The topic of assisted suicide re-entered the news during Judge Neil Gorsuch’s Supreme Court’s confirmation hearings. In his 2006 book “The Future of Assisted Suicide and Euthanasia,” Gorsuch discussed the legal and ethical issues raised by assisted suicide and euthanasia and presented a moral and legal argument against their legalization. More recently, Gorsuch discussed his beliefs on this issue during the third day of his confirmation hearings. As part of an exchange with Sen. Dianne Feinstein (D-Calif.), Gorsuch noted that he agreed with the Supreme Court’s 1990 decision in Cruzan v. Director, Department of Health, under which the Court recognized the ability to refuse medical treatment as a constitutionally protected right. Additionally, Gorsuch stated that “anything necessary to alleviate pain would be appropriate and acceptable, even if it caused death, not intentionally, but knowingly.” The distinction drawn by Gorsuch (and most current state laws) between permissible and illegal assistance to a terminal patient is one of intent. If medication is administered with the intent to alleviate pain and allow death to occur due to an underlying physical illness, such care is considered palliative. However, if medication is administered with the intent of causing death, such action constitutes assisted suicide and, in most states, is a crime.
While the nation waits to see how Judge Gorsuch’s beliefs regarding assisted suicide and euthanasia may shape future Supreme Court decisions, the robust discussion of this issue in the news has led many individuals to consider their rights when it comes to their end-of-life treatment. Below is a description of the rights of those living in the “DMV” area.
To date, there have been three Supreme Court decisions pertaining to assisted suicide.
- Washington v. Glucksberg – In this 1997 decision, the Court held that the State of Washington’s ban on assisted suicide did not violate the Fourteenth Amendment’s Due Process Clause. In distinguishing the right to die from the right to refuse treatment, the Court noted that the right to refuse treatment was supported by a long held common law rule against forced medication as a form of battery. The right to die had no such historical basis and, in fact, conflicted with a consistent and universal tradition of criminalizing suicide. As such, the Court held that the right to die was not a fundamental liberty protected by the Constitution.
- Vacco v. Quill – In this 1997 decision, the Court held that New York’s ban on assisted suicide and its statutes permitting patients to refuse medical treatment did not violate the Equal Protection Clause as “everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide.”
- Gonazales v. Oregon – In this 2006 decision, the Court held that the U.S. attorney general could not rely on his powers under the Controlled Substances Act (the “CSA”) to prohibit a physician from prescribing a controlled substance under Oregon’s Death with Dignity Act. In reaching this decision, the Court found that Congress intended for the states to determine the meaning of a “legitimate medical purpose” under the CSA as part of their traditional regulation of the medical profession. Thus, it was within the authority of Oregon lawmakers, not the attorney general, to determine whether assisted suicide qualified as a legitimate medical purpose.
As a result of these prior decisions, it is clear that the right to engage in assisted suicide is not protected under the Constitution. However, it appears that a state may regulate the process by which a physician may assist a terminally ill patient with his or her death as part of the states’ traditional role in regulating the medical profession.
D.C. – While the D.C. Death with Dignity Act of 2015 became effective on February 18, 2017, it has not yet been funded and, thus, may not be relied upon by D.C. residents. This Act permits the prescription of medication for the purpose of ending a person’s life in a “humane and peaceful manner.”
In order to request such medication, a patient must make two oral requests, separated by at least 15 days, to an attending physician and submit a signed and dated written request to the attending physician at least 48 hours before the medication may be prescribed or dispensed. Such written request must be witnessed by at least 2 individuals who attest to the patient’s state of mind in signing the request and must be in the form provided under D.C. Code Section 7-661.02.
Upon receipt of a written request, the attending physician must determine that the requesting patient (i) has a terminal disease that will result in death within 6 months, (ii) is capable and has made the request voluntarily, and (iii) is a D.C. resident. The attending physician then must inform the patient of his or her medical diagnosis and prognosis, the potential risks and probable result of the medication and the availability of feasible alternatives. A second “consulting physician” must examine the patient to confirm the diagnosis and verify, in writing, that the patient is capable, acting voluntarily and has made an informed decision. A health care provider must notify the Department of Health of a dispensation of a covered medication and a patient’s death due to such medication.
A qualified patient’s ingestion of a covered medication will not have any effect on an insurance or annuity policy or employee benefits, however, the District of Columbia may make a claim against a patient’s estate for any costs incurred in connection with such patient’s ingestion of a covered medication in a public place.
Maryland – The Richard E. Israel and Roger “Pip” Moyer End-of-Life Option Act was introduced to the Maryland House of Delegates on January 25, 2017. The sponsors of the bill withdrew it from consideration on March 3rd, citing a lack of support. This is the third consecutive year that similar legislation has failed to advance from committee. Advocates have indicated that they will introduce the bill again in 2018.
- With the failure of the proposed bill, assisting another individual with his or her suicide remains a felony under Maryland law. Maryland Criminal Law Section 3-101, et. seq., criminalizes the act of (i) knowingly providing the physical means by which another person commits or attempts to commit suicide with the knowledge of such person’s intent or (ii) knowingly participating in a physical act by which another person commits or attempts to commit suicide. An exception is provided for palliative care that may hasten death, provided that such care is not administered to cause death, and the withdrawal or withholding of care in accordance with a patient’s advance directive or reasonable medical practice. A conviction is punishable by up to 1 year in prison and/or a fine of up to $10,000.
Virginia – Virginia prohibits assisted suicide through civil penalties. Virginia Code Section 8.01-622.1 provides that the spouse, parent, child or sibling of a person who commits or attempts to commit suicide may recover damages in a civil action against any person who knowingly and intentionally provided the physical means for such suicide or attempted suicide or participated in a physical act resulting in such suicide or attempted suicide. Additionally, an action for injunctive relief may be maintained against a person who is reasonably expected to assist or attempt to assist in another person’s suicide. An exception is provided for palliative care that is not administered with an intent to cause death or the withholding or withdrawal of life-prolonging procedures.
What Does This Mean for You?
For now, individual states may determine the availability of certain medications to terminally ill patient seeking to end their lives. Currently, only six states have adopted such “death with dignity” laws, including D.C.
If you live in D.C., your ability to utilize the Death with Dignity Act of 2015 relies on the District’s ability to fund the components of such legislation, which in turn relies on Congress’s approval of D.C.’s proposed budget. In Maryland and Virginia, any legislation on assisted suicide is at least a year away, if not more.
In the meantime, residents of the DMV area who are concerned about their ability to control the circumstances of their deaths would be well-advised to execute an advance directive that provides end-of-life treatment instructions to his or her health care agent and attending physicians. Such documents provide guidance and, as mentioned above, may even provide certain protections against criminal and civil penalties for caregivers. Additionally, one might consider relocating to a state that permits assisted suicide. Keep in mind, however, that all such states require that a patient seeking assistance be a resident of such state and capable of making and communicating health care decisions for himself or herself. Thus, a patient must relocate while he or she has the mental capacity to meet the applicable residency and competency requirements.