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Oregon’s Slippery Slope on Assisted Suicide – What it Means for Other States

Jennifer Popik, J.D.  |  19 May 2022

Oregon’s Death with Dignity Act, a first-of its kind law, has been in effect since 1997.  Essentially, the law permits physicians to prescribe lethal medications to patients who meet a set of loosely-defined requirements including being terminally ill, competent at the time of the request, and a few others.[i] These so-called safeguards have routinely led to non-terminally ill patients receiving lethal prescriptions as well as insurers steering patients towards these lethal doses rather than treatment.[ii]

 

In the 25 years it has been in effect, the law had also required that only residents could obtain lethal drugs to end their life. But Oregon has now abandoned even that, thanks to a settlement between the Oregon Medical Board, the Oregon Health Authority, and the District Attorney of Multnomah County.[iii]

 

The abandonment of the residency requirement will not only set up a dangerous scenario where people from other states can travel to Oregon to die, but proponents announced that they will push ahead to try and eliminate the residency requirements in other states where the practice is legal.

 

What is also alarming to many legal observers is not only the lack of civil or criminal accountability in Oregon, but the impact this will have on residents of other jurisdictions where assisting a suicide is legal.

The Lawsuit and Settlement Agreement

In October 2021, a federal lawsuit was filed by Compassion and Choices on behalf of Dr. Nicholas Gideonse. [iv] Dr. Gideonse is a Portland, Oregon physician who sought to assist in the deaths of patients in Washington State, but could not do so since he was not licensed in the state. The lawsuit claimed that the Oregon assisted suicide law residency requirement is unconstitutional. 

 

Rather than defend its longtime law in court, the state of Oregon instead entered into a very broad settlement agreement which completely removed the residency requirement.[v]

 

The settlement instructed the Oregon legislature to revisit the language in the law during its next session. While, presumably, the legislature could reassert the residency requirement, it is unlikely to do so, and it would mean further court battles if it did.

 

The Aftermath: Phase 1

The first phase of the aftermath relates to what can now happen immediately due to Oregon dropping their residency requirement. 

 

In April, 2022 Compassion and Choices published a legal guide titled “Medical Aid in Dying in Oregon for persons residing outside of Oregon: What friends and family need to know,”[vi] meant to instruct Oregon physicians about how they can start prescribing lethal doses of medications to patients who have traveled from out of state to end their lives. In addition, they give guidance to patients who get prescriptions from Oregon physician and ingest them in their home state.

 

The document boldly proclaims that, “As a result of this settlement, medical practitioners in Oregon may assist non-Oregon residents in obtaining medical aid-in-dying services without fear of civil or criminal repercussions from medical authorities.”[vii]

 

However, as the document goes on to say, and outside observers note, the situation is more nuanced.  Generally speaking, people seeking to end their lives will fall into three categories.  The first includes non-residents of Oregon, who travel there, qualify under the scant requirements, and ingest the lethal medications in Oregon.  The second category includes those who are residents of the eight other states (plus Washington D.C.) where the practice is legal, who would receive the lethal drugs in Oregon and take them back to their state to use them to die. The third category includes residents of states where assisted suicide is illegal who would take the drugs in their own state and ingest them there.

 

 

According to the Compassion and Choices legal guide,

 

For the first group, there is no legal risk. These patients would also no longer need to worry about or deal with formally obtaining resident status through acts like obtaining a driver’s license, establishing residence, etc. For the second group, any risk of legal action due to self-ingestion in their home state would be exceedingly low. The medical aid-in-dying requirements in most authorized states are so similar that any type of liability is unlikely. [emphasis added]

 

 

The guide goes on to claim that assisting in the suicide of a person in the third group would be risky.

 

This settlement agreement leaves little doubt that patients from across the country will be able to come to Oregon to die. But there are many more questions than answers, at this point.

 

What about the use of telemedicine? Telemedicine has picked up a great deal of steam due to the COVID-19 pandemic and there has been significant effort aimed at broadening its usage.[viii]  There is nothing in Oregon law to prevent its usage for its own residents.  Could a physician in Oregon, where physician willingness to prescribe assisted suicide drugs is at an all-time high,[ix]  have a telehealth visit with a patient with whom they have no relationship in one of the other nine legal jurisdictions? It is not clear. 

 

What about the nearly 40 states where the practice is illegal? This decision will be placing states where the practice is illegal into a tough spot. How will heath and legal officials in another state identify physicians who have given lethal drugs to a patient? Will it be feasible to stop the mailing of illegal drugs into their home state?

 

What about legal accountability? A long-standing issue has been the lack of ability to hold physicians accountable for failing to adhere to the scant requirements in states where the practice of assisted suicide is legal.  As Compassion and Choices pointed out in the above-quoted legal guide, “The medical aid-in-dying requirements in most authorized states are so similar that any type of liability is unlikely.

