A Dignified Death: What Does That Mean for Those Who Are Not Terminally Ill?

I. Introduction

At age eleven, Kelly Niles was accidently hit in the head while fighting with one

of his friends over whose turn it was to bat.1 After being rushed to the emergency room

by his father, Kelly was diagnosed with a concussion and sent home.2 Unfortunately, the

doctors misdiagnosed Kelly’s head injury and failed to notice the expanding blood clot in

his brain.3 Although the doctors eventually detected the blood clot and successfully

removed it through surgery, Kelly was ultimately confined to a wheel chair for the

remainder of his life due to irreversible brain damage.4 Kelly remained mentally

competent but required assistance to eat, bathe, urinate, walk, or to do anything that

required physical movement because he could not control his body’s muscle movement.5

After twenty-two years of being confined to a wheelchair and requiring continual

assistance, Kelly felt his quality of life had deteriorated and that he was losing personal

dignity.6 Although Kelly’s condition was predicted to eventually cause his death, the

timing would be unpredictable.7 After time, Kelly articulated to his family that he wanted

to commit suicide.8 His family agreed to help Kelly so long that they could find a way to

do so legally.9 After Kelly’s family could not find a legal avenue to help him end his

suffering, Kelly became impatient and decided to starve himself.10 Kelly’s attempt at

1 Lonny Shavelson, A Chosen Death 113, 161 (1995).2 Id. at 162.3 Id.4 Id. at 163.5 Id.6 Id.7 Id.8 Id. at 164.9 Id.10 Id.

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committing suicide failed when after forty-eight days of starvation he could no longer

bare the pain and quit.11 Although his first attempt was a failure, he continued to try and

his desire to die did not cease.12 Kelly finally succeeded in committing suicide with the

help of his mother.13 Kelly’s tragic and painful end-of-life situation could have been

circumvented by legally allowing Kelly and his family the opportunity to seek the

assistance and advice of a physician to assist Kelly in ending his life.

Kelly is not the only mentally competent, not terminally ill individual with a

strong desire to die with what dignity remains, before the suffering increases.14 Imagine

living with an irreversible or incurable disease such as AIDS,15 Lou Gehrig's,16

Parkinson's,17 or Huntington's disease.18 These individuals often times experience chronic

excruciating pain but do not have an estimated life expectancy and therefore do not have

access to die with dignity.19

11 Id.12 Id. at 165.13 Id. at 166. 14 In Lonny Shavelson’s A Chosen Death, there are five other stories similar to Kelly’s. 15 HIV/AIDS is an irreversible disease that affects certain cells in the body so that your body cannot fight off infection or disease. This disease is painful and often times leads to illnesses such as anemia, lipodystrophy, insulin resistance, and lactic acidosis. Aids.gov, https://www.aids.gov/hiv-aids-basics (last visited Dec. 13, 2015).16 Amyotrophic Lateral Sclerosis or Lou Gehrig’s disease is a disease of the motor tracts of the spinal cord, causing progressive muscular atrophy, increased reflexes, fibrillary twitching and spastic initiability of muscles. This disorder affects adults, is 90-95% sporadic in nature, and is usually fatal within 2 to 4 years of onset. WebMD, www.webmd.com (last visited Dec. 13, 2015). 17 Parkinson's disease is a chronic and progressive movement disorder, meaning that symptoms continue and worsen over time. There is currently no cure. Symptoms include shaking of the hands, arms, legs, jaw and face, bradykinesia or slowness of movement, stiffness of the limbs and impaired balance and coordination. Parkinson Disease Foundation, www.pdf.org (last visited Dec. 13, 2015). 18 Huntington's disease is an incurable inherited disease that causes certain nerve cells in the brain to deteriorate. Symptoms may include uncontrolled movements, clumsiness, and balance problems; it can take away the ability to walk, talk, and swallow. Some people stop recognizing family members. Others are aware of their environment and are able to express emotions. MedlinePlus, www.nlm.nih.gov (last visited Dec. 13, 2015). 19 SB – 128 End of Life, Health and Safety, 128th Leg, 15 (Ca. 2015)(effective 2016); Mont. Code. Ann. § 50-9-101 (WL 2015); Or. Rev. Stat § 127.805 (WL 2015); Vt. Stat. Ann. tit. 18, § 5283(a) (WL 2015); Wash. Rev. Code Ann. § 70.245.020(1) (WL 2015). Current Death with Dignity laws are only available to those who have been diagnosed as terminally ill, with a life expectancy of six months or less to live.

