by Raphael Cohen-almagor
This article is based on an excellent paper written by my UCLA School of Law student Monica Hartman. Together we developed her paper to a full-fledge article.
Proponents of physician-assisted-suicide (PAS) have been trying for over a decade to legalize some type of PAS at the... more
Proponents of physician-assisted-suicide (PAS) have been trying for over a decade to legalize some type of PAS at the state level. They first attempted to use the traditional state legislative process. Although they managed to get some bills introduced and considered, none of them were approved. Consequently, in 1991 PAS proponents tried a new method, going directly to voters in Washington through the state’s voter initiative processes. When the measure was defeated in Washington, the legalization movement moved to California in 1992, where a measure again was defeated. The movement next moved to Oregon which houses the national headquarters of the Hemlock Society and is the home of Derek Humphry, a prominent right-to-die activist. The politically independent sentiments of many Oregonians, combined with the state’s history of progressive initiatives and health reforms, were instrumental in the passing of the Death With Dignity Act. Furthermore, Oregon has progressive advance directive laws and a long history of citizens using the initiative power as an instrument of legal and social change. Regarding citizens’ defiance toward organized religion and external political pressures, John Pridnoff, Executive Director of the Hemlock Society in Eugene, Oregon, said, “Oregonians tend to be more open-minded to a wide variety of opinions.”
Oregon also has a more conducive atmosphere for the passage of physician-assisted suicide because of the main characteristics of its population. About 90% of Oregonians are white and research has shown that whites are more likely than minorities (particularly African-Americans and Hispanics) to support physician-assisted suicide. In addition, Oregon is a relatively secular state where religious sentiments are not strong. That factor allows Oregonians to espouse moral views that do not necessarily coincide with religious norms. Chet Orloff, Director of the Oregon Historical Society, explained, “This measure is in keeping with Oregon. Throughout history Oregon seems to be out there ahead of other states in testing things.”
Interestingly, in order to gain the support of most Oregonians, the activists of the right-to-die campaign distanced themselves from Derek Humphry and the Hemlock Society. The initiators of Measure 16 saw Humphry as a political liability, fearing his controversial, fringe views might scare away voters worried that the measure was the beginning of a radical campaign to help people kill themselves. Spokeswoman Barbara Coombs Lee explained that Humphry always criticized the bill for being too moderate. Measure 16 was not designed to satisfy “the fringe element on either side of this issue, not Derek Humphry and not the archbishop. It was designed to find the common ground with a moderate, rational and safe solution to a problem facing Oregonians.” At the same time, the campaign had quietly used Humphry’s name to raise money across the country from right-to-die faithful. Humphry himself was very active in raising money for the campaign and contributed a large sum of money.
In November 1994, the citizens of Oregon approved Ballot Measure 16—also called the Oregon Death With Dignity Act (hereinafter “the Oregon Act,” or “the Act”), making Oregon the first and only jurisdiction in the United States to legalize PAS. The Act allows Oregon residents who are suffering from a terminal disease to receive prescriptions for self-administered lethal medications from their physicians. The term “terminal disease” is defined as “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six (6) months.” It does not permit euthanasia (good death), in which a physician or other person directly administers a medication to a patient in order to end his or her life. Implementation of the Act was barred for several years by a constitutional challenge. Passage of the Act in November 1997, for the second time, not only legalized PAS in Oregon but also placed Oregon at the center of a national debate regarding PAS.
The Oregon Death With Dignity Act requires that the Oregon Health Division (OHD) monitor compliance with the law, collect information about the patients and physicians who participate in legal physician-assisted suicide, and publish an annual statistical report. This Article discusses the history of the Act from its passage in 1994 to the present, evaluates the strengths and weaknesses of the Act, and analyzes the Oregon Health Division’s reports on the consequences of the Act. It is acknowledged that the Act contains significant documentation and reporting requirements for every step of the procedure. These provisions are designed to ensure that the patient is making a voluntary and informed decision. The provisions help state agencies to monitor physicians’ compliance with the Act. This, in turn, helps safeguard patients’ interests and protects against the risk of involuntary euthanasia.
While the Act includes a number of safeguards that are intended to protect patients’ interests and guard against the abuses that have occurred in the Netherlands, there are still some flaws beyond the aforementioned weaknesses that do not necessarily advance the purpose of the Act, which is to give a dying patient the right to request lethal medication to end his or her life in a humane and dignified way. This Article proposes several improvements to the Act, including modification of the Act to contain self-administered lethal injections in situations where oral medications cannot be taken, additional reporting by pharmacists, mandatory psychiatric consultations for patients considering physician-assisted suicide, and enhanced control mechanisms. The meticulous set of guidelines will improve the working of the Act and make it less susceptible to abuse.
The reasoning behind the Act recognizes that a person may face grave difficulties at the end of his or her life. The general argument of death-with-dignity advocates focuses on a special set of circumstances where (1) a person has a terminal disease, (2) is capable and (3) has made the request to end his or her life voluntarily. According to death-with-dignity advocates, a person in this situation should have the autonomy to make the decision to end his or her life and to be able to do so in the most humane manner. This does not negate the principle that a person’s life is valuable at all times. Instead, the viewpoint is that although a person’s life is always valuable, a patient’s desire to control his or her manner of death and to die a more painless and/or dignified death should be given precedence over the value of his or her life. As said, the Oregon Act specifies that the time period for this judgment is after a reasonable medical prognosis has given the patient only six more months to live. In order to protect the individual’s freedom to act, two rights are recognized: the right to autonomy and the right to choice in end of life issues. Both of these rights were cited by family members as extremely important reasons why patients chose PAS in its second year of effect in Oregon.
Download (.pdf) 
