Update 011: Volume 11, Number 5 (November-December 1997)

Special Report
Oregon’s Death Wish: The Vote and the Aftermath

In a special November election, Oregon voters rejected a measure to repeal the world’s only law allowing doctors to intentionally prescribe lethal medications to end the lives of patients thought to be terminally ill.

The physician-assisted suicide (PAS) law, known as Measure 16 or the Oregon Death with Dignity Act, had been passed in 1994 by the narrowest of margins (51% to 49%), in an election with the lowest voter turnout since 1978. Shortly after the law passed, it was challenged in federal court on constitutional grounds and barred from taking effect. Earlier this year, the 9th Circuit Court of Appeals dismissed the constitutional challenge to Measure 16 (Lee v. Oregon), ruling that the plaintiffs in the case lacked legal standing to challenge the law. Concerned that Measure 16 might soon be enacted, and knowing that the law as passed in 1994 was loosely written and dangerously flawed, the Oregon Legislature referred the law back to the voters for reconsideration in a special election on 11/4/97. (For more on Measure 16’s flaws, see Update, 8-10/97:1-7.)

The Vote

Oregonians firmly rejected the repeal of Measure 16 by a vote of 666,275 (60%) to 445,830 (40%), with 60% of all registered voters turning in their ballots. [Sec.of State’s Office, Official Results (Measure 51), 12/3/97] The vote came as a surprise to most, since campaign polls had indicated a much closer race.

The special election was a mail-in vote. Voters began receiving their ballots in mid-October and had until November 4th to submit their votes. But despite the lengthy time voters had to reconsider the PAS law, many remained confused about the issue, skeptical regarding new information about the law, and susceptible to the pro-PAS camp’s evasive campaign strategy.

The way the vote was set up added to voters’ confusion. If one wanted to repeal the law and vote NO on Measure 16, that individual had to vote YES on Measure 51 (the repeal measure placed on the ballot by the Legislature). Likewise, a YES vote to keep Measure 16 required a NO vote on Measure 51. Studies have shown that, in this type of repeal vote, as many as 25% of voters can accidentally vote against their real choices. [U.S. News & World Report, 11/10/97]

Also, during this campaign, the truth was sometimes hard to recognize. The “Yes on 51” camp based it’s repeal campaign on documented information regarding Measure 16’s serious and dangerous flaws. While that data was entirely factual, many voters were skeptical and considered the information nothing more than campaign hype. “They didn’t want to believe that the law they passed in 1994 could possibly be as bad as they were hearing during this campaign,” observed IAETF executive director Rita Marker. “Even those who thought the information might be true, weren’t quite sure,” she said.

Another factor — which directly affected how voters viewed the effort to repeal the PAS law — dealt with the perception, fostered by the pro-PAS camp, that Measure 16 had bestowed a new right upon Oregon patients in 1994. In actuality, it was physicians, not patients, who were empowered by the physician-assisted-suicide law, which gave doctors an unprecedented legal license to end lives. Yet, despite this — and the fact that the yet-to-be-enacted law lacked effective safeguards to protect vulnerable patients against abuses — voters still viewed the law’s repeal as taking something “good” away from them. “We failed to convince people that there was no right being taken from them,” observed Bryan Platt, head of the “Yes of 51” repeal effort in Medford, OR. [Mail Tribune (Medford), 11/5/97]

Perhaps the biggest overriding factor in the defeat of the repeal campaign was the openness of Oregon voters to the evasive and often deceptive strategies employed by the pro-PAS “No on 51” campaign. Headed by Measure 16’s chief petitioner in 1994, Barbara Coombs Lee, the right-to-die camp argued that the issue was not whether Measure 16 should be law — that was already decided in 1994 when voters passed the measure. The issue, according to Coombs Lee, was whether the Roman Catholic Church, state and national right-to-life groups, and “religious right-wing politicians” in the Oregon Legislature should be allowed to impose their values on all Oregon citizens. It was an argument which struck a chord with the independent, pioneering mentality prevalent in Oregon.

“It’s a peculiarly Western, and by that I mean western United States, perspective,” explained Portland pollster Tim Hibbitts. “It’s a libertarian, not a liberal, perspective. In essence, this libertarian concept says, ‘You stay out of my business, and I’ll stay out of yours,'” he said. Hibbitts added that churches have little influence in Oregon, with only one in three Oregonians regularly attending services. This fact, Hibbitts said, contributes to Oregon’s predominantly libertarian attitude, with religions’ emphasis on social responsibility and the belief that what happens to the individual should be the concern of society at large having little effect. [Oregonian, 10/19/97:A1]

The pro-PAS camp was unabashed in it’s strategy to enrage voters against those who would “impose their will” on Oregonians. Coombs Lee repeatedly framed the repeal effort as being the work of “anti-liberty” groups with moral and religious objections to assisted suicide. [AP, 9/28/97]

