By Margaret Dore, Esq., MBATo view a pdf version of this document, click the following links: index, memo and appendix. To view a one page bullet point handout, click here.
I. INTRODUCTION
I am an attorney in Washington State where assisted suicide is legal. [1] Our law is based on a similar law in Oregon. Both laws are similar to the initiated measure, which seeks to legalize assisted suicide and euthanasia in South Dakota.[2]
The initiated measure is sold as a promotion of patient choice and control. The measure is instead stacked against the patient and a recipe for elder abuse.
If enacted, the measure will apply to people with years or decades to live. People with years or decades to live will be encouraged to throw away their lives. I urge you to reject this measure.
II. DEFINITIONS
A. Physician-Assisted Suicide; Assisted Suicide; and Euthanasia
The American Medical Association (AMA) defines physician-assisted suicide as occurring when “a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act.”[3] For example:
[T]he physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide.[4]Assisted suicide is a general term in which an assisting person is not necessarily a physician. Euthanasia is the administration of a lethal agent to cause another person’s death.[5]
B. Withholding or Withdrawing Treatment
Withholding or withdrawing treatment (“pulling the plug”) is not euthanasia if the purpose is to remove burdensome treatment, as opposed to an intent to kill the patient. More importantly, the patient will not necessarily die. Consider this quote from Washington State regarding a man removed from a ventilator:
[I]nstead of dying as expected, [he] slowly began to get better.[6]III. FEW STATES ALLOW ASSISTED SUICIDE
A. This Year, the South Dakota Legislature Passed a Nearly Unanimous Resolution Opposing Assisted Suicide
This year, the South Dakota Legislature passed Senate Concurrent Resolution 11, opposing physician-assisted suicide.[7] The vote was 32 to 3 in the Senate and 67 to 1 in the House.[8] The vote to pass was nearly unanimous.[9]
B. Last Year, the New Mexico Supreme Court Overturned Assisted Suicide in New Mexico
Last year, the New Mexico Supreme Court overturned a lower court decision that had recognized a right to physician aid in dying, meaning physician assisted suicide.[10] Physician-assisted suicide is no longer legal in New Mexico.
C. Five Other States Have Strengthened Their Laws Against Assisted Suicide
In the last six years, five other states have strengthened their laws against assisted suicide. These states are Arizona, Louisiana, Georgia, Idaho and Ohio.[11]
D. Few States Allow Assisted Suicide
Oregon and Washington State legalized assisted suicide via ballot measures in 1997 and 2008, respectively. Since then, just three states and the District of Columbia have passed similar laws (Vermont, California and Colorado). In the fine print, these laws also allow euthanasia.
IV. ELDER ABUSE
Elder abuse is a prevalent and largely hidden problem throughout the United States, including South Dakota.[12] Perpetrators are often family members who start out with small crimes, such as stealing jewelry and blank checks, before moving on to larger items or to coercing victims to change their wills or to liquidate their assets.[13]
Perpetrators can also be calculating criminals. Consider Melissa Ann Shepard, the “Internet Black Widow,” who preyed on older men. A 2016 article states:
[These men] sought companionship and found instead . . . someone who siphoned their savings, slipped drugs into their food and, in the case of one man, ran him over with a car and left him dead on a dirt road.[14]V. HOW THE MEASURE WORKS
The measure has an application process to obtain the lethal dose, which includes a written lethal request form with two required witnesses.[15] One of the witnesses is allowed to be the patient’s heir who will financially benefit from the patient’s death.[16]
After the lethal dose is issued by the pharmacy, there is no oversight. No doctor, not even a witness, is required to present at the death.[17]
VI. A COMPARISON TO PROBATE LAW
When signing a will, having an heir act as one of two witnesses can support a finding of undue influence. Washington State’s probate code, for example, provides that when one of two witnesses receives a gift under a will, there is a rebuttable presumption that the gift was procured “by duress, menace, fraud, or undue influence."[18] The proposed measure, which allows an heir to act as one of two witnesses on the lethal dose request form, invites coercion.
