In the laboratory of the states: The progress of Glucksberg's invitation to states to address end-of-life choice

Michigan Law Review

Volumn 106, Issue 8, 2008, Pages 1593-1611

  Tucker, Kathryn L ^a  

^a LEWIS AND CLARK LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ASSISTED SUICIDE; CIVIL RIGHTS; EUTHANASIA; GOVERNMENT; HUMAN; JURISPRUDENCE; LEGAL ASPECT; LONG TERM CARE; MENTAL CAPACITY; PERSONAL AUTONOMY; REVIEW; TERMINAL CARE; TERMINALLY ILL PATIENT; UNITED STATES;

CIVIL RIGHTS; EUTHANASIA; HUMANS; LIFE SUPPORT CARE; MENTAL COMPETENCY; OREGON; PERSONAL AUTONOMY; STATE GOVERNMENT; SUICIDE, ASSISTED; SUPREME COURT DECISIONS; TERMINAL CARE; TERMINALLY ILL; UNITED STATES;

EID: 46649106124     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (165)

1. 521 U.S. 702, 735 (1997).
2. OR. REV. STAT. §§ 127.800-995 (2005).
3. Id. § 127.880. Since it is explicit in. the law that the death of a patient under the Dignity Act does not constitute "suicide," there is no basis for a suicide exemption under an insurance policy which excludes payment of benefits in cases of "suicide."
4. E. James Lieberman, Letter to the Editor, Death with Dignity, PSYCHIATRIC NEWS, Aug. 4, 2006, at 29. Lieberman wrote: The term, "assisted suicide" is inaccurate and misleading with respect to the [Dignity Act]. These patients and the typical suicide are opposites:
5. • The suicidal patient has no terminal illness but wants to die; the [Dignity Act] patient has a terminal illness and wants to live.
6. • Typical suicides bring shock and tragedy to families and friends; [Dignity Act] deaths are peaceful and supported by loved ones.
7. • Typical suicides are secretive and often impulsive and violent. Death in [the Dignity Act] is planned; it changes only timing in a minor way, but adds control in a major and socially approved way.
8. • Suicide is an expression of despair and futility; [the Dignity Act] is a form of affirmation and empowerment.
9. Id.
10. Rhea K. Farberman, Am. Psychological Ass'n, Terminal Illness and Hastened Death Requests: The Important Role of the Mental Health Professional, 28 PROF. PSYCHOL.: RES. & PRAC. 544, 544 (1997), quoted in Brief of Amicus Curiae Coalition of Mental Health Professionals in Support of Respondents at 17, Gonzales v. Oregon, 546 U.S. 243 (2006) (No. 04-623);
11. see also David M. Smith & David Pollack, A Psychiatric Defense of Aid in Dying, 34 COMMUNITY MENTAL HEALTH J. 547 (1998).
12. The American Medical. Women's Association's position statement Aid in Dying notes as follows: The terms "assisted suicide" and/or "physician assisted suicide" have been used in the past, including in an AMWA position statement, to refer to the choice of a mentally competent, terminally ill patient to self administer medication for the puipose of controlling time and manner of death, in cases where the patient finds the dying process intolerable. The term "suicide" is increasingly recognized as inaccurate and inappropriate in this context and we reject that term. We adopt the less emotionally charged, value-neutral, and accurate terms "Aid in Dying" or "Physician Assisted Dying".
13. Position Statement, Am. Med. Women's Ass'n, Aid in Dying (Sept. 9, 2007), http://www.amwa-doc.org (follow "Advocacy" hyperlink; then follow "Position Statements" hyperlink); see also CHARLES F. MCKHANN, A TIME TO DIE: THE PLACE FOR PHYSICIAN ASSISTANCE (1999);
14. Joseph B. Straton, Physician Assistance with Dying: Refraining the Debate; Restricting Access, 15 TEMP. POL. & CIV. RTS. L. REV. 475, 475 (2006) (arguing that "the process of permitting people to actively end their lives before their disease ends their lives" ought to be referred to as "physician assistance with dying," instead of "physician-assisted suicide");
15. Principles Regarding Physician-Assisted Suicide, Resolution D01, Am. Med. Student Ass'n House of Delegates (March 15, 2008) (on file with author) [hereinafter AMSA Principles] (replacing the organization's use of the phrase "physician-assisted suicide" with "aid in dying" and stating that the practice "should not... constitute suicide assisted suicide, mercy killing or homicide"); Position Statement, Am. Acad. of Hospice & Palliative Med., Physician-Assisted Death (Feb. 14, 2007), available at http://www.aahpm.org/positions/su.ic.ide.html (rejecting the term physician-assisted suicide as "emotionally charged" and inaccurate).