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While Kelly lived at a time when no law provided an option for people to request

physician-assisted suicide in his state20, even states that began adopting Death with

Dignity laws21 would not have provided him with the help he needed. Although current

Death with Dignity laws allow mentally competent, terminally ill individuals the right to

die with dignity by physician aid, they do not allow individuals who are physically

incapable of administering the physician-prescribed medication themselves, such as

Kelly, or those who are not terminally ill that same right.22

By allowing only mentally competent, terminally ill patients access to physician-

aid-in-dying, Death with Dignity laws fail to satisfy their legislative purpose.23 More

states should not only adopt a Death with Dignity Act, but also extend the law’s

protections to all mentally competent, physically suffering persons. The statutes should

be amended to ensure that physician-aid-in-dying is available to all patients who need it.

Although the current statutory mandates are a step in the right direction, there is still

work to be done to honor the interests of those, like Kelly, who wish to have a peaceful

exit from their long-term suffering. Those who are physically disabled or not terminally

ill are often times the people who suffer tremendous physical pain and may have the

strongest desire to end their lives and current Death with Dignity laws ban these people

from dying with dignity, forcing them to face a life without dignity in the time when they

seek control of their uncertain future.24

20 Shavelson, supra note 1, at 161. Kelly lived in the state of Washington before they enacted a Death with Dignity law. 21 While states call these types of laws a variety of terms, for the purposes of this paper, I will refer to aid-in-dying laws as Death with Dignity laws. 22 SB – 128 End of Life, Health and Safety, 128th Leg, 15 (effective 2016); Mont. Code. Ann. § 50-9-101; Or. Rev. Stat § 127.805; Vt. Stat. Ann. tit. 18, § 5283(a); Wash. Rev. Code Ann. § 70.245.020(1).23 Death with Dignity laws focus on ending a patient’s suffering and respecting his or her autonomous choice to end his or her own life in a “humane and dignified manner.” Or. Rev. Stat. Ann § 127.805(1).24 SB – 128 End of Life, Health and Safety, 128th Leg, 15 (effective 2016); Mont. Code. Ann. § 50-9-101; Or. Rev. Stat § 127.805; Vt. Stat. Ann. tit. 18, § 5283(a); Wash. Rev. Code Ann. § 70.245.020(1).

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In part II of this paper I discuss the need for and the statewide movement towards

Death with Dignity laws. In section III, I discuss how current Death with Dignity laws

fail to fulfill their legislative purposes by excluding mentally competent adults who have

incurable and irreversible physical diseases that cause chronic pain and suffering. Then, I

will explain how the diagnosis “terminally ill” is questionable in its accuracy as a

prognosis. Furthermore, I will compare passively hastening death, the taking patients off

of life- sustaining treatments, and actively hastening death, the prescribing of lethal

medication to a patient (also called physician-aid-in-dying), and discuss how those two

methods are not significantly different. Next, I will propose amendments to the statutory

language in current Death with Dignity laws to expand the availability of this relief for

mentally competent adults suffering from irreversible and incurable physical diseases.

Only then can legislatures begin to truly effectuate the interests underlying a dignified

death. Lastly, I will provide legislative solutions to common concerns over expanding

death with dignity laws to the not-terminally ill.

II. Growing Recognition for Need

A. Terminology

“End of life care,” “aid-in-dying,” “dignified death,” “physician-assisted

suicide,” and “assisted suicide” are all phrases that refer to the act of a physician, upon

patient request, actively prescribing a mentally competent, terminally ill individual with a

lethal dose of medication that, when administered by the patient himself, causes the

patient’s death.25 Although many phrases are used to describe this process, health policy

organizations such as the American Public Health Association as well as individuals who

25 Lindsay Reynolds, Losing the Quality of Life: The Move Towards Society’s Understanding and Acceptance of Physician-Aid-in-Dying and the Death with Dignity Act, 48 New Eng. L. Rev. 343, 346 (2014).

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are proponents of Death with Dignity laws have recognized that referring to the process

as “assisted suicide” or “suicide” is inappropriate, offensive, and conducive to negative

connotations and therefore, should not be used when discussing peaceful and dignified

deaths under Death with Dignity laws.26 Hence, for the purpose of this paper, I will use

the term physician aid-in-dying or dignified death to refer to this process.

