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The California Humane and Dignified Death Initiative.

The California Humane and Dignified Death Initiative

For a brief time last spring, it seemed possible--even likely--that the fall political season, almost certain to produce a stultifying presidential race, could involve a clamorous public debate in California over one of the most provocative questions in contemporary bioethics. By the time the campaign period actually began, however, the wrenching preoccupation with legalizing euthanasia in the nation's most populous state had failed to materialize. The electorate was left to the somnolence of Bush, Quayle, Dukakis, and Bentsen.

To observers far afield from California--and even some in the state--in early 1988, it would have seemed a most unlikely result: A ballot initiative to legalize the provision by doctors of active euthanasia services would attract just 130,000 signatures to its qualifying petitions. The total would be less than a third of the number required to place it on the statewide November ballot despite unanimity among opinion polls finding as many as 70 percent of Californians supported the concept.

This seemingly contradictory reality would confound even some of California's most insightful politicians. In early April, less than two months before the signature deadline, Willie Brown, speaker of the California Assembly and one of the state's most perceptive political leaders, flatly predicted that the initiative would qualify and be passed. Medical-legal experts as a group prepared for what they anticipated would be the World Series of bioethics. Here it most certainly was: The first opportunity for either the de facto or de jure practice of euthanasia to gain offical sanction outside of the stronghold of the Netherlands.

But it simply didn't happen. And for bioethics scholars, it became a curious postmortem. The sponsor of the initiative, a little-known group called Americans Against Human Suffering, organized by Los Angeles trial lawyer Robert Risley who, ironically, devotes about half of his practice to medical malpractice defense work, declared its intention to redouble its fund-raising and organizational activities and return to the fight in 1990.

The Hemlock Society, meanwhile, joined in a vow to work to get the measure not just on the California ballot in two years but to place it simultaneously before the electorates of Florida, Oregon, and Washington, too. Having stated that objective, however, the Society, in mid-summer, relocated its headquarters from Los Angeles to rural Oregon, a step whose effect on the visibility and presence of issues Hemlock champions remains to be seen.

Some elements of the right-to-die movement clearly were concerned with the prospects of success in California, too, and the side effects for the larger movement. The Society for the Right to Die, in fact, avoided being drawn into the affair, declining to take a position on it.

The Humane and Dignified Death Initiative had been widely believed within and outside the state to be a creature of the Hemlock Society, but Risley had kept his distance. He accepted two loans from Hemlock, one of which he reported later was not fully repaid, but the two groups eliminated some common directors to emphasize their separateness.

Provisions of the Initiative

As drafted, the California initiative would have been a logical extension of existing state living will legislation. To exercise the right to be killed by a doctor, a patient would have to be certifiably terminal. A durable power of attorney would be executed in which the patient conveyed authority to order his or her death to someone else in the event a comatose or otherwise mentally disabling condition ensued.

The provisions of the initiative would not be of any benefit to someone subsequently rendered mentally disabled but who had not, having been officially certified as terminal, executed the power of attorney in advance. Thus, many victims of stroke, Alzheimer's disease, accidents and other sudden, catastrophic events would be unable to avail themselves of euthanasia services. Death could be brought about only by a doctor and the authority could not be delegated to anyone but the designated physician.

Early drafts of the initiative mandated physician participation, but the provision was dropped in a failed tactic to make the measure palatable to organized medical groups. After a first unsuccessful attempt, Risley's former law partner, Michael White, was able to prevail on the State Bar of California's Congress of Delegates to endorse the plan, but the endorsement was not binding on the group as a whole.

Close analysis of what seems on its face to be a situation remarkably like trying to photograph something not happening finds evidence of two major reasons for the initiative's failure. Too little attention was paid to the organizational details of such a precedential enterprise and the measure's advocates took too much comfort in public opinion polls--both their own and others'.

The Referendum Process

It is difficult to understand any of this, however, without at least a basic comprehension of California's unique referendum mechanism. Outside the state, the system is perhaps known for little except aberrations like passage of the 1978 property tax-reduction initiative Proposition 13.

In 1911, the state legislature, responding to Progressive movement ideology, created a mechanism intended to enable the electorate to take up, on its own, issues the legislature either couldn't or wouldn't address. Initiatives may be put on the ballot for direct voter approval of a bill or for amendment of the state constitution.

The system often rewards persistence. The late Howard Jarvis, principal advocate of Proposition 13, had been a widely ridiculed fringe figure for more than fifteen years before he hit on a strategy of direct mail appeal to angry older homeowners to get his tax-reduction measure on the ballot. The history of the initiative process is replete with many examples of measures that failed in the qualification stage--many repeatedly--only to reemerge and gain passage. The initiative system is so entrenched that there are even three private firms in California that specialize in gathering qualifying signatures. The going rate: about 70 cents per signature and up.