 

They are correct on this point. According to the existing state assisted suicide laws, the health care provider prescribing the lethal dose is held only to a “good faith standard” which is far lower than the malpractice standard applied to other health services.

 

In general, medical malpractice is defined as “professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error.”[x]  Why do the laws of Oregon and other states hold physicians to a much lower “good faith” standard for this one treatment?  Arguably, since the patient dies as a result of the physician’s conduct, they should be held to a higher-than-normal standard, not a lower one.  Practically speaking, under a “good faith” threshold, it would be almost impossible for the family or friends of a patient wrongly administered a lethal prescription to seek damages against a doctor or hospital. 

 

Additionally, it would be nearly impossible to go back and investigate abuses as individuals filling out death certificates are required to falsify the cause of death. Although the patient’s death would be the result of the ingesting lethal drug as an overdose, the law requires that the patient’s underlying illness or condition be listed as the cause of death on the death certificate.

 

The Aftermath: Phase 2

The second part of the Compassion and Choices plan is to forge ahead into states where the practice is legal to attempt to make those states suicide tourism locations as well.

 

According to Gene Johnson in his March 29th Associated Press article, Oregon ends residency rule for medically assisted suicide, “Advocates said they would use the settlement to press the eight other states and Washington, D.C., with medically assisted suicide laws to drop their residency requirements as well.”[xi] 

 

Compassion and Choices is now urging the other states where assisted suicide is legal – Hawaii, California, Washington, New Mexico, Colorado, Vermont, Maine, New Jersey, and the District of Columbia -- to remove their residency requirements. If any of these efforts to eliminate residency requirements, particularly on the east coast were successful, this would bring assisted suicide close to millions of residents in the greater D.C. area which includes Virginia, Maryland, Delaware, and parts of Pennsylvania.  Maine also neighbors numerous New England states.

 

In short, the abandonment of the residency requirement will set up a dangerous scenario where people from other states can travel to Oregon to die. Other states should not follow suit in eliminating their own state's scant, so-called safeguard, and should work to strengthen their laws against assisted suicide.

 

____________________

[i] ORS 127.800 to 127.897. https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Pages/ors.aspx

[ii] To see statistics on the types of conditions qualifying for Death With Dignity, see Oregon “Death with Dignity Data Summary,” Released February 2019, p. 11 and p. 13, fn.3.  Available at: https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year21.pdf; See also, Bradford Richardson, “Assisted-suicide law prompts insurance company to deny coverage to terminally ill California woman,” Washington Times, October 20, 2016.  Available at: http://www.washingtontimes.com/news/2016/oct/20/assisted-suicide-law-prompts-insurance-company-den. (Last accessed 3/6/21.); See also, National Council on Disability. "The Danger of Assisted Suicide Laws." (2019). https://ncd.gov/sites/default/files/NCD_Assisted_Suicide_Report_508.pdf

[iii] https://compassionandchoices.org/docs/default-source/legal/rec-doc-20-1-exhibit-wm.pdf

[iv] https://www.compassionandchoices.org/docs/default-source/legal/compassion-choices-dr.-gideonse-or-residency-lawsuit-10-28-21-1.pdf

[v] https://compassionandchoices.org/docs/default-source/legal/rec-doc-20-1-exhibit-wm.pdf

[vi] Gideonse v. Brown, 3:2021cv01568 US District Court for the Dist. of Oregon (October 28, 2021). https://www.compassionandchoices.org/docs/default-source/legal/compassion-choices-dr.-gideonse-or-residency-lawsuit-10-28-21-1.pdf

[vii] https://compassionandchoices.org/docs/default-source/legal/20220325-maid-in-or-for-people-outside-or.pdf?sfvrsn=c99e8b1f_1

[viii] See for example, https://www.commonwealthfund.org/publications/issue-briefs/2021/jun/states-actions-expand-telemedicine-access-covid-19

[ix] 144 physicians wrote prescriptions in 2022, up from 22 physicians in the year 2000.  See page 15 Oregon “Death with Dignity Data Summary,” February 2021:  https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year24.pdf

[x] Mello, Michelle M. (November 26, 2014). "The Medical Liability Climate and Prospects for Reform". JAMA. doi:10.1001/jama.2014.10705. PMID 25358122. Retrieved December 2, 2014.

[xi] https://apnews.com/article/business-health-oregon-lawsuits-portland-3cf31cb519d84a47e2d3cb70e8f0bce7

________________

Jennifer Popik, J.D.

Director of the Robert Powell Center for Medical Ethics

National Right to Life Committee