16. E.g., James E. Dallner & D. Scott Manning, Death with Dignity in Montana, 65 MONT. L. REV. 309, 314-15 (2004). Dallner and Manning note:
17. [T]he word "suicide" is well suited to the description of a distraught individual with his whole life ahead of him, who in a moment of despair, commits a completely senseless and utterly tragic act. In contrast, "suicide" is not well suited to describe an elderly cancer patient who in the final days of a horrible and agonizing struggle simply wishes to avoid more needless suffering and indignity. The first individual's act destroys what could be a long and productive life. The elderly cancer patient does not extinguish the hope of a bright future, but rather avoids the last uncharacteristically painful and undignified moments of a life already fully lived .... Use of the word, "suicide" ... arouses the images of tragic loss of life in a situation where the tragedy may be the continuation of life.
18. Id.
19. E.g., Kevin B. O'Reilly, Oregon nixes use of term "physician-assisted suicide", AM. MED. NEWS, NOV. 6, 2006, available at http://www.ama-assn. org/amednews/2006/11/06/ prsc1106.htm ("Oregon's Dept. of Human Services announced ... that it no longer would use the term 'physician-assisted suicide' to describe terminally ill patients who ask doctors to help them die.");
20. Policy Statement, Am. Pub. Health Ass'n, Supporting Appropriate Language Used to Discuss End of Life Choices: Policy No. LB-06-02 (Nov. 8, 2006), available at http:// www.com.passionandchoices.org/pdfs/APHA_Policy.pdf (urging "that accurate, value-neutral terms such as 'aid in dying' or 'patient directed dying' be used to describe this choice").
21. 521 U.S. 793 (1997).
22. Id.
23. 521 U.S. 702 (1997).
24. It should be noted that in these cases, it was assumed that these laws could reach the conduct of a physician prescribing medications for this purpose; this is a rather large assumption, and a compelling argument could be made that such conduct is simply outside the scope of such statutes. As noted elsewhere in this Article, there is an emerging consensus that it is inaccurate to refer to the choice of a mentally competent, terminally ill patient to seek to hasten death as "suicide"; thus it can be persuasively argued that a physician prescribing medications for such a patient does not "assist suicide."
25. These cases have been the subject of extensive commentary. A terms and connectors search for the Glucksberg cite in the Westlaw "law reviews and journals" database on March 1, 2008 yielded 1625 cites; a similar search with the Quill cite yielded 467 citations.
26. See Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev'd sub nom. Glucksberg, 521 U.S. 702; Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996), rev'd, 521 U.S. 793.
27. The fact that the door was plainly left ajar by the Glucksberg Court distinguishes the Glucksberg ruling from Bowers v. Hardwick, 478 U.S. 186 (1986), and the two decisions ought not be considered of a kind.
28. But see Brian Hawkins, Note, The Glucksberg Renaissance: Substantive Due Process since Lawrence v. Texas, 105 MICH. L. REV. 409, 411 (2006) (arguing Gluckberg's restrictive approach, to due process is alive and well).
29. Glucksberg, 521 U.S. at 789 (Souter, J., concurring).
30. Id. at 788.
31. Id. at 737 (O'Connor, J., concurring) (second and third omissions in original) (citation and internal quotation marks omitted).
