Physician-Assisted Dying and the Law in the United States: A Perspective on Three Prospective Futures
This chapter examines physician-assisted dying and the law in the United States, with an eye on the past and seeking perspectives on three prospective futures. To this end, the Oregon, Montana, and Lawrence-Obergefell models are distinguished and their strengths and weaknesses are assessed as policy-making mechanisms for legalizing this end-of-life option.
Arthur G. Svenson
Oregon became the first state to legalize ‘death with dignity’ in 1997, allowing a willing physician to prescribe a lethal dose of barbiturates to be self-administered by a terminally ill competent adult who chooses a ‘humane and dignified death’ over intractable pain and suffering. By most accounts, extensive statutory safeguards designed to prevent a host of potential abuses proved pivotal to the passage of the voter-approved initiative. A decade of data generated by Oregon’s experiences with DWD, just as proponents of the law had envisioned, revealed the absence of abuse trumpeted by opponents. Following Oregon’s lead, the State of Washington legalized DWD in 2008 with a voter-approved initiative that, tellingly, enumerated safeguards nearly identical to those in Oregon. In 2009 and 2013, two additional states, Montana and Vermont, respectively, have since legalized DWD, but with differences that are both unprecedented and unpredictable. Unprecedented? Montana’s DWD option was judicially crafted by a five-vote majority of the Montana Supreme Court, and Vermont’s by dramatic last-minute shifts and parliamentary maneuverings of the state legislature—firsts in both instances. Unpredictable? In both states, DWD options were legalized sans regulatory safeguards proven to have prevented abuse: Montana’s legislature has twice rejected Oregon-like safeguards, and while Vermont’s law embraced them, all are to be automatically rescinded in three years. This paper will detail the unprecedented and unpredictable paths to the legalization of DWD in Montana and Vermont, paying particular attention to strategic choices of DWD proponents to jettison fifteen-year-old statutory safeguards in exchange for ‘professional practice standards’ developed by doctors to police doctors, and in this way, observes Kathryn Tucker, ‘to move the practice [of DWD] into mainstream medical practice and normalize it.’