Nov. 1, 2017 – Doctor-assisted suicide for mentally competent, terminally ill patients has been a controversial topic in the nation since Oregon passed the Death with Dignity Act via ballot in 1994.
From then to now, only six states and the District of Columbia allow some form of doctor-assisted suicide for terminally ill patients.1 This article will give a brief distinction between Death with Dignity and the right to die, an overview of the Death with Dignity movement, and a discussion of pending Wisconsin legislation on the topic.
Right to Die versus Death with Dignity: A Quick Distinction
In 1990, the U.S. Supreme Court held that a competent person has a constitutionally protected liberty interest in refusing medical treatment, including treatment that sustains their life.2 From this decision stems the fundamental idea that a person who is mentally competent has the right to die by refusing to receive treatment that would prolong their life. In this way, patients can end their lives by slowly succumbing to whatever illness they suffer from.
Ben Timmerman is a 2L student at Marquette University Law School with a strong interest in health care law. He serves as president of the Health Law Society student organization.
By contrast, a Death with Dignity Act, such as the one seen in Oregon, eases the passing of the patient by having doctors administer medication at the patient’s request, allowing the patient to pass painlessly at a time of their choosing.
Therein lies the distinction: that every citizen has the right to die slowly at the hands of their terminal illness by refusing medical treatment; and that citizens of a few states may request a doctor-assisted suicide.
A Brief Overview of Death with Dignity Acts
Oregon’s citizens in November 1994 voted to approve Ballot Measure 16, the Oregon Death with Dignity Act. Although the measure passed, an injunction issued by a federal judge lasted three years; as a result, the act took effect in 1997.
The act allows a competent, adult Oregon resident suffering from a terminal disease to obtain a prescription from their physician for hastening their death.3 A “terminal disease” is defined in the statute as “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.”4 This was the first statute in the nation that allowed for a terminally ill patient to formally request a doctor’s assistance in ending their life.
The Oregon approach has, by and large, been the template adopted by the other states that passed Death with Dignity measures.
In the last 20 years, four additional states and the District of Columbia have passed Death with Dignity statutes:
California: End of Life Option Act, 2016
Colorado: End of Life Options Act, 2016
District of Columbia: Death with Dignity Act, 2017
Vermont: Patient Choice and Control at the End of Life Act, 2013
Washington: Washington Death with Dignity Act, 20085
In each statute, the patient must be an adult resident of the state, be terminally ill and expected to die within six months, and make two oral and one written request to the physician.6
The only state that allows doctor-assisted suicide – with differing requirements – is Montana. Unlike the previously mentioned states, Montana has no Death with Dignity legislation. Instead, a ruling by the Montana Supreme Court held that physician aid in dying for a terminally ill patient was not against public policy, and that a physician is not liable for prosecution for providing a lethal dose of medicine to the patient, so long as the patient can administer the dose themselves.7
While only six states and the District of Columbia have measures that allow for Death with Dignity, most other states have made attempts to pass Death with Dignity acts. This year alone, 30 states – Wisconsin included – are considering Death with Dignity legislation.8
Wisconsin’s Death with Dignity Bill
On April 10, 2017, Assembly Bill 216 (AB 2016) was introduced in the Wisconsin House of Representatives.9 The bill adopts the same requirements as the existing Death with Dignity statutes, stating that a competent adult resident who is terminally ill and expected to die within six months may request medication from their physician to voluntarily end their life.10 The bill also implements the thrice notified requirement: the patient must orally request the medication, wait 15 days before submitting a written request signed in the presence of three witnesses, and then finally make another oral request for the medication.11
The introduction of this bill marks the ninth attempt at passing a Death with Dignity act in Wisconsin in the last 20 years.12 Despite the previously failed attempts, a poll conducted earlier this year shows that public opinion overwhelmingly supports allowing patients to end their lives without pain and on their own terms.13 The poll found 70 percent of citizens were in favor of a Death with Dignity act.14
For now, the citizens of Wisconsin must watch and wait on the fate of AB 216. The bill spent the last five months receiving fiscal estimates, with the most recent stating the bill has no state fiscal effect and no local government costs.15
No matter the outcome of this most recent attempt, it is clear by the number of states considering this type of legislation that the Death with Dignity movement is an important, although controversial, issue across the country.
This article was originally published in the Fall 2017 issue of Wisconsin Health Law News, from the State Bar of Wisconsin Health Law Section. The newsletter is a section member benefit. Visit the State Bar sections or the Health Law Section web pages to learn more about the benefits of section membership.
1 Take Action: Death with Dignity Around the U.S., Death with Dignity.org.
2 Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 US 261, 262 (1990)
3 OR. REV. STAT. §127.805 (1997)
5 Death with Dignity Acts, Death with Dignity.org.
6 State-by-State Guide to Physician-Assisted Suicide, Procon.org.
7 Baxter v. Montana, 224 P.3d 1211, 1222 (2009)
8 Take Action: Death with Dignity Around the U.S., Death with Dignity.org.
9 H.R. 216, 2017-2018 Leg. LRB-2248/1 (Wis. 2011)
12 State: Wisconsin, Death with Dignity.org.
13 Dianne Hesselbein, Legislators Introduce “Compassionate Choices” Bill, Wisconsin Press release (March 08, 2017).
15 H.R. 216, 2017-2018 Leg. LRB-2248/1