Saturday, January 27, 2018
Thaddeus Mason Pope (Mitchell Hamline School of Law) has posted Legal History of Medical Aid in Dying: Physician Assisted Death in U.S. Courts and Legislatures (Forthcoming in New Mexico Law Review) on SSRN. Here is the abstract:
Terminally ill patients in the United States have four medical options for controlling the time and manner of their death. Three of these are legally available to certain clinically qualified patients. First, all patients may withhold or withdraw life-sustaining treatment. Second, all patients may voluntarily stop eating and drinking. Third, patients with intractable suffering may receive palliative sedation to unconsciousness. In contrast, the fourth option is available in only seven U.S. jurisdictions. Only there may patients legally obtain a prescription for a lethal medication that they can later self-ingest.
Medical aid in dying (MAID) is not yet legally available in 49 of 56 U.S. jurisdictions. But its legal status has been in a state of rapid change across the country over the past ten years. Before 2008, MAID was legal only in Oregon. Today, it is legal in seven U.S. jurisdictions. Moreover, the rate and pace of legalization has been accelerating. Three of the now seven MAID jurisdictions enacted their statutes within only the past two years. Moreover, there are widespread and ongoing legislative and judicial efforts to legalize MAID in more than thirty other states.
I have designed this Article to help inform and guide these expanding law reform efforts. Because a page of history is worth a volume of logic, it summarizes earlier efforts (both successful and unsuccessful) to legalize MAID in the United States. In other words, this Article provides a descriptive legal history. It does not normatively assess either whether any efforts to legalize MAID were good public policy. Nor does it assess whether advocates grounded their arguments on solid legal analysis. Instead, this Article offers an objective, systematic, and thorough account of what those efforts were.
In Section One, I describe MAID. We must first understand what MAID is before examining attempts to legalize it. Once we grasp the nature of MAID, it starts to become clear why law reformers have concluded that they must legalize it. In Section Two, I explain that MAID falls within the prohibitory scope of criminal assisted suicide statutes in almost every state. In other words, MAID is “assisted suicide.” Assisted suicide is a crime. Therefore, MAID is a crime. Moreover, in addition to its actual legal status, MAID probably is illegal. It is at least widely perceived to be illegal. Therefore, both patients who want to access MAID and physicians who want to provide MAID have strong incentives to change (or at least clarify) its legal status.
In the remainder of the Article, I examine five different paths that reformers have taken to legalize MAID. In Section Three, I start with the most successful approach, statutory enactment. Six states have enacted MAID statutes: three through ballot initiatives and three through legislation. I discuss these six states. I also briefly discuss a few more states that have come close to enacting MAID statutes. Furthermore, more than one-half of the remaining states have recently considered legislation. They are likely to continue this deliberation and debate in 2018, 2019, and 2020.
In Section Four, I examine attempts to legalize MAID through federal constitutional litigation. Because the U.S. Supreme Court definitively rejected such arguments in 1997, advocates have since refocused their litigation arguments using state law theories. In Section Five, I review cases seeking to legalize MAID through state constitutional litigation. Unfortunately, like federal constitutional claims, state constitutional claims have also been uniformly unsuccessful.
In Section Six, I discuss attempts to legalize MAID through state statutory interpretation litigation. These lawsuits argue that MAID does not even constitute “assisted suicide” in existing criminal statutes. Finally, in Section Seven, I examine two final paths toward “legalizing” MAID: constraining prosecutorial discretion and jury nullification. Unlike other approaches, these do not change the legal status of MAID. Yet, they do change whether prosecutors will or can penalize patient or physician participants.
In sum, the expanded legalization of MAID seems inevitable. Surveys consistently show that more than 70 percent of the American public supports MAID. But the battle will be fought bill-by-bill and lawsuit-by-lawsuit in each state. I hope to inform these efforts with lessons from the legal history of MAID described below.