One radio ad told voters that the Legislature usurped the will of the people and wanted to take away patients’ rights by putting the repeal measure on the ballot. “Why do we even have to vote on something we already approved? Because a small group of religious, right-wing politicians ramroded it through the Legislature,” the ad claimed. Sponsored by the “Don’t Let ’em Shove Their Religion Down Your Throat Committee,” a subsidiary of the “No on 51” campaign, the ad impressed many independent minded voters. Salem voter Byron Londberg, 71, said, while he had personal misgivings about PAS, he resented having to vote on the issue again. “They’re telling us our earlier vote didn’t count,” Londberg said. “I think we need to push some of those legislators out of there.” [AP, 11/1/97]

The pro-PAS camp was adept at running an evasive campaign of smoke and mirrors, constantly shifting the public’s attention away from the real issue (a flawed PAS law) and on to some peripheral gripe with organized religion or the government. For example, Coombs Lee used this tactic during a debate featured in the Statesman Journal newspaper. When asked, “If someone voted against Measure 16 last time, why should they oppose Measure 51?”, Coombs Lee shifted the focus away from Measure 16 and onto the Legislature. Her response was passionate:

“Because… this is not so much about the right to die, as it is about the right to vote. And the question is: What does it mean to vote in Oregon?… From what this Legislature has done, it would appear that it means nothing to them…. So, to tell the Legislature that voters deserve their respect, you would want to vote no on Measure 51 in 1997.” [Statesman Journal, 10/15/97:4C]

Commenting on this evasive strategy, “Yes on 51” campaign manager Trish Conrad observed, “This campaign is about this law [Measure 16]. The reason they don’t want to talk about it is they know it’s flawed.” [Statesman Journal, 9/25/97:4C]

Dr. William Toffler, head of Physicians for Compassionate Care, a group which supported the repeal of Measure 16, characterized the “No on 51” effort as “a well-orchestrated campaign repeating a mindless mantra that choice is good regardless of the serious consequences to society at large and the medical profession in particular.” [Sunday Oregonian, 10/19/97:A1]

So, once again, Oregon voters gave doctors the power to prescribe death for their patients.


The Aftermath

On November 4th, along with the news that the repeal effort had been defeated, came the surprising announcement by the state attorney general’s office that Measure 16, which had been held up in courts for three years under a permanent injunction, had quietly gone into effect a week earlier without the public realizing it. While there was some debate within legal circles as to whether the injunction had indeed been lifted, one fact was clear: Oregon had to quickly figure out how to handle a brand new medical field (physician-assisted suicide), with no medical experts or expertise upon which to draw, and an ambiguously worded PAS law, wide open to abuse.


Privatizing assisted suicideImmediately media interest focused on how soon the first deaths could take place. One newspaper article dated 11/18/97 speculated that, if patients requested a lethal prescription the day following the election, they could receive the drugs after 15 days, and conceivably “could kill themselves with a doctor’s prescription later this week.” [AP, 11/18/97] 

While the media was probing to get a scoop on any prospective assisted suicide, PAS advocates were insisting that this new form of private killing should remain very private. When asked during a post-victory press conference whether there were any patients in line to use the new law, Coombs Lee assured reporters that she didn’t know of any and that she really didn’t expect to have any of the situations come to her attention. “Our position and our experience is that this is enormously private and personal, and this is something that will take place in the confines and in the confidentiality of the physician/patient relationship, within the family, with perhaps close friends and clergy,” she said. [“No on 51” Press Teleconference, 11/5/97]

This push to keep the actual practice of assisted suicide away from public scrutiny is really nothing new. Drafters of Measure 16 — one of which was Coombs Lee — included a provision barring even the
Oregon State Health Division from reviewing all but a “sample” of assisted-suicide records, and even that sample “shall not be a public record and may not be made available for inspection by the public.” [Oregon Death with Dignity Act, 1994, Section 3.11]

Shortly before Measure 16 was barred from taking effect in 1994, a state Death With Dignity Task Force (DWDTF) was formed to try to iron out the new law’s many problem areas. At that time, some of the DWDTF policy-makers argued that the Health Division — designated by Measure 16 as the oversight agency to monitor PAS practices for abuses — should not even be allowed look at PAS patients’ medical records since that would be a breach of doctor/patient confidentiality. Coombs Lee and fellow Measure 16 supporters, lawyers Eli Stutsman and Ted Falk, all DWDTF members, argued that death certificates should not indicate that PAS was the cause of death. Doctors lie on death certificates all the time, they said, and, since these certificates are public information, to do otherwise would be another breach of confidentiality. Stutsman also suggested that keeping PAS deaths secret would prevent any media attention from being focused on the novel deaths. [Statesman Journal, 12/2/94:1A] Coombs Lee, in a 1994 interview with an Oregonian reporter, put it this way: “[T]he people of Oregon do not deserve to know the details of the individual fatal diseases and deaths.” [Oregonian, 11/27/94]

