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Death​ ​with​ ​Dignity: A​ ​Report​ ​Card​ ​on​ ​Medical​ ​Aid in Dying​ ​Legislation​ ​in​ ​the​ ​United​ ​States

November 17, 2017

By Guenter Lewy

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Medical aid in dying is currently authorized in six states (California, Colorado, Montana, Oregon, Vermont, Washington) and the District of Columbia. Most of these laws are based on the Oregon Death with Dignity Act that became effective in 1998.

Medical aid in dying laws authorize terminally ill patients with less than six months to live to request and obtain a prescription from their physician which they may self-ingest in order to end their lives in a humane and dignified manner. Two physicians must confirm that the patient has a terminal disease and 6-month prognosis and that the patient is mentally capable and acting voluntarily.

Patients thought to have a psychiatric disorder or depression must be referred to a mental health provider for the purpose of determining that the patient is not suffering from a disorder causing an impaired judgment.

The physician who treats the patient’s terminal disease must inform them of feasible alternatives such as palliative care and hospice.

The patient’s request must be made both orally and in writing, and the oral request must be repeated no less than fifteen days after the initial request. The written request must be witnessed by at least two individuals who must attest that the patient is capable and acting voluntarily.

Patients may rescind their request at any time or may choose not to take the medication.

Unlike in euthanasia, terminally ill patients must take the medication themselves. Each of the laws in the authorized states explicitly state that actions taken in accordance with them do not constitute suicide, assisted suicide, mercy killing, or homicide. Proposals to adopt similar laws are pending in several other states, and a lively debate continues on the morality of the practice.

Moral Issues Around Assisted Dying

The discussions of the moral issues involved in medical aid in dying are often carried out on the basis of fundamental values, such as the intrinsic worth of human life or the importance of moral autonomy and self-determination, with what philosophers call deontological arguments. Thus Neil M. Gorsuch, now a Justice of the U.S. Supreme Court, argued in his 2006 book The Future of Assisted Suicide and Euthanasia, that life is “fundamentally and inherently valuable” and that “the intentional taking of human life by private persons is [therefore] always wrong.”

During the debates leading up to the approval of Death with Dignity laws, opponents expressed a number of concerns about the expected consequences of authorizing medical aid in dying. Available data have proven the great majority of these fears to be groundless.

Roman Catholic theologians maintain that life is a gift of God and that the intentional [1] shortening of life is therefore as wrong as murder. Defenders of assisted death insist that [2] suffering patients have a basic right to determine and control the time, place and nature of their death.

In the nature of the case, deontological arguments are extremely difficult to resolve or reconcile, especially when they are derived from theological premises. On the other hand, consequentialist arguments, invoking expected results as a reason for a given course of action, have the great advantage that they can be analyzed empirically. Thus the extensive experience we now have with medical aid in dying allows us to assess whether this legislation has led to the consequences, both good and bad, that were predicted during the discussion leading up to enactment and even in the early days of authorized practice.

Relying on consequentialist arguments is likely to improve the ethical debate on medical aid in dying. Such arguments also can more easily provide a foundation for public policy, a policy that can be supported by men and women of good will who do not necessarily agree on fundamental beliefs such as whether life is a gift of God or whether it is ever right to take human life.

Reports on Assisted Dying

The State of Oregon has allowed medical aid in dying for nineteen years and has published the results in yearly reports.

Washington state’s Death with Dignity legislation has been in force for nine years, and Washington, too, has issued yearly reports.

The state of California approved medical aid in dying in 2015, and has published results for the first half year of implementation in 2016. The demographic makeup of California is substantially different from Oregon and Washington, and California’s experience therefore significantly broadens our data on the way medical aid in dying works in practice.

(The states of Montana and Vermont do not publish data, and the adoption of Death with Dignity legislation in Colorado and the District of Columbia is too recent for any statistical reports.)

False Claims About Death with Dignity

During the debates leading up to the approval of Death with Dignity laws, opponents expressed a number of concerns about the expected consequences of authorizing medical aid in dying. Available data have proven the great majority of these fears to be groundless. I list below the most important of these claims and the actual results:

Claim #1: The​ ​availability​ ​of​ ​medical​ ​aid​ ​in -dying​ ​will​ ​cause​ ​a​ ​huge​ ​number​ ​of​ ​persons​ ​to​ ​seek assisted​ ​death.