B. Why the Need?

The debate about the legalization of physician aid-in-dying and has resonated for

years.27 Proponents of Death with Dignity laws argue that the debate is not about letting

people commit suicide, but rather helping individuals in the dying process.28 Peg

Sandeen, Executive Director of the Death with Dignity National Center,29 testified that

“‘modern medicine, palliative care, pain release, hospice care can provide relief for most

people, but not all people.’”30 She explains that, “’ modern medicine... can keep people

alive for a very long time past what any natural death would be, and people die badly.”’31

Death with Dignity laws are needed to provide individuals with a right to escape a bad, in

other words “painful or lingering, debilitating, death”.32 Proponents argue that those who

are mentally competent and are making a rational decision to choose not life or death

because that decision has already been made, but when and how they will meet death, is

26 Kathryn L. Tucker, When Dying Takes Too Long: Activism for Social Change to Protect and Expand Choice at the End of Life, 33 Whittier. L. Rev. 109, 154 (2011). 27 Derrick Augustus Carter, Knight in the Duel with Death: Physician Assisted Suicide and the Medical Necessity Defense, 41 Vill. L. Rev. 663, 680 (1996).28 Reed Karaim, Assisted Suicide, 23 CQ Researcher 449, 453 (May 17, 2013),http://library.cqpress.com.29 Death with Dignity National Center, https://www.deathwithdignity.org (last visited December 2, 2015). The Death with Dignity Center is a non-profit dedicated to promoting Death with Dignity laws across the U.S. and providing information, education, and support about Death with Dignity as an end-of-life option.30 Karaim, supra note 28, at 453.31 Id.32 Id.

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an act that is far from suicide.33 It is a peaceful and gentle option in the dying process.34

The argument for Death with Dignity laws is not proposing that other end-of-life options

are terminated, but rather that aid-in-dying is one of those options when discussing end-

of-life care.35

Death with Dignity laws also help prevent individuals from taking matters into

their own hands.36 There have been many ill individuals who, when enduring constant

pain and suffering, have looked to taking their own lives as an answer to alleviating

agony.37 Consequently, physically suffering individuals have attempted to commit suicide

on their own or with the help of family members because they felt they had no other

option besides facing the terrifying prospect of long-term painful treatment and a

deteriorating quality of life.38 Many times, these attempts have failed and have caused

even greater harm both physically and emotionally to the individual and their loved ones.

By passing Death with Dignity laws, those who are diagnosed with a disease that will

eventually cause death or a deterioration of dignity would have an option to discuss a

peaceful exit rather than attempting to end their misery themselves.39

Furthermore, Death with Dignity laws are needed for health care providers to

fulfill their obligation to relieve pain and suffering and promote the dignity and autonomy

of their patients.40 Without debate, one of the most basic values that supports and guides

all health care decision-making is respecting a patient's self-determination and

33 Id.34 Id. 35 Id. 36 Cyndi Bollman, A Dignified Death? Don’t Forget About the Physically Disabled and Those not Terminally Ill: An Analysis Of Physician-Assisted Suicide Laws, 34 S. Ill. U.L.J. 395, 409 (2010).37 Id.38 Id. at 346.39 Id. at 409.40 Id. at 346.

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autonomy.41 Proponents of physician aid-in-dying assert that the physician is trained and

knowledgeable in the field of medicine, which includes aiding patients with a

comfortable and dignified death just as much as it does with the rendering of help to the

living.42 Opponents claim that there is no role for a physician in aiding death due to the

Hippocratic Oath which states, “I will neither give a deadly drug to anybody if asked for

it, nor will I make a suggestion to this effect.”43 Opponents of Death with Dignity laws

say this oath means that the all-encompassing duty of a physician is to give life, not

death.44

Although most health care providers do take the oath when they graduate from

medical school, they do not swear to it.45 Almost every medical school requires some sort

of oath of its graduates, but not all are the same, 46 and most are seen simply as

“ceremonial and nonobligatory” providing general moral and ethical guidance.47 Because

some current physicians find that the original oath is lacking, many of the contemporary

oaths written omit some problematic parts about euthanasia, abortion and sexual relations

but continue to keep most of the original themes such as respecting patient self-

determination or autonomy.48

C. Growing Recognition for Need

41 Charles H. Baron, A Model State Act to Authorize and Regulate Physician- Assisted Suicide, 33 Harv. J. on Legis. 1, 5 (1996).42 Paul Moore, Physician-Assisted Suicide: Does “The End” Justify the  Means?, 40 Ariz. L. Rev. 1471, 1472 (1998).43 Id. 44 Id. 45 Melissa, Doctors Aren’t Bound by the Hippocratic Oath, Today I Found Out: Feed Your Brain, Nov. 15, 2013, http://www.todayifoundout.com. (Melissa chose not to have her last name disclosed within the organization’s website.)46 Id.47 Id.48 Id.

