Oregon Tinkers as California Stalls

Legislators have approved a new set of amendments to Oregon's "Humane and Dignified Death Act," the law allowing assisted suicide which took effect late in 1997. But an effort to enact an Oregon-style law in California has stalled.

Oregon legislators proposed the amendments to resolve unanswered questions about implementation of the law, and said they would work with groups on both sides of the assisted suicide issue. However, the version of Senate Bill 491 approved by the Senate April 26 was praised chiefly by advocates of assisted suicide. Testifying against the bill in the House Judiciary-Civil Law Committee on May 13, the Oregon Catholic Conference conceded that it would improve the current legal situation in two ways -- by explicitly extending conscience protection to pharmacists, and requiring those who dispense lethal drugs to file a copy of the dispensing record with the state health division. However, the Conference said, the bill narrows the rights of Catholic and other hospitals opposed to assisted suicide: Physicians in such hospitals will have a right to do referrals for assisted suicide, and to contract with patients on the premises to assist their suicides outside the scope of employment with the hospital.

Of grave concern to Physicians for Compassionate Care (PCC), a group of physicians opposing assisted suicide, was the way the legislature carved out this right. The original law allowed conscientiously opposed health facilities to forbid "participation" in assisted suicide; SB 491 excluded certain counseling and referral activities as well as independent contracting from the scope of "participation." PCC feared this change would have the effect of narrowing the law's protections for physicians who refuse "participation" in assisted suicide -- because a refusal to refer patients for assisted suicide may no longer count as refusal to "participate." Confirming this fear, the House rejected an amendment supported by PCC and the Catholic conference to ensure that physicians could refuse to participate in suicide referrals; on May 24 the House then approved the Senate-passed version of the bill, 42 to 17 [The Oregonian, 5/25/99].

Meanwhile, California legislator Dion Aroner's effort to enact an Oregon-style bill in her state has ended for the year. Assembly Bill 1592 passed the Assembly's Judiciary Committee in April on an 8-to-7 vote, after the committee's Green Party member switched her vote to "yes" [see April Life at Risk]. But with defeat expected in the Appropriations Committee, Aroner enlisted the Assembly's Democratic leadership in what the state Catholic conference called a "serious manipulation" of the committee. The committee chair, an ally, announced on May 27 that markup had been deferred until the next day; Aroner then had two opponents of the bill quickly removed from the committee and replaced by two supporters, and had the bill called up for an "off-the-floor" vote; it passed the Committee 12-to-9.

However, Aroner announced the same day that even if with such strongarm tactics she cannot obtain the 41 votes needed for full Assembly approval. She decided to defer a floor debate so the bill can be poised for further action next year [San Francisco Examiner, 5/28].

The result is that once again, as in every year since Oregon's vote of 1994, the only bills on assisted suicide moving toward enactment in other states are new bans on the practice. On May 27, Governor Parris Glendening signed Maryland's new ban into law [Baltimore Sun, 5/27; see April Life at Risk]. And on May 20, Alabama's House of Representatives voted 54-to-24 to approve a bill making assisted suicide a felony [AP, 5/21]. In both states the practice has been forbidden thus far only by common law.

News Briefs

Hemlock Director Slams Catholics

Signaling a more overt stance against religion in general and Catholics in particular, the Hemlock Society's executive director addressed a national conference of the American Atheists Society on January 26 in St. Louis. The conference's theme was "Opposing Theocracy: Standing Up to the Vatican's Political Agenda for America." Faye Girsh's featured speech, "The Pope Wants to Tell You How to Die: Will you stand for it?", appears in the Spring 1999 issue of the online newsletter The American Atheist [see www.americanatheist.org/spr99/T2/girsh.html].

In her talk, Ms. Girsh complains of the resources contributed by Catholic organizations to efforts against legalization of assisted suicide, and asks: "Doesn't this raise a question about the inordinate influence of one religious group over the most intimate practices -- how they die -- of people who have no interest or belief in that religion?" She expands her criticism to what she calls the "religious right" generally, and finds it ominous that "church attendees" tend to vote overwhelmingly against proposals for assisted suicide. Girsh even complains that while the Supreme Court's ruling leaving this issue to the states may seem "democratic" at first, this has the effect of abandoning the political field to "pressure groups such as the Catholic Church."