Presently, efforts to keep PAS cloaked in secrecy have been successful. In a 12/12/97 memo from Sharon Rice of the Health Division’s Center for Health Statistics, county agencies which handle vital records have been ordered to keep quiet regarding PAS cases. “You will neither confirm nor deny if a (physician assisted) death has occurred in your county,” she wrote. As an indication as to just “how seriously this matter is being taken by the state Health Division,” the memo stated, “any staff within the Center for Health Statistics that reveals any information they are not authorized to release will immediately be terminated.” Furthermore, if a county is responsible for leaking PAS information, that county’s authority to access and distribute vital records for the state will be stripped.

According to Oregon Health Division’s Dr. Katrina Hedberg, “These steps may be totally unprecedented, but so is this whole law.” “The stakes are really high here,” she explained. “A breach of confidentiality around a case of salmonellosis (food poisoning) is not the same as a breach revealing which doctor in which town in Oregon assisted a suicide.” There is the concern among state officials that leaks will upset and anger doctors, causing them to not report assisted-suicide deaths. [AP, 12/30/97]

Enters the Fray

In a determination which has left most Oregon physicians reluctant to enter the assisted-suicide business, the U.S. Drug Enforcement Administration (DEA) has said that doctors who prescribe lethal medications to assist a suicide violate the federal narcotics law, and could lose their licenses to prescribe drugs. This determination was issued by DEA Administer Thomas A. Constantine in a letter to Rep. Henry Hyde dated 11/5/97.

Hyde (R-Illinois) and Sen. Orrin Hatch (R-Utah) had sent a letter to Constantine earlier this year inquiring “as to whether delivering, distributing, dispensing, filling a prescription, or administering a controlled substance with the deliberate intent of assisting in a suicide would violate the Controlled Substance Act….” Constantine responded, “As you are aware, the Controlled Substance Act (CSA) authorizes the DEA to revoke the registration of physician who dispense controlled substances ‘without a legitimate medical purpose’… the activities that you describe in your letter to us would be, in our opinion, a violation of the CSA.” [Oregonian, 11/7/97:A1, 11/8/97:A1; Statesman Journal, 11/7/97:4C; AP, 11/11/97]

As word of the DEA decision spread, the issue quickly turned political, with many of Oregon’s Congressional and legislative lawmakers, as well as the governor, sending messages objecting to the determination to U.S. Attorney General Janet Reno, head of the Department of Justice — which includes the DEA. Reno subsequently held a news conference, saying that she had not been notified of the DEA’s decision and that the issue was important enough to necessitate a review and final determination by the whole Justice Department. [Oregonian, 11/14/97:A1, 11/20/97; Statesman Journal, 11/8/97:1A]

At issue is whether prescribing controlled drugs for the purpose of ending a life in an assisted suicide is considered a “legitimate medical purpose.” Arguing on behalf of Measure 16’s chief petitioners, attorney Eli Stutsman said, “[W]hen voters passed Oregon’s Death With Dignity Act… Oregon legalized the writing of prescriptions for dying patients to hasten their own deaths. Oregon law now makes prescribing medication under the Controlled Substances Act a ‘legitimate medical purpose.'” [Oregon Right to Die, Press Release, 11/7/97] The state of Oregon has essentially adopted the same argument. According to Oregon Attorney General Hardy Myers, the state’s voters determined that assisted suicide is a “legitimate medical purpose,” and the DEA has no authority to counter that. [Oregonian, 11/20/97]

But others argue that a change in the law of one state does not change Federal law. Oregon can alter its state laws and penalties, but that does not affect established Federal law, which exists independently and supercedes state law.

In a letter dated 12/15/97, 64 elected officials (40 Republicans, 24 Democrats) from Congress and elsewhere urged Reno to support the DEA’s determination. The officials argued that “there is agreement among all three branches of the Federal government that assisted suicide is not a legitimate medical practice.” They based this statement on the following positions taken by the three branches of government in 1997: (1) Congress overwhelmingly passed the Assisted Suicide Funding Restriction Act (ASFRA), barring all Federal funding of the practice; (2) President Bill Clinton’s clear and unequivocal opposition to assisted suicide and euthanasia, expressed in his signing the ASFRA into law and stating at the time that it would “allow the Federal Government to speak with a clear voice in opposing these practices”; and (3) the Supreme Court’s unanimous ruling upholding state laws banning assisted suicide and citing various medical groups’ position that PAS is “fundamentally incompatible with the physician’s role as healer.” The elected officials concluded:

“A decision by a state to rescind its own penalties for assisting a suicide cannot supersede Federal laws, compel Federal support, or remove Federal responsibility to uniformly enforce laws passed by Congress and approved by the President. On the contrary, the duty of the Federal government to prevent the misuse of prescription drugs becomes even more compelling when a state allows such controlled substances to be provided with the intention of ending a person’s life, or helping another to do so.” [Letter to Janet Reno from members of Congress and others, 12/15/97]

A final decision from the U.S. Attorney General’s office is still pending.



