Initiative 1000 would let doctors prescribe lethal drugs requested by competent dying patients who want to hasten death. It includes safeguards applied in Oregon for a decade to protect against involuntary or uninformed requests.1 It would readjust the balance between individual liberty to decide how to confront one’s own imminent death and state authority to constrain such decisions.
As the Oregon experience has shown, relatively few people who are terminally ill will ultimately opt to end their lives with lethal drugs. Around 40 people a year do so in Oregon.2 But many people want, as I do, to be able to decide the issue for themselves in the event of terminal illness. Oregonians adopted their law by popular vote and hundreds of thousands of Washingtonians signed petitions to put I-1000 on the ballot this year.
Religious and Secular Objections
We generally allow competent adults to refuse medical treatment without government interference. If I have cancer and my doctor urges treatment, the State doesn’t interfere with my liberty to decline it. This is true even if I’m otherwise healthy, treatment is likely to be effective and I’m likely to die of the disease without treatment. Similarly, competent adults may direct the removal of ventilators or other life-prolonging devices without government interference.
Why, then, if my doctor finds I have a condition I’m expected to die from within six months and for which treatment would be futile, does the State intrude, barring prescription of lethal drugs I may want? Concerns that decisions might be influenced by economic or family pressures or depression don’t explain it. Such influences could just as easily affect decisions to reject life-saving treatment.
As a matter of history, an important part of the answer is that some people believe acting affirmatively to hasten one’s own death, even if one is in uncontrollable pain, is a sin. The belief that “it belongs to God alone to pronounce sentence of death and life”3 is sufficient reason to constrain end-of-life choices for those who hold it. It is not, however, sufficient reason to impose legal restrictions on everyone in a society that respects religious liberty.
Those who, for religious reasons, are categorically opposed to suicide may nevertheless urge other grounds for opposing I-1000. Representatives of the Washington State Catholic Conference have tried to do so. But I think their practical arguments depend on the religious premise that actively hastening one’s death is never permissible. Accepting death by declining treatment doesn’t provoke similar calls for government intervention.
I focus on the WSCC’s arguments because the Catholic Church is central to the Initiative’s opposition.4 I don’t dispute anyone’s right to participate in the political process. I’ve worked cooperatively with WSCC representatives on behalf of the King County Bar Association on other policy issues. They have my deep respect. But we disagree on I-1000.
Safeguards
As I will explain, I-1000 includes safeguards that are extraordinary by comparison to any required in the context of other health care decisions, including decisions expected to result in death. Nevertheless, the WSCC argues that I-1000 “fails to provide adequate safeguards” and, in particular, “lacks requirements for mental health evaluations” and “family notification.”5 But we may ordinarily refuse recommended treatment needed to save our lives without being subjected to state-mandated mental health evaluations or to disclosure of confidential medical information to family members.
The initiative does require a referral for counseling if a doctor believes a patient may be suffering from a psychological disorder causing impaired judgment. A lethal prescription is then barred without a counselor’s determination that the patient is “not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.”6 And the initiative requires doctors to recommend that patients notify next of kin of requests for lethal medication.7 Requiring family notification or a mental health referral in every case would radically compromise the patient privacy and autonomy that are the norms in our society. Neither can be justified as a needed safeguard against uninformed or involuntary decisions.
While the law does not generally prescribe how patients must express informed consent or how doctors must determine voluntariness, I-1000 does. It prescribes explanations to be provided and requires an attending and a consulting physician to verify and document that a patient “is suffering from a terminal disease ..., is competent, is acting voluntarily, and has made an informed decision.”8 It requires two oral requests by the patient to the attending physician, one after a 15-day waiting period, and a written request.9 In addition, it preserves prohibitions against administration of lethal drugs by anyone other than the dying patient.10 These safeguards should satisfy those who accept, as the WSCC does not, that an individual who is terminally ill should be able to make an informed and voluntary decision to take lethal drugs.
Doctor-Patient Relationships
The WSCC also argues that I-1000 “undercuts the relationship between physicians and their patients.” Under current law, if I were dying and in pain, I could request, and my doctor could administer, medication needed to control my pain, even if it had the collateral effect of hastening my death.11 Why would our relationship be undercut if, under similar circumstances, medication were prescribed at my request with the explicit objective of ending my life? The argument that it would be undercut would have little bite without the religious premise that acting affirmatively to end one’s life, and any related medical help, are impermissible.
