Compassion in Dying, Issue 6

Contents:

1. Victory Through the Courts!
2. Is It Legal to Help Someone Die?
3. New Jersey Episcopalians Endorse Right-to-Die
4. Bill of Rights and Responsibilities for Terminally Ill Patients

Victory Through the Courts!

By Ralph Mero

Through two actions in the federal Appellate Courts, Compassion has successfully tested the constitutionality of state laws which prohibit physicians from prescribing medications for mentally competent, terminally ill adult patients who seek to hasten inevitable death. The lead attorney in both actions is Ms. Kathryn L. Tucker of the Seattle-based firm of Perkins Coie, with the participation in New York of Ms. Carla Kerr of Hughes, Hubbard & Reed.

Compassion's strategy was to bring actions in two different federal appeals jurisdictions with the expectation that one case would be reviewed by the U.S. Supreme Court. The mission was to establish a constitutionally protected right for medical assistance in dying, just as the case of Roe v. Wade established a right for medical assistance with abortion.

Litigation Originating in Washington State

Compassion in Dying et al. v. Washington State

was filed in the U.S. District Court for Western Washington on January 24, 1994, by plaintiffs consisting of Compassion in Dying, four physicians, and three terminally ill patients. The case was brought to challenge the Washington law entitled "Promoting a suicide attempt." This is the statute under which a physician or any other person could be prosecuted for helping a terminally ill patient hasten death. The Washington law is very similar to laws in New York and other states.

The plaintiffs claimed that such laws are unconstitutional under the Liberty and Equal Protection Clauses of the Fourteenth Amendment when they are applied to physicians prescribing medications for mentally competent, terminally ill adult patients who request such medications to hasten inevitable death in order to end their suffering.

Plaintiffs cited previous decisions of the U.S. Supreme Court which found, for example, "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." (Planned Parenthood v. Casey, 1992.)

In Cruzan v. Director, Missouri Dept. of Health, 1990, the Supreme Court acknowledged that competent persons have the constitutional right to direct the removal of life-sustaining medical treatment and thus hasten death. Plaintiffs claim that when this opportunity is denied to mentally competent, terminally ill patients not being maintained on artificial life supports, a discriminatory class has been created which is a violation of the Equal Protection provision of the 14th Amendment.

On May 3, 1994, Federal District Court Judge Barbara Rothstein declared the Washington state law unconstitutional. She held that state laws which totally prohibit assistance with hastening death for terminally ill persons violate the 14th Amendment to the U.S. Constitution. While the interests of a state may justify regulating this activity, she found, a state may not totally prohibit this assistance to patients dying in acute suffering. In overturning the above statute, Judge Rothstein declared:

"The liberty interest protected by the Fourteenth Amendment is the freedom to make choices according to one's individual conscience about those matters which are essential to a personal autonomy and basic human dignity. There is no more profoundly personal decision, nor one which is closer to the heart of personal liberty, than the choice which a terminally ill person makes to end his or her suffering and hasten an inevitable death.

"From a constitutional perspective, the court does not believe that a distinction can be drawn between refusing life-sustaining medical treatment and physician-assisted suicide by an uncoerced, mentally competent, terminally ill adult."

Washington State appealed, and the Rothstein decision was overturned by the U.S. Ninth Circuit Court of Appeals on March 9, 1995. Citing an apparent religious bias by two of the judges, the plaintiffs petitioned for a rehearing. On March 6, 1996, in a landmark eight-to-three decision, the Ninth Circuit Court of Appeals overruled the previous decision and overturned the Washington law on assisted suicide. The finding also applies to such laws in the states of Alaska, Oregon, Montana, Idaho, California, Nevada, Arizona, and Hawaii.

The 112-page majority decision was written by Judge Stephen Rienhardt and focused on the "liberty interest" inherent in the 14th Amendment:

"A competent terminally ill adult, having lived nearly the full measure of his life, has a strong liberty interest in choosing a dignified and humane death rather than being reduced at the end of his existence to a childlike state of helplessness, diapered, sedated, incontinent. How a person dies not only determines the nature of the final period of his existence, but, in many cases, the enduring memories held by those who love him.

