Some proponents of physician aid in dying say new lawsuits in California and New York might be a better route to achieving legalization of the practice than legislation or ballot initiatives, which can cost money, time and carry political risk.
They believe that victories in those two big states could give their cause strong momentum throughout the country. But opponents argue there is no state constitutional basis for allowing assisted suicide.
The current laws in California and New York bar assisted suicide but do not say anything specifically about physicians prescribing medication to terminally ill patients to help them die, said Kathryn Tucker, executive director of the Disability Rights Legal Center and lead counsel in both cases. The lawsuits ask state courts to declare that physician aid in dying is not subject to criminal prosecution.
“Doctors tend to be a rather conservative lot, so absent a clear indication that aid in dying is legal, (they) for the most part decline to do it,” said Nico van Aelstyn, co-counsel in the California case. “Or if they do it, they do it in the shadows and don't admit it.”
The people and groups behind the lawsuits, in which patients and physicians are the plaintiffs, hope they'll have a better chance in state court rather than federal court. That's partly because some state constitutions offer greater protections than the U.S. Constitution when it comes to privacy and dignity rights, Tucker said. The U.S. Supreme Court ruled in 1997 that there is no federal constitutional right to physician-assisted suicide.
Proponents also say the lawsuits might be faster, cheaper and more effective in achieving legalization than the bills now working their way through many state legislatures. “It costs a lot less and takes less time than launching a legislative campaign,” van Aelstyn said.
The litigation approach worked in Montana and New Mexico, where court decisions led to current legalization of the practice in those states.
In Montana, a state court judge ruled in 2008 that the "constitutional rights of individual privacy and human dignity, together, encompass the right of a competent, terminally-ill patient to die with dignity.” In 2009, the state Supreme Court, in a 4-2 decision, held that there were no state legal precedents or statutes “indicating that physician aid in dying is against public policy." The majority went on to say that “each stage of the physician-patient interaction is private, civil and compassionate. The physician and terminally ill patient work together to create a means by which the patient can be in control of his own mortality. The patient's subsequent private decision whether to take the medicine does not breach public peace or endanger others."
Last year, a New Mexico state court judge issued a similar ruling. “This court cannot envision a right more fundamental, more private or more integral to the liberty, safety and happiness of a New Mexican than the right of a competent, terminally ill patient to choose aid in dying,” the judge wrote. The New Mexico case has been appealed, but the practice remains legal there pending a decision.
In both states, legislative opponents of assisted suicide recently failed to pass laws overriding the court decisions to make the practice illegal.
In recent months, lawmakers in more than 20 states have introduced bills to legalize physician aid in dying, including bills in New York and another in California.
But Tucker said introducing legislation that has little chance of passing can make it more difficult to pass bills in the future.
In addition, legislation and ballot initiatives may run into well-funded opponents who mount heavy advertising campaigns warning of the alleged dangers of assisted suicide. That's what happened in 2012 in Massachusetts, when a ballot initiative to legalize physician aid in dying was narrowly defeated after opponents outspent supporters 5 to 1.
Marilyn Golden, a senior policy analyst with the Disability Rights Education & Defense Fund who opposes physician-assisted suicide, said the reason most bills and ballot initiatives to legalize the practice have failed is because lawmakers and voters become aware of the dangers, such as mistakes, inappropriate use and coercion. “States keep voting this down,” she said. “The risks and dangers are coming to life.”
Aaron Kheriaty, director of the medical ethics program at the University of California, Irvine, who opposes physician-assisted suicide, said he worries that bills such as the one in California “open up serious potential for patients, especially those with treatable mental disorders, to be vulnerable and to not have those suicide risk factors adequately attended to.”
But supporters say that as more states legalize what they call the Death with Dignity option, the public will see that it can be used by terminally ill patients with no serious reported problems or abuses, which they say has been the experience in Oregon and Washington. Then, they predict, the opposition will soften.
Opponents say there have been problems but that the Oregon and Washington laws do not require adequate reporting allowing for these incidents to be properly investigated.