Ballot measures are often most successful when they focus on issues of tremendous emotional appeal or controversy to voters that have proven too politically sensitive to attract anything more than passing attention from the legislature. In this context, Risley believed he had a natural.

Repeated attempts to find a sponsor to introduce legislation to permit physicians to administer assistance in dying to terminal patients had failed. Even legislators who championed such causes as the living will and other measures to permit termination of life-support services were completely reluctant to put their names on a measure to legalize euthanasia. Despite its reputation as being subsumed by the trendy, bizarre, and presumptively leftwing, California remains, in terms of its political bedrock, a highly conservative state.

Risley came to the battle to legalize euthanasia by whatever means necessary from the deepest conceivable personal experience. In 1984, he lost his wife, Darlena, to cancer. Traveling to the Bahamas in search of a cure, the Risleys talked often about Darlena's wish to cut short the suffering she would almost inevitably endure. Bob Risley reached what he characterized as an abiding personal decision to help her if need be.

As things turned out, Darlena died without need for assistance two weeks later. But for Bob Risley, helping others in similar situations, for whom death did not arrive with quite such merciful promptness, became a major life commitment. It was from this experience that the Humane and Dignified Death Initiative emanated.

Risley, however, was as short on political and organizational experience as he was long on personal commitment to his cause. This naivete resulted early in 1988 in a series of counterproductive zigzags. First, Risley relied on direct mail signature-gathering, hoping to imitate the success of Proposition 13 in this regard. When that failed, he retained a signature gathering firm, but ran out of money after the company produced 20,000 signatures in two weeks. Fund-raising was an aspect of the process over which Risley and his group seemed constantly to stumble. One mailing that cost $345,000 to distribute produced only $285,000 in donations, according to the group's financial statement, which showed a deficit of nearly $404,000.

An appeal to local Hemlock Society chapters brought a surprisingly spotty result at first. Some chapters in areas like Santa Barbara County and Palm Springs, where large numbers of retired people live, were highly successful. In crucial Los Angeles County, however, the process stalled at the most critical time in the late winter and early spring. Late direct mail intervention didn't work. By the end of May, when time ran out to file petitions for the November ballot, Risley had just 130,000 total signatures, measured against a need for about 450,000 verified ones. It was clearly, in the view of many longtime observers of the initiative process and Risley, too, an example of an absence of effective organization. The issue of euthanasia itself had not played a meaningful role in the failure.

Risley and his supporters had found inordinate comfort in persistent public opinion poll results indicating that Californians support, by a consistent margin of about two-to-one, the concept that a person should be able to get assistance in dying if he or she faces a terminal condition. Risley, in a conversation weeks after the signature debacle, conceded he had believed that support for euthanasia reflected in the polls was so strong that the measure could qualify easily and attract the media attention necessary to ensure passage essentially without cost. Success, he believed, was nearly inevitable.

In this, he said later, he had made a variety of tactical errors. It was also clear that while Risley had taken at least passing note of available lessons in the history of the initiative process, he may not have appreciated fully the precedent set by initiatives that failed after early promise.

Public Opinion

Opinion polls on euthanasia have, indeed, been consistent. In 1986, a poll on health issues affecting Californians by SRI Gallup Hospital Market Research found 70 percent of Californians responded affirmatively when asked: "Should adults who are terminally ill be allowed to legally end their lives?" Twenty percent said no and 10 percent were undecided.

Roper polls commissioned by the Hemlock Society in 1986 and 1988 produced similar results. In 1986, 62 percent of Californians said they favored legalization of physician aid in dying. The numbers were down slightly in 1988, to 58 percent in favor, with the support cutting across age and religious lines. Of Roman Catholics, for instance, 61 percent of respondents favored euthanasia's legalization Since the Humane and Dignified Death Initiative would be a legislative proposition and not a constitutional amendment, it would need to attain only a bare majority.

The Roper Poll question that elicited this response, however, seemed a telling example of how survey instrument design may influence results without the appearance of an ideological tilt. The question was: "When a person has a painful and distressing terminal disease, do you think doctors should or should not be allowed by law to end the patient's life if there is no hope of recovery and the patient requests it?"

Clearly the query had not acknowledged the existence of even the gentlest inclines of euthanasia's slippery slope, much less asked respondents to address any of mercy killing's vexing ethical problems and practical abuse potential.

