WHAT EVERY OKLAHOMA ELDER LAWYER SHOULD KNOW ABOUT
PHYSICIAN-ASSISTED SUICIDE
By Tim Whittlesey
December 1, 2003
Throughout American history suicide has been forbidden, first as a violation of a
conventions and later as a legal wrong. The legal standing of physician-assisted suicide in
Oklahoma is clearly defined by statute, but a number of other issues, legal, ethical, and social
must be considered.
STATUTORY
The Oklahoma criminal code states that “every person who willfully, in any manner,
advises, encourages, abets, or assists another person in taking his own life, is guilty of aiding
suicide.”1 This provision is generally addressed to physicians, yet attorneys or others could easily
be brought within its scope, and so the Oklahoma elder lawyer must be careful when discussing
the issue with clients.
After the Supreme Court upheld two laws banning assisted suicide, the Oklahoma
legislature passed 63 O.S. § 3141, the Oklahoma Assisted Suicide Prevention Act, to clarify
further the situation. This Act provides, in part, that anyone who “(1) provides the physical
means by which another person commits or attempts to commit suicide; or (2) participates in a
physical act by which another person commits or attempts to commit suicide” is in violation of
the Act.2 The Act provides no additional criminal penalties, but instead introduces civil remedies,
1
2
OKLA. STAT. tit. 21 § 813 (2003).
OKLA. STAT. tit. 63 § 3141.3 (1998).
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such as injunction or damages. The Act also provides specific exemptions for medical personnel
providing high levels of medication for the purpose of pain relief. The purpose of the Act seems
to be to reduce the fear of criminal liability for physicians, so they will be free to prescribe the
high levels of pain relieving medication required by some terminally ill patients. If physicians are
allowed to control pain effectively - even though it hastens the death of the patient - the belief is
that fewer patients will feel the need to resort to suicide.
DUE PROCESS
The Supreme Court has addressed this issue in a number of ways and differing cases. The
court consistently takes a dim view of suicide under any circumstances, and its analysis of law
and fact is colored by this.
The constitutional arguments are all analyzed according to rational basis theory, in that
they must be rationally related to a legitimate governmental end. To determine the application of
this test, the court held in Romer v. Evans, 517 U.S. 620 (1996) that “…if a law neither burdens
a fundamental right nor targets a suspect class, we will uphold [it] so long as it bears a rational
relation to some legitimate end.”3 The difficulty here is that the court never even considers
whether assisted suicide - or, more broadly, the right to die - is a fundamental right. Through
historical vagaries and questionable legal precedent the court automatically assigns it to some
lesser classification of rights and proceeds with the analysis.
In Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court addressed a
Washington state statute which banned assisted suicide. In upholding the constitutionality of the
2
statute, the court looked to a legal and social history of suicide generally, both in this country and
around the world. The court found that Washington’s interest in protecting its citizenry,
especially groups which may be especially vulnerable to an inappropriate application of such a
statute, was rationally related to a legitimate governmental end.
In this case the Court classified the issue as to whether or not there is a liberty interest in
determining the manner, place, and time of one’s own death. More narrowly, the court said, “the
question before us is whether the ‘liberty’ specially protected by the Due Process Clause includes
a right to commit suicide which itself includes a right to assistance in doing so.”4 Even the
broadest interpretation of the constitution could not likely be said to provide such a right.
If, however, the issue had been formulated as one of privacy, the statute might have been
struck down. If physician-assisted suicide had been articulated as one of a wealth of treatment
options, it might have survived.
The court then turned to a historical perspective of suicide generally. It noted the longstanding tradition opposing suicide, stating that:
[i]n almost every State - indeed, in almost every western democracy - it is a crime to
assist a suicide. The States' assisted-suicide bans are not innovations. Rather, they are
long-standing expressions of the States' commitment to the protection and preservation of
all human life.5
The court found itself:
3
Romer v. Evans, 517 U.S. 620, 631 (1996).
Washington v. Glucksberg, 521 U.S. 702, 723 (1997).
5
Id. at 710.
4
3
…confronted with a consistent and almost universal tradition that has long rejected the
asserted right, and continues explicitly to reject it today, even for terminally ill, mentally
competent adults. To hold for respondents, we would have to reverse centuries of legal
doctrine and practice, and strike down the considered policy choice of almost every
State.6
In addressing physician-assisted suicide, the court found that “…our decisions lead us to
conclude that the asserted ‘right’ to assistance in committing suicide is not a fundamental liberty
interest protected by the Due Process Clause.”7
Physician-assisted suicide is a recent development, brought about by increasing efficiency
and effectiveness in end-of-life care. The human lifespan has been greatly increasing over the last
century, the period from which the court took its historical data. On average, people are now
living longer than ever before. This is creating a host of new legal, ethical, and medical
considerations which have not been addressed before. The court approaches this case as if it were
one in a long string of similar cases, and thus easily decided by precedent. However, given such
recent demographic trends, this is really a case of first impression and previous cases and
historical perspective can only provide authoritative insight, not binding precedent.