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Without question, there has been a strong move towards the legalization of Death

with Dignity laws.49 Starting in 1994, Oregon was the first state to pass a Death with

Dignity law for mentally competent patients who were terminally ill.50 Almost fifteen

years later, the State of Washington joined Oregon in enacting its own Death with

Dignity law.51 At the end of 2009, the Montana Supreme Court indicated that aid-in-

dying is not against the state's public policy and prohibited the state from prosecuting

doctors who helped the terminally ill die with dignity.52 A few years later, in 2013,

Vermont established a Death with Dignity law modeled after Oregon and Washington’s.53

Most recently, California legalized physician aid-in-dying, again, for the mentally

competent and terminally ill; it will go in effect next year.54 Additionally, Utah,

Wyoming, Colorado, Wisconsin, New York, and New Hampshire are currently

considering Death with Dignity bills similar to Oregon, Washington, and Vermont’s.55

Furthermore, the number of persons in this country who support Death with

Dignity laws has continued to grow.56 According to a national poll done by The Gallup

Poll in 2014, a majority of Americans believe that death with dignity is morally

acceptable.57 When the question was asked, “When a person has a disease that cannot be

cured, do you think doctors should be allowed by law to end the patient’s life by some

49Browne C. Lewis, A Graceful Exit: Redefining Terminal to Expand the Availability of Physician-Facilitated Suicide, 91 Or. L. Rev. 457, 458 (2012). 50 Alan Meisel, Physician-Assisted Suicide: A Common Law Roadmap for State Courts, 24 Fordham Urb. L.J. 817, 819 (1997).51 Katie Franklin, Physician-Assisted Death, Dementia, and Euthanasia: Using an Advanced Directive to Facilitate the Desires of Those with Impending Memory Loss, 51 Idaho L. Rev. 547, 552 (2015).52 Baxter v. State, 224 P.3d 1211, at 250 (Mont. 2009). 53 Franklin, supra note 51, at 552.54 Patrick Mcgreevy, How Assisted Suicide Will Work in California, Los Angeles Times, Oct. 5, 2015, http://www.latimes.com.55 Death with Dignity Around the U.S., Death With Dignity Nat'l Ctr. (last updated Nov. 18, 2015), http:// www.deathwithdignity.org/advocates/national.56 Lewis, supra note 49, at 458. 57 Compassion and Choices, https://www.compassionandchoices.org/tag/gallup-poll/ (last visited Dec. 18, 2015).

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painless means if the patient and his or her family request it?” almost seven out of ten

Americans said yes.58

III. Current Assisted Suicide Laws Should be Amended to Meet Legislative Purposes

A. Current Failures within Death with Dignity Laws

Death with Dignity laws provide an option for a dignified death to those who are

competent and terminally ill, but fail to meet their full statutory legislative purpose by

excluding a large group of individuals who are also mentally competent and diagnosed

with irreversible and incurable physically debilitating and painful diseases.59 Current

Death with Dignity laws require that the individual requesting a dignified death must be

terminally ill, which the statutes define as “an incurable and irreversible disease that has

been medically confirmed and will, within reasonable medical judgment, produce death

within six months.”60 The laws also require that the patient be able to physically

administer the lethal physician prescribed mediation themselves, usually orally.61 Those

who do not satisfy these two conditions are forced to live their life in a way that no one

should be forced to live.