Pharmacists and Physicians at OddsIt didn’t take long for pharmacists and physicians to recognize that their respective “rights,” as guaranteed in Measure 16, could be in conflict. Shortly after the election, the Oregon Board of Pharmacy (OBP) issued an emergency order requiring physicians to indicate on prescription forms if the drugs being prescribed were for assisted suicide. The Oregon Medical Association (OMA) immediately threatened legal action, arguing that identifying assisted-suicide prescriptions would violate patient confidentiality. Physicians were also worried about their involvement in any suicide becoming public knowledge and, among other things, alerting the DEA. But the OBP stood firm, arguing that, in order for pharmacists to exercise their right under Measure 16 to refuse to participate in an assisted suicide, doctors had to indicate on the form if the prescription was for a lethal purpose. [Oregonian, 11/19/97; AP, 11/19/97] 

Currently, representatives from the OBP and the OMA are trying to hammer out behavior guidelines acceptable to both groups. According to OMA Assistant Executive Director James Kronenberg, the guidelines would involve three possible actions:

  • Doctors can fill out the prescription form according to the OBP directive by indicating that the prescription is for an assisted suicide; or
  • A doctor could apply to the state Board of Medical Examiners to become licensed as a dispensing physician, allowing the doctor to fill the deadly prescription he or she has written; or
  • The doctor could contact the pharmacist by phone, with the patient’s permission, to find out if the pharmacist is willing to fill the lethal prescription. If the pharmacist agrees, then the doctor would deliver the prescription form to the pharmacist, obtain the medication, then dispense it to the patient.

While the OMA and OBP carry on their negotiations, pharmacists across the state are deciding whether or not to get involved in the induced-death trade. The Tiffany Drug Store chain in Eugene, OR, notified its pharmacists that no assisted-suicide prescriptions should be filled until the legality of the practice on the federal level is decided. Another chain, Fred Myer, Inc., told its pharmacists that PAS participation was up to the pharmacist’s individual discretion. [Oregonian, 11/22/97]


PAS, Health Plans, and Cost-ContainmentMost Oregon health insurers and managed-care programs have said they will cover PAS costs. Those health plans include Kaiser Permanente, PacifiCare, Regence Blue Cross & Blue Shield of Oregon, and QualMed Oregon Health Plan. Catholic health plans, however, have made it clear that they will not cover PAS. Neither will Medicare, which is prohibited from funding PAS and euthanasia by the Assisted Suicide Funding Restriction Act passed by Congress earlier this year. [American Medical News, 11/24/97:3] 

Managed care programs usually try to avoid any public discussion of the cost-cutting, profit-raising benefits inherent in PAS. Costs are obviously lessened and profits increased if the patient dies sooner rather than later, or at least before expensive care or treatment is provided. Even during the Oregon campaign, some in the HMO community who were publicly in favor of repealing the PAS law asked that the “Yes on 51” repeal campaign refrain from bringing the cost-saving argument to the public’s attention. But the subject was raised very late in the campaign by the state’s largest newspaper, The Oregonian.

In an article, entitled “Money’s influence figures in debate on assisted suicide,” reporter Mark O’Keefe discussed ways in which vulnerable patients and their families might be financially pressured into choosing the PAS option. One way involved QualMed Oregon Health Plan, one of Oregon’s largest HMOs. It’s representative, Chris Palmedo, said that QualMed would cover the $35 to $75 cost of lethal medications “as a prescription.” He also confirmed that QualMed offers a “value option” health plan which limits hospice care for the terminally ill to only $1,000. Gregory Hamilton, M.D., a Portland psychiatrist actively opposed to Measure 16, commented, “The fact is that a $1,000 cap on in-home care for the terminally ill pressures the patient and puts the weak and the vulnerable into a bind.” Dr. Daniel Sulmasy, of Georgetown University’s Center for Clinical Bioethics, would agree. “Like alcohol and gasoline, managed care and managed death do not mix,” he explained. Sulmasy, who has conducted a survey of physicians and their attitudes regarding PAS, found “the more thrifty they are, the more willing they are to do it.” [Sunday Oregonian, 10/26/97]

The cost-conscious Oregon Health Plan, the state’s Medicaid health care rationing plan for low-income residents, will likely cover PAS using state funds only. “Physician-assisted suicide is a potential medical service and as such it is probable that it would be on the prioritized list somewhere,” explained the Health Services Commission Chairman Dr. Alan Bates. The Oregon Health Plan rations medical treatment for the poor by ranking services according to priority. All medical treatments listed above a funding cut-off line are covered; those beneath the cut-off are not. The Health Services Commission plans to reach a final decision regarding the funding of PAS and its ranking in a few months.

