Access to Aid in Dying in the United States

By Gabriel Maliha
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Gabriel Maliha is a senior at the University of Pennsylvania studying criminology. 
 
On June 9, California joined Oregon, Washington, Vermont, and Montana in legalizing Aid in Dying (AID). The practice, formerly known as physician assisted suicide, allows mentally competent, terminally ill adult patients expected to live less than 6 months to have legal access to a lethal dose of medication prescribed by a physician. AID is now available to the 50 million residents of the 5 states that have legalized the procedure.
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Oregon was the first state to legalize AID by ballot initiative in 1994 and the law cleared all legal hurdles and went into effect in 1998. This was followed by a 2008 ballot initiative in Washington, and legislation in Vermont and California in 2013 and 2015, respectively. Montana has a de facto legalization of AID as its supreme court did not find any policy in the state prohibiting the practice. [1]

The United States Supreme Court (SCOTUS) set the legal parameters for AID in its 1997 seminal decision in Washington v. Glucksberg when it ruled that physician assisted suicide (as termed at the time) was not a constitutionally protected liberty under the 14th Amendment. At the same time, SCOTUS did not find any specific prohibition of the practice within the Constitution. [3] This made AID a 10th Amendment issue, and therefore left to the discretion of the states. [4] Furthermore, SCOTUS upheld Oregon’s DWDA in its 2006 decision of Gonzales v. State of Oregon when it ruled that the Controlled Substances Act (CSA) did not empower the United States Attorney General to sanction or punish physicians who prescribe narcotics to AID patients under Oregon statute. [5,6]

Opponents of Aid in Dying legislation contend that the practice violates long held secular, religious, and jurisprudential traditions upholding the sanctity of life. Professional organizations including the American Medical Association oppose AID claiming that it undermines the role of the physician as a healer. [7] Yet others express concern for potential abuse of AID as a means to unburden society of “the marginalized” (minorities, the disabled, the poor, the uneducated) or as an economic tool for controlling health care costs. [8]

Proponents of AID contend that our society has always valued individual autonomy for mentally competent adults, and that patients should not lose their autonomy simply because they are terminally ill. They ought to be able to determine the timing and means of their own death if they are already dying. Proponents also suggest that AID is already happening informally, and legalizing the practice would allow a transparent regulatory scheme that would prevent potential abuse. [9] Furthermore, opinion polling indicates there is large public support for AID, as well as a majority of supporters amongst physicians. [10] Also, data on actual patients who have chosen to utilize Aid in Dying indicates that the vast majority were highly educated and privately insured with unrestricted access to health care. Minorities were not disproportionately represented. In addition, 79% were diagnosed with cancer. [11]
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AID remains a controversial social issue in the United States but legalization is expanding. 27 more states are either considering legislation or have pending court cases attempting to legalize the practice. Regardless of where one’s opinions fall on the issue, legalization of AID has distinct advantages. The gradual expansion of Aid in Dying provides important data-driven feedback on issues encountered in other jurisdictions that can be used to address specific concerns in its implementation. Democratic resolutions either through the ballot process or through legislative enactments tend to be less controversial and more accepted by the public. They also provide needed detail and structure that are typically lacking in court decisions which invite injured or losing parties to repeatedly try to test or outflank them.



[1] Castro, George. “Physician aid-in-dying: Lessons from Oregon’s death with dignity act.” Health Law Perspectives 1 January 2016. http://www.law.uh.edu/healthlaw/perspectives/homepage.asp.
[2] Barone, Emily. “See which states allow assisted suicide.” Time 3 November 2014.
[3] Washington et al. v. Glucksberg et al. No. 96-110, 521 U.S. 702. (1997).
[4] Vacco v. Quill No. 95-1858. 521 U.S. 793 (1997).
[5] “State-by-state guide to physician- assisted suicide.” Euthanasia 2016. http://euthanasia.procon.org/view.resource.php?resourceID=000132
[6] Parrot, carol. “Death with dignity as an end-of-life option.” Oregon Department of Human Services, Washington State Department of Health and Vermont Department of Health 2016.
[7] Kane, Leslie. “Most U.S. doctors now support aid in dying: Survey.” Medscape 17 December 2014.
[8] Barone, Emily. “See which states allow assisted suicide.” Time 3 November 2014.
[9] Castro, George. “Physician aid-in-dying: Lessons from Oregon’s death with dignity act.” Health Law Perspectives 1 January 2016. http://www.law.uh.edu/healthlaw/perspectives/homepage.asp
[10] Kane, Leslie. “Most U.S. doctors now support aid in dying: Survey.” Medscape 17 December 2014.
[11] Orentlicher, D., Pope, T., Rich, B. “Clinical criteria for physician aid in dying.” Journal of Palliative Medicine, Vol. 19, No. 3, 2016.
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.