitudes Towards available at http://www.bmj.com/cgi/content/full/313/7048/13
Terminal Sedation in End of Life Care, 30 J. Med. Ethics 499, (last visited Jun 11, 2009).
499 (2004) (“Most internists who support aggressive palliation 78
New York State Task Force on Life and the Law, When
appear likely to draw an ethical line between terminal sedation Death is Sought: Assisted Suicide and Euthanasia in the Medi-
and assisted suicide.”). cal Context 5 (Supp. 1997) [hereinafter Task Force Supp.].
54
Terri’s Story, Terri Schindler Schiavo Founation, available Added to the plight of the non-terminally-ill chronic pain suf-
at http://www.terrisfight.org/pages.php?page_id=3 (last visited ferers is the fact that the pain of the terminally-ill is actually
June 11, 2009). better managed than that of chronic pain sufferers. Task Force,
55
Cruzan, 497 U.S. at 286-87. supra, at 23. An argument can be made that such sufferers actu-

433
ally have a stronger liberty interest in PAS than terminally-ill 95

Task Force, supra, at 162. Even the two percent of patients re-
patients. Yale Kamisar, The “Right to Die”: On Drawing (and quiring sedation can die peacefully, without suffering. American
Erasing) Lines, 35 Duq. L. Rev. 481, 510 (1996). Geriatrics Society, supra, at III.D.; Hendin, supra, at 14.
79
See, e.g., the story of “Netty Boomsma” in Hendin, supra, at 96
Rosemary Ryan, Medical Practice: Palliative Care and Ter-
76-83. Few advocates of PAS argue that the right to PAS should minal Illness, 26 Nat’l Catholic Bioethics Quarterly 313, 316
be limited to the terminally-ill. Task Force, supra, at 74 n.113. (2001).
One proposed model for PAS was limited to those with “incur- 97
Id. at 318. See also Brody, supra, at F5 (According to Eliza-
able, debilitating disease who voluntarily request to end their beth Ford Pitorak, director of the Hospice Institute of Hospice
lives.” Hendin, supra, at 206. This would include patients with of the Western Reserve of Cleveland, no evidence supports that
diabetes and arthritis. Id. such drugs hasten death); Sarah E. M. Buzzee, Comment, The
80
Report from the Select Committee on Medical Ethics, House of Pain Relief Promotion Act: Congress’s Misguided Interven-
Lords Session 1993-94, § 238. On May 12, 2006, the House of tion into End-of-Life, 70 U. Cin. L. Rev. 217, 242 (2001).Lo &
Lords again rejected proposed laws to allow PAS. Rubenfeld, supra, at 1815; see also L. C. Kaldjian et al., Inter-
81
Eric Chevlen, The Limits of Prognostication, 35 Duq. L. Rev. nists’ Attitudes Towards Terminal Sedation in End of Life Care,
337, 348 (1996). “If autonomy is the guiding principle and the 30 J. Med. Ethics 499 (2004) (“Although physiological concerns
determination of pain and suffering is so subjective, then any exist about the possibility that opioids and benzodiazepines may
competent person… has the right to choose euthanasia.” Hen- hasten death by suppressing respirations, there is a paucity of
din, supra, at 122. The New York State Task Force concluded empirical data to support these concerns. . . .Even more provoca-
that “it will be difficult, if not impossible, to contain the option to tive are suggestions that sedation toward the end of life may ac-
such a limited group…. [N]o principled basis will exist to deny tually prolong life rather than hasten death, due to dampening
[other patients] this right.” Task Force Supp., supra, at 5. The of increased metabolic demands caused by pain and distress in
Task Force explains that if the right to refuse medical treatment patients who are fragile.”).
is not limited to the terminally-ill, then PAS will not be limitable, 98
Lo & Rubenfeld, supra, at 1815; see also L. C. Kaldjian et al.,
either. Id. at 12-13. Internists’ Attitudes Towards Terminal Sedation in End of Life
82
Task Force Supp., supra, at 18; see also Task Force, supra, at Care, 30 J. Med. Ethics 499 (2004) (“Although physiological
134 (stating that while the “autonomy” of some patients may be concerns exist about the possibility that opioids and benzodi-
extended, the autonomy of many others would be compromised azepines may hasten death by suppressing respirations, there is
with the legalization of PAS). a paucity of empirical data to support these concerns. . . .Even
83
Task Force, supra, at 138. more provocative are suggestions that sedation toward the end
84
See, e.g., Hendin, supra, at 50-56, 61, 128-32, 142. of life may actually prolong life rather than hasten death, due to
85
Task Force, supra, at 95. See also id. at 99 (stating that “the dampening of increased metabolic demands caused by pain and
so-called ‘right to die’ all too easily becomes a duty to die”). distress in patients who are fragile.”).
86
Task Force, supra, at 99. 99
Ryan, supra, at 318.
87
Id. at ix, 120. 100
Lo & Rubenfeld, supra, at 1815. See also Ryan, supra, at
88
Steven Ertelt, Oregon Tells Patients State Will Pay for As- 317.
sisted Suicide, Not Health Care (July 30, 2008), available at 101
http://www.lifenews.com/bio2527.html (last visited October 24, 102
Furrow, supra, at 29.
2008) [hereinafter Ertelt I]; Steven Ertelt, Oregon State Health 103
Care Plan Will Pay for Assisted Suicide, Not Treatment (June 23, 104
Meisel, supra, at 2499. See also Ryan, supra, at 317.
2008), available at http://www.lifenews.com/nb139.html (last 105
Meisel, supra, at 2499.
visited October 24, 2008). Randy Stroup, a patient with prostate 106
Julia Stuart, Back from the Dead: A cure for comas, Compas-
cancer, was uninsured and needed expensive chemotherapy. See sionate Healthcare Network, March 27, 2009 available at http://
Ertelt I, supra. He applied to the Oregon health insurance plan www.chninternational.com/pvs_recovery.htm (last visited June
for help, but was told that the state would not cover treatment, 16, 2009).
but would pay for an assisted suicide. Id. 107
Persistent Vegetative State, Brain and Spinal Cord.Org avail-
89
Hendin, supra, at 244. able at http://www.brainandspinalcord.org/recovery-traumatic-
90
Task Force Supp., supra, at 4. brain-injury/Vegetative-state-tbi.html (last visited June 16,
91
The availability of euthanasia appears to have contributed to 2009).
the failure of palliative care in the Netherlands. Hendin, supra,
at 15.
92
See, e.g., id. at 44; Kamisar, supra, at 497.
93
Task Force, supra, at 162; American Medical Association, Re-
port 4 of the Council on Scientific Affairs: Aspects of Pain Man-
agement in Adults (1995), available at http://www.ama-assn.org/
ama/pub/category/13672.html (last visited October 24, 2008).
94
Task Force Supp., supra, at 17.
Defending Life 2010