But one Commission member, Amy Klare, has already said that PAS should be categorized as “comfort care” or hospice-style pain and symptom management, a category ranked fairly high on the list. “I don’t view this as producing death. These people are dying.” Klare explained. “It seems logical this would fall under comfort care.” [AP, 12/12/97; Statesman Journal, 12/12/97] That was the same conclusion reached in 1994 by the state’s Medicaid director, Jean Thorne. She told reporters then that assisted suicide would be covered by the state health plan as “comfort care.” [Statesman Journal, 12/6/94:1A]

Commission Chairman Bates has emphasized that any debate now regarding PAS’s coverage or ranking by the state will not include “is it cheaper to kill someone or keep them alive?” Instead, he said, “It will be an ethical debate on the proper steps to take.” [Statesman Journal, 12/12/97] But some observers around the country are skeptical. Commenting on the recent Oregon vote, an editorial in the Augusta Chronicle (GA) read,

“We don’t believe it’s any accident, either, that euthanasia is picking up steam just at a time when lowering cost — rather than improving quality — is the top priority in medical care. If you have old or ailing loved ones in Oregon, you might want to help them move to another state.” [Augusta Chronicle, Editorial, 11/9/97]



Moving in for the Kill

Washington State’s right-to-die organization

Compassion in Dying (CID) has announced that it will move its headquarters from Seattle to Portland, OR. CID is the Hemlock Society spin-off group which, since 1993, has been facilitating, assisting, and attending suicides in Washington, a state where assisted suicide remains a crime. CID challenged the constitutionality of the anti-assisted-suicide laws in both Washington and New York, claiming that they violated the 14th Amendment — a claim that the U.S. Supreme Court unanimously rejected earlier this year. [See Update, 6-7/97:1]

Barbara Coombs Lee, who, in addition to being the chief spokesperson for Measure 16 during the 1994 and 1997 Oregon campaigns, has been CID’s executive director since 1996. But she is not the only person in Oregon to have actively supported Measure 16 and had connections to CID. Peter Goodwin, M.D., who had a hand in writing Measure 16 along with Coombs Lee and was a spokesperson during both the 1994 and 1997 campaigns, is the medical director for CID’s Oregon chapter. Other Measure 16 supporters with CID chapter leadership roles include state Rep. George Eighmey (D-Portland) and right-to-die activists Dorothy Hoogstraat and Judith Fleming.

With a victory at the polls, CID has everything to gain by moving to Oregon. With its deadly, previously covert “services” now legal and packaged as “counseling” and “comfort to dying patients,” CID can pawn itself off as “professional,” with expertise in a specialized “field.”

According to Coombs Lee, CID will now help manage assisted suicide requests and be responsible stewards of the law. CID will, among other things, provide patients with a list of doctors willing to assist them in suicide, and provide doctors with recipes for deadly medications as well as instructions on how to best prescribe them — a service the Oregon Medical Association refused to provide. “We have always intended to model what assisted dying would look like if it could be done in an open, honest and responsible way, like health professionals would do it,” Coombs Lee explained. “Now that there is an area where that is a reality, it would seem irresponsible to not bring our knowledge and our experience to that place and offer it.” [AP, 1/5/98; Oregonian, 11/10/97, 1/5/97:A1]

Apparently Coombs Lee’s keen sense of responsibility does not include being completely forthright with voters about certain aspects of the PAS law, which she, as a nurse, lawyer, and former managed-care executive, helped write.

Last summer, at a Seattle Pacific University conference held months before the Oregon election, Coombs Lee’s CID colleague, lawyer Kathryn Tucker, told the audience:

“In my view, the Oregon measure, in some sense, became overly restrictive. It has a fifteen-day waiting period. And my own view of the federal constitutional claim is that a fifteen-day waiting period would be struck down immediately as unduly burdensome. As we’ve seen in the reproductive rights context, you can’t have a waiting period of that kind of duration. But in the legislative forum, to pass, you need to have measures that convince people that it’s suitably protective, so you see a fifteen day waiting period.” [K. Tucker, Seattle Pacific University., 7/12/97; emphasis added.]

Tucker is the head of CID’s legal arm and led CID’s two constitutional challenges all the way to the U.S. Supreme Court. Her statement confirms what PAS opponents have been saying all along: Measure 16 was drafted in such a way as to fool voters into accepting a law that appeared protective, but, once the proverbial foot is in the door, the measure could be challenged and then expanded to be far less restrictive and more in line with what right-to-diers really wanted.