Is it right that someone who is physically suffering and medically predicted to live

six months or less can choose a dignified death, but someone who is suffering equally

and has a prognosis of more than a year to live is prevented from doing so? This

inconsistency demonstrates the need for an expansion of these laws. The purpose of

58 Justin McCarthy, Seven in 10 Americans Back Euthinasia, Gallup, June 18, 2014, www.gallup.com. Results for this Gallup poll are based on telephone interviews conducted May 8-11, 2014, with a random sample of 1,028 adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia. When the question was re-worded to, “When a person has a disease that cannot be cured and is living in severe pain, do you think doctors should or should not be allowed by law to assist the patient to commit suicide if the patient requests it?,” the percentage of supporters dropped to 58%. Although this percentage still shows that a majority of Americans still support aid-in-dying, it also shows that when the word “suicide” is added to the mix, people are more hesitant to support it. 59 Bollman, supra note 36, at 395. 60 Or. Rev. Stat § 127.800(12); Vt. Stat. Ann. tit. 18, § 5283; Wash. Rev. Code Ann. § 70.245.010(13). 61 Or. Rev. Stat § 127.800(12); Vt. Stat. Ann. tit. 18, § 5283; Wash. Rev. Code Ann. § 70.245.010(13).

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Death with Dignity laws is to respect patient autonomy.62 Under current Death with

Dignity laws this legislative purpose is not being met. The statutes fall short of protecting

those who need it most by failing to provide particular groups of competent individuals

the opportunity to die with dignity. There is little justification for preventing patients

diagnosed with irreversible and incurable diseases from dying with dignity, particularly

when they are expected to suffer significantly for an undetermined amount of time. This

argument demonstrates that these laws fail to accommodate competent individuals who

have chronic diseases or are physical disabled and are in desperate search of a way to end

their pain.

B. An Inaccurate Prognosis: Terminally Ill

The terminally ill diagnosis requirement not only fails to meet legislative purpose

by denying a large group of suffering individuals a dignified death but also is

questionable in its accuracy. The less than six-months to live requirement in the

“terminally-ill” definition 63 is an imprecise and inaccurate standard. One study found that

almost 15% of patients in hospice care, which requires a similar diagnosis, live longer

than six months, and more than 8% live longer than a year.64 Dr. Rex Greene, a retired

oncologist, affirmed, “‘Terminal illness is a meaningless term, the law in Oregon says a

six-month prognosis. There's no physician on Earth [who] can make a six-month

prognosis. The best we can do is in the last weeks of life we can be pretty close.”’65 The

World Federation of Right to Die Societies Newsletter also admits that the diagnosis of

“terminally ill” is an “unreliable prediction.”66

62 Reynolds, supra note 25, at 363. 63 Or. Rev. Stat § 127.800(12); Vt. Stat. Ann. tit. 18, § 5283; Wash. Rev. Code Ann. § 70.245.010(13). 64 Moore, supra note 42, at 1484.65 Karaim, supra note 28, at 455. 66 World Right-to-Die Newsletter, May 2001, p. 3. (The World Right-to-Die Newsletter is a publication of the World Federation of Right to Die Societies).

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For the purpose of Death with Dignity laws, the definition of terminally ill needs

to be interpreted more broadly due to the inaccuracy of this diagnosis. Opponents argue

that interpreting terminally ill more broadly will cause individuals to end their life

prematurely due to the constant improvements of medical technology and treatments.67

Although this argument has merit, it is weakened by the evidence that the terminally ill

prognosis is inaccurate and some individuals who have been diagnosed as terminally ill

have lived even longer than predicted. Furthermore, by interpreting the terminally ill

definition more broadly or not, a competent patient facing such a difficult and profound

decision would have considered these options prior to choosing to terminate her life

under Death with Dignity laws. To extend physician aid-in-dying to more deserving

cases, legislatures need to remove the specific durational requirement and more broadly

interpret the meaning of terminal. It should be sufficient enough to trigger the application

of Death with Dignity laws once a doctor diagnoses a person with an incurable disease

that is expected to result in death.

C. The Passive and Active Argument

One of the most common arguments against Death with Dignity laws is that

physician aid-in-dying accounts for actively hastening the death of a person.68 Although

this argument is frequently used by those who oppose physician aid-in-dying, current

Death with Dignity laws have considered it to hold no merit and thus, should continue to

do so while amending the statutes to those who are not terminally ill or are physically

disabled.69 Passively hastening death, which has been legally practiced for years in the

medical profession, occurs when physicians take patients off a life-sustaining machine or