VII. DECADES TO LIVE
The measure applies to persons with a “terminal disease,” meaning those predicted to have less than six months to live. Such persons may, in fact, have years or decades to live. This is true for three reasons:
A. If South Dakota Follows Oregon, the Measure Will Apply to People with Chronic Conditions Such as Insulin Dependent Diabetes
The measure states:
“Terminal disease,” [means] an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.[19]Oregon’s law has a nearly identical definition:
“Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.[20]In Oregon, this nearly identical definition is interpreted to include chronic conditions such as “diabetes mellitus,” better known as diabetes.[21] Oregon doctor, William Toffler, explains:
[P]eople with chronic conditions are “terminal” [for the purpose of Oregon’s law] if without their medications, they have less than six months to live. This is significant when you consider that a typical insulin-dependent 20 year-old will live less than a month without insulin.[22]Dr. Toffler adds:
Such persons, with insulin, are likely to have decades to live. In fact, most diabetics have a normal life span given appropriate control of their blood sugar.[23]If the proposed measure is enacted, assisted suicide and euthanasia will be allowed for people with chronic conditions such as insulin dependent diabetes. Such persons can have years or decades to live.
B. Predictions of Life Expectancy Can Be Wrong
Eligible persons may also have years to live because predictions of life expectancy can be wrong.[24] Consider John Norton, who was diagnosed with ALS (Lou Gehrig’s disease) at age 18.[25] He was told that he would get progressively worse (be paralyzed) and die in three to five years.[26] Instead, the disease progression stopped on its own.[27] In a 2012 affidavit, at age 74, he states:
If assisted suicide or euthanasia had been available to me in the 1950's, I would have missed the bulk of my life and my life yet to come.Affidavit of John Norton, ¶5
C. Treatment Can Lead to Recovery
Consider also Jeanette Hall, who was diagnosed with cancer in 2000 and made a settled decision to use Oregon’s law.[28] Her doctor convinced her to be treated instead.[29] In a 2016 declaration, she states:
This July, it will be 16 years since my diagnosis. If [my doctor] had believed in assisted suicide, I would be dead.[30]If the proposed legislation is enacted, people like Jeanette Hall, with years or decades to live, will be encouraged to throw away their lives.
VIII. STACKED AGAINST THE PATIENT
A. Patients Lose the Right to Be Told of Alternatives for Cure
Under current law, patients have a right to “informed consent,” which includes the right to be apprised of “any reasonable alternative treatment,” for example, to cure cancer.[31] With the initiated measure, patients instead make an “informed decision.”[32] The measure states:
"Informed decision," [means] a decision . . . that is based on an appreciation of the relevant facts and after being fully informed . . . of . . .With this language, patients no longer have the right to be told of alternatives for cure. This is due to the rule of statutory construction, ejusdem generis, which states:
(e) The feasible alternatives, such as, comfort care, hospice care, and pain control. (Emphasis added).[33]
[W]here general words . . . precede the enumeration of particular classes of things, . . . ejusdem generis . . . requires that the general words . . . be construed as applying only to things of the same general kind as those enumerated. (Emphasis added).[34]With the initiated measure, the general words, “feasible alternatives,” precede enumerated words having to do with dying (“comfort care, hospice care, and pain control”). Per the rule, this enumeration limits the general words, “feasible alternatives” to those having to do with dying. Patients lose the right to be told about alternatives for cure.
B. Someone Else Is Allowed to Communicate on the Patient’s Behalf
A patient obtaining the lethal dose is required to be “competent.”[35] This is a relaxed standard in which someone else is allowed to communicate for the patient, as long as the communicating person is “familiar with the patient’s manner of communicating.” The measure states:
“Competency,” in the opinion of a court or in the opinion of the patient’s attending physician or consulting physician, psychiatrist, or psychologist, a patient’s ability to make and communicate an informed decision to health care providers, including communication through persons familiar with the patient's manner of communicating if those persons are available .... (Emphasis added).[36]Note that the communicating person is not required to be the patient’s designated agent. Being familiar with a patient’s “manner of communicating” is, regardless, a very minimal standard. Consider, for example, a doctor’s assistant who is familiar with a patient’s “manner of communicating” in Spanish, but she, herself, does not understand Spanish. That, however, would be good enough for her to communicate for the patient during the lethal dose request process. With this situation, patient choice and control is far from guaranteed.
