There is a certain right by which we many deprive a man of life, but none by which we may deprive him of death; this is mere cruelty.
― Friedrich Nietzsche: Human, All Too Human
The term “Death with Dignity,” also known as physician assisted suicide, refers to when a physician provides a patient with the means for hastening his/her death, most commonly via a medical prescription. The concept of physician assisted suicide is different from the practice of euthanasia, in which a physician administers the lethal medication directly, rather than providing it to the patient for self-administration. While the cultural battle regarding the role of Death with Dignity in our society is a fascinating topic, this article focuses on the legal processes that have led to the current Death with Dignity landscape.
Background: The Supreme Court of the United States Fails to Provide Clear Guidance on End of Life Issues
During the 1990s, the Supreme Court of the United States heard two major cases that dealt squarely with end of life issues. The first major case, Cruzan v. Dir., Missouri Dep’t of Health, saw a narrow 5-4 majority hold that a patient has the legal right to refuse life-sustaining treatment. The Cruzan ruling, although in some ways favorable to the Death with Dignity movement, was far from a guarantee that the court would ever recognize physician assisted suicide as a legally protected right. The decision was fragmented, as it contained two concurring opinions, two dissenting opinions, and ultimately granted a great deal of latitude to the states to serve as “laborator[ies]” for procedurally safeguarding patients’ rights regarding the refusal of life-sustaining treatment.
In 1997, in Washington v. Glucksberg, the United States Supreme Court was forced to address whether an individual has a constitutionally protected right to physician assisted suicide. A coalition of terminally ill patients and non-profit organizations had brought a challenge to Washington State’s legal ban against assisted suicide. The Court ultimately held that physician assisted suicide was not a constitutionally protected right and, in an attempt to distinguish its Cruzan decision, it remarked that the refusal of life-sustaining treatment was “widely and reasonably regarded as quite distinct” from the decision to end one’s life with the assistance of another.
In an effort to distinguish the right to refuse life-sustaining treatment from the right to physician assisted suicide, the court looked to the legal historic treatment of both rights. The Court noted that, while the right to refuse life-sustaining treatment was deeply rooted in the common-law tradition of the courts, the right to assisted suicide has historically been rejected by the legal system. The Court highlighted the fact that, at the time of its decision, almost every state had rejected efforts to permit physician assisted suicide. The Court justified this historical analysis by noting that it is not simply a connection to personal autonomy that brings a liberty under the protection of the Due Process Clause, but rather it is the legal and historic treatment of a right that makes it a “fundamental liberty interest protected by the Due Process Clause.”
Justice Rehnquist, however, indicated that a future ruling on the issue might produce a different result, remarking that, “I do not, however, foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge.” Although there were no dissenting opinions in the Glucksberg decision, the case produced five concurring opinions and again demonstrated the divergent opinions held by the Supreme Court Justices regarding end of life issues.
In short, the 1990s saw the Supreme Court take the step of recognizing the legal right to refuse artificial nutrition/hydration, but stopped short of declaring that physician assisted suicide is also such a right. What remains unclear, in light of the growing acceptance of Death with Dignity legislation among the states, is whether a future Supreme Court decision on this issue would similarly categorize physician assisted suicide as a right unprotected by the due process clause.
The First Adopters: Washington and Oregon Adopt Death with Dignity Laws by a Popular Vote
In the spirit that the states are the laboratories of democracy, four states have explicitly legalized physician assisted suicide. The first two states to adopt physician assisted suicide, Oregon and Washington, did so by putting the issue before the voters. In 1994, a narrow 51 percent margin of Oregon voters passed Ballot Measure 16, making Oregon the first state in the country to legalize physician assisted suicide. Over a decade later, in 2008, Washington voters followed suit by passing Initiative 1000 with a 58 percent majority.
Recent Trends: The Vermont and California State Legislatures Adopt Death with Dignity Laws
The next two states to adopt Death with Dignity laws, Vermont and California, did so through the passage of bills by state legislatures in 2013 and 2015, respectively. Although Oregon, Washington, Vermont and California legalized physician assisted suicide in different years, the main features of each state’s law are remarkably similar. For example, all four states require that the patient have state residency, be within six months of expected death, be over the age of 18, and make three requests to his/her attending physician. It appears, therefore, that these four states have created a general shared template for future Death with Dignity legislation.
The Curious Case of Montana
Whether or not the State of Montana permits physician assisted suicide often depends on who you ask. Although no law has been passed in the state to explicitly allow for the practice, the Montana Supreme Court has ruled that a physician who prescribes lethal medication to a terminally ill, competent adult would be shielded from liability for homicide.
The 2009 case of Baxter v. Montana was predicated on a lawsuit brought by four physicians and a terminally ill leukemia patient, who argued that physician assisted suicide was a protected right under the Montana state constitution. Although the lower court agreed with the plaintiffs and ruled that the Montana constitution grants patients an affirmative right to physician assisted suicide, the Montana Supreme Court resolved this issue on much narrower statutory grounds. The supreme court concluded that a physician would be free from criminal liability in the context of physician assisted suicide because there was “no indication in Montana law that physician aid in dying provided to terminally ill, mentally competent adult patients is against public policy.” The Montana Supreme Court, however, did not rule on whether physician assisted suicide was a protected right under the state’s constitution.
While some commentators have declared that the ruling of the Montana Supreme Court is effectively a legalization of physician assisted suicide, others have argued that the Court’s decision to shield doctors from criminal liability does not go as far as to legalize the practice. The Montana Legislature has failed to resolve this uncertainty, as both advocates and opponents of the Death with Dignity movement have been unsuccessful in their attempts to pass legislation through the state legislature to either ban or condone the practice of physician assisted suicide. In the end, the narrow language used by the Montana Supreme Court has created a situation in which physician assisted suicide is “not against public policy,” yet not officially condoned by either the judiciary or the state legislature. It appears that this legal grey-area will remain unresolved until the state legislature can settle the issue.
Interestingly, this very same issue of whether physician assisted suicide is protected by a state’s constitution is currently pending in New Mexico’s Supreme Court, in the case of Morris v. Brandenburg.
Conclusion: A Gradual Trend towards Death with Dignity Laws
The future of the Death with Dignity movement in the United States seems to be one of slow, state-by-state expansion. General popular opinion seems to be shifting towards acceptance of the Death with Dignity movement, as a 2015 Gallup Poll reported that nearly seven in ten Americans support allowing Death with Dignity. This cultural shift towards accepting Death with Dignity does not seem to be isolated to the United States, as Canada’s highest court recently overturned a ban on physician assisted suicide. The decision of Canada’s highest court was followed by Prime Minister Justin Trudeau’s recent introduction of nationwide Death with Dignity legislation this past April.
The adoption of Death with Dignity laws in four states, shifting public opinion in favor of the cause, and international trends towards Death with Dignity legislation seems to indicate that other states will continue to gradually adopt Death with Dignity legislation in the future. On the national level, Congress seems too divided to support such a divisive cause in the near future. As Justice Rehnquist declared in the Glucksberg decision, however, it is not inconceivable that the United States Supreme Court would alter course and protect the right to physician assisted suicide in a future decision. Such a move by the Supreme Court depends greatly on the pending appointment of the next Justice, and upon the changing legal landscape of Death with Dignity legislation among the states.
Have questions regarding your estate planning needs? Contact one of our Kirkland estate planning attorneys.