The Oregon trail to death: measure 16.

The first "patient" of Dr. Jack Kevorkian's "medicide" was a woman from Portland, Oregon, Janet Adkins, who had been diagnosed with early-stage Alzheimer's. The national headquarters of the Hemlock Society, and the home of Derek Humphry, author of the best-selling book Final Exit: The Practicalities of Self-Deliverance and Assisted Suicide for the Dying, are located in Eugene, Oregon. Thus, it comes as little surprise that the state of Oregon will soon join its neighboring states of Washington (1991) and California (1992) in debating and voting on a citizen initiative, Measure 16, to legalize physician-assisted suicide. The expectation of the umbrella Oregon Right to Die Coalition is that the Oregon "Death with Dignity Act" [DDA], unlike its failed predecessors, will appeal to a majority of voters this November. If that scenario occurs, Oregon will have, consistent with its self-cultivated image of pioneering moral progressivism, blazed a new trail in providing alternative end-of-life choices for the terminally ill. Whether this trail should be followed is an issue certain to be divisive in our culture for many years to come.

As approved by the Oregon Supreme Court, the DDA asks voters the following: "Shall law allow terminally ill adult Oregon patients voluntary informed choice to obtain physician's prescription for drugs to end life?" While I shall explicate later some of the statutory safeguards and legislative loopholes embedded in this language, it is important initially to recognize the difference in scope between the DDA and the failed Initiative 119 in Washington and Proposition 161 in California. In those referendums, voters were asked to approve "physician aid-in-dying," which included not only assistance in suicide but also active euthanasia, such as lethal injections, by physicians. By contrast, the Oregon DDA restricts the role of a physician to providing the prescription for a drug such as Seconal to end one's life. However, having obtained the prescription, the patient may elect not to use it. Thus the professional's role is deemed by proponents as not morally compromised. Indeed, according to Eli Stutsman, legal counsel for Oregon Right to Die, the DDA simply would "codify existing medical practice" for the terminally ill, thus permitting conduct which is now performed secretly to be performed openly without fear of prosecution (personal correspondence, June 14, 1994).

Stutsman contends that the process of drafting the DDA occurred with three principal constituencies in mind. First, the DDA is intended to advance the interests of patient autonomy by making the right to die "a fundamental civil right." Second, the DDA would ensure that health-care professionals can provide the form of care that best promotes the patient's welfare with guarantees of legal immunity. Finally, the DDA offers to the public a model of "reasonable regulation" of physician assistance-in-suicide with safeguards that the public will understand as "sensible without being onerous." While the public debate is not yet in full swing in Oregon, the efforts to satisfy the interests of these constituencies have so far been successful in dissuading several major political players from expressing opposition to the DDA.

The Oregon counterparts of the political parties and medical associations that opposed the Washington and California initiatives have thus far either endorsed the DDA or adopted a position of "neutrality." A moderate subgroup within the Republican party (The Dorchester Group) endorsed the DDA at its annual conference in February. The traditionally more liberal state Democratic party could not be this specific, although it did affirm in its 1994 platform: "We support the right of terminally ill persons to control their own end-of-life decisions." The bipartisan support of the DDA has certainly delighted proponents: "Death with dignity is an issue that cuts across the political spectrum because it involves personal choice," commented Geoff Sugarman, the executive director of Oregon Right to Die, following the March adoption of the Democratic platform.

Perhaps even more indicative of the state of public discourse are the responses of caregiving associations to the DDA. The Washington Medical Association and the California Medical Association opposed their respective initiatives as "fundamentally inconsistent" with the physician's role as healer, as did the American Medical Association. The Oregon Medical Association [OMA], by contrast, agreed in May to a motion "to neither oppose nor endorse physician-assisted suicide." OMA President Dr. Leigh Dolin publicly discredited concerns about a "slippery slope" impact of the DDA and instead recommended that his fellow physicians listen more to their patients: "We need to hear from the people of Oregon what to do" (Eugene Register-Guard, May 2, 1994). It says something profoundly disturbing about the vocational commitments of Oregonian physicians (and perhaps, the medical profession more broadly) that a fundamental matter of medical ethics is presumed to be a choice for the vox populi. In what other realm of medicine are physicians so willing to abdicate their power and professional responsibility to public preferences?

