Post-mortem analysis of the 2016 election focused on cracks in the so-called “blue wall” of Democratic-leaning northern industrial states and, to a lesser extent, potential cracks in the “red wall” of Republican states, where demographic changes portend closer results in future elections. All of which goes to show that in a closely divided country, electoral coalitions are not always durable.
Major shifts in social policy, however, often prove more enduring. Thus, 2016 may well be remembered as the year that seismic cracks appeared in the wall against physician-assisted suicide (PAS),[1] signified on Election Day by Colorado’s vote in favor— by a 2-to-1 margin—of a referendum to legalize PAS.[2] The Colorado vote followed California’s enactment of PAS legislation, which came into effect in June,[3] and preceded by one week the passage of similar legislation by the District of Columbia Council. Meanwhile, in Canada, legislation enacted in June legalized both PAS and euthanasia—direct killing by physicians of a range of seriously ill or disabled patients.[4] Given these developments, opponents of PAS now face the sober prospect of more widespread legalization. Moreover, the medical community at large—not merely those opposed to PAS—must now confront the ethical and practical effects of condoning suicide as a “normalized” medical practice.
Oregon was the first North American jurisdiction to legalize PAS (1994), and for a time, the practice seemed confined to the Beaver State. The U.S. Supreme Court, overruling decisions from the U.S. Courts of Appeals for the Second Circuit and the Ninth Circuit, unanimously declared in 1997 that there is no federal constitutional right to PAS, while leaving the issue of legalization to the states.[5] Four years earlier, in Rodriguez v. British Columbia,[6] the Canadian Supreme Court, in a 5–4 decision, rejected a similar claim to PAS under the nation’s Charter of Rights and Freedoms. Efforts to enact laws similar to Oregon’s, through legislation or referendum, failed in several states, including California, Michigan, and Maine.
Starting in 2008, the picture began to change. That year, by referendum vote of 59 to 41 percent, Washington State joined its neighbor in endorsing PAS.[7] Vermont in 2013 became the first state to legalize PAS through legislation, enacting a bill (amended in 2015) that was criticized for including fewer safeguards against potential abuse than the Oregon and Washington laws.[8] Meanwhile, Massachusetts narrowly rejected a PAS referendum in 2012.[9] State courts in New Mexico[10] and Montana continued the trend of denying claims to a constitutional right to PAS, although the Montana court found that a physician’s acquiescence to a patient-initiated request for a dose of lethal medication (to be self-administered) would not create criminal liability under existing state law.[11]
In 2016, the picture changed again, perhaps irrevocably. While it took two decades for three states (OR, WA, VT) to legalize PAS, California, Colorado, and the District of Columbia took the step in the space of six months. Moreover, the New Jersey Assembly passed a PAS law in October, and as of this writing, awaits action in the Garden State’s Senate.[12] Emboldened by these victories, Compassion and Choices (formerly the Hemlock Society) has announced a “full-scale effort” to legalize PAS in New York,[13] and continues legalization efforts in twenty other states. In short, PAS is no longer an experiment restricted to socially liberal confines of the Pacific Northwest (and its New England soulmate, the Green Mountain State); it is now legal in states where 58 million Americans reside. New Jersey and New York would add 30 million to that total.
In Canada, the change has been far more radical. Notwithstanding the 1993 precedent in Rodriguez, Justice Lynn Smith of the Supreme Court of British Columbia held in 2012 that provisions of the Canadian Criminal Code which prohibit counseling, aiding, or abetting suicide violate the Canadian Charter when applied to a fully-informed competent adult patient who has been diagnosed with a serious illness, disease, or disability that is causing intolerable physical or psychological suffering that cannot be alleviated by medical treatment acceptable to that person. Justice Smith determined that jurisprudential development since Rodriguez of the concept of “disproportionality” justified departure from precedent.[14] The provincial Court of Appeal disagreed, ruling in 2013 that Rodriguez remained binding.[15]
By unanimous vote in February 2015, the Supreme Court of Canada reversed the Court of Appeal and affirmed Justice Smith’s ruling. “It is a crime,” the Court wrote,
to assist another person in ending her own life. As a result, people who are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.