C. “Even If a Patient Struggled, Who Would Know?”
The initiated measure has no required oversight over administration of the lethal dose.[37] In addition, the drugs used are water and or alcohol soluble, such that they can be injected into a sleeping or restrained person without consent.[38] Alex Schadenberg, Executive Director for the Euthanasia Prevention Coalition, puts it this way:
With assisted suicide laws in Washington and Oregon [and with the proposed measure], perpetrators can . . . take a “legal” route, by getting an elder to sign a lethal dose request. Once the prescription is filled, there is no supervision over administration. Even if a patient struggled, “who would know?” (Emphasis added).[39]D. The Death Certificate Will List a Terminal Disease as the Cause of Death, Which Will Prevent Prosecution for Murder
The initiated measure states:
The attending physician may sign the patient’s death certificate, which shall list the underlying terminal disease as the cause of death. (Emphasis added).[40]The significance of requiring a terminal disease to be listed as the cause of death is that it creates a legal inability to prosecute. The official legal cause of death is a terminal disease (not murder) as a matter of law.
More to the point, a perpetrator will be let off the hook: The measure will create the perfect crime.
E. Someone Else Is Allowed to Administer the Lethal Dose to the Patient
The measure says that a patient may self-administer the lethal dose.[41] There is no language, however, that administration “must” be by self-administration.[42]
The term, “self-administer,” is also specially defined to allow someone else to administer the lethal dose to the patient. The measure states:
“Self-administer,” a qualified patient’s act of ingesting medication to end the patient’s life . . . (Emphasis added).[43]The measure does not define “ingest.” Dictionary definitions include:
[T]o take (food, drugs, etc.) into the body, as by swallowing, inhaling, or absorbing. (Emphasis added).[43]With this definition, someone else putting the lethal dose in the patient’s mouth will qualify as self-administration because the patient will be “swallowing” the lethal dose, i.e., “ingesting” it. Someone else placing a medication patch on the patient’s arm will qualify because the patient will be “absorbing” the lethal dose, i.e., “ingesting” it. Gas administration, similarly, will qualify because the patient will be “inhaling” the lethal dose, i.e., “ingesting” it. With self-administer defined as mere ingesting, someone else is allowed to administer the lethal dose to the patient.
F. Allowing Someone Else to Administer the Lethal Dose Is Euthanasia
Allowing someone else to administer the lethal dose to a patient is "euthanasia" under generally accepted medical terminology. The American Medical Association's Ethics Opinion, “Euthanasia,” 5.8 states:
Euthanasia is the administration of a lethal agent by another person to a patient . . . (Emphasis added).[45]The proposed measure allows euthanasia as traditionally defined.
G. Euthanasia Is Not Prohibited
The initiated measure appears to prohibit euthanasia, which is another word for “mercy killing.”[46] The measure states:
Nothing in this Act authorizes a physician or any other person to end a patient's life by lethal injection, mercy killing, or active euthanasia.[47]This prohibition is defined away in the next sentence:
Any action taken in accordance with this Act does not, for any purpose, constitute . . . mercy killing [another word for euthanasia] or homicide, under the law . . . . [48]H. If South Dakota Follows Washington State, There Will Be an Official Legal Cover Up
Again, the measure states:
[T]he patient’s death certificate ... shall list the underlying terminal disease as the cause of death. (Emphasis added).[49]
[and]
Any action taken in accordance with this Act does not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law. (Emphasis added).[50]In Washington State, nearly identical language is interpreted by the Washington State Department of Health (Department) to require the death certificate to list a natural death without even a hint that the actual cause of death was assisted suicide or euthanasia. The only relevant inquiry is whether Washington’s law was “used.”
The Department’s “Death Certificate Instructions for Medical Examiners, Coroners and Prosecuting Attorneys,” state:
Washington’s [law] states that “...the patient’s death certificate ... shall list the underlying terminal disease as the cause of death.” [Washington’s law] also states that, “Actions taken in accordance with this chapter do not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide under the law.”