Minimizing Differences & Exporting Death as Palliative Care

The next round in the right-to-die battle across the country will attempt to give a new meaning to the term “palliative care.” The strategy is simple: Blur distinctions and get people to view assisted suicide as just one more palliative care treatment option in the war to alleviate pain and suffering.

The day following the Oregon victory, Coombs Lee captured the media’s “moral high ground” during a press conference, stating that the right-to-die movement was more than willing to work together with its opponents “to improve end-of-life care.” She explained further:

“We share so much in the way of a philosophical and a practical commitment to improving care at the end of life. We all believe at the end of life patients should have every available means to address their symptoms, including medications and other therapies that may hasten their deaths and shorten their lives… Really, the only place that we diverge is what happens when palliative care fails… And we would add this other option [PAS]. But there are so many things that we can and would like to work together on.” [“No on 51” Press Teleconference, 11/5/97]

On the same day Coombs Lee was making her pitch for solidarity, Kathryn Tucker was testifying before

California legislative hearing, one of two conducted by the Assembly Select Committee on Palliative Care, headed by Assemblywoman Carole Migden, D-San Francisco. The stated purpose of the committee was to “review issues associated with treatment of terminally ill persons, including pain management and physician assisted dying.” “Everyone seems to agree that pain management and accessibility to quality palliative care needs to be greatly improved,” Migden said. “Our committee will strive to accomplish these consensus goals and determine whether legislation should be pursued to provide additional rights to terminally ill patients for whom even the best pain management and palliative care may not suffice.” [Carole Migden, News Release, 10/6/97] Tucker attended the Northern California hearing on 11/5/97; Coombs Lee spoke at the Southern California session on 11/17/97.



Putting It into PerspectiveThe significance of the Oregon election so moved Christopher Zoolkoski, a medical student in Southwest Portland, that he wrote a letter to The Oregonian. “We are now the only state in the only country in the world where physician-assisted suicide is legal,” he observed. “We have taken a dangerous step backward in our efforts to provide good end-of-life care. We have voted for a solution that is simplistic and cheap and that prognosticates the decline of a profession whose duty it is to help foster the will to live in those in despair.” [Letter to the Editor, Oregonian, 11/20/97] 

Can this “dangerous step backward” be reversed? The answer is yes! As far as Oregon is concerned, the DEA’s determination, that prescribing lethal drugs for assisted suicide is a violation of Federal law, may very well be upheld. Also, while the injunction barring Measure 16 from taking effect has been lifted, U.S. District
Judge Michael Hogan has granted the plaintiffs in Lee v. Oregon another hearing on 2/17/98 to assess new arguments regarding plaintiffs’ standing. [Oregonian, 11/26/97:A1] It is ironic that it just may take the enactment of the PAS law to get the 9th Circuit Court of Appeals to recognize that patients singled out by Measure 16 are harmed by a law which denies them the same state protection all other people are afforded.

But if the Federal government or the courts do not put an end to this legalized killing, Oregonians, themselves, can do so by waking up to the fact that they have been manipulated by a right-to-die movement that has become very adept at deceiving the public. It’s time for Oregon (and other targeted states) to call things what they are. Assisted suicide has absolutely nothing to do with patient “comfort care.” It has everything to do with patient abandonment.

Michigan Senate Passes Anti-Assisted-Suicide BillOn 12/4/97, Michigan’s state Senate passed a bill banning assisted suicide by a vote of 27-8. The bill would make assisted suicide a felony, punishable by up to five years in jail and/or a $10,000 fine. [Substitute
SB 200] According to the bill’s sponsor, Sen. William Van Regenmorter, the new bill was written to be “clear and unambiguous… that assisting in a suicide is illegal.” “We want straight forward, black-letter law, so that jurors cannot be confused,” he added. The House is expected to take up the bill early in 1998. [Detroit Free Press, 12/2/97, 12/5/97; Detroit News, 12/5/97] 

Editor’s note on Kevorkian: Since last reported in the Update, Jack Kevorkian has claimed 11 more lives. He has officially taken on an apprentice, psychiatrist Georges Reding, and announced, through his lawyer, that organs taken from willing victims will be available in the near future on a first come, first serve basis. He has also threatened to starve himself to death if SB 200 passes and he is ever jailed. Due to this Update’s lengthy report on Oregon, these and other Kevorkian developments will be reported on in-depth in the next Update.

A Tale of Two DoctorsCanadian doctor,
Maurice Genereux, has become the first physician in that country to be convicted of assisted suicide. Genereux, 50, pleaded guilty to two counts of assisting a suicide and is scheduled to be sentenced in March 1998. Under Canada’s Criminal Code, counseling or aiding a suicide, or an attempted suicide, carries a sentence of up to 14 years in prison. 