The court went on to distinguish and explain some of this precedent. In Cruzan v.
Director, Missouri Dept. of Health, 497 U.S. 261 (1990), the court recognized that a competent
person has the right to refuse medical treatment. In that case, it was the parents of a woman in a
permanent vegetative state requesting the removal of feeding and hydration. Petitioners in
Washington v. Glucksberg would expand that principle to also apply to physician-assisted
suicide. The court focused on traditional legal theories, holding with “…the common-law rule
6
Id. at 723.
4
that forced medication was a battery, and the long legal tradition protecting the decision to refuse
unwanted medical treatment…”8 However the court refused to update this view to bring it in line
with modern trends, saying instead that while “[t]he decision to commit suicide with the
assistance of another may be just as personal and profound as the decision to refuse unwanted
medical treatment, but it has never enjoyed similar legal protection.”9
While it is true that assisted suicide has never shared such tacit legal approval, a closer
look at the underlying theory and reasoning would give support to both refusal of medical
treatment and assisted suicide. Both speak to the fundamental belief that a person should have the
absolute right to control the fate of their own bodies. The court’s differentiation between the two
procedures - both requiring the affirmative acts of another, both designed to comply with the
patient’s wishes and reduce suffering, and both ending at the same result - is legal hair-splitting
at best, and specious at worst. The court is correct when it says that “[t]he right assumed in
Cruzan, however, was not simply deduced from abstract concepts of personal autonomy” but on
principles of common law.10 However those principles of common law were deduced from the
very abstract concepts of personal autonomy with which the court seems so unimpressed. Again
the court seems simply to apply precedent with no consideration of cultural changes, or even the
philosophical underpinnings of that precedent.
The court goes on to distinguish Planned Parenthood v. Casey, 505 U.S. 833 (1992),
which also applied the Due Process Clause to an intimate and personal medical decision, in that
7
Id. at 728.
Id. at 725.
9
Id.
8
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case abortion. The Casey court found that “[c]onstitutional protection of the woman's decision to
terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment”
and that “[t]he controlling word in the cases before us is ‘liberty.’”11 Thus, the court in that case
found that an abortion was a constitutionally protected liberty. However, in the Glucksberg case,
the court refused to expand the definition of liberty to include a right to suicide, saying that
simply because “many of the rights and liberties protected by the Due Process Clause sound in
personal autonomy does not warrant the sweeping conclusion that any and all important,
intimate, and personal decisions are so protected.”12
And yet what decision could sound more in personal autonomy, could be more important,
intimate, and personal a decision that the decision to die? Certainly if the right to have an
abortion - an important right, to be sure - is considered a ‘liberty’ within the context of the
Fourteenth Amendment, why not the paramount right of choosing to live or die?
The court concludes with a review of the legitimate governmental ends Washington seeks
to protect, and whether or not the statute in question is rationally related to those ends. The court
found that suicide was a manifestation of a mental disorder, and that those suffering mental
incapacity require state protection.13 The court also found legitimate the state’s interest in
protecting the medical industry, both from ethical dilemmas and legal liability.14 Perhaps of
paramount concern for the court was the state’s interest in protecting the groups most vulnerable
10
Id.
Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992).
12
Glucksberg, supra note 4, at 727.
13
Id. at 730-731.
14
Id. at 731.
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to an abuse of assisted suicide, namely the poor, the elderly, and the disabled. The fear here was
that such groups would be more likely to succumb to pressure, coercion, or prejudice.15 The court
was also concerned that allowing assisted suicide could remove physicians from the decisionmaking process and leave the determination in the hands of family members or other laypeople.16
The court noted that this could lead down a slippery slope into involuntary euthanasia, because
such a system would be practically impossible to administer or maintain. To this the respondents
countered - and the Court of Appeals agreed - that all of the state’s interests should be weighed
against the interests, wishes, and medical conditions of the patients involved. This court, again
relying on Cruzan, refused to mandate such a subjective, case-by-case investigation of the quality
of a person’s life, even for those near death.17
EQUAL PROTECTION
In Vacco v. Quill, 521 U.S. 793 (1997), a group of New York physicians challenged that
state’s statute prohibiting assisted suicide. Their argument turned on the fact that the state treated
differently patients who wish to accelerate their deaths with medication than those who wish to
do so by withholding treatment. Respondents there claimed such disparate treatment violated the
Equal Protection Clause in that it was not rationally related to ant legitimate governmental ends.
The respondents are physicians who feel that it is consonant with their duties to provide lethal
treatment to patients who are terminally ill, if those patients are still mentally competent. The
15
Id. at 731-732.
Id. at 732-733.
17
Id. 728-729.