32. See J.B. Deisher, Letter to the Editor, Living And Dying-Suffering That Precedes Death Should Be The Real Enemy, SEATTLE TIMES, Dec. 20, 1994, at B5;
33. Robert A. Free et al., Op-Ed, Compassion, Dignity In Dying-Terminal Patients Turn To Family When Living Becomes Unbearable, SEATTLE TIMES, Jan. 12, 1997, at B5;
34. Charlotte B. Hammond, Letter to the Editor, Right To Die-Support For Assisted Suicide, SEATTLE TIMES, Jan. 17, 1997, at B5;
35. Peter M. McGough, Letter to the Editor, Physician-Assisted Suicide - Most Patients Are Unaware of Their Treatment Options, SEATTLE TIMES, NOV. 28, 1994, at B5;
36. Carol M. Ostrom, End-Of-Life Issues Prove Perplexing-'Right To Die' Raises Legal Questions, SEATTLE TIMES, Oct. 1, 1994, at All;
37. Carol M. Ostrom, Physician Survey: Suicide Aid Should Be Legal, SEATTLE TIMES, July 14, 1994, at B1;
38. Carol M. Ostrom, State ACLU Proposes Assisted-Suicide Law, SEATTLE TIMES, NOV. 16, 1994, at B3;
39. Nancy L. Purcell, Op-Ed, Coming To Terms With How We Treat 'The End Of Life', SEATTLE TIMES, Dec. 5, 1996, at B5;
40. Brian Willoughby, Suicide Debate Draws 80, COLUMBIAN (Vancouver, Wash.), Aug. 9, 1994, at Al;
41. State's Medical Association Repeats Support For Reform, COLUMBIAN (Vancouver, Wash.), Sept. 26, 1994, at A5;
42. Study: Terminally III Fear Loss of Independence, COLUMBIAN (Vancouver, Wash.), Apr. 11, 1996, at A12.
43. Brief of Amicus Curiae of Surviving Family Members in Support of Physician-Assisted Dying, Glucksberg, 521 U.S. 702 (No. 96-110), 1996 WL 722032.
44. DVD: Ethics in America II: Three Farewells: Medicine & the End of Life (Fred Friendly Seminars 2007), available at http://www.learner.org/ resources/series207.html;
45. see also Frontline: Living Old (PBS television broadcast Nov. 21, 2006), available at http://www.pbs.org/wgbh/ pages/frontline/livingold (depicting stories of elderly patients and their families struggling to maintain dignity as they face age and disease).
46. Glucksberg, 521 U.S. at 736-37 (O'Connor, J., concurring).
47. Id. at 737-38;
48. see also id. at 791 (Breyer, J., concurring) ("[The challenged statutes] do not prohibit doctors from providing patients with drugs sufficient to control pain despite the risk that those drugs themselves will kill."). Justices Ginsburg, Stevens, and Souter also suggested that they might support a right to pain medication. Justice Ginsburg supported O'Connor's opinion without joining it.
49. Id. at 789 (Ginsburg, J., concurring) ("I concur in the Court's judgments... substantially for the reasons stated by Justice O'Connor ...."). Justice Stevens's statement that "there are situations in which an interest in hastening death ... is entitled to constitutional protection" seems to contemplate aggressive treatment for pain.
50. Id. at 741-42 (Stevens, J., concurring). And Justice Souter indicated "lesser concern" about the difficulty of assessing a patient's wishes "in cases involving limitations on life incidental to pain medication." Id. at 784 n.16 (Souter, J., concurring).
51. The practice of sedating patients with intractable pain into unconsciousness and withholding food and water until death inevitably ensues is known as terminal or palliative sedation and was endorsed as an acceptable option, indeed one seen as negating the need for assisted suicide, by the AMA and other amici in the Quill and Glucksberg cases. See, e.g., Brief of the American Medical Ass'n et al. in Support of Petitioners at 6, Vacco v. Quill, 521 U.S. 793 (1997) (No. 95-1858), 1996 WL 656281. For some patients this may be an acceptable option; others (and their families) abhor the option of accepting an induced coma and a lingering demise while family members stand vigil for the week or ten days it takes for dehydration and starvation to bring about death.
52. Many commentators have observed that courts have recognized the constitutional right to adequate pain medication. E.g., Robert A. Burt, The Supreme Court Speaks: Not Assisted Suicide but a Constitutional Right to Palliative Care, 337 NEW ENG. J. MED. 1234 (1997);
53. David Orentlicher, The Supreme Court and Terminal Sedation: Rejecting Assisted Suicide, Embracing Euthanasia, 24 HASTINGS CONST. L.Q. 947, 951-54 (1997);
54. see also Rob McStay, Terminal Sedation: Palliative Care for Intractable Pain, Post Glucksberg and Quill, 29 AM. J.L. & MED. 45, 52-53 (2003).
