Congress and the White House may try to weaken aid-in-dying laws, but supporters say they can fight at the state and local level.
These are the early days of the administration, but President Trump and the Republican-controlled Congress have already taken aim at the country’s healthcare legislation, immigration policy, and environmental regulation.
Is “Death with Dignity” (DwD) in the crosshairs, too?
Sometimes called medical aid-in-dying or physician-assisted suicide, these laws allow doctors to prescribe lethal medication to terminally ill patients.
The issue has mostly been decided at the state level, but the federal government has weighed in before and could do so again.
In fact, two clues suggest there is some opposition to aid-in-dying on the federal level.
In February, a House committee voted to block Washington D.C.’s Death with Dignity Act (DWDA), which the district’s council had approved late last year.
“Since the Constitution charges Congress with legislative jurisdiction over Washington D.C., Congress has a duty to carefully scrutinize this bill, its impact on medical patients, and its effects on our health-care system,” Reps. Phil Roe (R-Tenn.) and Brad Wenstrup (R-Ohio) wrote in the National Review. “We have weighed the legislation and found it wanting.”
Arguing that the law opens up too many avenues for abuse, Wenstrup and others sponsored resolutions of dissent.
These resolutions fizzled out, but the law could be held up during budget proceedings.
Congress does have jurisdiction over Washington, D.C., but in general it usually doesn’t review laws passed by states and municipalities. However, there are other ways for the feds to step in.
In 2001, a few years after Oregon’s DWDA went into effect, Attorney General John Ashcroft announced that dispensing lethal medication to terminally ill patients was not a legitimate medical use of a drug. He said doctors who went along with the Oregon law were therefore in violation of the Controlled Substances Act (CSA).
The Ashcroft directive was ultimately overturned by the Supreme Court, not because the judges found his interpretation unreasonable, but because they ruled in a 6-3 decision the attorney general did not have the authority to make such a decision.
Arthur Svenson, a political science professor at the University of Redlands in California, thinks the CSA could be invoked again as a means of overturning DWDA laws.
“Congress, if it wants to, could clarify [the CSA] in a single sentence, and here’s how it would read: [physician assisted suicide] is not a legitimate medical purpose. Period,” he told Healthline. “The effect of that clarification of the law by Congress would mean that if you were a doctor in those six states that legalized assisted suicide you’d go to jail” for prescribing lethal medication.
“Would Republicans be willing to do that? Maybe. Would Trump be willing to sign that law? Maybe.”
With clear instruction from Congress, any opposition to DwD laws from the Attorney General Jeff Sessions would be much easier to defend.
On the flip side, Svenson can also envision a way — a “little crack in the door” — for aid-in-dying to become the law of the land.
“There are five people on the [Supreme Court] currently who don’t accept religiously inspired justifications for existing laws. They need valid secular reasons, not valid sectarian reasons,” he said.
That aversion to enacting laws based on religious principles led to the court’s legalization of sodomy and same-sex marriage, he explained.
“Is it possible that you could return to the court and argue that the reasons why state governments have banned Death with Dignity were fundamentally religious inspired?” he said. “If you remove your religious reasons for banning Death with Dignity, what secular reasons remain in the wake?”
Since the Oregon law was enacted in 1997, about 1,500 people have requested lethal prescriptions and two-thirds have chosen to take them.
The state has reported no abuses of the law so far, although its communication strategy — informing terminally ill patients of their right to access lethal drugs alongside the news that it was denying them further healthcare coverage — caused a major public relations dustup.
“It dropped my chin to the floor,” Randy Stroup, who learned that the Oregon Health Plan would not pay for experimental cancer treatment but would pay for lethal drugs, told FOX News in 2008. “[How could they] not pay for medication that would help my life, and yet offer to pay to end my life?”
A similar case in California, which approved its own DwD law in 2016, drew national attention and outrage.
In these examples, opponents of the law found evidence for exactly what they had feared: Insurance companies were approving death as a cheaper option.
Supporters of the law argue that these patients would have been denied coverage with or without the law.
Despite Svenson’s hope that Oregon’s clean record could encourage a victory for the movement, DwD proponents are unlikely to push the law at the federal level any time soon.
For one thing, President Trump’s Supreme Court pick Neil Gorsuch is known to oppose the practice. In 2006, he published “The Future of Assisted Suicide and Euthanasia,” an extension of his dissertation work at Oxford.
