NWV News -- Washington State Voters legalize Physician-Assisted Suicide

WASHINGTON STATE VOTERS LEGALIZE PHYSICIAN-ASSISTED SUICIDE

By NWV staff writer Sarah Foster
Posted 1:00 AM Eastern
November 24, 2008
© NewsWithViews.com

”We’re tired of being the sprouts-chewing liberals out in Oregon,” Claire Simons told the Oregonian, Portland’s daily newspaper. “We need another state.”

That was in 2004, and Simons, a spokeswoman for the Portland-based Compassion In Dying Federation, was irked that although Oregon voters had narrowly approved a physician-assisted suicide measure in 1994 (and reaffirmed it in 1997), some 10 years later – despite nearly 100 attempts to get other states to adopt similar legislation – Oregon remained the only one where doctors were permitted by law to prescribe lethal medication, albeit that’s to be solely at the request of the patient, who must be diagnosed as having less than six months to live.

It took a well-orchestrated campaign and a $5.5-million war chest (over 60 percent of it from out-of-state donors), but on Nov. 4 the advocacy group Simons represented -- now called Compassion & Choices -- finally got its wish as Washington voters approved Initiative 1000 by a 58 to 42 percent margin, making theirs the second state to legalize physician-assisted suicide.

Only it’s not to be called “suicide,” physician-assisted or otherwise. Proponents prefer terms like “hastened death” or “aid-in-dying” since polls show the public is more likely to accept the controversial practice when the S-word isn’t used. In an Orwellian twist, I-1000 specifically bans the words “physician-assisted suicide” and “suicide” from the annual reports that the new law mandates.

Titled the Washington Death with Dignity Act, the measure essentially replicates the Oregon law of the same name. Both were reportedly drafted by Eli Stutsman, an attorney and board member of the non-profit Death with Dignity National Center in Portland, the incubator where I-1000 was hatched that provided “leadership, political strategy, and financial resources to this monumental effort,” according to its annual reports.

“It’s a wonderful accomplishment, and we’re pleased,” Stutsman said.

Proponents were ecstatic. The measure had faced opposition from the Washington State Medical Association, the Roman Catholic Church, right-to-life groups and disability-rights activists who foresee assisted suicide as a “final solution” for containing the costs of medical services to the poor and disabled. In their literature and TV ads supporters ignored issues raised by disability rights groups, played on public fears that “religious leaders” want to “impose their moral views on you,” and routinely dismissed opponents’ arguments as “lies” -- and it worked.

“It is historic. The opponents of choice at the end of life have done all they could to prevent another state from passing a Death with Dignity Act," declared Rob Miller, executive director of Compassion & Choices of Washington, the state chapter of the Denver-based national group that was a driving force behind the campaign. "To have it passed here in Washington is an incredible victory for patients' rights."

“The people of Washington opted for individual liberty, personal autonomy and freedom of conscience,” said Barbara Lee, president of Compassion & Choices, in a statement posted on the C&C website. Lee pledged to continue working “to bring choice to terminal patients in the 48 states where aid in dying remains illegal.”

"Its time has come. It's as simple as that," said former Washington Gov. Booth Gardner, who sponsored the initiative and was one of its biggest single financial supporters – pouring $470,000 of his own fortune into the campaign’s coffers. “People have the right to have control over the final days of life.”

Gardner said he hoped I-1000’s passage would be “a catalyst for similar actions in other states across our country.”

A Step toward Euthanasia?

But Spokane resident Chris Carlson, a spokesman for the Coalition Against Assisted Suicide and a Parkinson’s disease patient, pointed out that I-1000 backers had a tremendous edge when it came to financial resources. The Yes on I-1000 campaign was the best-financed assisted suicide campaign ever conducted. While the coalition raised $1.5 million, much of it from the Catholic Church, it was a pittance compared to the $5.5 million that Yes on I-1000 received from Gardner and his extended family, and various wealthy out-of-state and even foreign donors.

Alex Schadenberg, executive director of the Euthanasia Prevention Coalition, noted that in the final two weeks, Yes on I-1000 received more money from five sources than the Coalition did through the entire campaign.

“Unfortunately, money can be a real difference in how broadly you can spread the message,” Carlson said.

Carlson also warned that the measure could to be "a first step toward, not only physician-assisted suicide, but ultimately euthanasia. And people shouldn't be blind to that."

That’s not far-fetched. In Belgium and the Netherlands physician-assisted suicide did morph into direct patient-killing, and critics say it’s a likely scenario for this country. First one state, then another, will enact a modest proposal to be later expanded in terms of coverage (who qualifies for being killed) and method (from prescription drugs to lethal injection).

Gardner admits that I-1000 “does not go far enough.” Like Carlson, he has Parkinson’s and won’t be able to avail himself of the new law since the disease is not fatal.

“Gardner wants a law that would permit lethal prescriptions for people whose suffering is unbearable, a standard that can seem no standard at all; a standard that prevails in the Netherlands, the Western nation that has been boldest about legalizing aid in dying …” reported Daniel Berger in a cover story for the New York Times Magazine last December.