Actual Results: Percentage of deaths under Death with Dignity laws vs percentage of all deaths

Prescriptions under Death with Dignity laws

Deaths under Death with Dignity laws Percentage of deaths under Death with Dignity laws

Percentage of all deaths[3]

Oregon[4]

204

133 65%

0.4%

Washington[5]

248

192 77%

0.3%

California[6]

191

111 58%

0.1%

Total

643

436 68%

0.3%

As the availability of medical aid in dying becomes known, the number of individuals to avail themselves of assisted death increases. However the number of these death is only a small fraction—0.3 percent—of the total number of deaths which also increases from year to year.

Moreover, many patients—32 percent—once they have received the medication and know that they can ease their death, do not take the medication and die of natural causes.

The characteristics of the patients who died under these law also disprove most of the fears expressed prior to enactment of medical aid in dying legislation.

Claim #2: Poor,​ ​uneducated​ ​and​ ​minority​ ​patients​ ​will​ ​be​ ​pressured​ ​to​ ​ask​ ​for​ ​medical​ ​aid in dying.

Actual Results: Demographics of individuals seeking medical aid in dying

Whites

Non-Whites

Less than
high-school education

Oregon[7]

96.6%

3.4%

5.9%

Washington[8]

95.7%

4%

3.3%

California[9]

89.5%

13.1%

5.4%

Members of vulnerable groups such as the poor, less educated, or racial minorities have shown little interest in this end of life care option. The percentage of patients using Death with Dignity laws who are non-white is very small. The great majority availing themselves of medical aid in dying are white, and a majority have at least a high school degree and some college education. Since education is known to correlate with income, one can assume that most Death with Dignity deaths occur among those who are relatively well-off.

Claim #3: Patients​ ​without​ ​insurance​ ​will​ ​be​ ​forced​ ​into​ ​utilizing​ ​medical​ ​aid in dying.

Actual Results: Deaths under Death with Dignity laws without insurance

No insurance

Concerned about treatment costs

Oregon[10]

1.4%

3.1%

Washington[11]

2%

N/A

California[12]

3.6%

N/A

The majority of patients choosing medical aid in dying are insured under Medicare, Medicaid, or other governmental insurance. Many of them also have supplementary private insurance.

A very small minority of patients—3.1 percent in the state of Oregon—cited financial considerations as the reason for choosing medical aid in dying. Since respondents could give more than one reason, the financial factor was not necessarily the most important. ​ ​ ​ ​ ​ ​ ​ ​ ​ ​

Claim #4: Suffering​ ​from​ ​inadequate​ ​pain​ ​control,​ ​patients​ ​will​ ​choose​ ​medical​ ​aid in dying.

Actual Results: End-of-life concerns

Losing autonomy

Loss of dignity Less able to engage in activities making life enjoyable

Pain control

Oregon[13]

91.6% 78.8% 89.7%

25.2%

Washington[14]

87.3% 71.3% 88%

39%

The most important reasons for choosing medical aid in dying are the desire to be in control of the dying process, loss of dignity, and concern about a progressively diminishing quality of life. Concern about inadequate pain control ranks far lower. The importance of the desire for control is brought out by the fact than many of those who request a prescription never use it and die a natural death.

Claim #5: Fearing​ ​to​ ​die​ ​in​ ​a​ ​hospital​ ​rather​ ​than​ ​at​ ​home​ ​among​ ​family​ ​or​ ​friends​ ​and​ ​lacking hospice​ ​care,​ ​patients​ ​will​ ​choose​ ​medical​ ​aid in dying.

Actual Results: Place of death
In Hospital Long-term care facility Home Enrolled in hospice
Oregon[15] 0.1% 4.6% 94% 90.4%
Washington[16] N/A N/A 88% 77%
California[17] N/A N/A N/A 83.8%

The great majority of patients opting for medical aid in dying die at home and have the benefit of hospice care.

Claim #6: Palliative​ ​care​ ​is​ ​able​ ​to​ ​provide​ ​comfort​ ​to​ ​the​ ​dying,​ ​and​ ​there​ ​is​ ​therefore​ ​no​ ​need​ ​for medical​ aid in dying.