434

435
End of Life Talking Points

• Every court of final jurisdiction in the nation to consider the constitutionality of phy-
sician-assisted suicide (PAS) has held that the state’s interest in preserving the lives of
its people justifies its prohibition. Forty-one states have either an explicit or implied
prohibition. The Supreme Court has acknowledged the legitimate government interests
in: 1) preserving life; (2) preventing suicide; (3) avoiding the involvement of third par-
ties and use of arbitrary, unfair, or undue influence; (4) protecting family members and
loved ones; (5) protecting the integrity of the medical profession; and (6) avoiding future
movement toward euthanasia and other abuses. Washington v. Glucksburg, 521 U.S.
702, 792-793 (1997).
• The “Oregon Death with Dignity Act” exemplifies how safeguards for legalized PAS
are inadequate and being circumvented to allow suicide of the depressed and involun-
tary killing. It is impossible to hold physicians accountable when permitted to assist
suicide. The lack of transparency in physician self-reporting measures and the failure of
the Oregon Department of Human Services reporting requirements leave the elderly and
disabled in danger.
• The Netherlands conclusively demonstrates that authorizing assisted suicide inevitably

leads to involuntary euthanasia. Virtually every safeguard set up by the country has
failed to protect patients. Regulation is impossible because 60 percent of cases are not
reported. 1 One study revealed that .08 percent of all deaths in the Netherlands were a
result of euthanasia performed without a contemporaneous request from the patient; in
the United States, that would equal 16,000 deaths a year from involuntary euthanasia.2
In other studies, one-fourth of physicians stated that they had “terminated the lives of
patients without an explicit request.”3 In another study, no request for death was made
in over 80 percent of the cases.4
• PAS is admittedly the first step in accepting death as an alternative to suffering—in-

cluding depression and mental suffering. The Swiss experience reveals the abuses of
legal assisted suicide and the difficulty in prosecuting violations of the law as advocates
challenge the limits and safeguards. Dignitas, a Swiss assisted suicide facility, is un-
der investigation for assisting a healthy, depressed man to commit suicide,5 as well as,
publicizing its intention to help a healthy wife commit suicide with her terminally-ill
husband.6
• PAS is antithetical to the purpose and nature of the medical profession. The American
Medical Association, the American Psychiatric Association, the American College of
Physicians, and the American Academy of Geriatrics and the American Pain Society,
Defending Life 2010