67 Reynolds, supra note 25, at 350. 68 Meisel, supra note 50, at 821. 69 Id. at 822.

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medication so they can succumb to their own disease. For example, when a patient

requests it, a physician can discontinue the use of a feeding tube or intravenous

hydration.70 Actively hastening death occurs when a physician affirmatively prescribes a

lethal medication to the patient upon request so that the patient can administer it, if and

when they choose, to cause their own death.71

The leading authority establishing a right to withdraw life support treatment is

Cruzan v. Director, Missouri Department of Health,72 which held that competent adults

have a constitutionally protected right to die.73 The court recognized mentally competent

terminally ill individuals’ right to refuse treatment at any stage in their illness.74 The court

found that this constituted an act of “constitutional responsibility” by showing

compassion and respect towards the patient’s autonomy and self-determination.75 Many

physicians who oppose expanding Death with Dignity laws to those who are not

terminally ill or physically handicap propose the already “adequate” alternative to

physician aid-in-dying is allowing death through the refusal of hydration and nutrition.76

Although the option to refuse treatment is a choice available to all individuals in end-of-

life situations, some patients who are suffering do not receive any life-sustaining

treatment or, if they do, forgoing such treatment will result in a prolonged, unbearable,

and inhumane dying process.77 For these patients, a more effective avenue of actively

70 Carter, supra note 27, at 691. 71 Meisel, supra note 50, at 818. 72 Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990). Cruzan involved a patient, Nancy Cruzan, who was in a persistent vegetative state after sustaining severe injuries in an automobile accident. She exhibited motor reflexes, but there was absolutely no indication of cognitive function. Nancy survived solely on artificial nutrition and hydration.73 Id. at 278. Cruzan holds that an individual has a “Constitutionally protected liberty interest in avoiding unwanted medical treatment, including life-sustaining medical treatment such as artificial nutrition and hydration.”74 Id. 75 Id.76 Carter, supra note 27, at 718.77 Bollman, supra note 36, at 409.

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hastening death is necessary, one which respects the patients' self-determination.78

Opponents of expanding Death with Dignity laws stand by the argument that

physicians who participate in actively hastening a patient’s death have a different motive

than physicians who participate in passively hastening death; that physicians under Death

with Dignity laws have to intent to cause death and the passively hastening physicians do

not.79 Advocates for expanding Death with Dignity laws argue that the active-passive

distinction is unacceptable because the intent of the actor is the same in both cases: to

prevent unnecessary pain and to respect the autonomy, dignity, and self-determination of

a suffering patient.80 Hastening the death of an individual is no different than the

physician's role in stopping life-support treatment or when a physician prescribes

palliative treatment that will also probably have the effect of causing the death of the

patient.81 In Cruzon v. Missouri, Justice Scalia comments on the absurdity of this active

passive distinction by writing, “It would not make much sense to say that one may not

kill oneself by walking into the sea, but may sit on the beach until submerged by the

incoming tide; or that one may not intentionally lock oneself into a cold storage locker,

but may refrain from coming indoors when the temperature drops below freezing.”82

Since the physician’s motive in both passively and actively hastening a patient’s death is

the same and it is permissible, compassionate, and constitutional to help a dying person

avoid a final few days or weeks of suffering, it would seem then that it is much more

compassionate to accommodate a similar request from a patient whose anticipated

suffering is measured in years, such as those without a definitive prognosis of six months

78 Id.79 Id.80 Meisel, supra note 50, at 838. 81 Moore, supra note 42, at 1472.82 Cruzan, 497 U.S. at 296.

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or less, whether physically disabled or not.83

D. Proposed Amendments

To address the current inconsistencies in the current Death with Dignity laws,

legislatures should amend the statutory language relating to terminal disease or illness to

include those that have been medically confirmed as irreversible and that, within

reasonable medical judgment, will eventually produce death. Further, the law should

specify that death does not have to be within six months, but rather, once a physician

diagnoses a person with an incurable or terminal disease that is expected to result in

death, the patient may request a dignified death. That way, those who are mentally

competent, not-terminally ill, or physically disabled will be provided the same right as

those who are already protected under current Death with Dignity laws. These laws are

designed to allow people to humanely and safely end their own lives when faced with an

untreatable or physically debilitating disease. With these changes in place, courts and

legislatures may begin to truly effectuate the interests underlying Death with Dignity

laws. In a broad sense, and looking at the issue of physician aid-in-dying through the lens

of personal autonomy and respect for patient self-determination, the concept is simple:

allow people the freedom and respect of determining when their quality of life is not

worth bearing.

