Update 84, Vol. 31, Number 2, (2017-2)

Note:  Information in this Update is current as of 5/26/17.  For specific developments in states after that time, see: 2017 Doctor-Prescribed Suicide Bills Proposed.

15 states rejected doctor-prescribed suicide bills since the beginning of year

This year so far has been hugely disappointing to assisted-suicide activists and supporters who have spent lots of money and time pushing bills to legalize doctor-prescribed suicide in states across the country. Legislators in 27 states—states targeted by the pro-assisted suicide groups Compassion & Choices and the Death with Dignity National Center—have had to consider prescribed-suicide measures since the beginning of the year. Some states, like Hawaii and New York, had more than one such measure introduced in the 2017 legislative session. (See table on page 2.)

The defeats

The reason for advocates’ disappointment is that bills in 15 states have already failed either by not being heard, not passing committee or floor votes, or being withdrawn by sponsors due to lack of support. Those states are Alaska, Arizona, Connecticut, Hawaii, Indiana, Iowa, Kansas, Maine, Maryland, Mississippi, Missouri, New Mexico, Tennessee, Utah, and Wyoming.

Perhaps the hardest defeats for activists were in Hawaii and New Mexico; they had considered both states to be sure wins for the assisted-death movement.

The most recent loss occurred in Maine when, on May 23, the House convincingly voted against the bill (85-61). The Senate had already passed the measure by only one vote (16-15). After the House voted it down, the bill was returned to the Senate for one final vote, but the Senate opted not to take the vote and let the House defeat stand.

States with bills still pending

As of May 26, 2017, 12 states had bills to legalize assisted suicide still pending in the legislative process. But not all have a realistic chance of passing.

Three states—Massachusetts, Nebraska, and Rhode Island—have bills that are technically alive, but appear to be stalled in committees with the end of the legislative session approaching.  Three more states have bills that also seem to be languishing in committees, but those states have “biennium legislative sessions” that allow measures that do not pass in 2017 to be carried over for consideration during the 2018 session. Those states are Minnesota, New York, and Pennsylvania.

New Jersey also has a two-year assisted-suicide bill that was originally introduced, passed by the full Assembly, and passed by the first Senate committee in 2016, but, so far, there has been no further action taken by the Senate in 2017. New Jersey Governor Christie has said he does not support the bill. [nj.com, 11/3/16]

The remaining states with active bills are Delaware, Michigan, Nevada, North Carolina, and Wisconsin. Delaware’s bill was introduced on May 2 and referred to the House Health & Human Development Committee. As yet, no hearing has been scheduled. Similarly, Michigan, North Carolina, and Wisconsin had prescribed-suicide bills introduced within the last two months that have not been heard in their respective committees.

In April, the Nevada assisted-suicide bill looked to be in trouble after it was pulled from its scheduled Senate Health and Human Services Committee hearing, making its passage unlikely before the set deadline for passing bills out of committees. But the bill’s sponsor managed to get that deadline extended until June 5. On May 10, the hearing was held, and five days later the committee passed the bill by one vote. On May 23, the full Senate approved the bill, also by just one vote (11-10). The measure now goes to the Assembly for consideration. Nevada Governor Brian Sandoval has clearly indicated that he does not support the bill. [CBS News, 5/11/17]

Other prescribed-suicide measures

In 1997, Oregon was the first state to enact a doctor-assisted suicide law that allows only competent adults, who personally and voluntarily request assisted suicide, to receive and self-administer prescribed lethal drugs to end their lives. Now, a bill (SB 893) would expand that law to allow an incompetent patient’s “expressly identified agent” to “assist with the procedures for ending a patient’s life.” The patient would have had to sign an advance directive—when he or she was competent—requesting death in advance and naming the person authorized to assist that death. The agent would then be empowered to, among other things, administer the fatal drugs to the now incompetent and vulnerable patient.

Two states could see initiatives to legalize assisted suicide on their 2018 ballots.  Oklahoma’s HJR 1009 is a joint legislative referendum that, if passed, would place the “Oklahoma Death with Dignity Act” on the ballot for voter approval.

Given a lack of support in the South Dakota legislature, assisted-suicide supporters are currently gathering signatures to place an initiative on the state’s 2018 ballot. They need only 13,871 valid voter signatures to qualify the measure. In February, both houses in the legislature overwhelmingly passed Senate Concurrent Resolution 11, which strongly opposed doctor-prescribed suicide.
Note:  The Patients Rights Council has compiled analyses of many of the state bills.  Individual state information can be accessed from the PRC Site Map.

