Writing the Rules of Death: State Regulation of Physician-Assisted Suicide

Compassion in Dying v. State of Washington, 79 F.3d 790 (en banc), reh'g en banc by full court denied, 85 F.3d 1440 (9th Cir. 1996), cert. granted sub nom. Washington v. Glucksberg, 65 U.S.L.W. 3254 (U.S. Oct. 1, 1996) (No. 96–110).

Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996), cert. granted, 65 U.S.L.W. 3254 (U.S. Oct. 1, 1996) (No. 95–1858).

Apart from passing references, I do not consider whether constitutionally permissible state regulations would in practice actually achieve the goals of regulation. For an argument that any attempted regulation of PAS is worthless, see Callahan D. White M. , “The Legalization of Physician-Assisted Suicide: Creating a Regulatory Potemkin Village,” University of Richmond Law Review, 30 (1996): 1–83.

Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990).

Planned Parenthood v. Casey, 505 U.S. 833 (1992).

Compassion in Dying, 79 F.3d at 816.

Id. at 837.

Id. at 832.

Id. at 832–33.

Id. at 833.

Quill, 80 F.3d at 724–25.

Id. at 724.

Id. at 727.

Id. at 729.

Id. at 730 (quoting Casey, 505 U.S. at 851).

Id. at 731.

Id. at 731 n.4.

Statutes in thirty-five states prohibit assisted suicide. The list is in Compassion in Dying, 79 F.3d at 847 n.10 (Beezer, J., dissenting). In seven other states and the District of Columbia, assisted suicide may be punished as a common law crime. Meisel A. , The Right to Die (New York: Wiley, 2nd ed., 1995): § 18.17, at 470.

See, for example, Quill T.E. Cassel C.K. Meier D.E. , “Care of the Hopelessly Ill: Proposed Clinical Criteria for Physician-Assisted Suicide,” N. Engl. J. Med., 327 (1992): 1380–84.

The Ninth Circuit itself did not adopt the “undue burden” test of Casey, but the court recognized that the outcome would have been the same had it done so. Compassion in Dying, 79 F.3d at 837 n. 137.

Casey, 505 U.S. at 875.

Quill, 80 F.3d at 729.

Oregon Death with Dignity Act, Or. Rev. Stat. §§ 127.800 et seq. (1995) (hereafter the “Oregon Act”).

Baron C.H. , “A Model State Act to Authorize and Regulate Physician-Assisted Suicide,” Harvard Journal on Legislation, 33 (1996): 1–34 (hereafter the “Model Act”).

Meisel , supra note 23, § 18.23, at 508.

Emanuel E.J. Daniels E. , “Oregon's Physician-Assisted Suicide Law: Provisions and Problems,” Archives of Internal Medicine, 156 (1996): 825–29.

Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995).

Callahan White , supra note 3, at 75.

Compassion in Dying, 79 F.3d at 816.

For an account of why the logic of this limitation is dubious, once the premise of a constitutional right to PAS is accepted, see Kamisar Y. , “Against Assisted Suicide—Even a Very Limited Form,” University of Detroit Mercy Law Review, 72 (1995): 735–69.

Baron , supra note 30, at 11, 26.

Quill, 80 F.3d at 731.

Id. at 729.

See, for example, State v. McAfee, 385 S.E.2d 651 (Ga. 1989).

See People v. Kevorkian, 527 N.W.2d 714, 732 n.9 (Mich. 1994), cert. denied, 115 S. Ct. 1795 (1995).

Citations to the various definitions are collected in Meisel , supra note 23, § 11.9 at 94–96.

Or. Rev. Stat. § 127.800(12) (1995).

42 U.S.C. § 1395x(dd)(3)(A) (1994). The Model Act also uses the criterion of death within six months. Baron , supra note 30, at 26. For an account of the clinical difficulty in making determinations of this kind, see Callahan White , supra note 3, at 45–47.

Abortion jurisprudence from the outset was able to identify a relatively precise point—viability—at which the state's interest in protecting the life of the fetus outweighed the woman's interest in deciding whether to continue the pregnancy. Roe v. Wade, 412 U.S. 113, 163 (1973).