55. E.g., Nat'l Ethics Comm., Veterans Health Admin., The Ethics of Palliative Sedation as a Therapy of Last Resort, 23 AM. J. HOSPICE & PALLIATIVE MED. 483, 484 (2007) ("There is broad professional agreement that palliative sedation is a clinically and ethically appropriate response when patients who are near death suffer severe, unremitting symptoms.");
56. Zev D. Schuman et al., Implementing Institutional Change: An Institutional Case Study of Palliative Sedation, 8 J. PALLIATIVE MED. 666 app. at 672 (2005) ("In the United States, there is legal and professional support for palliative sedation. The United States Supreme Court (in Vacco v. Quill...) recognized the right of patients to receive palliative sedation if that is what is required to relieve their suffering at the end of life.") (citation omitted);
57. see also Bernard Lo & Gordon Rubenfeld, Palliative Sedation in Dying Patients, 294 JAMA 1810 (2005).
58. For an example of such an argument, see Susan M. Wolf, Pragmatism in the Face of Death: The Role of Facts in the Assisted Suicide Debate, 82 MINN. L. REV. 1063, 1100 (1998).
59. See Kathryn L. Tucker, The Chicken and the Egg: The Pursuit of Choice for a Human[e] Hastened-Death as a Catalyst for Improved End-of-Life Care; improved End-of-Life Care as a Precondition for Legalization of Assisted Dying, 60 N. Y.U. ANN. SURV. AM. L. 355, 356 (2004).
60. Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995), vacated, 107 F.3d 1382 (9th Cir. 1997).
61. David J. Garrow, The Oregon Trail, N.Y. TIMES, NOV. 6, 1997, at A31;
62. Kim Murphy, Voters in Oregon Soundly Endorse Assisted Suicide, L.A. TIMES, NOV. 5, 1997, at Al.
63. Timothy Egan, Threat from Washington has Chilling Effect on Oregon Law Allowing Assisted Suicide, N.Y. TIMES, NOV. 19, 1997, at A18.
64. Statement of Attorney General, Reno on Oregon's Death with Dignity Act, 98 Op. Att'y Gen. 259 (1998) ("The Department has conducted a thorough and careful review of the issue .... We have concluded that adverse action against a physician who has assisted in a suicide in full compliance with the Oregon Act would not be authorized by the CSA.").
65. Id.
66. Pain Relief Promotion Act of 1999, H.R. 2260, 106th Cong. (1999);
67. Lethal, Drug Abuse Prevention Act of 1998, H.R. 4006, 105th Cong. (1998).
68. See Marcia Angell, Editorial, Caring for the Dying Congressional Mischief, 341 NEW ENG. J. MED. 1923, 1923 (1999) ("If the bill becomes law, it will almost certainly discourage doctors from prescribing or administering adequate doses of drags to relieve the symptoms of dying patients.");
69. David Orentlicher & Arthur Caplan, The Pain Relief Promotion Act of 1999: A Serious Threat to Palliative Care, 283 JAMA 255, 255 (2000) ("[P]rogress in [the area of improved pain care] may be dealt a severe setback should Congress decide to enact the [PRPA] of 1999 .... [T]he most likely effect of PRPA would be to discourage physicians nationwide from adequately treating the suffering of their dying patients.").
70. Dispensing of Controlled Substances to Commit Suicide, Att'y Gen. Order No. 25342001, 66 Fed. Reg. 56,607 (Nov. 9, 2001).
71. Id. at 56,608.
72. Id. (omission in original) (citation omitted).
73. Oregon v. Ashcroft, 192 F. Supp. 2d 1077, 1092 (D. Or. 2002), aff'd, 368 F.3d 1118 (9th Cir. 2004), aff'd sub nom. Gonzalez v. Oregon, 546 U.S. 243 (2006).
74. Ashcroft, 368 F.3d 1118, aff'd sub nom. Gonzalez, 546 U.S. 243.
75. Gonzales, 546 U.S. 243;
76. see Kathryn L. Tucker, U.S. Supreme Court Ruling Preserves Oregon's Landmark Death with Dignity Law, 2 NAT'L ASS'N ELDER L. ATT'YS J. 291 (2006).
77. See OR. REV. STAT. § 127.805 (2005).
78. id. § 127.815.
79. Id. § 127.800(12).
80. Id. § 127.800(7).
81. Id. §§ 127.800(4), 800(8), 820.
82. Id. §§ 127.840-850. The Dignity Act requires a fifteen day waiting period between the patient's initial oral request and the writing of the prescription, and a forty-eight hour waiting period between the patient's written request and the writing of the prescription.
