California Becomes Fifth State With Physician-Assisted Suicide Legislation

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Editor’s Note: The Campbell Law Observer recently held its write-on competition for the Fall 2015 semester. This article was awarded the highest overall score by our editorial staff.

The California legislature has taken a big step this month by passing a bill that would allow physician-assisted suicide in terminally ill patients.  Sent to Governor Jerry Brown’s office, the governor had 30 days to sign or veto the bill.  Monday, October 5, 2015, Governor Brown signed the bill into law, making California the fifth state (along with Washington, Oregon, Montana, and Vermont) to allow physician-assisted suicide.  In total, 25 states considered physician-assisted suicide legislature during 2015 session. Several states rejected the bill, but some are still awaiting decisions.

The California bill, SB-128 End of Life, is modeled after the Oregon statute, with both having a layer of safeguards to remove concerns of misuse. 

The large number of states considering the legislation shows how much the movement has grown in the last several years.  The nationwide movement has come to be known as the “Death with Dignity” movement, and in 2014 supporters got a face to their movement in Brittany Maynard.  Brittany Maynard was a California woman with terminal brain cancer.  She uprooted her family to Oregon to be able to end her own life through the use of physician-assisted suicide, illegal in her home state.

The California bill, SB-128 End of Life, is modeled after the Oregon statute, with both having a layer of safeguards to remove concerns of misuse.  Patients who wish to take use of the law must be terminally ill, and two different doctors need to confirm that they have less than six months to live with their illness.  Patients must also meet with a doctor one-on-one to discuss this option, and make sure that it is a voluntary choice.  The life ending medication must be requested three times, with one being in writing, signed in front of two witnesses, and a final form being signed at least two days prior to ingesting the medication. Those wishing to end their life must be able to swallow the medication themselves; it cannot be given intravenously, to ensure the consuming of the medication is done so voluntary.

Now that the California bill has become law, two important things are included in the bill unique to the Oregon bill.  First, the bill includes a sunset clause, which requires that it either be renewed in ten years, or expire.  Second, nowhere in the bill does it require a physician to provide the medication if asked.  The language suggests that it is partly physician discretion.

The sunset clause of the California bill states that within ten years of the bill becoming law, the California legislature must renew it. If this fails to happen, the bill expires, and physician-assisted suicide will no longer be allowed in California. The legislature will have to look at how the bill has affected California, and decide if it wants to renew.

The lack of a requirement for a physician to provide the life ending medication if asked means that no physician can be forced to comply with something they may be morally opposed to. This is crucial to the success of the bill, as forcing physician compliance could hinder public response. No one should have to provide life-ending medication if it is against their belief system.

If the majority of states begin to support physician-assisted suicide, would the Supreme Court’s arguments hold up?

 Prior to allowing physician-assisted suicide, Washington State had a statute that banned the activity, making it a crime for any physician to help a terminally-ill patient end their life.  In Washington v. Glucksberg, Dr. Glucksberg and several patients brought suit, asserting that Washington’s ban violated the Fourteenth Amendment’s Due Process Clause.  The Supreme Court of the United States rejected this argument on two main points.  First, the Court said that a “right to die” did not fit into the historically rooted rights and liberties.  Second, the Court said that the right to assisted suicide is not a fundamental liberty under the Due Process Clause, saying it is offensive to our nation’s practices.

Around the same time, New York State also had a ban on physician-assisted suicide.  This statute was challenged under the Fourteenth Amendment’s Equal Protection Clause, with physicians alleging that it was unfair to terminally-ill patients.  The Supreme Court in Vacco v. Quill again upheld a ban on physician-assisted suicide.  The Court held that there was no equal protection violation because the statute was rationally related to the states interest in protecting medical ethics (although it was physicians who wanted the ban lifted).

With California’s new passing of the “Death with Dignity” act, the trend appears to be growing.  “Death with Dignity” movements are popping up all over the country, and it is possible that more states will soon begin to pass similar legislation.  If the majority of states begin to support physician-assisted suicide, would the Supreme Court’s arguments hold up?

Supporters of the movement argue that they would not.  In Glucksberg, the court held that physician-assisted suicide was offensive to our nation’s practices, but as more states begin to allow it, this may no longer the case.  The movement also seems to go against the rationale of Vacco, with many physicians arguing for the “Death with Dignity” movement as a more humane way to give the terminally-ill the right to end their life.  These questions will remain unanswered until someone challenges a state ban.

While the Supreme Court holds that a state ban is constitutional, they do not support blocking it once the state has put it in place.

In a democratic society, states must be able to enact the laws that their people deem appropriate, so long as they do not violate the United States Constitution.  If California wants to give terminally-ill patients the right to die, then it should be able to do so.  There have been attempts to block the allowance of physician-assisted suicide in Oregon.  While the Supreme Court holds that a state ban is constitutional, they do not support blocking it once the state has put it in place.

Specifically, in Gonzalez v. Oregon  the Supreme Court stated that statutes allowing overdoses under the care of a physician are exempt from punishment under the controlled substances act.  In Gonzales, the Attorney General attempted to declare that physician-assisted suicide violated the 1970 Controlled Substances Act.  Refusing to accept this as true, the Supreme Court tackled a large hurdle for states supporting physician-assisted suicide.

The Supreme Court also denied certiorari to review a case in Oregon challenging the Fourteenth Amendment’s Equal Protection Clause after the Ninth Circuit said there was no standing.  Since 2001, there has been no challenge to the Oregon law, with over 750 terminally-ill people using the law to die on their own terms through the use of physician-assisted suicide.

The fact remains, if each state decides that it wants their people to have access to physician-assisted suicide then it should be supported.

California is about to change the way people look at the “Death with Dignity” movement.  With the law officially passed, the number of people with access to physician-assisted suicide in the Unites States will nearly triple.  The California law has the potential to create a domino affect, prompting other states to pass legislation.  On the other hand, some states may now want to ban physician-assisted suicide, which could lead to another Supreme Court case.

Many people do not understand why people support “Death with Dignity,” but there are two sides of the moral coin.  On one side there are devout Christians who believe that suicide, in any form, is immoral and a sin.  On the other are those who say that forcing someone to live with the pain and suffering of a terminal illness, knowing that they will die, is inhumane.

The fact remains, if each state decides that it wants their people to have access to physician-assisted suicide then it should be supported. California has officially decided, what will the remaining 45 states do now?