If you know the decedent used [Washington’s law], you must comply with the strict requirements of the law when completing the death record:
1. The underlying terminal disease must be listed as the cause of death.
2. The manner of death must be marked as “Natural.”
3. The cause of death section may not contain any language that indicates that [the law] was used, such as:
a. SuicideIf South Dakota enacts the proposed measure and follows Washington State, death certificates will not even hint that the actual cause of death was assisted suicide or euthanasia. This will happen simply because the measure was “used.” There will be an official legal cover up.
b. Assisted suicide
c. Physician-assisted suicide
d. Death with Dignity
e. I-1000 [Washington’s law was passed by I- 1000]
f. Mercy killing
g. Euthanasia
h. Secobarbital or Seconal
i. Pentobarbital or Nembutal. (Emphasis added.)[51]
IX. OREGON IS NOT A VALID CASE STUDY
Oregon is not a valid case study due to a near complete lack of transparency regarding its law.[53] Even law enforcement does not have access to the information collected and source documentation is destroyed.[54] The bottom line, Oregon’s official data cannot be verified.
X. OTHER CONSIDERATIONS
A. The Swiss Study: Physician-Assisted Suicide Can Be Traumatic for Family Members
In 2012, a European research study addressed trauma suffered by persons who witnessed legal physician-assisted suicide in Switzerland.[56] The study found that one out of five family members or friends present at an assisted suicide was traumatized. These people,
experienced full or sub-threshold PTSD (Post Traumatic Stress Disorder) related to the loss of a close person through assisted suicide.[57]B. My Clients Suffered Trauma in Oregon and Washington State
In Washington State and Oregon, I have had two cases where my clients suffered trauma due to legal assisted suicide. In the first case, one side of the family wanted the father to take the lethal dose, while the other side did not. The father spent the last months of his life caught in the middle and torn over whether or not he should kill himself. My client, his adult daughter, was severely traumatized.
The father did not take the lethal dose and died a natural death.
In the other case, it’s not clear that administration of the lethal dose was voluntary. A man who was present told my client that his (my client's) father had refused to take the lethal dose when it was delivered, stating, "You're not killing me. I'm going to bed," but then he (the father) took it the next night when he was intoxicated on alcohol. The man who told this to my client subsequently changed his story.
My client, although he was not present, was traumatized over the incident, and also by the sudden loss of his father.
C. In Oregon, Other Suicides Have Increased with Legalization of Physician-Assisted Suicide; the Financial Cost Is “Enormous”
Government reports from Oregon show a positive correlation between the legalization of physician-assisted suicide and an increase in other (conventional) suicides. This correlation is consistent with a suicide contagion in which legalizing physician-assisted suicide encouraged other suicides. Consider the following:
- Oregon's assisted suicide act went into effect “in late 1997.”[58]
- By 2000, Oregon's conventional suicide rate was "increasing significantly."[59]
- By 2007, Oregon's conventional suicide rate was 35% above the national average.[60]
- By 2010, Oregon's conventional suicide rate was 41% above the national average.[61]
- By 2012, Oregon's conventional suicide rate was 42% above the national average.[62]
[T]he estimate of total lifetime cost of suicide in Oregon was over 680 million dollars.[63]D. The Felony for Undue Influence Is Illusory and Unenforceable
The measure has a felony for “undue influence,” which is not defined. The measure states:
A person who coerces or exerts undue influence on a patient to request medication to end the patient’s life, or to destroy a rescission of a request, is guilty of a class A felony. (Emphasis added).[64]The measure also allows a patient’s heir to be one of two witnesses on the lethal dose request form, which is used to prove undue influence.[65]
How do you prove that undue influence occurred when the measure does not define it and the measure also allows conduct used to prove it in another context? You can’t. The felony for undue influence is illusory and unenforceable.
XI. CONCLUSION
Passing the proposed measure will encourage people with years or decades to live to throw away their lives.
Administration of the lethal dose is allowed to occur in private without a doctor or witness present. If the patient objected, or even struggled, who would know?
The death certificate will list a terminal disease as the cause of death. This will prevent prosecution for murder, no matter what the facts. The measure, if enacted, will create the perfect crime. Don’t make Oregon and Washington’s mistake. I urge you to reject the proposed measure.