Hemlock has sometimes gone out of its way not to appear hostile to religion. A previous executive director, John Pridonoff, was a Congregationalist minister. Ms. Girsh's speech, reminiscent of Catholic-bashing used in pro-suicide referendum campaigns of 1994 and 1997 in Oregon, suggests that Hemlock is prepared to make anti-Catholicism a national debating tactic.

Kevorkian and His Associates in the News

Convicted murderer Jack Kevorkian, now Prisoner #284797 at Oaks Correctional Facility in Eastlake, Michigan, wants to regain his freedom by seeking a new trial. On May 20 his attorney Mayer Morganroth filed a motion blaming "deficiencies" in Kevorkian's defense on the incompetence of trial attorney David Gorosh. Gorosh himself calls the accusation "baseless and slanderous" [Detroit Free Press, 5/22/99].

Two of Kevorkian's friends are also in the news. His former attorney Geoffrey Fieger is suing the parents of the teenage shooters in the Littleton, Colorado tragedy for $250 million, on behalf of a victim's parents. And Kevorkian's protégé, Dr. Georges Reding, may be charged with assisting the suicide of a New Mexico woman last August [Reuters, 5/12]. While gathering evidence for the New Mexico case, authorities searching Reding's Michigan home found signs that he may have crisscrossed the United States and Canada in recent years to aid several other suicides [Detroit Free Press, 5/14].

Suicide Movement in Terminal Condition?

Surveying the assisted suicide debate after Jack Kevorkian's murder conviction, cancer expert Ezekiel J. Emanuel, M.D. says the suicide doctor's downfall "is emblematic of a larger consensus developing against these practices." Writing in The New Republic he observes: "In the courts, in state legislatures, in public opinion polls, and in the medical community, advocates for euthanasia and assisted suicide are losing the legal and political battle." Emanuel notes the "conventional wisdom" that most Americans support legalization, but says that slight changes in poll questions produce contradictory answers on the issue. He also cites a national survey of oncologists he helped conduct in 1994 and again in 1998: In four years, cancer doctors' support for physician-assisted suicide for terminally ill patients with unremitting pain dropped from 46% to 22%; their support for euthanasia dropped from 23% to 6%. He concludes: "Proponents will continue to press legal cases, to lobby legislatures, and to try to get on the ballot. But these efforts will be largely irrelevant. The clamor for euthanasia and physician-assisted suicide pushed medical professionals to improve end-of-life care. With those changes established, the assisted-suicide movement itself may be in terminal condition" [Ezekiel J. Emanuel, "Death's Door," in The New Republic, 5/17/99, pp. 15-16].

Assisted Suicide: Heading North to Alaska?

The euthanasia movement has long tried to claim Eskimo culture in Alaska as a precedent for its agenda. Hemlock Society founder Derek Humphry says in his latest book:

"Eskimo elders are highly revered and nurtured by the community as long as they can contribute to the general good of the group and add to its resources. Once they are no longer productive, however, they are abandoned by the community or assisted in their death." D. Humphry and M. Clement, Freedom to Die (St. Martin's Press 1998), p. 333.

The pro-suicide group "Compassion in Dying" (CID) has taken such accounts to heart. Having failed in its 1997 effort to have the U.S. Supreme Court establish a constitutional "right" to assisted suicide, the group has switched its focus to state constitutions -- with Alaska as its prime target.

A more immediate reason for choosing Alaska is its legal background. Alaska's constitution includes an explicit "right to privacy," which state courts interpret broadly. This privacy clause, for example, was the basis for a 1997 Alaska Supreme Court decision requiring private hospitals that receive public funds to provide abortions (Valley Hospital Association v. Mat-Su Coalition for Choice, 948 P.2d 963 [Alaska 1997]). CID hopes such rulings will provide a basis for a fundamental "right" to choose the time and manner of one's death, including a right to suicide with a physician's aid.

CID filed its suit in Alaska Superior Court in Anchorage on December 15, 1998, on behalf of two plaintiffs: Kevin Sampson, 43, a retired state auditor who has AIDS, and "Jane Doe," a physician in her 60s who has breast cancer. Both say that they are in the terminal stage of their illness, and that their pain cannot be controlled without sacrificing their "alert mental state" [Compassion in Dying Federation of America Newsletter, January 1999]. Attorneys in Sampson v. Alaska are CID director of legal affairs Kathryn Tucker, who argued the group's Washington state case before the U.S. Supreme Court, and

Anchorage attorney Robert Wagstaff. They say the state ban on assisted suicide, when applied to competent, terminally ill patients who wish to die, violates state constitutional guarantees of privacy, liberty and equal protection.