The Court proceeded to hold that
the prohibition on physician-assisted dying[16] is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irremediable medical condition (including an illness, disease, or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
The Court suspended its decision in Carter for twelve months to allow Parliament to enact new legislation on physician-assisted dying.[17]
Notably, the judgment in Carter was not confined to PAS: in addition to invalidating the Criminal Code’s prohibition on aiding suicide as applied to the defined class of patients, it likewise invalidated the provision stating that no person is entitled to consent to the infliction of his own death. Thus, when Parliament enacted legislation in June 2016, it explicitly defined “Medical Assistance in Dying” (MAID) to include what is commonly known as “voluntary euthanasia” (the administration by physician or nurse of a lethal substance at the request of the patient) as well as PAS (the provision of a lethal substance to be self-administered by the patient). By so doing, Canada has taken the first major step toward the “Benelux” (Belgium, Netherlands, Luxembourg) model of euthanasia. Parliament considered, but for now rejected, other Benelux practices, including allowing euthanasia by advance directive, euthanasia for mature minors, and broader eligibility for euthanasia based on mental illness.[18] After considerable controversy, Parliament also added to the Supreme Court’s criteria a requirement that the death of a patient be “reasonably foreseeable”—a provision already under court challenge as unduly restrictive in light of Carter and thus unconstitutional. One restriction imposed by Parliament pointedly did not appear controversial—“MAID” is limited to residents of Canada. Thus “euthanasia tourism” will not be permitted.[19]
For Canadians, two global questions immediately present themselves. First, having adopted the Benelux model for euthanasia, is it reasonable to expect that Canada can avoid the expansion of criteria for euthanasia experienced in those countries? Second, having established that medical practitioners are permitted to commit acts of euthanasia, will those who object to such practices be obliged to participate, even in indirect fashion?
Regarding the first question, there are ample reasons to believe that Canada, having started down the “Benelux road,” will continue the journey to its ineluctable end. The criterion of “reasonably foreseeable” death led to a bitter standoff between Canada’s Senate, which generally opposed the language, and the House of Commons, where the bill originated. While the Senate eventually acquiesced, a lawsuit challenging the provision was filed almost immediately, on behalf of a twenty-five-year-old woman with spinal muscular dystrophy. Her lawyers—the same civil liberties group that prevailed in Carter—claimed that the law “deliberately excludes a class of people: those who are suffering with no immediate end in sight.” Furthermore, while the Government’s bill excluded euthanasia for minors and by advance directive, it committed to further review of these issues, a clear signal that its legislation is not the final word on criteria for euthanasia.[20]
Furthermore, there is no realistic prospect that the conscience rights of those who oppose euthanasia will be honored or protected. The Canadian Medical Association in August 2015 concluded that all physicians must provide information to their patients on “MAID,” and how they may access such “services.” The Provincial-Territorial Expert Advisory Group of Physician-Assisted Dying appointed in the wake of the Carter decision concluded in its November 2015 final report that while healthcare providers retain the freedom of conscientious objection,
they are required to provide information about all end-of-life options, including physician-assisted dying. Conscientiously objecting health care providers are also required to either provide a referral, a direct transfer of care to another health care provider, or to contact and transfer the patient’s records through a third party, agency or service which would have a duty to ensure the safe and timely transfer of care of the patient to a non-objecting provider.[21]
In effect, a healthcare provider may object to euthanasia, but cannot exempt herself from the new reality that euthanasia is “part of the continuum of services and supports to Canadians at the end of life.”[22]
In the United States, the picture is murkier. For the foreseeable future, the path to legalization (or rejection) of PAS will continue on a state-by-state trajectory. Moreover, since state courts have shown no willingness to establish a constitutional right to PAS, the battle will remain with legislators and, where available, the process of initiative and referendum. The federal government could intervene, at least in limited fashion: Congress retains the right to review legislation enacted in the District of Columbia, including the District’s recently-enacted law on PAS, but many observers count this as unlikely. More realistically, Congress and federal regulators could ensure (through imposing conditions on states and other entities that receive federal healthcare funding) that no federal programs or policies endorse or encourage PAS, or violate the rights of conscience of those healthcare providers who refuse to participate in PAS. Such measures might have limited practical effect in limiting the practice of PAS, but would clarify what, to date, has been a largely undefined federal policy regarding the practice.
