Right to Die: Expansion of legalized Physician Assisted Suicide in the United States while maintaining a conservative approach

May 13, 2016

Shaun Best/Reuters

Shaun Best/Reuters

There has been increased debate surrounding Physician Assisted Suicide (PAS) in the United States in light of the Brittany Maynard case. Brittany Maynard was a California resident with  terminal brain cancer who moved to Oregon in order take advantage of the state’s “Death with Dignity Act” (OR ST T. 13, Ch. 127), which allows for a physician to prescribe lethal drugs to a terminally ill patient and be protected from criminal and civil liability.

Maynard’s move to Oregon received a lot of attention and she became an advocate for the PAS (also referred to as “Right to Die” or “Death with Dignity”) movement. In 2014, she died in Oregon after taking life ending medication prescribed by her doctor. Her story was compelling because she was a young woman in the prime of her life and more relatable to people who were also younger or middle aged. Maynard provided a reminder to the larger population that the issue is not a distant problem, solely affecting the elderly. Such attention has allowed other people in similar circumstances to tell their stories, thus increasing the momentum for PAS legalization created by the Maynard case.

This attention has renewed efforts in other states to propose and pass similar legislation. Last year, California passed the “End of Life Option Act” (CA HLTH & S D. 1, Pt. 1.85), which allowed for the legalization of PAS in California. In addition, there is a record number of pending PAS bills in the United States. Alaska, Arizona, Colorado, Massachusetts, Nebraska, New Hampshire, New Jersey, Rhode Island, Tennessee, and Utah all have pending PAS bills. (Maryland, Minnesota, Iowa and Hawaii also had recent bills, but they have failed to pass.)

Death With Dignity Map

[Photo source: Death With Dignity, March 2016.]

Many states are choosing to model their bills after the Oregon law. (Oregon is notably the first state in the U.S. to legalize PAS, where it was passed by ballot measure in 1994.) A key feature of these laws is that they require the patient to have a terminal illness, disease or condition. The Oregon law requires that a person seeking PAS, be an adult, with capacity, who suffers from a terminal disease. A “terminal disease” is defined as an “incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.”  OR ST § 127.800(12).  California used the exact same language to define “terminal disease” in their law. CA HLTH & S § 443.1(q). New York’s pending bill also has a terminal illness requirement and it defines terminal illness in a similar way, requiring that death be expected within six months. 2015 NY Assembly Bill No. 5261.

The requirement of terminal illness is a safeguard against those who may be seeking to end their life because of depression or psychological pain, rather than physical pain. The ethical concern is that by allowing PAS, the government would in essence be sanctioning traditional suicide. Indeed, there is a growing debate about whether PAS should be legal for those suffering only psychological illness, rather than illness that is physical, like cancer.

Europe is already dealing with this controversy. This has been most notable in the Benelux countries of Belgium and the Netherlands, where PAS is approached differently than in the U.S. and can be allowed in cases with non-terminal conditions. “[In 2014], thirteen percent of the Belgians who were euthanized did not have a terminal condition, and roughly three per cent suffered from psychiatric disorders.”  Rachel Aviv , “The Death Treatment”, The New Yorker, (2015).  A case from the Netherlands, where a woman was allowed euthanasia on the basis that her post traumatic stress and mental suffering was incurable, is a very recent example of the controversial way PAS has been implemented in Europe.

However, it appears that the U.S. is not delving into this aspect of the PAS debate. All the U.S. laws mandate a terminal illness and have the additional requirement that death be imminent within six months.  Critics maintain the any legalization of PAS will create a slippery slope that leads to abuse and unethical results, but evidence so far shows that is not the case. Laws passed have operated as intended without any widespread abuse. While the PAS movement is gaining significant traction in the U.S., states are maintaining the conservative approach and safeguards established by Oregon.