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Ten Years of “Death with Dignity”

Courtney S. Campbell

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The Oregon Death with Dignity Act (ODDA), which permits physicians to write a prescription for lethal drugs to qualified terminally ill patients, has been in effect for a little over a decade. It has, from October 1997 to the present, been the only such statute in the United States permitting what is variously called “physician-assisted suicide,” “physician aid in dying,” or “death with dignity” (the statute refers to the procedure as the ending of life in a “humane and dignified manner”). However, in the November 2008 election, citizens in the state of Washington will have an opportunity to vote on ballot initiative I-1000, a measure that is essentially the same as the Oregon statute. The advocacy group promoting I-1000 has drawn on features of the Oregon experience to indicate that the Oregon law is “very safe and effective” and that “aid in dying is working.” To weigh the claims made by supporters and opponents of the proposed Washington state initiative, we ought to carefully examine the first decade of Oregon’s experience with physician-assisted suicide.

The Rationale for “Death with Dignity”

The central stated purpose of the ODDA—to expand patient control over end-of-life choices—has become its enduring ethical and cultural legacy. In Cruzan v. Director, Missouri Department of Health (1990), the U.S. Supreme Court asserted the legality of patient refusals of virtually every form of medical treatment, and in 1993, the Oregon legislature passed the Oregon Health Care Reform Act, which some fifteen years later remains a very expansive advance directives law. Still, even if it was not professionally, ethically, or culturally barred, it remained illegal to hasten death intentionally through the prescription of lethal drugs.

The ODDA aimed to end this ban on the grounds of patient self-determination and “choice.” The act’s advocates saw the conferral of a right to choose the manner and timing of one’s death as a logical extension of the expansive rights terminally ill patients possessed to refuse treatment. That is, they saw no principled difference between, on the one hand, refusing medical treatment in a way that would inevitably bring about death and, on the other, hastening death with a lethal drug. Once the outcome of death for a patient had already been accepted as a medically legitimate precedent in the context of patient refusals of treatment, then the question of the means to death should be settled not by the state, by medical professionals, or by religious institutions, but by the terminally ill patient.

While the principle of patient self-determination was a primary public justification for the Oregon Death with Dignity Act, the legislation’s advocates also appealed to a perception, supported by numerous publicized cases, of a painful dying experience for many terminally ill patients. That is, although the enacting statute itself frames the rationale for the act in terms of patient choice and autonomy (as is the case with Washington I-1000), a complementary argument—one with considerable public sway—was framed in terms of physician compassion and beneficence. This argument is somewhat at odds with the reality of patient experience. According to data compiled by the Oregon Department of Human Services from 1998 to 2007, the 341 patients who died under the provisions of the ODDA during that period cited a “loss of autonomy” more frequently than anything else as a concern contributing to their decision; 89 percent mentioned autonomy while only about 27 percent mentioned “inadequate pain control” (ranking it sixth among patient concerns). But in the public mind, the prospect of a painful dying experience looms large; it evokes a powerful visceral response from voters and caregivers.

A second argument for the Oregon Death with Dignity Act focused on the roles of participating physicians, seeking to provide physicians and other health care providers with immunity from prosecution. At stake in this rationale was professional autonomy—that is, the freedom of physicians to practice medicine according to their own standards of best practice in the care of the terminally ill—but also a shifting conception of professional integrity.

The longstanding professional objection to physician participation in euthanasia and to physician assistance in hastening death had been associated with an understanding that physician integrity entailed a commitment to healing and a prohibition of medical killing. However, supporters of the ODDA argued that the integrity of the medical profession was not entirely subsumed by a commitment to healing but should, at the very least, be complemented by a contractual model of physician respect for the choices of autonomous patients. Once professional integrity is not understood as commitment to an abstract ideal, such as healing, but to collaboration with patient self-determination, then the prospect of professional conflict is diminished. The act’s proponents also pointed to reports of extensive physician participation in hastening death outside the purview of the law. Thus, they argued, a “death with dignity” law would give de jure sanction to what was, in many instances, de facto practice, and would acknowledge the changed conceptual and ethical parameters of the physician-patient relationship.

However, this rationale remains contested a decade after the ODDA became law. For example, the Bush administration led an effort to overturn the act, initially spearheaded by Attorney General John Ashcroft, and then by his successor, Alberto Gonzales; it leaned on the argument that physicians who prescribed substances regulated under the federal Controlled Substances Act, for the purpose of hastening the death of terminally ill patients, were not engaged in medically legitimate actions and should be sanctionable at some level (licensure, prosecution, etc.). This was not resolved in the legal system until January 2006, when the U.S. Supreme Court ruled 6-3 in Gonzales v. Oregon that federal authority over the regulation of controlled substances did not give the government the power to determine the medically legitimate purposes of drugs that were not otherwise prohibited.

Read the entire article on the New Atlantis website (new window will open).

Posted: 01-Nov-2008

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