According to Berger: “Gardner’s campaign is a compromise; he sees it as a first step. If he can sway Washington to embrace a restrictive law, then other states will follow. And gradually, he says, the nation’s resistance will subside, the culture will shift and laws with more latitude will be passed, though this process, he knows, would almost surely take too long to help him.”

From Crime to Treatment

Rita Marker, an attorney and executive director of the non-profit International Task Force on Euthanasia and Assisted Suicide, calls physician-assisted suicide a Trojan Horse -- a policy that enters a state’s legal system as a gift of compassion but is full of deadly consequences. In Washington, as in Oregon, the crime of assisted suicide has been transformed into a medical treatment.

“If a lethal dose of drugs is considered good medical treatment, isn’t the requirement of ‘self-administration’ both illogical and overly restrictive?” she asks. “What about the person who is physically unable to self-administer the lethal dose? After all, is there any other medical treatment that a physician can prescribe for, but not administer to, a patient?”

Once it’s legally regarded as a medical treatment there’s nothing to prevent its expansion “to include euthanasia by lethal injection and to encompass everyone from children to the frail, demented elderly.”

Marker argues that the reason Oregon hasn’t done this is because it wouldn’t be politically expedient to do so until more states have legalized the practice and people have accepted it.

To counter the “expansion argument,” I-1000 strategists focused on the decade-long statistical record from the neighboring state. Thousands of Oregonians haven’t sought “a humane and dignified death,” as many feared would happen. In the 10 years since the law took effect, 515 people have received a prescription for a lethal drug, and of these, 341 actually went ahead and ingested the medication, at least according to official reports.

Oregon's experience "helps a lot," Gardner said. “[Opponents] say there aren't safeguards and that's not the truth. The fact is, [assisted suicide has been available] 10 years in Oregon and there are no complaints. An issue this hot is going to have people watching it like a hawk."

How anyone can be expected to watch “like a hawk,” considering the reporting system will be hidden from public review as it is in Oregon, Gardner doesn’t explain.

Critics have repeatedly pointed to the lack of transparency and accountability that characterizes Oregon’s system. The law gives the state no authority to conduct investigations nor are there penalties for doctors who don’t report prescribing fatal drugs. Astonishingly, the reports doctors file with the state are destroyed.

“This is one of the most startling things of all,” Paul Longmore, professor of history and director of the Institute for Disability Studies at San Francisco State University, told NewsWithViews.

Longmore explained: “Once the Dept. of Health Services has published its Annual Report, it destroys all the records that it got from the doctors who prescribed the medications; so there’s no way for anybody to investigate independently and verify that each prescription was issued consistent with the law. That means that there’s no real accountability. That means that assisted suicide in Oregon is being practiced without any real oversight or regulation.”

Longmore and Marker claim there are enough loopholes in the law “to drive a hearse through,” as Marker puts it.

“The only thing we really know about Oregon is you can say, for example, that there have been 341 reported deaths; there have been no reported abuses,” she explained in a recent radio interview. “It does not mean there haven’t been more deaths; it does not mean there haven’t been abuses. It only means there haven’t been any reported.”

”The International Task Force, for one, has found [abuse] and has been ‘screaming’ about it ever since that law took effect,” she wrote in a Message to Washington shortly before the election. “The significant loopholes in the law and the individual cases of abuse have been chronicled and documented on the ITF website and within the pages of this publication, ITF Update.”

Safeguards Unverified

Like its Oregon prototype, I-1000 features a set of “safeguards.” As written, the law will apply only to Washington residents who are 18 years or older, mentally competent and have a diagnosed life expectancy of less than six months. Patients must request their prescription for lethal medication orally, fill out a one-page form, wait 15 days, and then make a second oral request. There’s no requirement that the oral requests are made in person -- presumably, they could be handled by telephone and even left on an answering machine. Similarly, the written request form -- which must be signed by the patient and two witnesses, one of whom can be an heir -- could be faxed or mailed to the doctor.

A request must be approved by two doctors. Plus, the patient must be the one to take the fatal dose -- it cannot be administered by a physician. Once the prescription is written, the doctor’s role in the matter ends. No follow-up is required, and a doctor does not need to be present if and when the medication is taken. Giving a patient a lethal injection remains illegal.

The claim that having these requirements proves the system works strikes Marker as “preposterous.”

"First, [doctors] help the person commit suicide and, afterwards, they report whether their actions complied with the law,” she writes. “Then that information is used to formulate the state's official annual reports. … It would be nifty if the Internal Revenue Service allowed such unverified and unverifiable self-reporting.”

”Unprecedented Deception”

Washington’s new law essentially mirrors Oregon’s, but there’s one important difference. In Oregon, a physician will write on the death certificate that the actual cause of a patient’s death was through the Death with Dignity Act if that’s the case. That won’t be allowed in Washington where a provision in the law mandates that the physician “shall list the underlying terminal disease as the cause of death.”