16
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remaining respondents are terminally ill patients of these physicians, all of whom have since
died.18
The court stated that the Equal Protection Clause creates no substantive rights, and that,
even though the legislation in question addressed issues of great importance, it did not infringe
on a fundamental right or target a suspect class and as such must pass only the rational basis
test.19
In addressing the issue of suspect class, the court notes that “[e]veryone, regardless of
physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no
one is permitted to assist a suicide” [emphasis in original].20 The lower Court of Appeals drew a
distinction between patients who are permitted to refuse care to hasten the end of life and those
who are forbidden to take affirmative steps to reach the same conclusion, and found this
unconstitutional. The Supreme Court disagreed, believing instead that “…when a patient refuses
life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a
patient ingests lethal medication prescribed by a physician, he is killed by that medication.”21
However this is a hollow distinction, with only legal and no practical significance.
The court hinges its distinction on the intent of the actors; the court found that a physician
who withholds care at the patient’s request - or even one who provides painkilling medication
which may hasten the patient’s death - is merely trying to ease the patient’s pain, while a
physician who assists in a suicide has the intent that the patient should be dead. This is nothing
18
Vacco v. Quill, 521 U.S. 793, 797 (1997).
Id. at 800.
20
Id.
19
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more than judicially ascribing intent after the fact, and it implies that if a physician could prove
his intent in assisting suicide was merely to ease the patient’s suffering, he would not be in
violation of law. In looking at the patient, the court makes the conclusion that the “…patient who
commits suicide with a doctor's aid necessarily has the specific intent to end his or her own life,
while a patient who refuses or discontinues treatment might not.”22 The court does not address
what other conclusions a patient might wish from refusing treatment.
In a concurring opinion, Justice O’Connor recognizes a difficulty posed by both the
Glucksberg and Vacco cases, namely that the court broadly characterized the issue as whether
one has a right to commit suicide and to have help in doing so. She concurs with the court that
there is no such right. She does note, however, that a narrower classification of the issue would
present the court with the question of whether or not “…a mentally competent person who is
experiencing great suffering has a constitutionally cognizable interest in controlling the
circumstances of his or her imminent death”, and even goes so far as to recognize that “…dying
patients in Washington and New York can obtain palliative care, even when doing so would
hasten their deaths.”23 However she refuses, even in dicta, to address this question.
In these cases the court might have been better served by finding a fundamental right and
applying the strict scrutiny test, which mandates that governmental action be necessary to
furthering a compelling governmental end. This is especially perplexing when one considers the
unenumerated ‘fundamental rights’ the court has already recognized or created. see e.g.: Loving
21
Id. at 801.
Id. at 801-802.
23
Id. at 809.
22
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v. Virginia, 388 U.S. 1 (1967) (right to marry whom one chooses), Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535 (1942) (right to procreate), Lochner v. New York, 198 U.S. 45 (1905)
(right of employees to contract), Meyer v. Nebraska, 262 U.S. 390 (1923) (right to education),
Griswold v. Connecticut, 381 U.S. 479 (1965) (right of married couples to use birth control). All
of these are important rights, but arguably dwarfed in comparison with a larger choice: the choice
to live or die.
The court also should have recognized that such statutes do, in fact, target suspect classes.
The Americans with Disabilities Act, among many other state and federal statutes, have been
specifically designed to look after the sick and the elderly in this country. It is a crime to
discriminate against them, just as it is a crime to discriminate on the basis of race, ethnicity, or
gender. And yet the Supreme Court still insists—in this narrow context only—that statutes which
specifically target the terminally ill do not involve a suspect class.
OTHER CONSIDERATIONS
Currently, the only state which has any kind of law allowing assisted suicide law is
Oregon. ORS 127.800 - 127.897, commonly known as the Death with Dignity Act allows
residents to receive lethal doses of medication from a physician, when all of a number of
procedural requirements are met. The law is important to Oklahoma attorneys for a number of
reasons. First, it was passed and later approved by a popular vote, and has received limited
judicial approval from a federal district court. This is likely to make it the archetype of any
similar future legislation in other states. Also, based on the statutory requirements, it would be
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possible for a client in another state to establish Oregon residency and avail themselves of this
law.
The statutory form requires that a patient seeking a prescription for life-ending
medication be an adult resident of Oregon, mentally competent, and suffering from a terminal
illness diagnosed and confirmed by at least two physicians.24 The statute does not define a
resident of Oregon, but lists four factors which might demonstrate residency: possession of a
state driver’s license, registration to vote in the state, owning or leasing property in the state, and
filing a state tax return in the most recent year.25 So it might be possible for a terminally ill
resident of another state to move to Oregon and establish residency for the purpose of receiving
life-ending medication. However if a client is suffering from a terminal illness, these
requirements might be too high a hurdle to pass.
Allowing physician-assisted suicide carries the inherent risk that fraud, coercion, or force
will be applied to terminally ill patients - people already under great stress - to induce involuntary
euthanasia. However the practice is going on, and is likely to continue, so it should be
recognized, monitored, and regulated to reduce this risk as much as possible.
24
25
OR. REV. STAT. § 127.805 (1999).
OR. REV. STAT. § 127.860 (1999).
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