Death with Dignity laws also should be amended to provide an opportunity for

physically disabled individuals who are diagnosed with an incurable or irreversible

disease that will eventually cause their death to request help from a family member in

administering the lethal medication. These patients may then have the same right as those

who are physically able to ingest the medication under the current Death with Dignity

83 Bollman, supra note 36, at 404.

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laws. “At some point, all legally competent persons with disabilities have had adequate

opportunity to assess the long-term prospects for their quality of life, and we must respect

those determinations and the choices they make.”84 There are many people in the United

States who are endlessly suffering as a result of one disease or another.85 Individuals who

have the intense desire to end their suffering by terminating their lives should not be

prohibited from doing so. Whether the patient's prognosis is three months or three years,

if one decides to rid himself of unbearable and untreatable pain, he should be permitted to

have the option of a dignified death.

E. Addressing Concerns Over Expanding Death with Dignity Laws

The most common concerns opponents have against expanding Death with

Dignity laws to all physically suffering individuals include the negative impact it may

have on vulnerable groups, the possibility of abuse, and the encouragement of already

suicidal persons to utilize physician aid-in-dying as an easy escape. Fortunately, all of

these concerns can be addressed and answered by current Death with Dignity law

safeguards.

The concern that expanding Death with Dignity laws to those who are not

terminally ill poses a threat to some of the most vulnerable Americans, including the

physically disabled, the poor, or racial minorities, while warranted, has failed to

materialize.86 A study led by Margaret Battin, a distinguished professor of philosophy and

an adjunct professor of internal medicine in the Division of Medical Ethics, at the

University of Utah in Provo, found no evidence that supported that physician aid-in-

84 Id. at 408.85 Reynolds, supra note 25, at 366.86 Karaim, supra note 28, at 453.

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dying has had a disproportionate impact on patients in vulnerable groups.87 The typical

patient requesting physician aid-in-dying was white, married, college-educated, and over

sixty-five; the typical patient also has some kind of cancer, has private health insurance,

is enrolled in hospice care, is concerned primarily about the loss of autonomy, and dies at

home.88 Given the demographics of the persons who have requested the lethal

medication, current Death with Dignity laws have not unduly burdened vulnerable

groups.89

Current Death with Dignity laws provide several safeguards to avoid abuse. To

begin with, physicians who encourage or pressure patients into requesting a dignified

death risk losing their license due to culpability.90 Furthermore, two doctors, the patient's

primary physician and a second doctor, must agree the patient has a terminal illness and

is able to request the lethal medication.91 Further, the patient's decision to request the

lethal medication must be informed.92 The patient cannot make an informed decision

unless the physician makes sure that the patient understands the medical diagnosis and

prognosis; the potential risks and probable results of taking the medication; and the other

available options including comfort care, hospice care and pain control.93 The purpose is

to ensure that the patient has all of the relevant facts before making the decision to

request the lethal medication.94 The rights of the patient are further protected by the

presence of a waiting period; the law requires two requests for the drugs by the patient,

87 Margaret P. Battin, et al., “Legal physician-assisted dying in Oregon and the Netherlands: evidence concerning the impact on patients in ‘vulnerable’ groups,” Journal of Medical Ethics, October 2007, www.ncbi.nlm.nih.gov/pubmed/17906058.88 Id.89 Reynolds, supra note 25, at 345.90 Or. Rev. Stat § 127.890.91 Id. §127.815(1)(a). 92 Id. §127.815(1)(c). 93 Id.94 Reynolds, supra note 25, at 350.

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with fifteen days separating the first and second requests.95 The patient must also sign and

date the written request for the medication.96 In the patient's presence, at least two persons

must attest that “to the best of their knowledge and belief the patient is capable, acting

voluntarily, and is not being coerced to sign the request.”97 The law restricts the pool of

persons who can serve as witnesses to protect the interests of the patient; one must be

disinterested and the physician caring for the patient cannot act as a witness.98 Moreover,

the statutory requirements ensure that a patient's choice to obtain the lethal medication is

voluntary and that the patient can change his or her mind at any time.99

In addition to these statutory safeguards, Death with Dignity laws also require

state agencies to monitor the trend of patients taking the lethal medication.100 Here, there

has been no evidence of abuse.101 For instance, in Oregon, annual reports show that

between 1998 and 2014, a total of 1,327 people have had lethal prescriptions written and

only 859 of those patients have actually taken the prescription. This exemplifies a lack of

evidence of abuse because not even every patient who requests and receives the

prescription ends up taking it.102 In 2014 alone, 155 patients requested and received

prescriptions but only 94 actually ended up ingesting it.103 This data further suggests that

persons requesting the medication did not do so solely for the purpose of ending their