83. Id. § 127.850.
84. Id. § 127.885(1)-(2).
85. Id. § 127.865.
86. Or. Dep't of Human Servs., Death with Dignity Act Annual Reports, http://oregon.gov/dhs/ph/pas/ar-index.shtml (last visited Jan. 19, 2008) [hereinafter Annual, Reports].
87. E.g., Margaret P. Battin et al., Legal Physician-Assisted Dying in Oregon and the Netherlands: Evidence Concerning the Impact on Patients in "Vulnerable" Groups, 33 J. MED. ETHICS 591 (2007);
88. Andrew I. Batavia, So Far So Good: Observations on the First Year of Oregon's Death With Dignity Act, 6 PSYCHOL. PUB. POL'Y & L. 291, (2000);
89. Arthur E. Chin et al., Legalized Physician-Assisted Suicide in Oregon - The First Year's Experience, 340 NEW ENG. J. MED. 577 (1999);
90. David Orentlicher, The Implementation of Oregon's Death With Dignity Act: Reassuring, But More Data Are Needed, 6 PSYCHOL. PUB. POL'Y & L. 489 (2000) (stating that implementation of Oregon law has so far been limited to terminally ill patients with a clear, persistent, and voluntary request for hastened death);
91. Amy D. Sullivan et al., Legalized Physician-Assisted Suicide in Oregon - The Second Year, 342 NEW ENG. J. MED. 598 (2000);
92. see also Straton, supra note 6;
93. Timothy E. Quill & Christine K. Cassel, Professional Organizations' Position Statements on Physician-Assisted Suicide: A Case for Studied Neutrality, 138 ANNALS INTERNAL MED. 208 (2003).
94. Battin et al., supra note 50;
95. see also, Quill & Cassel, supra note 50 (urging that medical associations adopt a position of neutrality on assisted dying laws);
96. Linda Ganzini et al., Oregon Physicians' Attitudes About and Experiences With End-of-Life Care Since Passage of the Oregon Death with Dignity Act, 285 JAMA 2363 (2001) (reviewing Oregon's experience with its Death With Dignity Act and concluding no harm occurred to vulnerable populations);
97. Melinda A. Lee & Susan W. Tolle, Oregon's Assisted Suicide Vote: The Silver Lining, 124 ANNALS INTERNAL MED. 267 (1996);
98. Straton, supra note 6.
99. Battin et al., supra note 50, at 591.
100. The American Medical Student Association took note of the Battin study and findings in reaching its own policy to support aid in dying. AMSA Principles, supra note 6 ("WHEREAS the Oregon data showed 'no evidence of heightened risk for the elderly, women, the uninsured ... people with low educational status, the poor, the physically disabled or chronically ill, minors, people with psychiatric illnesses including depression, or racial or ethnic minorities ....'" (quoting Battin, supra)).
101. See Daniel E. Lee, Physician-Assisted Suicide: A Conservative Critique of Intervention, HASTINGS CENTER REP., Jan.-Feb. 2003, at 17.
102. E.g., CTR. FOR DISEASE PREVENTION & EPIDEMIOLOGY, OR. HEALTH DIV., DEP'T OF HUMAN RES., OREGON'S DEATH WITH DIGNITY ACT: THE FIRST YEAR'S EXPERIENCE 7 (1999), available at http://oregon.gov/dhs/ph/pas/ docs/year1.pdf ("Patients who chose physician-assisted suicide were not disproportionately poor (as measured by Medicaid status), less educated, lacking in insurance coverage, or lacking in access to hospice care.");
103. see also Battin et al., supra note 50;
104. Kant Patel, Euthanasia and Physician-Assisted Suicide Policy in the Netherlands and Oregon: A Comparative Analysis, 19 J. HEALTH & SOC. POL'Y 37 (2004) (finding no empirical evidence of a slippery slope in Oregon but more potential for a slide in the Netherlands).
105. OFFICE OF DISEASE PREVENTION & EPIDEMIOLOGY, OR. DEP'T OF HUMAN SERVS., EIGHTH ANNUAL REPORT ON OREGON'S DEATH WITH DIGNITY ACT 12 (2006), available at http://oregon.gov/dhs/ph/pas/docs/year8.pdf [hereinafter EIGHTH ANNUAL REPORT].
