Dying for Control: Brittany Maynard’s Fight for a Physician-Assisted Death

An Oregon woman diagnosed with terminal cancer has chosen to end her life by taking doctor-prescribed life-ending drugs, reigniting the debate on the legality and ethics of physician-assisted death.

Photo by Steve Smith (Flickr)

For the past couple of weeks, both social media and news media have been buzzing with the story of twenty-nine-year-old Brittany Maynard, who is planning to end her life on November 1.  In the spring of this year, Maynard was diagnosed with grade IV gioblastoma, the most deadly form of brain cancer, with doctors estimating she has just months to live.  Instead of letting her cancer run its course, Maynard is choosing to take advantage of Oregon’s “Death With Dignity” Act by choosing to die on her own terms.

Maynard’s tragic choice has garnered both support and criticism.  She has devoted her last months to advocating for the right to die with dignity, and has seen firsthand how her campaign has reignited the debate over the legality of whether or not doctors should prescribe life-ending drugs.

The Act has in place multiple provisions to act as safeguards against abuse of the law.

Although Oregon’s law has recently come under fire due to the media attention surrounding Maynard’s choice, doctors choosing to prescribe life-ending drugs is not a novel concept.

The Act, also known as Measure 16, was approved by Oregon voters in 1994, formally legalizing physician-assisted death, albeit with certain restrictions. It states:

An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner . . .

The Act has in place multiple provisions to act as safeguards against abuse of the law.  The patient in question must submit a written request in the presence of two witnesses who must attest that to the best of their knowledge, the patient is acting voluntarily in signing the request.  It is further required that one of the witnesses is a person unrelated to the patient, is not entitled to any portion of the patient’s estate, and is not a worker in the health care facility in which the patient is receiving care.

After the written request is submitted, the attending physician must make an initial determination of whether the patient has a terminal disease and has made the written request voluntarily.  “Terminal disease” is defined as “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.”  Then, the physician must ensure that the patient is making an informed decision by providing the patient with various information, including informing the patient of alternatives to death, such as hospice care and pain control.

Also, a physician may not provide medication to end a patient’s life until they determine that the patient is not suffering from a psychiatric or psychological disorder, or depression causing impaired judgment.

Lastly, there is a required waiting period of no less than fifteen days that must elapse between a patient’s initial oral request and the doctor’s writing of a prescription.

Just three years after the Act was passed, the Oregon Legislative Assembly referred Measure 51 in attempt to repeal the Act.

When the Act was passed in 1994, the general public narrowly voted in favor of the act, with 51.3 percent in favor and 48.7 percent against. Just three years after the Act was passed, the Oregon Legislative Assembly introduced Measure 51 in attempt to repeal the Act.  However, Measure 51 failed, with nearly sixty percent of the population voting against it.

The attempt to pass Measure 51 came in the midst of the controversy surrounding Washington v. Glucksberg in 1997, where the United States Supreme Court held that our Constitution’s Due Process Clause did not protect physician-assisted death.  The result of this decision was that Washington State may be allowed to prohibit physician-assisted death.

In 2006, there was yet another direct challenge to Oregon’s act when the United States Attorney General attempted to claim that physician-assisted death was not a legitimate medical purpose, and therefore any physician who administered life-ending drugs for that purpose would be in violation of the Controlled Substances Act.  However, in Gonzales v. Oregon, the United States Supreme Court held that the attorney general could not hold physicians in violation of the Controlled Substances Act and issued an injunction against an interpretive rule ordered by Attorney General John Ashcroft that would hold these physicians liable.

There are many benefits of giving terminally ill patients the option to end their lives to alleviate suffering.

By sharing her story, Maynard has garnered support from organizations such as Death With Dignity National Fund.

The Death With Dignity National Fund is the nonprofit organization in charge of the legal defense and education concerning Oregon’s Death With Dignity Act. The organization explains that there are many benefits of giving terminally ill patients the option to end their lives to alleviate suffering. These benefits include:

• Respect for the autonomy of the patient to make the personal choice of when to die
• Since competent, terminally ill persons are allowed to hasten death by refusing treatment, and since sometimes treatment refusal will lead to more suffering, patients in this position should be allowed assisted death
• Allowing terminally ill patients aid in dying relieves them from both physical and psychological suffering
• Although the government does have a strong interest in preserving life, that interest is lessened when a terminally ill person has a strong desire to end their own life; therefore a limitation on assisted death limits personal liberty
• Because assisted death already occurs in secret in states without Death With Dignity laws, legalizing assisted death would promote a more open discussion of the topic

Maynard has expressed how thankful she is for having the opportunity to choose assisted death to end her life, rather than being forced to prolong her suffering. She has planned to die in her bedroom in her home, surrounded by immediate family.  Being able to die on her own terms, rather than cancer’s, has provided comfort to Maynard over the last months.

Maynard also wishes to stress the fact that her choice is not a choice to commit suicide, and that she would prefer to live if not for her terminally ill cancer. “No, cancer is ending my life,” she said. “I am choosing to end it a little sooner and in a lot less pain and suffering.”

Much opposition remains to the idea of doctors prescribing terminally ill patients life-ending drugs.

Despite the benefits purported by these organizations and supporters of Death With Dignity laws such as Maynard, much opposition remains to the idea of doctors prescribing terminally ill patients life-ending drugs.

A poll of readers of the New England Journal of Medicine showed that sixty-seven percent of American healthcare workers oppose physician-assisted death.  Moreover, opponents of the Act say that Death With Dignity laws are simply the legalization of assisted suicide, rather than physician-assisted death.

One of the most popular arguments against physician-assisted death is that the Hippocratic oath states that doctors should do no harm.  Many argue that physicians who administer life-ending drugs are in direct contradiction to the oath they are required to take.

Another concern from opponents is that the safeguards put in place by the Measure 16 are simply inadequate.  According to Marilyn Golden, a senior policy analyst with the Disability Rights Education and Defense Fund, allowing physician-assisted death is not worth the risks of abuse.

“If assisted suicide is legal, some people’s lives will be ended without their consent, through mistakes and abuse,” Golden said.  “No safeguards have ever been enacted or proposed that can properly prevent this outcome, one that can never be undone.”

Golden also stresses that many people do not choose physician-assisted death because they are in pain. Rather, they choose to end their lives out of fear of burdening their families.  She also explains that all fifty states give patients the option to be sedated so that they do not feel discomfort as they are dying.

Currently, Oregon, Washington, and Vermont are the only three states that affirmatively offer Death With Dignity laws. However, since 2013, Connecticut, Hawaii, Kansas, Massachusetts, New Hampshire, New Jersey, and Pennsylvania have all introduced bills similar to Oregon’s Death With Dignity Act.

More than 1,000 terminally ill people in Oregon have requested life-ending drugs since the Act’s passing and just over half of those people have chosen to take them.

Maynard is just thankful that she has the option to make that choice.

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About Rachel Goodling, Senior Staff Writer (17 Articles)
Rachel Goodling is a 2016 graduate and served as a Senior Staff Writer for the Campbell Law Observer. She is originally from Cary, North Carolina and graduated from Appalachian State University in 2012 with a Bachelor of Science in Journalism and a Political Science minor. Following her first year of law school, Rachel worked at the NC Department of Justice, Medicaid Investigations Division as the criminal intern. Following her second year of law school, Rachel interned at North Carolina Prisoner Legal Services handling post-conviction appeals as well as civil claims made by inmates across North Carolina. Rachel was also on Campbell's National moot court team.
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