Could Congress go further to restrict PAS? The answer is not clear. The Supreme Court ruled in 2006 (Gonzales v. Oregon)[23] that former Attorney General John Ashcroft exceeded his authority by issuing a directive that physicians who prescribed lethal drugs for PAS could lose their federal license to prescribe controlled substances. Ashcroft determined that assisted suicide is not a “legitimate medical purpose,” and thus that prescribing drugs for that purpose violated federal regulations on controlled substances dating to 1971. While deciding that neither Congress nor the regulation in question gave the Attorney General the authority to make such a ruling, the Court left open the question whether Congress itself could impose such a limitation on the prescription of lethal substances, or whether a more formal administrative rule-making process could do so. Thus far, Congress has shown little interest in restricting PAS in states where it has been legalized. Moreover, the Supreme Court’s decisions on end-of-life issues dating to 1990 show a strong proclivity to leave fundamental policy on such matters to the states; Congressional attempts to override such policy decisions would inevitably provoke litigation that could reopen the question of a “constitutional right” to PAS.
Ultimately, the fate of PAS in the United States will depend on cultural views regarding the practice, views that will be shaped largely, though not completely, by the attitudes and practices of the healthcare professions. While the events of 2016 have made PAS more widely available, our “data points” to assess the current practice are derived almost entirely from Oregon and Washington. In Oregon, approximately 1,000 patients have ended their lives since 1998, with a moderately increasing trend each year. The trend is similar in Washington, where approximately 750 have died from PAS since 2009. (These are the “official” figures, and would not account for unreported cases of PAS or even more active forms of euthanasia.) Further, while a small number of physicians write a majority of PAS prescriptions, the number of participating physician is also trending upwards: 106 physicians wrote such prescriptions in Oregon in 2015, compared to 40 in 2005. In Washington, 142 physicians prescribed lethal substances.[24]
One point from data and anecdotal evidence is clear: requests for assisted suicide are not limited, by law or practice, to the archetype case of a terminally ill patient in the last stages of life, suffering intractable and unremitting physical pain. Publicized cases such as that of Brittany Maynard—largely credited with spurring the legalization of PAS in her native California—suggest that the motive for seeking PAS is to control the manner of one’s death. Ms. Maynard established residence in Oregon in order to be able to end her life before such suffering became an issue, and Oregonians who seek PAS have similar motives.[25] PAS is not a medical option of last resort when all other avenues to relieve suffering have failed (setting aside the question of whether and how many such cases now exist), but an avenue of control and choice, the exercise of which is bounded by no objective criteria of pain, suffering, or related burdens. While the scope of legalization in the United States is far less than in Canada, the pretense of “objective” safeguards in both countries is exposed by the ultimate power of purely subjective criteria, defended on grounds of patient autonomy and dignity.
Papal biographer and prolific author George Weigel reports that in the summer of 2016,
three elderly members of my summer parish in rural Québec received a diagnosis of cancer at the local hospital, a small-town facility an hour’s drive from cosmopolitan Ottawa and even farther from hyper-secular Montréal. Yet after the diagnosis had been delivered, the first question each of these people was asked was ‘Do you wish to be euthanized?’ That is what the new Canadian euthanasia regime has accomplished in just a few months: It has put euthanasia at the top of the menu of options proposed to the gravely ill.[26]
Could such insouciant queries become standard in American medicine?