“This adds a layer of unprecedented deception by forcing doctors to lie about the cause of death on the assisted-suicide patient’s death certificate,” says Marker. “In other words, even if a doctor knows for sure that his patient took the prescribed lethal drug overdose, the doctor is required to write down, let’s say, bone cancer, if that was the patient’s underlying condition.”

With any reference to the true cause of a death omitted from the official record – and if the Annual Reports are as obscure and brief as Oregon’s have become – implementation of the law will be completely off the public radar.

The Law in Practice

But in Oregon, despite increased efforts by Health Services Department officials to hide the law’s shortcomings from the public, word gets out and occasionally comes to the attention of the media – as in the notorious case of Barbara Wagner, a 64-year-old cancer patient, which was reported by the Eugene Register-Guard.

In May, Wagner’s doctor told her that her cancer, which had been in remission, had returned, but there was a new drug that would probably slow its growth and extend her life. He wrote her a prescription, but because the drug is expensive the Oregon Health Plan – the state’s Medicaid program through which she was insured – let her know via an unsigned form letter that it would not cover the cost. However, the letter said, the plan would pay for “comfort care”, including “physician aid in dying.” The drugs which would be provided free cost less than $100 – a matter not mentioned in the letter.

“They would pay to kill me, but they will not give me the medication to slow the growth of my cancer,” Wagner says tearfully in a video for the Coalition Against Assisted Suicide.

When Wagner's story became known, others came forward to report receiving similar letters. The Oregon Health Plan director eventually admitted they send such letters to patients whom they think have little chance of surviving.

And Wagner didn’t. She died in October.

“People were very shocked by that, but really it shouldn’t be shocking,” said Marker. “If we look at the reality – it’s been referred to as the force of economic gravity – once you make assisted suicide a treatment, then it’s on the same par as any other medical treatment and it’s just common sense that health plans, be they ones that are administered through the state of Oregon or private health plans, will be more apt to pay for a less expensive treatment for a particular condition than one which is more expensive.”

The HMO Connection

Oregon’s system affects not only those who have been diagnosed terminally ill like Wagner, but those who are poor or have disabilities, according to Paul Longmore.

“The fiction that’s being touted by proponents is that the Oregon health care system is a model for the rest of the nation, when in fact the Oregon health care system is in serious disarray,” Longmore told NewsWithViews. “There have been drastic cuts in services that are affecting a lot of people; but the Oregon Annual Reports on the assisted suicide law are not providing information about what percentage of the people who died were on Medicaid and had had their access to services cut.”
He said this isn’t surprising considering the background of Oregon’s statute.

“The Oregon law – when it was passed as Measure 16, a ballot initiative – the chief petitioner of that law was Barbara Lee, who was at the time a vice president of a managed care company that advised hospitals and HMOs on how to cut expenditures,” Longmore recalled. “And she also advised the state of Oregon. She helped to design their Oregon Health Plan, which is a healthcare system for people on Medicaid. Disability-rights activists in Oregon tell me that the Oregon Health Plan has been devastating for a lot of people with disabilities on Medicaid.”

Oregon Plus Two

Ever since Oregon voters said yes to physician-assisted suicide in 1994, advocates have hoped other states would pass similar legislation, but state lawmakers and the public have consistently rejected the notion no matter where it was introduced. After a decade of frustration, the Death with Dignity National Center developed a campaign based on the idea that if one state enacted such a law, others would follow.

They dubbed the campaign Oregon Plus One, and beginning in late 2005 began researching a likely target.

From the group’s 2007 Annual Report: "This next year, we will be directing our legal and political efforts, along with financial resources, to a coalition of groups working to expand end-of-life options for the terminally ill in the state of Washington. ... [W]e have never had such great odds of success as we have in Washington in 2008. That is why we will be directing $1.5 million over the next year and a half to the efforts in Washington."

Now that Washington has followed Oregon’s lead, the question is which state will be Oregon Plus Two. The DDNC board is reportedly meeting this month and next to select a new quarry, but says because of financial limitations the organization is not looking at California.

"The money we had in Washington, which is more than we ever had before, would get us nowhere in California or New York," Stutsman said.

Subscribe to the NewsWithViews Daily News Alerts!

Ballot measure campaigns in California can cost at least $40 million, and bills in the state legislature have met with concerted opposition from pro-life groups, and organizations representing ethnic and racial minorities and the disability-rights community.

Voters defeated ballot measures in Washington in 1991, California in 1992, Michigan in 1998 and Maine in 2000.

Additional Reading:

1. Rita Marker: An Open Letter to Baroness Warnock on Assisted Suicide: (American Thinker, Oct. 4, 2008)

2. Wesley J. Smith: Secondhand Smoke: 24/7 Seminar on Bioethics and the Importance of Being Human.

3. Herbert Hendin and Kathleen Foley: Physician-Assisted Suicide in Oregon: A Medical Perspective (Michigan Law Review, June 2008)

4. Courtney S. Campbell: Ten Years of “Death with Dignity” (The New Atlantis, Fall 2008)

5. Margaret Dore, probate attorney: The Indignity of I-1000: Backers’ Claims Misleading (Seattle Times, Aug. 20, 2008)