Compassion in Dying, 79 F.3d at 837; and Quill, 80 F.3d at 731.

Or. Rev. Stat. §§ 127.800(11), 127.805 (1995).

Baron , supra note 30, at 27.

The federal district court held the Oregon Act to be unconstitutional in part because it failed to protect against incompetency at the time the patient takes the prescribed medication. Lee, 891 F. Supp. at 1437.

In re Quinlan, 355 A.2d 647 (N.J.), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976).

National Center for State Courts, Guideline for State Court Decision Making in Life-Sustaining Medical Treatment Cases (Williamsburg: National Center for State Courts, 2nd ed., 1992): At 56 n.82.

Compassion in Dying, 79 F.3d at 794–95; and Quill, 80 F.3d at 720.

See, for example, Compassion in Dying, 79 F.3d at 821 (“the final stages of an incurable and painful degenerative disease”); and Quill, 80 F.3d at 730 (“the continuation of agony”).

See Bouvia v. Superior Court, 225 Cal. Rptr. 297 (Cal. App. 1986).

Baron , supra note 30, at 11.

Or. Rev. Stat. § 127.800(12) (1995).

Cassell E.J. , “The Nature of Suffering and the Goals of Medicine,” N. Engl. J. Med., 306 (1982): 640–45.

New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context (New York: New York State Task Force on Life and the Law, 1994): At 2.

Baron , supra note 30, at 25.

Compassion in Dying, 79 F.3d at 831.

Id. at 832.

Quill, 80 F.3d at 730.

Among proponents, see Brock D.W. , “Voluntary Active Euthanasia,” Hastings Center Report, 22, no. 2 (1992): 10–22; and Miller F.G. , “Regulating Physician-Assisted Death,” N. Engl. J. Med., 331 (1994): 119–23. Among opponents, see Kamisar , supra note 36.

Both the Oregon Act and the Model Act maintain the distinction. Or. Rev. Stat. § 127.880 (1995); and Baron , supra note 30, at 10. A state may include a definition of suicide to differentiate it from euthanasia. See, for example, Gentry v. State, 625 N.E.2d 1268, 1273 (Ind. App. 1993).

I do not attempt to canvass every conceivable type of regulation. For example, I do not discuss the potential role of palliative care consultants or committees, see Miller , supra note 64; notification to family members, see Or. Rev. Stat. § 127.835 (1995); a residency requirement, see Or. Rev. Stat. § 127.860 (1995); or the use of public funds for assisted suicide, see the Assisted Suicide Funding Restoration Act, S. 2108, 104th Cong. (1996) (prohibiting federal funding of assisted suicides).

Compassion in Dying, 79 F.3d at 814 (internal quotation marks and citation omitted).

Beauchamp T.L. Childress J.F. , Principles of Biomedical Ethics (New York: Oxford University Press, 4th ed., 1994): At 135.

See, for example, Appelbaum P.S. Roth L.H. , “Competency to Consent to Research: A Psychiatric Overview,” Archives of General Psychiatry, 39 (1982): 951–58; and Freedman M. Stuss D.T. Gordon M. , “Assessment of Competency: The Role of Neuro-Behavioral Deficits,” Annals of Internal Medicine, 115 (1991): 203–08.

Young E.W.D. Corby J.C. Johnson R. , “Does Depression Invalidate Competence? Consultants' Ethical, Psychiatric, and Legal Considerations,” Cambridge Quarterly of Healthcare Ethics, 1 (1993): At 513.

Compassion in Dying, 79 F.3d at 833.

The evidence on this point is summarized in New York State Task Force on Life and the Law, supra note 58, at 126–28.

Baron , supra note 30, at 29. The Oregon Act permits, but does not require, a counseling referral to a mental health specialist. Or. Rev. Stat. § 127.825 (1995).

Quill, 80 F.3d 731 n.4.

See, for example, Hendin H. Klerman G. , “Physician-Assisted Suicide: The Dangers of Legalization,” American Journal of Psychiatry, 150 (1993): 143–45.

Beauchamp Childress , supra note 68, at 142.

Quill, 80 F.3d at 731 n.4.