In practice, I-1000 should have salutary effects on doctor-patient relationships. Many Washington doctors currently go beyond what the law allows to assist patients in ending their lives.12 But frank discussion is inhibited and opportunity for misunderstanding increased when such practices occur outside the boundaries of the law. Under I-1000, patients could openly consult their doctors. Resulting discussions should improve understanding of patients’ conditions and increase attention to pain control, whether or not they lead to lethal prescriptions.
Other Concerns
Finally, the WSCC argues that I-1000 “places uninsured people and individuals with disabilities at risk.” But the Oregon experience does not support this assertion. Oregon data show no heightened risk to either population.13 And the liberty of all adults approaching death should not be constrained based on so speculative an argument. In saying so, I do not mean to diminish the importance of working — as the WSCC and KCBA are doing independently of I-1000 — to expand healthcare availability and to broaden support for people with disabilities.14
Others have raised an additional issue worth addressing: whether every Oregon patient seeking a lethal prescription is offered the most advanced palliative care available. It is argued that not every physician is a palliative care expert and that better training for doctors is needed.15 Independent of I-1000, efforts to promote such training would seem reasonable in light of the progress made in palliative care in recent years.
But contemporary medicine does not have an adequate palliative care response for every patient. And not all terminally ill patients who want to end their lives are motivated by pain. A promise of palliative care is not a sufficient response to legitimate demands for patient autonomy.
In Washington, adults may currently purchase handguns from dealers with negligible formality and use them the same day to end their lives. Other problematic alternatives abound. Initiative 1000 would allow dying patients thinking about hastening their deaths to explore the issue with their doctors within a regulated framework. One should have that option in a society that respects patient autonomy and values religious liberty.
Peter Greenfield was president of the King County Bar Association in 1991-92. He is a staff attorney with Columbia Legal Services, which neither supports nor opposes I-1000.
1 See Initiative Measure No. 1000 (Jan. 24, 2008), available at http://www.secstate.wa.gov/elections/initiatives/people.aspx?y=2008; Or. Rev. Stat. §§ 127.800–995, available at http://www.oregon.gov/DHS/ph/pas/index.shtml.
2 Editorial, “Judging the dying: Oregon’s experience,” The Seattle Times, January 10, 2008, available at http://seattletimes.nwsource.com/ html/editorialsopinion/2004116199_deaded10.html; see also http://www.oregon.gov/DHS/ph/pas/index.shtml (providing supporting data from Oregon’s Department of Human Services).
3 Thomas Aquinas, Summa Theologica, Second Part of the Second Part, Question 64, Article 5, available at http://www.newadvent.org/summa/3064.htm#article5.
4 See WSCC Home Page, http://www.thewscc.org/ (last visited Sept. 2, 2008); Washington Public Disclosure Commission, Statewide Ballot Initiatives, http://www.pdc.wa.gov/QuerySystem/statewideballotinitatives.aspx (providing campaign-finance data regarding I-1000).
5 See WSCC, Assisted Suicide Initiative – A Dangerous Proposal (July 3, 2008), http://www.thewscc.org/.
6 I-1000, § 6.
7 I-1000, § 8.
8 I-1000, §§ 4, 5, 12.
9 I-1000, § 9.
10 I-1000, § 25.
11 RCW § 70.122.010; see Washington v. Glucksberg, 521 U.S. 702, 780, 117 S. Ct. 2258, 2289 (1997).
12 See Anthony L. Back et al., Physician-Assisted Suicide and Euthanasia in Washington State, J. Am. Med. Ass’n, Vol. 275, No. 42, at 919–22 (1996).
13 Margaret P. Battin et al., Legal Physician-Assisted Dying in Oregon and the Netherlands: Evidence Concerning the Impact on Patients in ‘Vulnerable’ Groups, 33 J. Med. Ethics 591 (2007); see also Kathryn L. Tucker, In the Laboratory of the States: the Progress of Glucksberg’s Invitation to States to Address End-of-Life Choices, 106 MI Law Rev. 1593, 1603–05 (2008).
14 Both, for example, supported SSB 6583 in the Legislature in 2008 and both are involved in further efforts to expand Medicaid eligibility for disabled or elderly adults.
15 Herbert Hendin & Kathleen Foley, Physician-Assisted Suicide in Oregon: A Medical Perspective, 106 MI Law Rev. 1613, 1634–35 (2008).
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