Genereux, a Toronto specialist working with patients with HIV and AIDS, prescribed potentially fatal doses of barbiturates to two HIV patients. Aaron McGinn, 31, died as friends sat by watching because Genereux had told them McGinn wanted to die. The other patient, referred to as Mr. X in court records, lived after a friend found him and got help. The evidence compiled by the Crown indicated that Genereux dispensed narcotics and other drugs virtually on demand and was not one to interfere if a patient wanted to die. In fact, Mr. X testified that “Maurice was a Pez dispenser for drugs.” “I’d go in with a list and he’d fill it,” he said. “He gave no one hope, none.” [Globe & Mail, 12/23/97; AP, 12/22/97]

Unlike Genereux, Oregon physician James Gallant will not be punished for his crime. Lane County District Attorney Doug Harcleroad decided not to file criminal charges against Gallant, even though the Oregon Board of Medical Examiners had previously accused him of “active euthanasia” and ruled that his actions were illegal and unethical. But that was not how Harcleroad viewed Gallant’s actions. He called them “a mistake.”

At issue were actions Gallant took in caring for Clarietta Day, 78, who had suffered a brain hemorrhage and was admitted to Good Samaritan Hospital in Corvallis on 3/22/96. While under Gallant’s care and unconscious, Day was given doses of two painkillers every 5 to 10 minutes over a 4-hour period and had a magnet placed over her pacemaker in an unsuccessful attempt to shut it down. Then Gallant ordered a lethal injection of the paralyzing drug, succinylcholine, which the prosecutor said a nurse suggested. Day died 15 minutes later. Gallant signed her death certificate, listing the cause of death as “stroke due to subarachnoid hemorrhage.” [Corvallis Gazette-Times, 7/21/96; Oregonian, 12/11/97] But Harcleroad was not the only one to call what Gallant did “a mistake.” According to a Statesman Journal editorial, “Dr. James Gallant made a mistake by improperly hastening the death of Clarietta Day….. He was disciplined by the state Board of Medical Examiners. That’s where the state’s involvement should end.” [Statesman Journal, Editorial, 12/3/97]

Latimer Convicted Again, but Sentence ReducedRobert Latimer — the Canadian farmer who placed his 12-year-old, disabled daughter in the cab of his truck and gassed her to death by hooking tubes and pipes to the truck’s exhaust system — has been found guilty of second-degree murder for the second time. He had been granted a retrial because of a technicality with his first trial in 1994. But Latimer’s claim remained the same in both trials: he just wanted to end his daughter’s suffering. Tracy had severe cerebral palsy, but was scheduled for routine surgery to relieve her pain. Latimer also told police that he had decided to gas her after rejecting earlier thoughts of shooting her in the head and setting her body on fire. (See Update, 11-12/94:7] 

While second-degree murder carries a mandatory life sentence, with no chance of parole for 10 years, the judge in the new trial, Justice Ted Noble, granted Latimer a rare constitutional exemption. According to Noble, Latimer had killed his daughter out of “mercy,” and the mandatory sentence would be cruel and unusual punishment. Instead, the judge sentenced him to two years less a day, with the first year to be served in jail and the second at home on his farm. Currently, Latimer is free pending appeals filed by both the government (against the reduced sentence) and Latimer (against the conviction).

The reduced sentence has outraged and alarmed the disability community throughout Canada and the U.S. “It will scare the hell out of many people, especially those who can’t speak out,” warned Gregor Wolbring, spokesman for the Council of Canadians with Disabilities. “[Tracy] had to trust her parents. She never asked to be put to death,” he said. [Edmonton Journal, 12/2/97; Halifax Herald, 12/3/97]

Seeking the Death of Robert Wendland 

Wesley J. Smith

ROBERT WENDLAND should die so that his family can “be allowed to live their lives,” Dr. Ronald Cranford, a Minnesota neurologist and bioethicist, testified recently in the Stockton, CA, courtroom of Superior Court Judge Bob McNatt. The chosen method of death? Intentional dehydration and starvation.

What has Wendland, 45, done to deserve such a fate? He went into a coma in September 1993 from injuries sustained in an automobile accident. Sixteen months later, he awakened from the coma, paralyzed on one side and unable to walk, talk or swallow well enough to eat. He is physically and cognitively disabled and dependent on others for his care. He is not terminally ill. He is not hooked up to machines. He does require a feeding tube to sustain his life.

Those who seek to end Wendland’s life downplay his physical and cognitive abilities. That is because people who are diagnosed as permanently unconscious are being dehydrated in this country, all perfectly legal thanks to several court decisions. Now, “right-to-die” activists such as Cranford who has testified in support of dehydration in most of the nation’s major dehydration cases of brain-damaged patients, including that of Nancy Beth Cruzan want to stretch acceptable dehydration to disabled folk with brain damage who are awake and aware. This is the slippery slope in action.