A similar scenario has been played out in the context of hospice. The Washington State Hospice Organization and the California Hospice Association each opposed its relevant initiative, as did the National Hospice Organization. The Oregon Hospice Association [OHA] appointed an ethics task force in 1992 to reconsider its 1991 resolution that expressed opposition to assisted suicide and active euthanasia; this ethics task force is currently at a complete impasse, which makes the prospect of a "neutral" position very likely. Some individual hospices have expressed opposition to the DDA, while others have expressed the sentiment that "hospice does what the voters of Oregon want," and have adopted "neutral" policies that will respect personal choice should the DDA pass. Having served on the OHA's ethics task force for some eighteen months ending in March, I find it difficult to see how hospice can affirm neutrality on the DDA without betraying or modifying some fundamental commitments in its traditional caregiving mission, including the value to "neither prolong nor hasten death."

These shifts in political and institutional perspective suggest that Oregon Right to Die learned the lessons of failure in Washington and California. It believes that the "sensible safeguards" alluded to by its counsel, Mr. Stutsman, will reassure voters that the DDA will both enhance patient choice and preclude abuse. Using the terminology of the ballot question, let me review and briefly comment on these procedural mechanisms:

* Terminal illness. The DDA limits "qualified patients" to persons suffering from an incurable or irreversible health condition that within reasonable medical judgment (made by an attending and a consulting physician) will eventuate in death within six months. It is, however, unlikely that this restriction will remain should the DDA be approved, because it discriminates against persons with similar health conditions who do not fall within the six-month period. The proponents of the DDA deem it important to establish the six-month duration as a precedent that can subsequently be expanded to encompass persons with, for example, early-stage Alzheimer's or HIV disease.

* Adult Oregon patients. Proponents have repeatedly emphasized that the DDA would apply only to Oregon residents, and that Oregon need not fear becoming "the suicide destination" of the United States. The problem is that the state's residency requirements are very ambiguous and connected to specific contexts, such as obtaining a driver's license. There is, quite obviously, no such legal precedent to establish residency for assistance-in-suicide, and the DDA itself nowhere defines residency status. Oregon Right to Die contends that since a relationship with a physician licensed to practice in Oregon is also a prerequisite for assistance in suicide, physician licensure provides one necessary check on a quick suicide. However, opponents, organized principally through the umbrella Coalition for Compassionate Care [CCC], contend that this stipulation will become more a drawing card than a safeguard: In the absence of legal precedent, a common law definition of residency status as a "declaration of intent" to become a resident will govern. State legislative counsel have indicated that a court challenge will have to be brought to determine the "common and ordinary meaning" of the term "resident" within the context of assisted suicide (personal correspondence, June 14, 1994), meaning that the questions will not be resolved prior to the November vote.

* Voluntary informed choice. The DDA presumes that the diagnosis of terminal illness has no significant influence on the decision-making capacity of a patient. The attending physician is required to inform the patient of the diagnosis, prognosis, potential risks of the prescribed medication; probable result of the prescribed medication; and feasible alternatives, such as comfort care, hospice care, and pain control, as well as the right to rescind a request. The patient is also required to make, fifteen days apart, two oral requests for life-ending medication, as well as one written request which must occur at least forty-eight hours prior to receipt of the medication. These stipulations are deemed to ensure the authenticity and voluntariness of the patient's choice. Moreover, either physician may refer the patient for counseling if he or she suspects the patient is depressed or suffers from impaired judgment. Yet, empirical evidence suggests that depression is often missed or misdiagnosed because the medical training of physicians has focused more on pathologies of the body than those of the mind. The fundamental issue is, then, the appropriate level of trust to vest in physicians regarding their diagnoses of depression or other psychological impairment. The Coalition for Compassionate Care has also raised the prospect of some patients' choices being involuntary because of background social conditions, such as familial pressures, finances, or health-care insurance. Thus, although the DDA would make "coercion" of a patient's choice a Class A felony, the CCC believes that in some circumstances the "right to die" will become a "duty to die."

* Physicians' prescriptions. Physicians who participate in assisted suicide must be licensed to practice medicine in Oregon, must verify that the patient's decision is informed, and confirm that the patient is aware he or she can rescind the request. Physicians (or "health care providers") are not obliged, however, to acquiesce in a patient's request; if providers are unable or unwilling to do so, they are required to transfer the relevant medical records of the patient should the patient obtain a new physician.