"Those who believe strongly that death must come without physician assistance are free to follow that creed, be they doctors or patients. They are not free, however, to force their views, their religious convictions, or their philosophies on all the other members of a democratic society, and to compel those whose values differ with theirs to die painful, protracted, and agonizing deaths."

Dissenting opinions were published by Judges Beezer, Fernandez, and Kleinfeld. The Washington State Attorney General announced her intent to petition for review of Compassion by the U.S. Supreme Court. Copies of the 150-page decision are available for $2.00 from the Clerk of the U.S. Court of Appeals for the Ninth Circuit, PO Box 193939, San Francisco, CA 94119.

Litigation Originating in New York

Meanwhile, on July 29, 1994, Quill et al. v. Vacco had been filed in the U. S. District Court for the Southern District of New York by three physicians and three terminally ill patients testing the constitutionality of the New York statute on assisted suicide, which is virtually identical to that in Washington. While not a plaintiff, Compassion in Dying sponsored the litigation and assumed financial responsibility for the plaintiff's legal expenses.

The Quill plaintiffs were Timothy E. Quill, md; Samuel C. Klagsbrun, md; Howard A. Grossman, md; Jane Doe, a 76-year-old cancer patient; George A. Kinglsey, a 49-year-old publishing executive with aids; and William A. Barth, a 28-year-old fashion editor with aids. The physicians are all licensed to practice in New York. All patients died in the months after the case was filed. Dr. Quill had published an article in The New England Journal of Medicine on March 7, 1991, in which he described prescribing barbiturates for a dying cancer patient who later ended her life.

On December 15, 1994, the constitutionality of the New York assisted suicide law was upheld by Judge Thomas Griesa of the U.S. District Court for the Southern District of New York. Plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit in New York City.

On September 1, 1995, in New York City, oral arguments were heard in Quill by three judges of the Second Circuit Court of Appeals. On April 2, 1996, all three ruled that the New York laws on assisted suicide violate the Equal Protection clause because "they are not rationally related to any legitimate state interest." The decision in the Quill case has jurisdiction in the states of New York, Connecticut, and Vermont.

The decision asked:

"But what interest can the state possibly have in requiring the prolongation of a life that is all but ended? Surely, the state's interest lessens as the potential for life diminishes. And what business is it of the state to require the continuation of agony when the result is imminent and inevitable? What concern prompts the state to interfere with a mentally competent patient's 'right to define [his] own concept of existence, of meaning, of the universe, and of the mystery of human life,' when the patient seeks to have drugs prescribed to end life during the final stages of a terminal illness? The greatly reduced interest of the state in preserving life compels the answer to these questions: 'None.'"

A separate 25-page concurring opinion was entered by Judge Guido Calabresi stating his reasoning for coming to the same conclusion as his colleagues. Copies of the Quill decision are available for $10.00 from the Chief Clerk, U.S. Court of Appeals for the Second District, U.S. Courthouse, Foley Square, New York, NY 10007.

The Washington and New York Attorneys General appealed to the U.S. Supreme Court, and the Court should announce by the end of July or in October if it will review one or both of the cases.

Either the Compassion or the Quill decision would have been considered a major step in increasing the options of mentally competent, terminally ill patients who are suffering in the last stages of life. Taken together, they represent the most significant civil rights victory yet for dying patients who seek constitutional protection for retaining control of their final days.

Next Step: The U.S. Supreme Court

Several constitutional scholars have been quoted as saying they believe that the Supreme Court will be compelled to determine whether there is a constitutional "right to die" as found in Compassion, and whether the various states have "no interest in requiring the prolongation of a life that is all but ended," as found in Quill. The states covered by these two decisions approximate one-third of the U.S. population. It is possible that neither case will be accepted; however, it is most likely that at least one and possibly both will be accepted.

If the high Court does grant review, the preparation of briefs and arguments will occur in the period from October 1996 through June 1997, with a decision expected by late June 1997.