In pondering this question, I consider the attitudes among some of the medical students I teach at Georgetown University. Not a few have expressed their support for PAS because of suffering they have witnessed, not merely among the terminally ill, but including those with a gravely disabling condition such as amyotrophic lateral sclerosis. How will these future physicians and their colleagues advise patients who present with such conditions? Will they feel obliged personally— or be obliged by law or medical practice guidelines—to present the option of PAS? Will they be able to separate their feelings that assisted death might be a preferred option from their obligation to care diligently for those who refuse that option? Will they be tolerant of colleagues who continue to adamantly oppose physician participation in killing?
The “cracks in the wall” evident in 2016 bring these questions into sharp relief. They should be at the forefront of the inevitable debate over further legalization of PAS and euthanasia.
Acknowledgement: The author would like to thank John Keown, DPhil, PhD, DCL, Rose Kennedy Professor of Christian Ethics at the Kennedy Institute of Ethics at Georgetown, for numerous helpful comments.
[1] “Physician-assisted suicide” is to be preferred over terms such as “physician aid-in-dying” (PAD) or the new Canadian term, “Medical Assistance in Dying” (MAID). “PAS” is correct from a legal perspective, as laws authorizing the practice provide exemptions from existing prohibitions against assisting in suicide. PAS is also the term commonly employed by proponents and opponents of the practice for several decades. Finally, terms such as “aid-in-dying” are euphemisms designed for three purposes: (1) to include measures to actively bring about death under the general umbrella of end-of-life decisions (EOLD) that may include the refusal of life-sustaining medical treatments; (2) concomitantly, to distinguish the choice to end one’s life at the point of incurable illness or disability from the choice of a “healthy” person to commit suicide; (3) to provide an umbrella term capable of redefinition and expansion to cover various forms of active euthanasia.
[2] The Colorado “End of Life Options Act,” Proposition 106, passed by a margin of 65 to 35 percent. Ballotpedia State Desk, “Colorado End of Life Options Act, Proposition 106,” Ballotpedia, https://ballotpedia.org/Colorado_End_of_Life_Options_Act,_Proposition_106_(2016) (accessed November 17, 2016).
[3] The California “End of Life Option Act,” A.B. 15, signed by Governor Brown on October 5, 2015, came into effect June 9, 2016. California Legislative Information, “AB-15 End of Life,” https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520162AB15 (accessed November 17, 2016).
[4] Bill C-14, legislation to regulate “MAID,” received Royal Assent on June 17, 2016. See Government of Canada, “Legislative Background: Medical Assistance in Dying (Bill C-14, as Assented to on June 17, 2016).” Accessible at http://justice.gc.ca/eng/rp-pr/other-autre/adra-amsr/adra-amsr.pdf
[5] Washington v. Glucksberg, 521 U.S. 702 (1997), rev’g Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc); Quill v. Vacco, 521 F.3d 793 (1997), rev’g 80 F.3d 716 (2d Cir. 1996).
[6] 3 S.C.R. 519 (1993).
[7] The Washington Death with Dignity Act, Initiative 1000, passed on November 4, 2008, and went into effect March 5, 2009. Washington State Department of Health, “Death with Dignity Act,” https://www.doh.wa.gov/YouandYourFamily/IllnessandDisease/DeathwithDigni... (accessed November 17, 2016).
[8] Act 39, Patient Choice and Control at the End of Life, was enacted in May 2013. Certain patient safeguards, such as a fifteen-day waiting period and a requirement for psychiatric evaluation if there is indication of impaired judgment on the part of the patient, were due to expire in 2016. However, legislation signed in May 2015 removed the sunset provisions, and those safeguards remain in effect. Death with Dignity, “Death with Dignity in Vermont: A History,” https://www.deathwithdignity.org/death-with-dignity-vermont-history/ (accessed November 17, 2016).