There is no conflict between palliative care and medical aid in dying. Palliative care can indeed alleviate many problems of dying, and the great majority of patients who have chosen medical aid in dying have done so in the context of hospice. However, there will always be persons who despite the best of palliative care, will be afflicted on their deathbed with sustained and intolerable distress, and medical aid in dying provides additional relief for these cases.

There is no conflict between palliative care and medical aid in dying.

Claim #7: Doctors​ ​should​ ​heal,​ ​not​ ​kill; participating​ ​in​ ​medical​ ​aid ​in ​dying​ ​runs​ ​counter​ ​to​ ​their essential​ ​calling.

Death with Dignity legislation does not force doctors to participate in the practice. They are free to follow their personal code of moral conduct. On the other hand, a growing number of physicians consider it their professional duty to help their patients achieve a good death. The number of doctors who believe that medical aid in dying should be available to terminally ill patients grew from 46 percent in 2010 to 57 percent in 2014.

These physicians feel that caring [18] for patients includes assuring them comfort in their final stage of life, and this service does not run counter to the age-old injunction to “do no harm.” Dr. Stuart Youngner, a professor of bioethics and psychiatry at Case Western Reserve University School of Medicine, has observed: “We’re having a paradigm shift about what’s viewed as harmful. People are getting used to the idea that death is sometimes the least worst alternative.”

By 2017, 67 percent of respondents in a Gallup poll approved of physician-assisted death.[19]

Conclusion: Moral Decisions and Empirical Data

There are few moral norms that are intrinsically right or wrong under all known and conceivable circumstances and therefore could be designated moral truths. Hence, for the most part, facts cannot settle a moral debate.

At the same time it is clear that one cannot argue or defend ethics properly unless one knows the facts correctly. Empirical findings will make moral decisions more rational and informed.

Medical aid in dying in the United States has been in operation for many years and we now have a substantial body of data and observational research. With regard to contested issues of the kind discussed in this article, it is no longer necessary to speculate or worry about “sliding down slippery slopes.” These regimes have, by now, done various amounts of “sliding,” and the lessons from this experience should increase support for death with dignity legislation as well as help us to improve the practice of medical aid in dying. Any such regime of medical aid in dying should be regarded as a work in progress with its mode of operation carefully studied on a regular basis and revised as problems are detected.

Footnotes

1. Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasias (Princeton, NJ: Princeton University Press, 2006), p. 157.
2. See the Declaration on Euthanasia,” May 5, 1980, by Adoremus, the Society for the Renewal of the Sacred Liturgy, retrieved from www.adoremus.org.
3. Based on mortality data for the year 2016, retrieved from https://www.cdc.gov/nchs/products/vsrr/provisional-tables.htm.
4. Data are from Oregon Health Authority, Public Health Division, Death with Dignity report for the year 2016, retrieved from http://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year19.pdf.
5. Data are from Washington State Department of Health, Death with Dignity reports for the year 2016, retrieved from http://www.doh.wa.gov/YouandYourFamily/IllnessandDisease/DeathwithDignityAct/DeathwithDignityData.
6. Data are from California Department of Public Health, End of Life Option Act 2016 Data Report for the period of June 9-December 31, 2016, retrieved from https://www.cdph.ca.gov/Programs/CHSI/CDPH%20Document%20Library/CDPH%20End%20of%20Life%20Opti
on%20Act%20Report.pdf.
7. For the years 1998-2015.
8. For the years 2014-2016.
9. For the period June 9-December 31, 2016.
10. For the years 1998-2015.
11. Data for the years 2014-2016 are collected from the After Death Reporting form.
12. For the period June 9 -December 31, 2016.
13. For the years 1998-2015. Categories are not mutually exclusive.
14. For the years 2014-2016.
15. For the years 1998-2015.
16. For the years 2014-2016.
17. For the period June 9-December 31, 2016.
18. Robert Lowes, “Assisted Death: Physicians Support Continues to Grow.” Medscape, December 29, 2016.
19. http://news.gallup.com/poll/211928/majority-americans-remain-supportive-euthanasia.aspx

About the Author

Guenter Lewy is a political scientist and the author of Assisted Death in Europe and America: Four Regimes and Their Lessons.

Featured image by Oliver Tacke.

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