Respectfully Submitted,
Margaret Dore, Esq., MBA
Law Offices of Margaret K. Dore, P.S.
Choice is an Illusion, a nonprofit corporation
www.margaretdore.com
www.choiceillusion.org
1001 4th Avenue, Suite 4400
Seattle, WA 98154
206 697 1217
Footnotes:
[1] I am an elder law and appellate attorney licensed to practice law in Washington State since 1986. I am also a former Law Clerk to the Washington State Supreme Court. I am president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia. My CV is attached in the appendix at A-1 to A-4. See also www.margaretdore.com, www.choiceillusion.org.
[2] The measure is attached hereto in the appendix at A-101 through A-111.
[3] The AMA Code of Medical Ethics, Opinion 5.7.
[4] Id.
[5] Id, Opinion 5.8, “Euthanasia,” (lower half of the page).
[6] Nina Shapiro, “Terminal Uncertainty — Washington's new 'Death with Dignity' law allows doctors to help people commit suicide — once they've determined that the patient has only six months to live. But what if they're wrong?,” The Seattle Weekly, 01/14/09; article can also be viewed in the appendix at A-6, quote at A-8.
[7] Bill History, South Dakota Senate Concurrent Resolution 11, “Opposing physician-assisted suicide,” attached in the appendix at A-9.
[8] Id.
[9] Id.
[10] Morris v. Brandenburg, 376 P.3d 836 (2016).
[11] See: AP, “Brewer signs law targeting assisted suicide,” Arizona Capitol Times, 04/30/14, attached in the appendix at A-13; AP, “La. assisted-suicide ban strengthened,” The Daily Comet, 04/24/12, attached in the appendix at A-14; Georgia HB 1114, attached in the appendix at A-15; Margaret Dore, “Idaho Strengthens Law Against Assisted Suicide,” Choice is an Illusion, July 4, 2011 (”The law explicitly provides that causing or aiding a suicide is a felony”); and Ohio HB 470, at https://choiceisanillusion.files.wordpress
[12] See: Met Life Mature Market Institute, Broken Trust: Elders, Family and Finances,” March 2009, available at https://www.metlife.com/assets/cao/mmi/publications/studies/mmi-study-broken-trust-elders-family-finances.pdf; and South Dakota Elder Abuse Task Force, Final Report and Recommendations, December 2015, “Summary of Findings, pp. 1-5, available at http://www.eldersandcourts.org/~/media/Microsites/Files/cec/South%20Dakota%20Elder%20Abuse%20Task%20Force%20ReportFinal%202015.ashx
[13] Met Life, supra.
[14] Yanan Wang, “This 80-year-old ‘Black Widow,’ who lured lonesome old men to horrible fates, is out of prison again,” The Washington Post, March 21, 2016, excerpts attached in the appendix at A-17 to A-19. Also available at https://www.washingtonpost.com/news/morning-mix/wp/2016/03/21/this-80-year-old-black-widow-who-lured-lonesome-old-men-to-horrible-fates-is-out-of-prison-again/?utm_term=.9c46944c40f0
[15] The measure’s lethal dose request form can be viewed in the initiated measure at § 3, in the appendix at A-102 to A-104. The witness section can be viewed at A-104.
[16] Id.
[17] See the measure in its entirety, in the appendix at A-101 to A-111.
[18] Wash. Rev. Code Ann. § 11.12.160(2), in the appendix at A-10.
[19] The initiated measure, § 1(12).
[20] Or. Rev. Stat. 127.800 s.1.01(12), attached to Toffler Declaration at A-22.
[21] See Declaration of William Toffler, MD, at A-20 to A-21, ¶¶ 2-4.
[22] Id., at A-21, ¶ 5
[23] Id., ¶ 6
[24] Cf. Jessica Firger, “12 million Americans misdiagnosed each year,” CBS NEWS, 4/17/14, attached hereto at A-25, and Nina Shapiro, “Terminal Uncertainty — Washington's new 'Death with Dignity' law allows doctors to help people commit suicide — once they've determined that the patient has only six months to live. But what if they're wrong?,” The Seattle Weekly, 01/14/09. (Excerpts in the appendix at A-6 to A-8).