In an April 1999 brief, Alaska's attorney general replies to these claims. Among his arguments:

Privacy: Recent Alaska Supreme Court decisions on privacy recognize that "no one has an absolute right to do things in the privacy of his own home which will affect himself or others adversely." Thus the court has upheld restrictions on alcoholic beverages and a ban on use of cocaine. Even its abortion cases have not disagreed with the federal constitutional norm that abortion may be regulated and restricted to "ensure the life and health of the mother." But even if the court decides the state can only ban activity that endangers others, there is ample evidence from Oregon and the Netherlands that it is difficult or impossible to restrict the impact of assisted suicide to a narrow class of patients.

Liberty: While plaintiffs appeal to ideas proposed by John Stuart Mill in his famous essay On Liberty, they forget that even Mill placed limits on the freedom a person may have over himself or herself -- for example, a man may not sell himself into slavery, for then "he abdicates his liberty; he forgoes any future use of it beyond that single act." The same is true of suicide.

Equal Protection: The plaintiffs' argument here contains a "fundamental inconsistency": They claim that "equal protection" requires giving the same respect to a right to assisted suicide as is now given to the right to refuse unwanted treatment; yet the right to refuse treatment belongs to everyone, while plaintiffs claim they want a right to assisted suicide only for the terminally ill. If their equal protection argument were valid, everyone would have to be given a "right" to assisted suicide.

As to whose arguments prevail, that may be easier to predict once oral argument is held in August.

Background: Publicity's Role in Promoting Assisted Death

Experts on suicide have long known about the "copycat" phenomenon: One widely publicized suicide may touch off similar acts among other impressionable people. Recently four researchers at the University of California tried to answer the question: Does the same phenomenon exist when favorable publicity is given to assisted suicide and other involvement by physicians in hastening patients' deaths?

In the Spring 1999 issue of the American Association of Suicidology's journal, the researchers explain how they studied the aftermath of two nationally publicized events: the publication of Dr. Timothy Quill's landmark editorial about his personal involvement in an assisted suicide in the March 7, 1991 issue of the New England Journal of Medicine; and the Missouri Supreme Court's decision allowing the removal of artificially assisted feeding and fluids from Nancy Cruzan in December 1990. Noting that the extent to which physicians may be seen as hastening death is strikingly different in the two cases, the authors nonetheless wished to study cases in which a medical authority (Quill) and a legal authority (the Missouri court) advanced the idea of a "right to die" for a certain class of patients.

The results of the study are startling. In the month of March 1991, following Dr. Quill's public account of assisting the suicide of a female leukemia patient, deaths among female leukemia patients nationwide showed a peak of 11.3% that could not be explained by any other known factor. This peak was larger the more similar the patient's situation was to that of Quill's patient. For example, the increase was almost entirely found among long-term residents of small communities -- those most likely to have a long-term relationship with their physician, as Quill's patient did. The increase in deaths was 34% among "female leukemia patients in their 40s who were long-term residents of smaller communities." The authors believe the peak in deaths was due to an increase in privately arranged assisted suicides, emboldened by Quill's nationally reported account in a prestigious medical journal. Similarly, in the weeks following the Cruzan ruling, deaths among patients who were comatose following an accident were 57% higher than in surrounding months.

"Both legal and medical authorities appear to have played significant permission-giving roles in conditions of ethical uncertainty," conclude the authors. "The best available explanation for the mortality peaks is that they were elicited by two major opinion-shaping mechanisms in our society: courts and editorials." They add: "If the publication of a single medical editorial did in fact change the short-term behaviors of physicians and their patients to the extent observed, then legalization of assisted suicide might well have even larger and more widespread effects."

[See: D. Phillips, N. Christenfeld, L. Glynn, and A. Steinberg, "The Influence of Medical and Legal Authorities on Deaths Facilitated by Physicians," 29 Suicide and Life-Threatening Behavior 49-57 (Spring 1999)]

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