High Court Prospects

While no one can ever predict with certainty the outcome of a case presented to the Supreme Court, we feel that the very strong cases we have developed, and the powerful and influential decisions of the two Appellate Courts, make a favorable ruling a real possibility. Careful consideration of the Court's current composition, including analysis of voting in both Cruzan and Casey, and consideration of the changes in the Court since those cases were decided, enables us to reasonably hope to garner votes from six of the nine justices.

We estimate a budget of approximately $200,000 for legal fees, travel expenses, and court costs to bring one of our cases to a successful conclusion at the Supreme Court level.

We must expect that anti-choice groups will mobilize every resource they can muster to prevent terminally ill patients from having the option of a hastened death. The Roman Catholic hierarchy in the United States already announced its intent to defeat our cases.

At this final and most important phase of this watershed litigation, no effort should be spared to ensure victory.

Conclusion

After the Quill decision, biomedical ethicist Art Caplan, of the University of Pennsylvania, stated on National Public Radio, "The appeals courts have brought about more change on this issue in the past 30 days than we have seen in the past 20 years." We believe that within one or two years the constitutional right of a dying patient to hasten death in a nonviolent manner will be legally protected and available as the final option at the end of life.

This phenomenal progress would not have been possible without the support of Compassion's small but dedicated group of donors. We are enormously grateful for your assistance thus far and urge you to stay with us until the end.

Is It Legal to Help Someone Die?

Is it legal to help someone die? Just what is the legal status of assisted suicide? How far can one go in asking for help from one's doctor or family? The answers to these questions are complex and uncertain. The ambiguity will remain until the U.S. Supreme Court rules on the right to die as it applies to terminally ill patients.

As of May 1996 the highest federal courts in two areas of the country have ruled that states cannot bar dying patients from obtaining a lethal prescription from their physicians. These areas are the Ninth Circuit (see Progress Report above), and the Second Circuit (New York, Vermont, and Connecticut). Both those rulings will be appealed to the Supreme Court, and pending a decision by that Court on whether to hear either case, the laws against assisting a suicide remain in effect. That is the status of the law.

As a practical matter, prosecutors are reluctant to press criminal charges against physicians who prescribe medications for hastening death. First, the well-publicized trials and acquittals of Dr. Jack Kevorkian have amply demonstrated how unpopular and futile such an effort would be in a compelling case of terminal suffering. Second, even if a jury were to convict, there is a threat of reversal if the Supreme Court eventually agrees with the Second and Ninth Circuit Courts that such a prosecution was unconstitutional.

Given this situation, it seems that dying patients within the jurisdiction of either Circuit Court might reasonably ask their doctors for medications to hasten death to avoid profound suffering. The doctors should know they face little risk of prosecution if they cooperate. Physicians' attitudes are changing rapidly in this matter, and reasonable requests, made for the rational purpose of ceasing a prolonged and difficult dying process, may be honored.

In Oregon, the permissive assisted suicide law passed by voters in November 1994 is still not in effect, due to the injunction of Federal District Court Judge Michael Hogan. It is expected that the Ninth Circuit Court of Appeals will lift Judge Hogan's injunction and permit Oregon to be the first state where medical assistance in dying is available within a legal framework. Oral arguments are scheduled before the Ninth Circuit in Portland on July 9.

It is not required that the authorities be notified if one knows that a terminal patient is making a voluntary and well-considered choice to end life. It is not illegal to provide information about assisted suicide or to be merely present, without offering assistance, when someone hastens death.

Note that these considerations of legal risk apply only to licensed physicians helping truly terminally ill patients who are still mentally competent. Family members or friends who take matters into their own hands and cause the death of a loved one, even in situations of great suffering, are vulnerable to criminal prosecution for either assisted suicide or manslaughter.

New Jersey Episcopalians Endorse Right-to-Die

The Episcopal Diocese of Newark, at its recent convention, endorsed a patient's right-to-die.