436
among other health care associations, have all issued position statements against PAS.
• PAS encourages a cost/benefit analysis and subjective determination of a patient’s qual-

ity of life, especially with the current economic difficulties, efforts to cut health care
costs, and the ongoing debate over nationalizing healthcare. Health insurance coverage
in Oregon includes the “cost effective” medical treatment of ingesting a lethal prescrip-
tion under “death with dignity.”
• The vast majority of terminally-ill patients do not desire suicide—the overwhelming ma-
jority fight for life until the end.7 PAS requests most often come from patients who are
actually suffering from treatable mental disorders, typically depression. Often, patients
withdraw their PAS request when physicians appropriately treat depression or address
the pain and other concerns causing the depression.8 An option of suicide provides little
incentive for physicians to seek alternative remedies for alleviating pain and addressing
the underlying causes of depression.
• Unbearable pain is often given as the reason to permit assisted suicide, but studies show
it is not the reason patients request PAS. A study of HIV patients revealed, “The stron-
gest predictors of interest in physician-assisted suicide were high scores on measures of
psychological distress (depression, hopelessness, suicidal ideation, and overall psycho-
logical distress) and experience with terminal illness in a family member or friend.”9
The study concluded, “Patients’ interest in physician-assisted suicide appeared to be
more a function of psychological distress and social factors than physical factors.”10

• Legalized PAS hides abuse of the elderly and disabled. It provides complete liability
protection for doctors and promotes secrecy, particularly when PAS doctors are self-
reporting, death certificates are required to report a “natural” death, and there are no wit-
ness requirements at time of death. As observed in Oregon, PAS—accompanied by any
number of safeguards—permits absolutely no transparency and makes patient choice
and protections simply illusions.
• PAS discriminates against and degrades the lives of people with disabilities. It denies
people with disabilities the benefit of suicide prevention and enforcement of homicide
laws.11 Furthermore, PAS completely undermines suicide prevention efforts.
• Assisted suicide is unnecessary for the treatment of pain. Pain associated with terminal-
illness patients can be relieved. Ninety-five to ninety-eight percent of pain can be ad-
dressed through palliative care.12 The pain of the remaining patients can be relieved
through sedation.13 While PAS proponents market the hard cases—those cases where
pain is claimed to be unbearable—proper palliative care makes the hard cases practically
non-existent.