Compassion & Choices drops appeal in Vermont case

The national assisted-suicide activist group Compassion & Choices (formerly the Hemlock Society) has dropped its appeal of a federal district court ruling (and subsequent consent agreement) that found that Vermont doctors are not required to counsel or refer their patients for doctor-assisted suicide under the state’s prescribed-suicide law, Act 39.

The conscientious objection case that Compassion & Choices (C&C) had been appealing was originally brought by the Vermont Alliance for Ethical Healthcare and the Christian Medical & Dental Associations because state medical authorities (Vermont Board of Medical Practice and the Office of Professional Regulation) interpreted state laws to mean that doctors and other clinicians were required to counsel all terminally ill patients for assisted suicide. Doctors who did not comply for conscience reasons would be subjected to professional sanctions. [Vermont Alliance for Ethical Healthcare v. Hoser, Complaint, US District Ct. of VT, 7/19/16]

The district court dismissed the case, ruling that the two plaintiff groups lacked standing. But the court also found that Act 39 does not impose “any obligation on physicians who do not choose to prescribe lethal medication or in other way participate in assisted suicide.” [VT Alliance v. Hoser, Opinion & Order, 4/5/17]

C&C had initially spun the district court ruling as a victory because the judge dismissed the case, but then objected to a consent agreement between the two plaintiff groups and the defendant Vermont Board of Medical Practice. The agreement stipulates that health care providers “do not have a legal or professional obligation to counsel and refer patients” for assisted suicide, but do have “a professional obligation to provide relevant and accurate information regarding [Act 39] upon a patient’s request.” (Emphasis added.) If the doctor is unwilling to provide that information personally, the doctor must refer the patient to a source of general information.

The agreement further requires the defendant state agencies to “revise all State-owned web sites” that erroneously state that medical professionals have an obligation to refer and counsel all terminally ill patients. [VT Alliance v. Hoser, Consent Agreement & Stipulation, 5/3/17]

By dropping its appeal, C&C is allowing the consent agreement to stand.

While that is a definite victory for those who oppose doctor-prescribed suicide, there are some medical providers for whom the requirement to refer inquiring patients to assisted-suicide informational sources compromises their strongly held beliefs.

     When patients’ death requests supersede physicians’ conscience rights

Congressional efforts to overturn the Washington, D.C., doctor-prescribed suicide measure, signed into law last December, have failed due to a lack of action on a joint resolution of disapproval within the limited time allowed by law.

Both the U.S. Constitution and the D.C. Home Rule Act gives Congress jurisdiction over the District of Columbia and the power to overturn its laws as long as Congress takes action within 30 working days after receiving the newly passed law. If Congress takes no action or fails to get a disapproval resolution passed by both the House and Senate and obtain the president’s signature on the resolution before the deadline, then the D.C. law goes into effect.  Congress’s deadline for the assisted-suicide measure expired on February 20, 2017.

The joint resolution of disapproval, H.J. RES. 27, was referred to the House of Representatives Committee on Oversight and Government on January 12. The committee debated the resolution on February 13 and voted (22 to 14) to send it to the full House for approval. But it was never sent—despite Committee Chairman Jason Chaffetz’s (R-UT) pledge to overturn the D.C. law and his statements that it had “serious flaws” and that he worried that it would “create a marketplace for death.” [Washington Post, 2/8/17, 2/13/17; Reuters, 2/13/17]

With the resolution dead, House Republicans are looking at a new tack: drying up the new law’s funding by using Congress’ appropriation process. [Washington Post, 2/15/17]

While the D.C. law is modeled after Oregon’s, it does not require patients to “self-administer” the lethal drugs. As such, it could be interpreted to allow persons other than the patient to place the drugs in the patient’s mouth or administer them through an IV tube. Like the Oregon law, the D.C. measure has no provisions protecting patients at the time the fatal overdose is ingested. There is no way of knowing if the patient took the drugs voluntarily or if they were forced to ingest them.

 Mayo Clinic study finds over 20% of patients are totally misdiagnosed

A study, published in the Journal of Evaluation in Clinical Practice (JECP), has found that almost 88% of patients who went to the Mayo Clinic for a diagnostic second opinion ended up with a new diagnosis. In 21% of the cases, patients received a completely different diagnosis, while 66% received a “refined or redefined” diagnosis. The original diagnosis made by the primary care doctor was confirmed in only 12 percent of the cases.