The task force affirmed that assisted suicide can be theologically and ethically justified and asserted that people need to develop an informed conscience on this issue. They also found that:

• Christian theology demands respect for human life and recognizes that human life is sacred.
• Modern science has created a situation where biological existence may be extended far beyond the point where reasonable quality of life exists.
• There are circumstances where involuntarily prolonged biological existence is less ethical than a conscientiously chosen and merciful termination of earthly life.
• In such exceptional cases, assisting a suffering person in accomplishing voluntary death can be morally justified as part of the healing process, because it enables a person to die well.
• As Christians, we are called upon to offer pastoral care and comfort to persons who find themselves or their loved ones in such a difficult situation.
• The issue of assisted suicide and death requires additional education and prayerful discussions leading to a more informed community and congregation.

Also affirmed was that suicide may be a moral choice for a Christian when a person's condition is terminal or incurable, the pain is persistent and progressive, all other reasonable means of amelioration of pain and suffering have been exhausted, and the decision to hasten death is a truly informed and voluntary choice free from external coercion.

Assisting another in accomplishing voluntary death under these circumstances may be an equally moral choice.

Bill of Rights and Responsibilities for Terminally Ill Patients

Personal Dignity and Privacy

1. You have the right to considerate, respectful service and care, with full recognition of your personal dignity and individuality, without regard to gender, age, ethnicity, income level, lifestyle, educational background, or spiritual philosophy.
2. You have the right to be dressed as you wish and not to be disrobed or uncovered any longer than necessary for your care.
3. You have the right to privacy and the assurance of confidentiality when receiving care, to refuse visitors or persons not directly involved in your care, and to choose who will receive information about your condition.
4. You have the right to request the presence of a person of your choice during interactions with health care professionals.
5. You have the right to experience all emotions, including anger, sadness, confusion, guilt, depression, impatience, fear, and loss.
6. You have the right to have your end-of-life choices respected by health care professionals, including continuing or discontinuing treatment or requesting medications to self-administer for a hastened death.
7. You have the right to die with your loved ones present and to request the presence of a health care professional, if desired.
8. You have the responsibility to treat your caregivers with respect and to follow their directions when consistent with your wishes.
9. You have the responsibility to make certain that your right to privacy and confidentiality is clearly understood by all parties involved in your care and to communicate to your health care providers when you feel that your rights to privacy and confidentiality are in jeopardy.
   

Informed Participation

1. You have the right to honest, accurate, and understandable information about your current diagnosis and prognosis; the recommended treatment and what it is expected to do; the probability of success; and the possible risks of complications and side effects, including the probability of their occurrence.
2. You have the right to be informed about alternative forms of treatment, including Hospice and home care, and to participate in all decisions affecting your care.
3. You have the right to request and receive a second opinion. When curative care is no longer indicated or desired, you have the right to access palliative care, including pain medication in whatever dosage or schedule you deem necessary to alleviate pain and suffering, even at the risk of hastening death.
4. You have the right to make your own decisions regarding what constitutes your human dignity, as long as you are mentally competent and continue to have basic decision-making capacity. You will be considered mentally competent if you can understand the nature of your condition, the treatment alternatives available, the likely outcomes of treatment versus non treatment, and can accept responsibility for your decisions.
5. You have the right to access information in your medical record and to know if your health care providers believe that your condition or course of disease will result in death. This information may be needed to make informed decisions about your future.
6. You have the right to forgo eating and drinking naturally in order to permit the process of dying to proceed unencumbered.
7. You have the right and responsibility to complete a Directive to Physicians (Living Will).
8. You have the right and responsibility to execute a Durable Power of Attorney for Health Care so that someone you choose can make health care decisions for you, if needed.
   

Competent Care

1. You have the right to competent medical, nursing, and social service care.
2. You have the right to choose your personal physician and to change your physician at any time.
3. You have the right to know who is responsible for coordinating and supervising your care and to know how to contact that person.
4. You have the right to be informed about who owns and controls the agency or facility involved with your care and the right to referral to institutions, facilities, or practitioners who can provide the care you need.
5. You have the responsibility to choose a primary care physician who is able and willing to carry out your wishes.
6. You have the responsibility to communicate your end-of-life wishes to family, friends, and health care providers.