437
• A patient’s pain and suffering is inherently subjective and cannot be used as a gauge for
who should be eligible for PAS.14 “Suffering is a distinctly human, not a medical, condi-
tion.”15 As such, public policies that hinge on the notion of pain and suffering are uncon-
tainable.16 In addition, any evaluation of pain and suffering would be left to a doctor’s
assessment which, ironically, depletes a patient’s autonomy rather than preserves it.
• In contrast to using controlled substances for assisting suicide, using them to control
pain is a “legitimate medical purpose” under the federal “Controlled Substances Act”
and similar state statutes. The provision of pain medication and sedation is legally,
medically, and ethically acceptable if it is intended to alleviate pain and is provided in
accordance with accepted medical standards.
• The proper response to pain and suffering is training for healthcare professionals in the
wider use of effective palliative techniques and education to patients to address unwar-
ranted fears—not the elimination of the sufferer. 17
Endnotes
1
Herbert Hendin, Seduced by Death: Doctors, Patients, and Assisted Suicide 20, 136 (1998).
2
New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Con-
text 134 (1994) [hereinafter Task Force]; Hendin, supra, at 91.
3
Hendin, supra, at 139. In 48 percent of those cases there was no request of any kind. Id.
4
Id. at 140.
5
Steven Ertelt, Dignitas Assisted Suicide Clinic in Switzerland Probed, Killed Man With Depression, LifeNews.com, May 25, 2009,
available at http://www.lifenews.com/bio2858.html (last visited May 27, 2009).
6
David Brown, Dignitas founder plans assisted suicide of healthy woman, TIMESONLINE, Apr, 3, 2009 available at http://www.
timesonline.co.uk/tol/news/world/europe/article6021947.ece (last visited June 15, 2009).
7
Task Force, supra, at 9, 13, 72; Hendin, supra, at 34. Terminally-ill patients account for only two to four percent of all suicides.
Hendin, supra, at 34 .
8
Task Force, supra, at x, 13, 26, 108, 126. Treatment for depression resulted in 90 percent of patients ceasing their desire for suicide.
In one study, every terminally-ill patient who expressed a wish to die was suffering from major depression. Hendin, supra, at 240.
9
William Breitbart, MD, Barry D. Rosenfeld, PhD & Steven D. Passik, PhD, Interest in Physician-Assisted Suicide Among Ambula-
tory HIV-Infected Patients, Am J Psychiatry 1996; 153:238-242.
10
Id.
11
Nearly all end-of-life issues—access to competent health care, adequate pain relief, in-home personal care, peer counseling, family
support—have been issues of disability rights for decades. Brief of Amici Curiae Disability, et al. at 3-4, Baxter v. Montana, (No.
09-0051).
12
Timothy E. Quill & Christine K. Cassel, Professional Organizations’ Position Statements on Physician-Assisted Suicide: A Case for
Studied Neutrality, Annals of Internal Med. 138:3:208 (2003); Robert A. Burt, Constitutionalizing Physician-Assisted Suicide: Will
Lightning Strike Thrice?, 35 Duq. L. Rev. 159, 166 (1996); see also Americans United for Life, Brief of Amicus Curiae in Support
of Petitioners at 6-7, Gonzales v. Oregon (Sup. Ct. No. 04-623), available at http://www.aul.org/xm_client/client_documents/briefs/
GonzalesvOregon04-623.pdf (last visited October 29, 2009).
13
American Geriatrics Society, Brief as Amicus Curiae Urging Reversal of the Judgments Below at Part I.B, Vacco v. Quill, 521 U.S.
793 (1997); Wesley J. Smith, Forced Exit: The Slippery Slope from Assisted Suicide to Legalized Murder 207 (1997).
14
Id. at 132.
15
Id. at 22.
16
Hendin, supra, at 192. “Suffering” may arise from a number of non-medical causes, such as social isolation, fear, and frustration
of a goal, which are obviously unacceptable reasons to allow PAS. Task Force, supra, at 21, 135.
17
Common barriers to palliative care are the widespread lack of training of physicians in palliative care and fears about the side ef-
fects of palliative care medications. Americans United for Life, supra, at 10-15. Thus, education of both physicians and patients is
Defending Life 2010

438
a proper response to the pain and suffering of the terminally-ill.

439
Laws Regarding Assisted Suicide
Thirty-five states expressly criminalize assisted suicide:

AK, AZ, AR, CO, CT, DE, FL, GA, IL, IN, IA, KS, KY, LA, ME, MD, MI,
MN, MS, MO, NE, NH, NJ, NM, NY, ND, OK, PA, RI, SC, SD, TN, TX, VA,
and WI.
Six states prohibit assisted suicide under common law of crimes or judicial
interpretation of homicide statutes: AL, ID, MA, NC, VT, and WV.
Two states approved assisted suicide by statute: OR and WA
One state has pending constitutionally-declared “right to die” with physician-

assisted suicide: MT
One state expressly criminalizes assisted suicide, but also requires physicians to
counsel patients on how to commit suicide, going so far as to require physicians
to provide prescriptions for those patients wishing to starve or dehydrate to
death: CA
Defending Life 2010

440
Pain Medicine Education
Only one state has amended its medical school curriculum requirements to add
instruction on pain management and end-of-life issues: CA
One state requires annual training in pain recognition and management for nursing
home staff: CT
Four states formed advisory councils on Pain Management to make recommendations

on medical school curricula, continuing education, and other guidelines for pain
management: AR, MI, MO, and NM
One state passed legislation encouraging licensing boards or individual physicians to

pursue improving pain management education and treatment: NE

441
2009 State Legislative Sessions in Review:

End of Life
By Jessica J. Sage
Staff Counsel, Americans United for Life
I n most years, legislative and other state

measures related to the end of life are few
in number and do not receive much attention,
legal documents, and palliative care and pain
management options.
except when, as in late 2008, Washington state Assisted Suicide and Euthanasia
voters approved physician-assisted suicide
(PAS) and a Montana district court declared Nearly a quarter of states dealt with PAS initia-
the state’s constitutional rights to individual tives in the last two legislative years. In 2009,
privacy and human dignity include the right making use of titles such as Death with Digni-
for a patient to use the assistance of her phy- ty, Compassionate Choices, Right to Die, and
sician to obtain lethal medication and commit Patient Control or Choice, at least eight states
suicide. including Connecticut, Hawaii, Massachusetts,
Montana, New Hampshire, New Mexico, and
Just as in 2005 when the Terri Schindler-Schi- Vermont considered measures to legalize (or,
avo case commanded the public’s attention in the case of Montana, regulate) PAS.
when a court ordered her feeding and hydra-
tion tube removed, the recent death of Linda Importantly, euthanasia and PAS advocates
Fleming, the first woman to commit suicide have an aggressive agenda to see PAS legal-
under the new PAS law in Washington, drew ized in all 50 states. Defeat does not deter
similar attention and much sorrow from pro- them; rather, it causes them to re-strategize
life advocates. Unfortunately, victories in about how to gain acceptance for PAS and
Washington and Montana have energized the then re-attack. During the 2009 state legisla-
pro-euthanasia movement and emboldened it tive sessions, they did so by pursuing measures
to introduce PAS legislation and other end-of- that advance their ideology, including lobby-
life related legislation across the country. ing state medical boards to pass resolutions
or provide position statements of neutrality
In 2009, approximately 140 measures related or affirmation for PAS, as well as promoting
to end-of-life issues were considered in 44 advance directives for individuals to explicitly
states—a significant increase in activity from refuse life-saving medical treatments and sus-
levels seen in 2008. This dramatic turn-of- tenance needs if they become incapacitated.
events demands a meaningful public debate In this vein, Maryland enacted a measure add-
about PAS and euthanasia, the affirmative act ing a nursing home industry representative to
of removing food and hydration from vulner- its State Advisory Council on Quality Care at
able patients, the scope and effectiveness of End of Life.
advance directives for health care and similar
Defending Life 2010

442
Conversely, Wyoming considered a measure to Louisiana passed resolutions for two studies.
criminalize assisted suicide. The first study requests the State Department
of Health and Hospitals to study the use of liv-
Advance Directives, Living Wills, ing wills among Medicaid recipients, while the
Healthcare Powers of Attorney, second creates a study committee to look at
and Related Documents physician orders for life-sustaining care.
The vast majority of end-of-life measures con- Maine enacted two measures, with the first de-
sidered in 2009 dealt, in varying ways, with veloping two education programs about end-
advance directives, “do not resuscitate” (DNR) of-life directives for the public and the legal
orders, life-sustaining treatments, and the community and the second creating “Uniform
proper appointment of guardians and health- Power of Attorney Act” relating to durable
care agents. In 2009, 12 states enacted new healthcare powers of attorney.
or revised current laws dealing with advance
directives. Minnesota amended applicable statutes to per-
mit the release of medical records to healthcare
Arizona enacted two measures to amend ex- agents.
isting statutes: First, to prohibit a fiduciary or
trustee whose license has been revoked from Montana revised its guardianship law to pro-
serving as an agent under a healthcare power hibit a guardian from giving a DNR order if it
of attorney unless the per- conflicts with an incapaci-
son is related to the princi- tated person’s wishes.
pal; and second, to require
the court to give appointed Both North Dakota and
guardians authority to with- Oklahoma enacted mea-
hold or withdraw life-sus- sures creating registries
taining treatment, including for advance directives for
artificial food and fluids. healthcare.
The second measure further
created a rebuttable presumption in favor of Oregon amended its laws for advance direc-
food and fluids if no advance directive exists, tives, giving the healthcare representative the
and provided clarification for the process and authority to approve short-term hospitalization
standard of review to rebut that presumption. for dementia patients.
Arkansas enacted two measures revising stat- Texas amended its Health and Safety Code to
utes to limit the power of the State Department allow for electronic signatures on advance di-
of Human Services as custodian from with- rectives and to permit notarization of DNR or-
holding life-sustaining treatment without ex- ders (as an alternative to two witnesses).
press court approval; and to clarify DNR pro-
cedures for nursing facility employees. Utah amended its “Advance Health Care Di-
rective Act” to expand the list of healthcare