According to lead researcher Dr. James Naessens, diagnostic errors can cause harm to the patient and even death. “Knowing that more than 1 out of every five referrals may be completely [and] incorrectly diagnosed is troubling—not only because of the safety risks for these patients prior to the correct diagnosis, but also because of the patients we assume are not being referred at all,” he said.

To cut costs, health insurers often set limits on referrals outside of their network of providers. This significantly lessens the number of second opinion referrals made by primary care practices to medical specialists who have the expertise to more accurately assess a patient’s condition. [JECP, 4/4/17; Mayo Clinic Press Release, 4/4/17]

This is particularly troubling considering that, while all the existing state doctor-prescribed suicide laws in the US require a consulting physician’s second opinion before lethal drugs can be prescribed, none require that the second physician be an actual specialist. With the 88% diagnostic error rate found in this study, the likelihood that patients misdiagnosed as terminal are being prescribed fatal drugs is very real.

News briefs from home & abroad

  • Arizona: Assisted suicide is not legal in Arizona, but that didn’t stop lawmakers from proactively passing a bill (SB 1439) that would protect the conscience rights of health care professionals and facilities who choose not to participate in intentionally life-ending procedures or processes. Governor Doug Ducey signed the bill into law on March 24. Should doctor-prescribed suicide ever become legal in the state, there’s a law already on the books that prohibits discriminating against or penalizing conscientious objectors for not “causing or assisting in causing the death of any individual, such as by assisted suicide, euthanasia or mercy killing.”
  • New YorkOn May 30, the NY Court of Appeals, the state’s highest court, heard oral arguments in Myers v. Schneiderman, a case originally filed in 2015 that challenged the constitutionality of NY’s statutes banning assisted suicide and sought an injunction to prohibit the prosecution of doctors who prescribe lethal drugs to terminally ill patients. A lower court dismissed the case, saying that the US Supreme Court had already ruled, in the 1997 case Vacco v. Quill, that NY’s statutes were constitutional. Then the plaintiffs—three patients, five doctors, and End of Life Choices NY (formerly Compassion & Choices of NY)—appealed the case to an intermediate appellate court, but their arguments were unanimously rejected by the panel of four judges. Now, before the highest court, attorneys for the remaining plaintiffs argued that prescribing lethal drugs is aid-in-dying, not assisted suicide. Consequently, it’s not against law, they said. A decision by the Court of Appeals is expected in late summer. If the court were to rule in favor of the plaintiffs, it doesn’t mean assisted suicide would be legalized, only that the plaintiffs could return the case to the lower courts for deliberation. [Times Union, 5/29/17; AP, 5/30/17; News 10, 5/30/17; Courthouse News, 5/31/17]
  • Washington, D.C.A new study on cancer and the risk of suicide found that the suicide rate in patients with any type of cancer was 60% higher compared with the general population. The suicide rate for patients diagnosed with lung cancer, was astronomically high: 420% higher than the general public. (That’s not a typo.) The study’s findings were presented at the American Thoracic Society’s 2017 International Conference in Washington, D.C., on May 23. “We wanted to see what the impact of one of life’s most stressful events is on patients,” explained Mohamed Rahouma, M.D., the study’s lead researcher from Weill Cornell Medical College/NY Presbyterian Hospital. “While cancer diagnosis counseling is an established practice, referral for ongoing psychological support and counseling typically does not happen,” he said. [American Thoracic Society, Press Release, 5/23/16] The annual assisted-suicide reports from Oregon and Washington State substantiate the lack of psychological support. The number of patients who are referred for a psychological evaluation before receiving lethal drugs from their doctors is extremely low, ranging between 3% to 5% of the total number of prescribed-death cases.
  • Australia: For the last year, the debate over “voluntary” euthanasia has been raging in the Australian states of Victoria, New South Wales (NSW), South Australia, and Tasmania. The Victoria government created a series of committees and panels, not to study if euthanasia should be legalized, but rather how to make a euthanasia law safe. As a result, a draft “Voluntary Assisted Dying Bill” is expected to be introduced in the Victoria Parliament later this year. Likewise, a NSW parliamentary working party has been drafting that state’s proposed euthanasia bill and could introduce it as early as August of this year. Last November, the South Australian Parliament defeated its “Death with Dignity Bill” by one vote. Another bill was overwhelmingly rejected on May 24 by the Tasmanian Parliament.