More aid in dying laws pass, but who will choose it?
On Aug. 1, New Jersey will become the eighth state to allow doctors to prescribe lethal medication to terminally ill patients who want to end their lives. On Sept. 15, Maine will become the ninth.
So by October, 22 percent of Americans will live in places where residents with six months or less to live can, in theory, exercise some control over the time and manner of their deaths. (The others: Oregon, Washington, Vermont, Montana, California, Colorado and Hawaii, as well as the District of Columbia.)
But while the campaign for aid in dying continues to make gains, supporters are increasingly concerned about what happens after these laws are passed. Many force the dying to navigate an overly complicated process of requests and waiting periods, critics say.
And opt-out provisions — which allow doctors to decline to participate and health care systems to forbid their participation — are restricting access even in some places where aid in dying is legal.
“There are what I call deserts, where it’s difficult to find a facility that allows doctors to participate,” said Samantha Trad, the California state director of Compassion & Choices, the largest national advocacy group for aid in dying.
Still, compared to the national media glare that has followed previous fights over these laws, the movement’s recent victories have generated relatively little furor.
“We’re nearing a tipping point,” said Peg Sandeen, executive director of the Death With Dignity National Center, which oversaw the Maine campaign. “The issue, while still controversial, is less scary.”
The New Jersey bill had neared passage several times since it was introduced seven years ago, but derailed in 2014 when Chris Christie, the governor at the time, threatened a veto. Finally, legislators passed the Aid in Dying for the Terminally Ill Act this winter, and Gov. Philip D. Murphy signed it in April.
In Maine, the state legislature voted yes this spring, but supporters were unsure what the new governor, Janet Mills, would do. As in New Jersey, a Democratic governor replaced an outgoing Republican who had promised a veto.
Mills signed the law last month. “I do believe it is a right that should be protected by law — the right to make ultimate decisions,” she said.
What’s changed?
All these laws require states to track usage and publish statistics. Their reports show that whether a state has six months or 20 years of experience, the proportion of deaths involving aid in dying (also known, to supporters’ distaste, as physician-assisted suicide) remains tiny, a fraction of a percentage point.
In California, for example, just 632 people began the process in 2017, and 241 doctors wrote prescriptions for 577 patients. More than 269,000 Californians in all died that year.
With such data showing no slippery slope toward widespread use or abuse, “a lot of the hypothetical claims our opponents made no longer carry so much weight with lawmakers,” said Kim Callinan, chief executive of Compassion & Choices.
Callinan also pointed to changing attitudes within the medical community, once a well funded source of opposition. In recent years, a number of national organizations and a dozen state medical societies have instead adopted neutral stances.
“It levels the playing field a little,” she said.
Opponents, including Catholic organizations and some disability activists, still denounce these laws. In March, an aid-in-dying bill passed the Maryland House of Delegates but failed after a tie vote in the Senate. Opponents are attempting a ballot initiative to repeal Maine’s new law and pursuing a slow-moving court case to invalidate California’s.
Public opinion polls consistently show broad support for aid in dying, however. Compassion & Choices says its upcoming legislative targets include Massachusetts, Maryland again, New Mexico, New York and Nevada.
But the persistently small number of users suggests that most Americans close to death would not personally choose to self-ingest barbiturates, even if they support legalizing that option. The low numbers may also reflect difficulty in actually using these laws.
A recent survey of 270 California hospitals, published in JAMA Internal Medicine, found that 18 months after implementation of the state’s End of Life Option Act, more than 60 percent — many of them religiously affiliated — forbade affiliated physicians to participate.
“There’s too many roadblocks in the existing legislation,” said Callinan, whose organization has long promoted that legislation. “They’ve actually made it too difficult for patients to get through the process.”
Indeed, a study from Kaiser Permanente Southern California, a health system that supports patients who request and meet requirements for aid in dying, shows that at least a third of those who inquire about it become too ill to complete the process, or die before they can qualify.
Yet states are enacting even more supposed safeguards. Hawaii, whose law took effect in January, requires a 20-day wait; both its law and a proposed Massachusetts law add a mandated mental health consultation.
By contrast, the Oregon legislature recently approved an amendment waiving the waiting period in cases where the physician believes the patient will likely die within 15 days. Gov. Kate Brown has until Aug. 9 to sign it.
Perhaps, Callinan proposed, aid-in-dying laws shouldn’t require waiting periods.
“It takes people a long time to find a first doctor, to make an appointment, to find a second doctor, to find a pharmacist,” she said. “The process itself is a waiting period,” one often exceeding 15 days.
Since rural areas face physician shortages, Compassion & Choices has also urged that nurse-practitioners and physician assistants be allowed to provide aid in dying in states where they can legally write prescriptions.