443
professionals authorized to determine a pa- West Virginia—considered measures related

tient’s decision-making capacity and effectuate to proper pain management. Some measures
a patient’s healthcare directive. encouraged training in and awareness of pain
management, provided protection for physi-
Finally, Virginia enacted measures creating a cians employing accepted pain management
“Uniform Power of Attorney Act,” clarifying techniques, or enacted a patients’ bill of rights,
the process for determining whether a patient while others sought to regulate pain manage-
lacks decision-making capacity, and specify- ment clinics and the controlled substances used
ing how a patient’s DNR orders may be effec- to treat pain.
tively revoked.
California established September 2009 as
Preventing Starvation and Dehydration “Pain Awareness Month” to inform healthcare
providers of the need for effective pain
At least eight states—including Arizona, Ar- management.
kansas, Mississippi, Montana, New York,
Ohio, Oregon, and Texas—considered mea- Connecticut enacted a measure requiring di-
sures related to life-sustaining treatments, in- rect-care nursing home staff to complete annu-
cluding artificial food and hydration. al training in pain recognition and the adminis-
tration of pain management techniques.
Arizona created a rebuttable presumption in
favor of the continued provision of artificial Florida enacted the “Prescription Drug Moni-
food and fluids in the absence of an advance toring Program” to monitor use of controlled
directive. substances in an electronic database system.
Arkansas amended its “Adult Maltreatment Texas enacted a measure to create licensing
Custody Act” to limit the State Department and regulation for pain management clinics.
of Human Services when functioning as a pa-
tient’s legal custodian from making any deci- West Virginia made minor changes to its “Man-
sion to withhold life-sustaining treatment with- agement of Pain Act,” specifically amending
out express court approval. its definitions of “pain” and “pain-relieving
controlled substances.”
Montana revised its guardianship law to pro-
hibit a guardian from withholding or withdraw- Palliative Care
ing life-sustaining treatment if it conflicts with
incapacitated person’s wishes. At least four states—including Colorado, Il-
linois, New York, and Vermont—considered
Pain Management legislation to encourage training in and fund-
ing of palliative care. Illinois specifically con-
At least 10 states—including California, sidered pediatric palliative care; while New
Connecticut, Florida, Hawaii, Kansas, Mas- York sought to require healthcare practitioners
sachusetts, Mississippi, Texas, Vermont, and to provide palliative care information and to
Defending Life 2010

444
counsel patients diagnosed with a terminal ill-

ness or condition on their options.
Colorado passed a resolution for a Hospice

Palliative Care Interim study.
Vermont enacted a “Patient’s Bill of Rights for

Palliative Care and Pain Management” to en-
sure healthcare providers inform patients of all
their treatment options.

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411

Defending Life 2010

Americans United for Life

Physician-assisted suicide was legalized by Oregon in 1994 when it enacted

Defending Life 2010

What is happening in Washington and, particularly, in Montana is a wake up

Americans United for Life

Preserving Human Dignity at the End of Life:

L egal euthanasia in America seems to

tally advancing their agenda—accomplishing The euthanasia movement in America be-

Defending Life 2010

Americans United for Life

Defending Life 2010

Americans United for Life

Defending Life 2010

Americans United for Life

Defending Life 2010

Americans United for Life

Defending Life 2010

Americans United for Life

Defending Life 2010

Americans United for Life

is deemed not worth living. Advo- and comfortably as possible.”71 “Medi-

• Palliative care is “an approach [to • Double effect is a traditional doctrine

Defending Life 2010

cal diagnosis of a condition in which Myth: PAS allows terminally-ill patients a

Americans United for Life

Defending Life 2010

Myth: When food and hydration is withdrawn,

Americans United for Life

Defending Life 2010

75 Det. Mercy L. Rev. 557, 574-75 (1998). 56

Americans United for Life

ally have a stronger liberty interest in PAS than terminally-ill 95

Defending Life 2010

Americans United for Life

End of Life Talking Points

• The Netherlands conclusively demonstrates that authorizing assisted suicide inevitably

• PAS is admittedly the first step in accepting death as an alternative to suffering—in-

Defending Life 2010

• PAS encourages a cost/benefit analysis and subjective determination of a patient’s qual-

Americans United for Life

Defending Life 2010

a proper response to the pain and suffering of the terminally-ill.

Americans United for Life

Laws Regarding Assisted Suicide

Thirty-five states expressly criminalize assisted suicide:

Two states approved assisted suicide by statute: OR and WA

One state has pending constitutionally-declared “right to die” with physician-

Defending Life 2010

Pain Medicine Education

Four states formed advisory councils on Pain Management to make recommendations

One state passed legislation encouraging licensing boards or individual physicians to

Americans United for Life

2009 State Legislative Sessions in Review:

I n most years, legislative and other state

Defending Life 2010

Americans United for Life

professionals authorized to determine a pa- West Virginia—considered measures related