A Wisconsin Supreme Court decision dealt a blow recently to the right-to-die crowd’s hopes when it ruled that it is not acceptable in Wisconsin to dehydrate conscious, brain-damaged patients (who would feel pain and agony) absent clear and convincing evidence probably through a written declaration executed by the patient before illness or injury that dehydration is precisely and explicitly what the now-incapacitated patient wanted. In other words, general statements are not enough. The Michigan Supreme Court issued a similar ruling in 1995.

Cranford and others of his ideological persuasion were not amused by these decisions, seeing them as an impediment to the right to die. Wendland provides an opportunity to expand the law.

Rose Wendland, Robert’s wife, claims Robert would not want to live in his current condition. She bases her claim primarily on her husband’s statements made in the aftermath of her father’s death, three months before Robert’s injury, that he would not want to live if he could not “be a husband, father or a provider.”

But is it right to kill someone because he might have said he would not want to live in a dependent state? Is it right to kill someone because he can’t work and be productive? Is it right to kill someone because he is disabled? Robert Wendland’s mother, Florence Wendland, and half-sister, Rebekah Vinson, say no. They sued to prevent the dehydration.

It is important to note that Wendland has slowly improved in the nearly two years since he awakened from his coma. For example, he:

  • Has maneuvered an electric wheelchair down hospital corridors and can now maneuver a manual wheelchair with his unparalyzed leg or arm.
  • Has written the letter “R” of his first name when asked, as well as some other letters of his name.
  • Has used buttons to accurately answer yes and no questions some of the time. (Is your name Robert? Yes. Is your name Michael? No.) In this regard, one of his doctors asked Wendland if he wanted to die. He didn’t answer the question.

According to Cranford, these and other of Wendland’s activities mean little. He also opined in his testimony that Wendland’s therapists, who believe he has slowly improved, should be disregarded by McNatt because they are only “seeing what they want to see.”

Perhaps it is Cranford who is not seeking what he does not want to see.

It is disturbing that McNatt did not dismiss Rose Wendland’s desire to end her husband’s life out of hand when the case first came to his court two years ago. It is especially disturbing that a noted neurologist such as Cranford believes that one reason to dehydrate Wendland is to benefit his family, even though Rose Wendland has said she now only visits her husband once a month for about 30 minutes, and his children do not visit at all.

Dehydration begins when the feeding tube is removed, and death occurs usually within six to 30 days. Ironically, in order to ensure Wendland doesn’t feel the pain of dehydration, Cranford testified it might be necessary to put him back into a coma with morphine.

It is said that a society is judged by the way in which it treats its weakest and most vulnerable members. Increasingly in the United States, we kill them. Let us hope that McNatt does not add Wendland to the list.

Wesley J. Smith is an attorney for the IAETF and the author of Forced Exit — The Slippery Slope from Assisted Suicide to Legalized Murder, published by Times Books/Random House (1997). His commentary originally appeared in the Sacramento Bee, 11/14/97, and is reprinted here with the author’s permission.


Editor’s Update: Robert Wendland Spared

On 12/9/97, Judge McNatt ruled that Rose Wendland had failed to present clear and convincing evidence that starving and dehydrating Robert to death would be in his best interest. “If I have to choose life and death based on the evidence presented to me, I must err on the side of caution and choose life,” the judge said. “I am not ready to start down that slippery slope without some form of guidance,” he added.

Judge McNatt’s surprise ruling came after Rose and others had testified that, while Robert could do simple tasks, those functions were not sufficiently meaningful to justify letting Robert live. Robert was referred to as being “minimally conscious.” At least six doctors and ethicists testified that it would be ethically permissible to “let him die.” But Janie Hickok Siess, the attorney for Robert’s mother, Florence Wendland, argued that neither Rose’s attorney nor the attorney appointed by the court to represent Robert had presented sufficient evidence to meet the “clear and convincing” burden of proof required under California law. Judge McNatt agreed.

After the ruling, Rose quickly left the courtroom, declining to comment. The next day, however, she angrily criticized the judge, saying, “He took the coward’s way out.” “It’s not ended,” Rose explained. “This is just a formality we went through. It will never be over for us until the day Robert dies.” Rose’s lawyer, Stephen Scott, said they will consider filing an appeal after reviewing Judge McNatt’s written decision. In the meantime, a court hearing has been scheduled for February to hear a motion by Siess to have Robert’s mother and sister replace Rose as Robert’s conservators. [Stockton Record, 12/10/97, 12/11/97; Modesto Bee, 12/11/97; AP, 12/10/97]