106. Id. at 23.
107. OR. PUB. HEALTH DIV., OR. DEP'T OF HUM. SERVS., DEATH WITH DIGNITY ANNUAL REPORTS: YEAR 9 - 2006 SUMMARY (2007), http://oregon.gov/dhs/ph/pas/docs/year9.pdf [hereinafter NINTH ANNUAL REPORT]. Some commentators have observed that legal medical interventions that will bring about death, such as removal of feeding tubes, are reluctantly taken, and have reasoned from this that if aid in dying were legal it would also be rare.
108. See David Orentlicher & Christopher M. Callahan, Feeding Tubes, Slippery Slopes, and Physician-Assisted Suicide, 25 J. LEGAL MED. 389 (2004). The Oregon data supports this contention.
109. EIGHTH ANNUAL REPORT, supra note 55, at 4-5.
110. Linda Ganzini et al., Physicians' Experiences with the Oregon Death with Dignity Act, 342 NEW ENG. J. MED. 557, 557 (2000) (finding that the availability of palliative care led some, but not all, patients to change their mind about hastened death).
111. See Annual Reports, supra note 49;
112. NINTH ANNUAL REPORT, supra note 57 (showing number of prescription recipients each year compared to number of deaths from use of prescriptions).
113. VT. LEGISLATIVE COUNCIL, OREGON'S DEATH WITH DIGNITY LAW AND EUTHANASIA IN THE NETHERLANDS: FACTUAL DISPUTES § 3E (2004), available at http://www.leg.state.vt.us/reports/ 05Death/ Death_With_Dignity_Report.htm.
114. William McCall, Assisted-suicide cases down in "04, COLUMBIAN (Vancouver, Wash.), Mar. 11, 2005, at C2 (quoting Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania School of Medicine);
115. see also Straton, supra note 6, at 480-82.
116. U.S. GEN. ACCOUNTING OFFICE, REPORT TO THE HONORABLE RON WYDEN, U.S. SENATE, END-OF-LIFE CARE 17 (2007). According to the report: Representatives of a hospice-based palliative care provider in Oregon stated that the physicians they work with are more comfortable discussing end-of-life issues with their patients since the 1997 enactment in Oregon of the Death with Dignity Act, which focused attention in the state on end-of-life care and the options available to individuals. Representatives of a palliative care program operated by a health care system we interviewed stated that passage of this act helped create an environment in Oregon where end-of-life issues are discussed more openly.
117. Id.
118. See Ganzini et al., supra note 51;
119. see also Lee & Tolle, supra note 51, 268-69;
120. Lawrence J. Schneiderman, Physician-Assisted Dying 293 JAMA 501, 501 (2005);
121. Quill & Cassel, supra note 50, at 209. Schneiderman notes that one of the unexpected yet undeniable consequences of Oregon's Death with Dignity Act permitting physician aid-in-dying is that "many important and measurable improvements in end-of-life care" occurred following the Act's implementation. Rather than becoming the brutal abattoir for hapless patients that some critics predicted, the state is a leader in providing excellent and compassionate palliative care.
122. Schneiderman, supra, at 501 (reviewing and quoting PHYSICIAN-ASSISTED DYING: THE CASE FOR PALLIATIVE CARE AND PATIENT CHOICE (Timothy E. Quill & Margaret P. Battin eds., 2004)).
123. Ganzini et al., supra note 51, at 2363.
124. Elizabeth R. Goy et al., Oregon Hospice Nurses and Social Workers' Assessment of Physician Progress in Palliative Care Over the Past 5 Years, 1 PALLIATIVE & SUPPORTIVE CARE 215 (2004).
125. Kathy L. Cerminara & Alina Perez, Therapeutic Death: A Look at Oregon's Law, 6 PSYCHOL. PUB. POL'Y & L. 503, 512-13 (2000) (acknowledging possible negative effects of legalized aid in dying, but concluding that the data from Oregon in one year justifies an optimistic view);
126. see also Linda Ganzini et al., Experiences of Oregon Nurses and Social Workers with Hospice Patients who Requested Assistance with Suicide, 347 NEW ENG. J. MED. 582 (2002) (reporting that nurses and social workers rated desire to control circumstances of death as the most important reason for requesting aid in dying);
127. Linda Ganzini et al., Oregon Physicians' Perceptions of Patients Who Request Assisted Suicide and Their Families, 6 J. PALLIATIVE MED. 381 (2003) (finding physicians receiving requests for lethal medication perceive patients as wanting to control their deaths).
128. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 732 (1997) ("We have recognized ... the real risk of subtle coercion and undue influence in end-of-life situations.").
129. See Tucker, supra note 27. Other reasons that put to rest the fear that passage of aid-in-dying laws will put patients at risk have been offered. For example, one commentator studied the reluctance of patients and providers to withdraw feeding tubes, an option legal in every state.
130. See Orentlicher & Callahan, supra note 57, at 390. He concluded that the data show that feeding tubes are overutilized and argues that this demonstrates reluctance to take steps that will precipitate death and that such reluctance will apply in the context of aid in dying.
131. Id.
132. See, e.g., AMSA Principles, supra note 6 ("The American Medical Student Association[] supports passage of aid in dying laws that empower mentally competent, terminally ill patients to hasten what might otherwise be a protracted, undignified, or extremely painful death.");
133. Jay Cohen, CAPG Supports AB 374: The Compassionate Choices Act, CAPG UPDATE (Cal. Ass'n of Physician Groups, L.A., Cal.), Mar. 2007, at 9, available at http://www.capg.org/docs/capg_update-march_2007.pdf (supporting passage of an Oregon-type aid-in-dying law in California);
134. Position Statement, Am. Med. Women's Ass'n, supra note 6 ("AMWA supports the passage of aid-in-dying laws which empower mentally competent, terminally ill patients and protect participating physicians, such as... the Oregon Death with Dignity Act.").
135. News Release, Pew Research Ctr. for the People & the Press, More Americans Discussing - and Planning - End-of-Life Treatment: Strong Public Support for Right to Die, at 8 (Jan. 5, 2006), available at http://people-press.org/reports/pdfy266.pdf.
136. Humphrey Taylor, 2-to-7 Majorities Continue to Support Rights to Both Euthanasia and Doctor-Assisted Suicide, HARRIS POLL, Jan. 9, 2002, http://www.harrisinteractive.com/harris_poll/ index.asp?PID=278.
137. Andrew I. Batavia, The Relevance of Data on Physicians and Disability on the Right to Assisted Suicide: Can Empirical Studies Resolve the Issue?, 6 PSYCHOL. PUB. POL'Y & L. 546, 553 (2000)
138. (citing William Breitbart et al., Interest in Physician-Assisted Suicide Among Ambulatory HIV-infected Patients, 153 AM. J. PSYCHIATRY 238, 240 (1996),
139. and Brett Tindall et al., Letter to the Editor, Attitudes to Euthanasia and Assisted Suicide in a Group of Homosexual Men with Advanced HIV Disease, 6 J. ACQUIRED IMMUNE DEFICIENCY SYNDROME 1069, 1, 069 (1993)).
140. Mark DiCamillo & Mervin Field, Continued Support for Doctor-Assisted Suicide. Most Would Want Their Physician to Assist Them If They Were Incurably III and Wanted To Die, FIELD POLL (Field Research Corp., S.F., Cal.), Mar. 15, 2006, at 1, 2, available at http://www.field.com/ fieldpol.lon.line/subscribers/RLS2188.pdf.
141. Jewish Theological Seminary, Physician-Assisted Suicide Survey, http://www.jtsa.edu/ x5533.xml (last visited Jan. 19, 2008).
142. Ganzini et al., supra note 51, at 2365 tbl.2.
143. Simon N. Whitney et al., Views of United States Physicians and Members of the American Medical Association House of Delegates on Physician-Assisted Suicide, 16 J. GEN. INTERNAL MED. 290, 292-93 (2001). An additional nationwide survey, published in the New England Journal of Medicine in 1998, focused on doctors who practiced in one of the ten medical specialties identified as likely to encounter dying patients (e.g., cardiology, geriatrics, neurology). Of the responding physicians, 36% said that, if it were legal to do so, they would be willing to hasten death by medication, and 24% stated that they would be willing to do so by injection.
144. Diane E. Meier et al., A National Survey of Physician-Assisted Suicide and Euthanasia in the United States, 338 NEW ENG. J. MED. 1193, 1199 tbl.6 (1998).