In the book, he concludes that “[H]uman life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.”
The National Right to Life Committee, which advocates against abortion as well as aid-in-dying, praised Gorsuch’s nomination.
Still, Barbara Coombs Lee, president of the aid-in-dying advocacy group Compassion & Choices, doesn’t think the addition of Gorsuch to the Supreme Court will change the composition of the court radically enough to sway its standing on DwD laws one way or the other.
Gorsuch is seen as an “intellectual heir” to the late Antonin Scalia, whose seat he will fill if confirmed.
Ultimately, pursuing federal approval is just not the strategy advocates are taking right now.
“It’s full steam ahead for states,” Coombs Lee told Healthline. “The fact of the matter is that the U.S. Supreme Court has a harder time revoking what has come to be a cultural value in the United States.”
The legalization of DwD laws in California could cause such a shift. That law made the option for terminally ill people to take lethal drugs newly available to 1 in 8 Americans, Svenson points out.
“It will be telling, don’t you think, if no abuse is located in the state of California,” Svenson said. “I think if enough states said yes then we will return to the Supreme Court and maybe make the argument again.”
Two 1997 Supreme Court decisions denied a constitutional right to aid-in-dying but kicked the issue back to the states for further debate.
Besides Oregon, California, and Washington D.C. — Colorado, Washington, and Vermont have all legalized DwD through voter referendum or legislative action. In Montana, the practical is also legal following a 2009 state Supreme Court case.
Most of these places follow the example set by Oregon. The option is only available to mentally competent adults with less than six months to live who are capable of taking the medication themselves.
No state has sanctioned assisted suicide, a practice advocated by Dr. Jack Kevorkian, which requires a doctor to administer lethal doses of drugs via IV or injection.
But many disability, religious, and medical groups still oppose the law.
“In a society that prizes physical ability and stigmatizes impairments, it’s no surprise that previously able-bodied people may tend to equate disability with loss of dignity,” writes the disability rights group Not Dead Yet.
“This reflects the prevalent but insulting societal judgment that people who deal with incontinence and other losses in bodily function are lacking dignity. People with disabilities are concerned that these psycho-social disability-related factors have become widely accepted as sufficient justification for assisted suicide.”
Although the debate centers on making this option legal and safe for physicians and their patients, many medical professionals remain uneasy about it.
Of doctors surveyed by Medscape in 2016, 29 percent were opposed to physician aid-in-dying, although that number had dropped from 41 percent in 2010.
Palliative care experts don’t want the debate to eclipse the larger issue of appropriate treatment and pain relief for terminally ill patients.
“[The International Association for Hospice and Palliative Care (IAHPC)] believes that no country or state should consider the legalization of euthanasia or PAS until it ensures universal access to palliative care services and to appropriate medications, including opioids for pain and dyspnea,” the group wrote in a statement published online late last year.
In a conversation with Healthline, Liliana De Lima, the group’s executive director, explained that access to appropriate care at the end of life is not guaranteed for many people in the world.
“Actually there’s discussion in India right now about euthanasia, and the people in India that we work with have raised this concern,” she said.
It may be “easier and less expensive to say, ‘OK, let’s go for euthanasia or assisted suicide,’ and right now the vast majority of people in India don’t have access to palliative care,” she said.
In the United States, access to such care is uneven. A report generated by the Center to Advance Palliative Care found that people who die in the southern United States or in for-profit hospitals are less likely to receive adequate end-of-life care.
Like Not Dead Yet, IAHPC eschews the term “death with dignity.”
“We’ve seen a lot of people dying with good palliative care in a very dignified manner,” De Lima said.
With Washington D.C. politics set to boil and members of Congress vowing to filibuster Gorsuch, groups concerned about aid-in-dying are setting their sights at the local level.
“Here in Oregon we’re still really concerned about advocating for people at all points in life, from those in the womb to … adults in need of advocacy and specifically elder care and protecting patients’ rights,” Liberty Pike, communications director at Oregon Right to Life, told Healthline.
The organization is particularly concerned with a bill in the state Senate that would change advance directives so patients could refuse spoon-feeding when mentally incompetent.
Compassion & Choices, too, remains vigilant. The group has weighed in on other issues, like contraception access, that it sees as a question of personal choice in medicine.
They also advocate for better communication between patients and their doctors with initiatives like Truth in Treatment.
“I think the more we can detoxify conversations about dying, the better,” Coombs Lee said.