The claim of proponents that the DDA will simply codify current physician practice must be viewed with a great deal of skepticism for several reasons. It is not at all clear that physician assistance in suicide is already integrated into the dying process; surveys of physicians do indicate a majority would support such a practice if it were legal, but only a minority have actually participated in such an act. Second, even if physician assistance were customary practice, this does not mean the ethical question of whether this practice "ought" to be permissible and customary is answered. Finally, it does not speak highly of the moral vocation of the medical profession that its principal concern with the DDA is the question of a physician's legal immunity.

* Guarding the gatekeepers. If the safeguards are not as secure as proponents contend, nor as open-ended as opponents maintain, a further issue concerns monitoring of the application of the procedural safeguards. The documenting and reporting requirements of the DDA can be easily circumvented: Not all cases of assisted suicide will be reviewed by the Oregon Health Division [OHD], and reviews of specific cases will not be made a matter of public record. The OHD is required simply to submit an "annual statistical report" to the public.

It is striking that the DDA follows directly on the heels of a major revision in 1993 to Oregon's advance directive law, the Health Care Decisions Act [HCDA]. The new law, effective in November 1993, permits patients or designated proxies to forgo all forms of life-prolonging medical treatment as well as "food and water supplied artificially by medical device" under any of the following circumstances: imminent death; permanent unconsciousness; advanced progressive illness; extraordinary suffering. The HCDA also guarantees that patients will receive all necessary and sufficient comfort care and pain control. The legislative history of the HCDA shows that such choices and guarantees were made in part to preclude citizens from resorting to suicide or euthanasia to end their life. Yet, I can attest that a vast majority of Oregon citizens are not aware of the expansive rights they already have regarding control over their dying and death, and the DDA itself makes no reference to such rights. Thus, an uninformed citizenry might well think that its only choice in dying is between technological vitalism and assisted suicide.

It must also be said that the DDA initiative imposes its own vision of the good death upon Oregonians. The DDA is quite explicit that assistance in suicide achieves death in "a humane and dignified manner." The moral appeal to dignity, however, is constituted by a need for control and choice over private decisions; community and interdependency are antithetical to this vision of dignity. It is thus not surprising that the DDA encourages, but does not require, family notification of the patient's request to die. Only a very truncated sense of humanity and dignity would not see that the manner and timing of one's dying would be a momentous matter to others in one's community.

The Coalition for Compassionate Care, the principal organized opponents to the DDA, is an umbrella group of religious groups, including the Oregon Catholic Conference, senior citizen associations, and organizations for the disabled. The substantive objections of the CCC are rooted in appeals to the sanctity of human life and concern for vulnerable and marginalized patients in society. Some individuals whose organizations are members of the coalition accept that under very limited circumstances, physician-assisted suicide may be the most morally justifiable and humane course of action to take, but these few situations should not dictate public policy. The DDA is, in any event, seen as unnecessary given the expansive rights of Oregonians under the new advance directive law.

The CCC may take comfort from the comments of an astute observer of Oregon politics, William Lunch of Oregon State University, who has noted that most citizen initiatives fail because the electorate is wary of "change for the unknown." Lunch contends that there are additional factors that will weigh against voter approval of the DDA. First, voters will likely suffer "information fatigue" from confronting as many as eighteen measures on the fall ballot; put another way, the DDA will not "stand out" in the fall run-up to election day. Second, Lunch maintains that the political weight of the Roman Catholic moral tradition and its Oregon constituency will bring a decisive bloc of voters into opposition of the DDA. It is important in this respect to note that in the midst of debate over the 1991 Washington initiative, the bishops of the Oregon Catholic Conference and the Washington State Catholic Conference issued "Living and Dying Well: A Pastoral Letter about the End of Life," which condemned assisted suicide and euthanasia as a denial of personal autonomy and "a lethal, violent, and unacceptable way of terminating care for the infirm."

Although the largest denomination in the state, the Catholic community in Oregon still comprises only 11 percent of the state's population, by itself far smaller than the 17 percent of the state's "unchurched" population. Thus, it is unclear how decisive the Catholic influence, as part of the Coalition for Compassion Care, will actually be in both the public debate and in overall voting patterns. Moreover, public, political, and professional attitudes toward physician-assisted suicide may, as illustrated above, have already changed in advance of the DDA. This is clearly the assumption underlying Oregon Right to Die's view that the DDA will merely codify existing medical practice. If so, voters and others who would follow this Oregon trail to death would be well advised to heed John Updike's words: "Death, once it enters in, leaves its muddy footprints everywhere."