95 Or. Rev. Stat § 127.840.96 Id. §127.815(1)(B).97 Id. §127.810(1).98 Id.99Id. §127.840.100 Or. Pub. Health Div., Oregon's Death with Dignity Act 2014, http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year17. (last visited Dec. 13 2015).101 Id.102 Id. 103 Id.

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lives, but because they were simply comforted by having the ability to do so if their

suffering became unbearable.104

The fear that mentally incompetent or suicidal persons may unhealthily take

advantage of Death with Dignity laws is dealt with within current Death with Dignity law

safeguards.105 The statutes require physicians who believe that a patient is incompetent or

suicidal to refer the patient to a psychologist called in to assess the situation.106

Furthermore, the physician may refer the person to counseling before providing the lethal

medication.107 The statutes also mandate a waiting period between the request for the

medication and the writing of the prescription, which allows the physician to make sure

that the patient is capable of making an informed decision.108 With all the current

statutory safeguards in place, and the lack of evidence of abuse, the arguments against

expanding Death with Dignity laws seem unconvincing.

IV. Conclusion

Death with Dignity laws are needed to provide persons suffering from irreversible

and incurable physically debilitating and painful diseases a peaceful and gentle option in

the dying process, 109 an avenue to a dignified death by preventing individuals from

taking matters into their own hands, 110 and to fulfill physicians’ obligations to relieve

104 Id. 105 Lewis, supra note 49, at 473. 106 Or. Rev. Stat § 127.805. 107 Id. 108 Id. 109 Karaim, supra note 28, at 453.110 Bollman, supra note 36, at 409.

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suffering and promote the dignity and autonomy of their patients.111 There is an obvious

growing recognition for the need of Death with Dignity laws throughout the United

States and currently six other states are working on passing bills similar to Oregon.112

Although current Death with Dignity laws are a step in the right direction as far as

providing mentally competent, terminally ill individuals a dignified death, those same

laws fail to meet their full statutory legislative purpose by excluding a large group of

individuals who are also mentally competent and diagnosed with irreversible and

incurable physically debilitating and painful diseases.113 The exclusive nature of current

Death with Dignity laws not only preclude those who are not expected to die within six

months but also individuals who are physically incapable of ingesting the medication.114

Legislatures should amend the statutory language relating to terminal illness to

include diseases or conditions which have been medically confirmed as irreversible and

which, within reasonable medical judgment, will eventually produce death. The law

should specify that death does not have to be within six months. Further, Death with

Dignity laws should be amended to provide an opportunity for physically disabled

individuals who are diagnosed with an incurable or irreversible disease that will

eventually cause their death to request help from a family member in administering the

lethal medication. That way, those who are mentally competent, not-terminally ill or

physically handicap will be provided the same right as those who are already protected

under current Death with Dignity laws.

111 Reynolds, supra note 25, at 346.112 Death with Dignity Around the U.S., Death With Dignity Nat'l Ctr. (last updated Nov. 18, 2015), http:// www.deathwithdignity.org/advocates/national.113 Bollman, supra note 36, at 395. 114 Or. Rev. Stat § 127.805; Vt. Stat. Ann. tit. 18, § 5283(a); Wash. Rev. Code Ann. § 70.245.020(1).

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Fortunately, current laws address several key concerns raised by the opponents of

legalized physician aid-in-dying. The statutory safeguards in place have been proven to

successfully circumvent common concerns such as targeting vulnerable groups, abuse of

physician aid-in dying, and encouragement of already suicidal persons. By amending the

statutory language of current Death with Dignity laws to include all those diagnosed with

an incurable or irreversible physical disease that will eventually cause death, legislatures

may then begin to truly effectuate the interests and full legislative purpose underlying

Death with Dignity laws.

“Death is not the greatest of evils; it is worse to want to die, and not be able to.”115

115 Sophocles Quotes, http://thinkexist.com/quotation/death_is_not_the_greatest_of_evils-it_is_worse_to/161831.html, (last visited Dec. 13, 2015).

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