California Dying

by Gerald Dworkin

Assisted DyingI am finishing the six months a year that I live in California. While here I have been working on the campaign, led by an organization called Compassion and Choices, to get a bill passed by the California legislature–SB128. This is a bill to allow medically-assisted dying in the state of California. It is modeled on the measure passed by referendum in Oregon in 1994 by 51% of the voters. A legal injunction halted implementation of that law until 1997 when the Ninth Circuit lifted the injunction. In 1992 Californians rejected a referendum legalising assisted-dying, and the legislature has rejected similar bills four times.

Some form of medically assisted-dying is now legal in Oregon, Washington, Montana, Vermont , and one county of New Mexico. This latter reminds me of Woody Allen’s view on the existence of God. He exists everywhere except in certain parts of New Jersey.

The methods of legalization differed from state to state. Oregon was by referendum. Montana was a Supreme Court ruling. Vermont was by statute. Washington’s ballot initiative passed by 58% of the voters.

My own interest in these issues has been long-standing. In 1998 I wrote, together with two other philosophers, a book called Euthanasia and Physician-Assisted Suicide. Two of us argued for its moral and legal permissibility; one against. I should note that the use of the term “Physician-assisted suicide” is now politically incorrect, for tactical reasons. I understand that the popular prejudice against suicide makes it more difficult to rally support for the bills I favor. And even some potential users of such measures object to their death-certificate reading “suicide.” But to list the cause of death, as many such bills do, as the underlying disease process seems to me simply a lie. What caused the person diagnosed with terminal cancer to die now, rather than somewhat later, is the secobarbital the patient took. But learning to keep silent about such terminological matters was only one of many lessons I had to learn.

I continued to write on this and similar topics–one being the question of whether doctors ought to participate in lethal executions–over the years. But the closest I had come to being politically active was when I provided testimony to the British House of Lords when they were considering legalization. They did not pass such a bill but a similar measure is now before the House and is scheduled for a second Reading in July. Having attended two of the committee hearings–Judiciary and Appropriations– both of which approved the bill, published an op-ed in the Sacramento Bee, gathered signatures at the local Farmer’s Market, and lobbied legislators– I am fairly optimistic that this time the bill will pass. The most heartening news was that this week the California Medical Association became the first in the country to drop its opposition to such a bill. Not actually come out in favor–that would be much to expect– but adopting a position of neutrality. Part of the quid pro quo , i.e. amendments to the bill, was that in addition to doctors not having to participate in such assisted-dying (this was, of course, already in the bill) they would not have to inform patients of the existence of such a possibility, nor to have to refer them to another doctor. But, lamentably, such compromises were not enough for the two physician’s organizations which have most contact with dying patients–the Association of Northern California Oncologists and the Medical Oncology Association of Southern California. They continued their opposition.

One of the more interesting experiences I had was to talk to the lobbyists hired by Compassion and Choice. When I naively inquired why it was necessary to hire multiple lobbying firms the answer was that some of these are friendly with Republican legislators and some with Democratic. In addition, they provided me with a lot of useful information for specific legislators about what kinds of arguments to use. “This guy doesn’t want ethical arguments. All he wants is liability protection. Stress the fact that legalising this bill makes his protection from liability more firm than under the status quo.” “This one is in favor of keeping this in the 'grey area', i.e. let us do this our way when necessary–increasing the morphine. Don’t ask, Don’t tell.” I realized I was not in Athens anymore.

Although there are clearly local factors that have made a difference in California– the Brittany Maynard case being the most obvious it appears that we are in the middle of a major shift in legal policy with respect to medically-assisted dying. The CMA decision is clearly indicative. But in recent months we have seen a number of important indicators.

In February the Supreme Court of Canada struck down laws banning physician-assisted suicide. It was a unanimous decision which reversed their 22 year old decision which upheld such laws. The Court held that “The prohibition on physician-assisted dying infringes the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice,” adding that an absolute ban was not needed to ensure that vulnerable people are not coerced “to commit suicide at a time of weakness.” This followed the August decision of the Canadian Medical Association to alter long-established opposition to doctors’ assisting in suicides. Its new policy allows physicians, within the bounds of laws, “to follow their conscience when deciding whether to provide medical aid in dying.”

As with the Brittany Maynard case a video made a major impression in Canada. Gillian Bennett, the wife of philosopher Jonathan Bennett, delivered a passionate case for ending her life before having to suffer the indignities of full dementia.

Recently a major story in the New York Times Magazine detailed a similar case. Ironically, since the requirements of all the assisted-dying laws require that the patient be competent to make the request of lethal medication, and to take it herself, this patient had to end her life some time before her condition became intolerable. Patients at an early stage of dementia are denied one of the main advantages of assisted-dying laws, i.e. that they can go on living knowing they have the possibility of ending their life if it becomes intolerable. It is significant that about 30% of the Oregon patients who request the medication never use it.

In Massachusetts, where a 2012 initiative was defeated by a 51-49% margin, a recent poll by the Boston Globe showed 65% of the voters now favoring it. In New Jersey a bill has passed the House and a vote in the Senate is expected soon.

If my expectations are correct, then we will soon be living in a society, like Belgium, Switzerland, the Netherlands in which assisted-dying will be legally permissible. For those who live in jurisdictions that have not done so it is essential that they know that they have a legal right to refuse food and hydration, and that such a death is not a difficult one.

But, for better or worse, the return to philosophical reflection will not end. There are many ethical and legal questions that remain alive and well.

Why require terminal illness? What about diseases which are not fatal but cause enduring and terrible suffering. For example, locked-in state where the only parts of your body you can move are your eyelids. Why not allow assisted-dying for any incurable, irremediable disease or medical condition that the patient experiences as incompatible with her fundamental values?

What about patients who cannot take the medication by themselves because they cannot swallow, or cannot put the pill in their mouth? Is there a principled distinction between assisted-suicide and euthanasia when both are requested by a competent patient?

How do we handle the situation of patients with dementia who know they are progressing to a stage when they will not be competent to make the request? We currently allow advance directives to specify that under certain conditions no food or water should be given a patient. But, with incompetent patients the conditions of assisted-dying cannot be met. The only possibility would be euthanasia when specified by a competent patient as part of an advanced-directive.

How should we think about depression in patients with terminal illness? Should we require that one of the physicians certifying competence be a psychiatrist? Etc.

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