by Eli Stutsman, JD
Eli Stutsman is a practicing attorney in Portland, Oregon. He was the lead author of the Oregon Death with Dignity Act in 1993 and served as the lead political and legal strategist during the 1994 campaign to pass the law and again during the 1997 campaign to defeat its repeal by the State Legislature. Stutsman co-founded Oregon Right to Die in 1993, the political action committee that passed the Oregon Death with Dignity Act into law. He was also the founding President of the Oregon Death with Dignity Legal Defense and Education Center in 1995 (which later became the Death with Dignity National Center), and the Oregon Death with Dignity Political Action Fund in 2001, and continues to serve as an officer and director for each Board of Directors.
Why History Matters: Success Begets Success
It has been almost 22 years since we passed the Oregon Death with Dignity Act in November of 1994, and almost 19 years since we defeated a legislatively inspired repeal measure in November of 1997. In those early years, there was no data, and no experience to draw upon, because hastening a death for a competent terminally ill individual was illegal in all 50 states. Our early efforts were supported by our knowledge of the practice of medicine, the way we died, and a political skill set capable of breaking through longstanding barriers in law, medicine, and religion.
Today, we have abundant experience, and hard data. In the two decades since, the Oregon Death with Dignity Act has worked exactly as intended. Each year, the Oregon Public Health Division publishes its Annual Report, fulfilling one of the public oversight requirements of the Death with Dignity Act. According to the latest Annual Report just out, there were 34,160 total deaths in Oregon during 2015. Of that total, 218 dying patients obtained life-ending medications, and 132 dying patients consumed the medications to hasten their deaths. As we argued in 1994, the Oregon Death with Dignity Act is a necessary law that will be rarely used, an argument that has been proven true each year since the law was first implemented.
In the first 12 years of the Oregon Death with Dignity Act, we were tasked with winning two statewide ballot measure campaigns (1994 and 1997), defeating passage of two Acts of Congress (1998 and 1999), and winning two rounds of federal court litigation (1997 and 2006), all necessary to the all work necessary to the passage, preservation, and defense of the Act. Importantly, ever since our 2006 victory in the Supreme Court of the United States, we have been mostly free to help other states, and other states have followed our lead. Washington passed its death with dignity law in 2008, Vermont in 2012 and, most recently, California in 2015.
Key to our success in Oregon, Washington, Vermont, and California is a core policy belief that a competent, terminally ill adult patient should have the legal right to hasten a difficult death in a humane and dignified manner. We have never wavered from this core policy and, after so much time and effort, one thing is certain: Oregon’s death with dignity policy is the only such policy reform that has succeeded in this country.
[A] competent, terminally ill adult patient should have the legal right to hasten a difficult death in a humane and dignified manner.
Today the Oregon Death with Dignity Act is the public policy yardstick against which all other death with dignity reforms are measured. Oregon’s death with dignity policy has become the bedrock of the “right to die” movement in this country, and the public policy platform that still drives this social movement.
While We Have Accomplished Much, Our Work Is Far from Done
While the Death with Dignity National Center has always sought to help other states pass death with dignity reforms, limited resources require that we prioritize our work. For this purpose, we have always maintained a “shortlist” of states where we have determined success is likely and the sharing of resources is calculated to lead to success. For a state to make our shortlist requires the application of a complex analysis, but Washington and Vermont, for example, have been on our short-list for as long as we have had one. Other states, however, may come and go from our shortlist, which is often in flux, a reflection of the ever-changing political realities of each state we monitor. Today, the Death with Dignity National Center is particularly excited about opportunities in three states: Hawai`i, Maryland, and New York. The disparity in these three states indicates the complexity of our political analysis. Each state is a hopeful state, albeit for very different reasons.
Afforded sufficient resources, we see Hawai`i as the next state most capable of passing a death with dignity law. Hawai`i has always been a hopeful state. Indeed, in 2002, Hawai`i nearly became the second state in the country to pass a death with dignity law. That year, House Bill 2487–the Hawai`i Death with Dignity Act–sponsored by then Governor Ben Cayetano, passed the House Judiciary Committee 10 to 1, and the House floor 30 to 20, until it failed eleven to fourteen on the Senate floor. A near success, the Hawaii Death with Dignity Act was only two Senate votes away from becoming the second death with dignity law in the country.
All the favorable factors that existed in Hawai`i in 2002 are present today, including elected leadership and popular support. Nationally, we now have 18 years of data published by the Oregon Public Health Division, and three other states–Washington, Vermont, and California–have joined Oregon by passing death with dignity legislation.
Maryland is encouraging because powerful lawmakers in the Maryland Assembly have made an impassioned commitment to passing a death with dignity law, demonstrating a willingness to invest political capital to push a bill forward. The proposed Maryland law, named after two popular Maryland political leaders who both died from complications related to Parkinson’s Disease–Annapolis Alderman Dick Israel and former Annapolis Mayor “Pip” Moyer–is rooted firmly in Oregon’s Death with Dignity law. While the proposed policy enjoys much support in the Maryland House, there are considerable political hurdles in the Senate. Our current work is targeted to building political support where we need it the most—in the Maryland Senate.
New York is a hotbed of leadership, activity and support, and we are encouraged by all we see there. While it may surprise some to hear that New York made our shortlist, we see it as a state worthy of investment over the next few years. In this post-California era, New York should be given serious consideration, much like California last year, which was also deemed an unlikely state for near-term success.
It is with this broad experience and proven track record that we move forward with optimism, preparing for our next victory.
Our Next Victory Beckons
As we demonstrated in Oregon in 1994 and 1997, we can win a statewide campaign. As we demonstrated in Washington in 2008, we can also initiate and win a statewide campaign in another state. As we demonstrated in Vermont, we can work with a state for 14 years to pass death with dignity legislation, if that is what success requires of us. And as we demonstrated in California in 2015, when opportunity knocks, we will mobilize immediately. It is with this broad experience and proven track record that we move forward with optimism, preparing for our next victory.