More specialized polls, though, hinted that a key difference between the situations in The Netherlands and California might not be so significant, after all. In The Netherlands, the Royal Dutch Medical Association has played a vital role in working to maintain the de facto legal sanction for active euthanasia--even to the point of advocacy of full legalization, including the right of children to elect to die. Not so the United States. The American Medical Association has consistently opposed euthanasia. The California Medical Association has followed suit. As it happened, the CMA's president in 1988 was a forcefully effective, highly intelligent San Francisco oncologist, Dr. Laurens White, who combines a deep understanding of media effectiveness and a fervent philosophical opposition to euthanasia.

There are indications, however, that California doctors do not share this apparent dichotomy between the positions of the Dutch and American medical establishments. In a mail survey of 676 Bay Area physicians--which was not made public until nearly the signature deadline for the ill-fated initiative--the San Francisco Medical Society found 70 percent of doctors specifically supported the right of patients to active euthanasia, with 23 percent opposed and 7 percent unsure. If the initiative were to pass, 45 percent said they would participate in active euthanasia, while 35 percent said they would not.

A smaller sampling by the Los Angeles County Medical Association found that, of 200 doctors polled, 40 percent said they supported the initiative, 42 percent said they were not opposed to active euthanasia and half said they participated in passive euthanasia already. The Hemlock Society produced a survey of its own in which seventy-nine California doctors revealed in anonymous questionnaires that they had already actively taken the lives of terminal patients, with twenty-nine saying they had done it three times or more.

But the physician polls also seemed to underscore objections to more widespread public opinion survey results by ethics scholars like Alexander Capron, a professor of law at the University of Southern California. Capron argued that by glossing over the distinction between active and passive euthanasia, polls of the general public had lost their claim to great relevance.

Indeed, polls of the public had not acknowledged the difference between the two concepts. Journalists covering the issue generally had nagging doubts about whether the distinction was grasped--California permits passive euthanasia techniques already--and even, in many ways, if it was intended to remain obscure to serve the interests of the ideological sponsorship of some of the surveys. Even Risley had doubts about the meaning of the apparent extent of support for his cause. The history of California ballot initiatives is replete with examples of how polls focusing on an issue's appeal prior to qualification for the ballot have only limited relevance to what happens afterward.

They ignore the reality: Prequalification polls don't take into account the effect of organized opposition and are often ideologically lopsided. Polls on the popularity of Proposition 13, for instance, found the measure trailing in early surveys--though the block of undecided voters was suspiciously large until just a few weeks before the election.

A more relevant lesson, however, was the experience in 1982 of Proposition 15, a measure that would have placed vigorous regulation on the sale and possession of handguns. In 1976, the measure had failed to attract enough signatures to get on the ballot. Things were different six years later. In April of 1982, the measure was about to qualify and leading in the polls, with 64 percent of voters saying they endorsed it.

There ensued, of course, a saturation campaign by the National Rifle Association and other gun control opponents. The situation was not unlike what would certainly materialize from right-to-life groups, conservative political organizations and--probably--at least the top leadership of organized medicine once any debate over euthanasia took form in the context of a campaign.

In the November 1982 election, gun control lost by about the margin it had led in the early polling--63 percent opposed, 37 percent in favor.

The extent to which the euthanasia question parallels gun control preoccupies even Risley. Could physician assitance in dying be another issue whose perception could change so markedly in any public electoral debate that all polls would be rendered irrelevant? "This might be one of those," he said.

In retrospect, it can be suspected that the failure of the euthanasia initiative to excite enough interest to do anything more than fall almost laughably short of its signature quota may have been a hint that assumptions about how the electorate perceived the issue were the product of wishful thinking and poor polls. The failure was almost certainly more than simply a product of bad organization. The extent to which it also involved deep-seated reservations about euthanasia cannot be known but must be suspected.

A year earlier, Capron, in an interview with The Los Angeles Times for a package of stories on the Dutch euthanasia experience, contended that fundamental differences in social fabric between The Netherlands and the United States made it difficult--even possibly illogical--to believe the Dutch

practice could be directly transplanted to this country.

An election campaign in which the often highly publicized transgressions of American physicians might become a central issue seems far more difficult to predict than might at first appear to be the case. Do Californians or Americans trust their doctors enough to assume that physicians would kill them only when desired? No poll has addressed this question.
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Title Annotation:Mercy, Murder, & Morality: Perspectives on Euthanasia
Author:Parachini, Allan
Publication:The Hastings Center Report
Date:Jan 1, 1989
Previous Article:Fashioning an ethic for life and death in a post-modern society.
Next Article:Holding the line on euthanasia.

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