[9] The Massachusetts “Death with Dignity” Initiative, Question 2, was defeated in 2012 by 52 to 48 percent. Ballotpedia State Desk, “Massachusetts ‘Death with Dignity’ Initiative, Question 2 (2012),” Ballotpedia, https://ballotpedia.org/Massachusetts_%22Death_with_Dignity%22_Initiative,_Question_2_(2012) (accessed November 17, 2016).
[10] Morris v. Brandenburg, 376 P.3d 836 (N.M. Sup. Ct., 2016).
[11] Baxter v. State of Montana, 354 Mont. 234, 224 P.3d 1211 (2010).
[12] Assembly Bill No. 2451, patterned closely after the Oregon PAS law, passed the New Jersey General Assembly in October 2016. The Health Committee of the state Senate advanced a companion bill in November.
[13] Compassion and Choices, “New York,” https://www.compassionandchoices.org/new-york/ (accessed November 17, 2016).
[14] Carter v. Canada (Att’y General). [2012] B.C.S.C. 886 (Can. B.C.).
[15] For a comprehensive review and critique of Justice Smith’s ruling in Carter, see John Keown, “A Right to Voluntary Euthanasia? Confusion in Canada in Carter,” Notre Dame Journal of Law, Ethics & Public Policy 28, no. 1 (2014): 1–45. http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1718&context=ndjlepp (accessed November 17, 2016).
[16] There was no provision in Canadian law to prohibit “physician-assisted dying” as such; the relevant provision, section 241 of the Canadian Criminal Code, prohibits counseling, aiding, or abetting suicide.
[17] Carter v. Canada (Att’y General). 2015 SCC 5 [2015] 1 S.C.R. 331. Accessible at https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do (accessed November 17, 2016).
[18] The Netherlands for instance permits euthanasia in cases of unbearable suffering with no prospect of improvement. News sources recently reported that this has criterion has been extended to include alcohol addiction. Tom Embury-Dennis, “Man in the Netherlands Euthanised Due to His Alcohol Addiction,” Independent (November 30, 2016), http:// www.independent.co.uk/news/world/europe/man-holland-netherlands-dutch-euthanised-alcohol-addiction-alcoholic-netherlands-a7446256.html (accessed November 30, 2016).
[19] For further discussion of these and other provisions of the Canadian legislation, see Legislative Background: MAID.
[20] Harvey Max Chochinov and Catherine Frazee, “Finding a balance: Canada’s law on medical assistance in dying,” The Lancet 388, No. 10044 (Aug. 6, 2016): 543–545.
[21] Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying, “Final Report” (November 30, 2015), 3, 43–45. Accessible at http://www.health.gov.on.ca/en/news/bulletin/2015/docs/eagreport_20151214_en.pdf
[22] Ibid.
[23] 546 U.S. 243 (2006).
[24] Oregon Public Health Division, “Oregon Death with Dignity Act: 2015 Data Summary” (February 4, 2016). Accessible at https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18.pdf ; Washington State Department of Health, “Washington State Department of Health 2015 Death with Dignity Act Report.” Accessible at http://www.doh.wa.gov/portals/1/Documents/Pubs/422-109-DeathWithDignityAct2015.pdf
[25] Liz Szabo, “‘Death with Dignity’ Laws and the Desire to Control How One’s Life Ends,” Washington Post (October 24, 2016), https://www.washingtonpost.com/national/health-science/death-with-dignity-laws-and-the-desire-to-control-how-ones-life-ends/2016/10/24/6882d1e6-9629-11e6-bc79-af1cd3d2984b_story.html (accessed November 17, 2016).
[26] George Weigel, “The Culture of Death, on the March in Colorado,” National Review (September 29, 2016), http://www.nationalreview.com/article/440497/proposition-106-colorados-euthanasia-bill-would-dehumanize-medical-care (accessed November 17, 2016).
Edward R. Grant, "Cracks in the Wall: Confronting the Legalization of Physician-Assisted Suicide and Euthanasia,” Dignitas 23, no. 3 (2016): 1, 4–6.
