The Legal Progress of Aid in Dying

There are a handful of issues in American politics that consistently enflame passions, aggravate divisions, and defy solutions. Debates over the death penalty, abortion, and Second
Amendment protection call into question our basic understanding of life and its relation to the state. Opponents can be as vociferous as supporters, and vital economic questions are often pitted against cherished perceptions of societal responsibility. End-of-life planning, and especially physician assisted aid-in-dying (PAD), falls firmly into this category. Periodic media frenzies, such as that surrounding Terri Schiavo’s vegetative coma, continue to highlight the complexity and virulence of Americans’ feelings regarding this topic. Still, the trajectory thus far for physician assisted aid-in-dying appears to lead towards increased understanding, openness, and, recently, legalization.

During the last two decades, a growing number of bills addressing PAD have gone to the vote, with varying levels of electoral success and judicial acceptance. Though there are records of aid-in-dying congressional debates dating back as far as 1906, the first significant, successful legalization came through Oregon’s Ballot Measure 16 in 1996, resulting in the Death with Dignity Act (DWD). Since then, Oregon’s DWD has withstood a number of legal and electoral challenges, and has proven durable both in public opinion and constitutionality. Perhaps, thanks to the Schiavo case and the universal healthcare debate, recent years have seen renewed legislative interest in aid-in-dying. In 2008 the state of Washington passed Initiative 1000, enacting a DWD act closely modeled on Oregon’s. In December of 2009, Montana legalized PAD through the Baxter vs. Montana trial court decision (though its state constitution has yet to explicitly protect this decision).

As in other divisive debates, nuance of language has proven to be a key factor: Oregon’s Measure 16 effectively replaced the term “physician-assisted suicide,” with “physician-assisted dying,” changing the dynamic of the discussion completely. The word “suicide” speaks to a depressive or unsound mental state, to a person perhaps temporarily unable to make an informed, dispassionate decision of such import. Assisted dying, on the other hand, refers strictly to a person thinking sensibly and coherently. Physician-assisted euthanasia is likewise distinct, and remains illegal in all states, as this implies a doctor applying the fatal substances. Physician-assisted death must be self-administered; furthermore, two physicians need to confirm the patient’s terminal illness, an independent third party must back the patient’s wishes, and the patient must orally re-affirm the decision after a 15-day waiting period, and then again in writing. There’s no denying that the aid-in-dying debate has come a long way since the antics of Dr. Jack Kevorkian.

In 2010 a candidate for national office for the first time converted the aid-in-dying debate to electoral success. Democrat Peter Shumlin won Vermont’s governor’s race while loudly proclaiming his support for patients’ end of life rights. Upon assuming office, Mr. Shumlin proposed Vermont’s House Bill 44, modeled closely on Oregon’s Ballot Measure 16, saying that he “would like to be the governor that gets to sign it into law.” Should it pass the state senate, that would make Vermont the fourth state to have legalized some form of physician assisted dying, and three of them have done so within the last three years.

Of course, it is too early to say whether physician assisted dying has reached a political turning point, but it appears that the discussion has begun in earnest.