Or. Rev. Stat. §§ 127.800(7), 127.815(2) (1995); and Baron , supra note 30, at 27–28. For an argument that, in reality, the trappings of informed consent would often conceal subtle manipulation, see Callahan White , supra note 3, at 28–29; and New York State Task Force on Life and the Law, supra note 58, at 121–22. See also Miles S.H. , “Physicians and Their Patients' Suicides,” JAMA, 271 (1994): 1786–88.

The Model Act includes these requirements. Baron , supra note 30, at 28–31.

Compassion in Dying, 79 F.3d at 833.

Id. See also Quill, 80 F.3d at 731 n.4.

Or. Rev. Stat. § 127.850 (1995).

Planned Parenthood v. Casey approved the facial constitutionality of a twenty-four-hour waiting period while leaving open the possibility that the requirement would be an undue burden in particular cases. Casey, 505 U.S. at 885–87.

Or. Rev. Stat. § 127.890(2) (1995).

See Bowe J. Parker D.H. , Page on the Law of Wills (Cincinnati: W.H. Anderson, 1960): §§ 15.1–.14.

Compassion in Dying, 79 F.3d at 833; and Quill, 80 F.3d at 731.

Or. Rev. Stat. § 127.820 (1995).

Baron , supra note 30, at 29.

See, for example, Md. Code Ann., Health-Gen. § 5–606 (1994).

79 F.3d at 833.

The Oregon Act contemplates administrative rules “to facilitate the collection of information regarding compliance” with the Act. Or. Rev. Stat. § 127.865 (1995). The Model Act would require reporting to the chief health officer of a state. Baron et al., supra note 30, at 30.

Id. at 28.

Meisel , supra note 23, § 6.5, at 295.

Legislation requiring the courts to approve every case of requested suicide, whether disputed or not, would violate separation of powers principles by requiring courts to perform a nonjudicial function.

Bellotti v. Baird, 443 U.S. 622, 644 (1979).

Or. Rev. Stat. § 127.885(4) (1995).

Baron , supra note 30, at 33.

Meisel , supra note 23, § 17.23, at 430.

Compassion in Dying, 79 F.3d at 830.

Meisel , supra note 23, § 19.12, at 549.

See generally, Law S.A. , “Silent No More: Physicians' Legal and Ethical Obligations to Patients Seeking Abortion,” New York University Review of Law and Social Change, 21 (1995): 279–321.

Meisel , supra note 23, § 8.2, at 470.

The gap between legal theory and clinical reality is illustrated by the outcome of the SUPPORT intervention trial. See the SUPPORT Principal Investigators, “A Controlled Trial to Improve Care for Seriously Ill Hospitalized Patients: The Study to Understand Prognoses and Preferences for Outcomes and Risks of Treatment,” JAMA, 274 (1995): 1591–98. An explanation for results of this kind may be found in, for example, Orentlicher D. , “The Limits of Legislation,” Maryland Law Review, 53 (1994): 1255–305.

Quill, 80 F.3d at 729.

Cruzan, 497 U.S. at 278.

Annas G.J. , “The Promised End—Constitutional Aspects of Physician-Assisted Suicide,” N. Engl. J. Med., 335 (1996): 683–87.

In rejecting the reasoning of the lower court decisions, the Supreme Court can be expected to apply the constitutional analysis presented in, for example, Kamisar Y. , “Are Laws Against Assisted Suicide Unconstitutional?,” Hastings Center Report, 23, no. 3 (1993): 32–41; Coleman C.H. Miller T.E. , “Stemming the Tide: Assisted Suicide and the Constitution,” Journal of Law, Medicine & Ethics, 23 (1995): 389–97; and Capron A.M. , “Easing the Passing,” Hastings Center Report, 24, no. 4 (1994): 25–26.

Emanuel E.J. , “Euthanasia and Physician-Assisted Suicide: Attitudes and Experiences of Oncology Patients, Oncologists, and the Public,” Lancet, 347 (1996): 1805–10. These results are consistent with other surveys. See, for example, Bachman J.G. , “Attitudes of Michigan Physicians and the Public Toward Legalizing Physician-Assisted Suicide and Voluntary Euthanasia,” N. Engl. J. Med., 334 (1996): 303–09.