145. See supra note 70.
146. See, e.g., Position Statement, Am. Acad. of Hospice & Palliative Med., supra note 6.
147. California Compassionate Choices Act, Assemb. 374, 2007-08 Leg., Reg. Sess. (Cal. 2007).
148. Memorandum from Judy Waxman, Vice President of Health, Nat'l Women's Law Ctr., to Members of the Cal. State Assembly (May 15, 2007) (footnotes omitted) (on file with author). A footnote in the memorandum's text refers readers wishing to obtain more information on the Center's Religious Restrictions Project to http://www.nwlc.org/details.cfm.?id-252§ion-health.
149. That this advocacy community has turned its attention to end-of-life issues was made abundantly clear in the sensationalized case involving Terri Schiavo, where so-called right to life groups sought to prevent the patient's wishes from being implemented and to force continued tube feeding on a woman who had permanently lost all cognitive function and was in a permanent vegetative state. For extended discussion of who these groups were and how they are funded, see JON B. EISENBERG, USING TERRI: THE RELIGIOUS RIGHT'S CONSPIRACY TO TAKE AWAY OUR RIGHTS (2005), and RELIGIOUS COAL, FOR REPROD. CHOICE, THE MEDICAL RIGHT: REMAKING MEDICINE IN THEIR IMAGE (2007), available at http://www.rcrc.org/ pdf/MedicalRight_fullreport.pdf (examining the concerted effort of the religious right to inject religious values into the practice of medicine).
150. In California, Catholic bishops and their political arm have been at the forefront of opposition to AB 374. Cardinal Roger Mahony led the attack, charging those who support the bill with participating in a "culture of death." See Jim Sanders, Cardinal scolds Núñez on death aid, SACRAMENTO BEE, Apr. 3, 2007, at A1.
151. See, e.g., Battin et al., supra note 50, at 594-95;
152. Alicia Ouellette, Disability and the End of Life, 85 OR. L. REV. 123 (2006);
153. see also Lois Shepherd, Terri Schiavo: Unsettling The Settled, 37 LOY. U. CHI. L.J. 297, 320-26 (2006);
154. Kathiyn L. Tucker et al., The Sky is Not Falling: Disability and Aid-in-Dying, in END OF LIFE ISSUES AND PERSONS WITH DISABILITIES (Timothy H. Lillie & James L. Werth eds., 2007).
155. A recent study reports that 18-24% of primary care physicians and 46-57% of oncologists have been asked for aid in dying. Elizabeth M. Arnold et al., Consideration of Hastening Death Among Hospice Patients and Their Families, 27 J. PAIN SYMPTOM MGMT. 523 (2004). When patients must go underground for medical care, the risk of encountering a provider who does not practice competent, ethical medicine is greatly increased. The most well known "back alley" provider for patients seeking control over their own death may be Jack Kevorkian, the Michigan pathologist who assisted patients with chronic and terminal conditions to end their lives, often in the back of an old Volkswagon van. Kevorkian was ultimately convicted of homicide in the death of Thomas Youk. After serving part of his prison sentence, Kevorkian was granted parole and released on June 1, 2007.
156. See Monica Davey, Kevorkian Freed After Years in Prison for Aiding Suicide, N.Y. TIMES, June 2, 2007, at A8.
157. See Helene Starks et al., Family Member Involvement in Hastened Death, 31 DEATH STUD. 105 (2007).
158. Id. at 112-17.
159. Cf. Douglas R. Miller, The Alley Behind First Street, Northeast: Criminal Abortion in the Nation's Capital, 1872-1973,11 WM. & MARY J. WOMEN & L. 1 (2004) (detailing history of criminal abortion in Washington, D.C., before Roe v. Wade).
160. California Compassionate Choices Act, Assemb. 374, 2007-08 Leg., Reg. Sess. (Cal. 2007).
161. Id. § 7196 (g).
162. OR. REV. STAT. §§ 127.800(12), 127.805 (2005).
163. California Compassionate Choices Act § 7197.7.
164. See supra notes 74, 80 and accompanying text.
165. Legislative Counsel of California, AB 374 Assembly Bill - History, http://www.leg.info.ca.gov/ pub/07-08/bill/asm/ab_0351-0400/ ab_374_bill_20080204_history.html Oast visited Mar. 16, 2008).