[25] Affidavit of John Norton, also attached in the appendix at A-26 to A-28
[26] Id., ¶ 1.
[27] Id., ¶ 4.
[28] Affidavit of Kenneth Stevens, MD, also attached in the appendix at A-29 to A-35; Jeanette Hall discussed at A-29 to A-30; Hall declaration, also attached in the appendix at A-36.
[29] Id.
[30] Declaration of Jeanette Hall, ¶4, also in the appendix at A-36.
[31] Wheeldon v Madison, 374 N.W.2d 367, 375 (1985), excerpts in the appendix at A-37 & A-38
[32] See initiated measure, §§ 1(6) & 7, also attached in the appendix at A-101 & A-106.
[33] Id.
[34] Crawford v Schulte, 829 N.W.2d 155, 158 (2013).
[35] The initiated measure, § 2.
[36] Id., § 1(2).
[37] See the initiated measure in its entirety,
[38] The drugs used include Secobarbital and Pentobarbital (Nembutal). See "Secobarbital Sodium Capsules, Drugs.Com, at http://www.drugs.com/pr/seconal-sodium.html and http://www.drugs.com/pro/nembutal.html See also the Oregon government report excerpt, attached in the appendix at A-39 (listing these drugs at the top of the page). Phenobarbital, which is soluble in alcohol, is also used. See id. and https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2977013
[39] Alex Schadenberg, Letter to the Editor, “Elder abuse a growing problem,” The Advocate, Official Publication of the Idaho State Bar, October 2010, page 14, available at http://www.margaretdore.com/info/October_Letters.pdf
[40] The initiated measure, § 4, last sentence.
[41] See id., § 2 ("the patient may self-administer").
[42] See the measure in its entirety.
[43] The measure, § 1(11).
[44] Your Dictionary.com ("Ingest")
[45] Opinion 5.8, “Euthanasia,” (lower half of the page).
[46] See "mercy killing" definitions, at https://choiceisanillusion.files.wordpress.com/2016/10/mercy-killing-a-59.pdf
[47] Initiated measure, § 18.
[48] Id.
[49] Id., § 4, last sentence.
[50] Id., § 18, first paragraph
[51] Death Certificate Instructions for Medical Examiners, Coroners and Prosecuting Attorneys
[52]
[53] See: “Declaration of Testimony” by Oregon attorney Isaac Jackson, dated September 18, 2012, (regarding the run-around he got when he attempted to learn whether his client’s father had died under Oregon’s law - the Oregon Health Authority would neither confirm nor deny whether the father had died under the law); E-mail from Alicia Parkman, Oregon Mortality Research Analyst, to Margaret Dore, dated January 4, 2012 (law enforcement cannot get access to information); Excerpt from Oregon’s website in the appendix at A-54 (patient identities “not recorded in any manner”); E-mail from Parkman to Dore, June 27, 2011, in the appendix at A-55 to A-56 (“all source documentation” destroyed after one year); and the "Confidentiality of Death Certificates" policy issued by the Oregon Department of Human Resources Health Division, December 12, 1997, (clarifying that employees failing to comply with confidentiality rules “will immediately be terminated”), as published in the Issues in Law & Medicine, Volume 14, Number 3, 1998
[54] Id.
[55] Id.
[56] “Death by request in Switzerland: Posttraumatic stress disorder and complicated grief after witnessing assisted suicide,” B. Wagner, J. Muller, A. Maercker; European Psychiatry 27 (2012) 542-546, available at http://choiceisanillusion.files.wordpress.com/2012/10/family-members-traumatized-eur-psych-2012.pdf (Cover page attached in the appendix at A-68)
[57] Id.
[58] Oregon’s assisted suicide report for 2014, first line, at http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year17.pdf
[59] See Oregon Health Authority News Release, 09/09/10. ("After decreasing in the 1990s, suicide rates have been increasing significantly since 2000"). (Attached in the appendix at A-60)
[60] Oregon report excerpt attached in the appendix at A-62
[61] Report excerpt attached in the appendix at A-64
[62] Attached in the appendix at A-65
[63]
[64] The initiated measure, § 24, second paragraph,
[65] Again, see Washington State’s probate statute in the appendix at A-43.