Adapted from VES –The Voluntary Euthanasia Society of England and WalesAssisted Dying and the USA
From the Voluntary Euthanasia Society of England and Wales
USA has a long history of efforts to legalise medical help to die. The earliest bill for this was introduced in the Ohio State Legislature in 1906. It was the first attempt at trying to change the law anywhere in the world – it lost the vote.
The first campaigns
In 1938, the Euthanasia Society of America was set up by the Reverend Charles Francis Potter. Until the 1960s, it tried without success to change the law. Then, under a new President (a Unitarian minister), the Euthanasia Society changed its focus. At that time there was little public support for voluntary euthanasia, so the Society decided to concentrate on the right of the individual to consent to or refuse medical treatment.
In 1967, lawyer Luis Kutner and the Euthanasia Society drew up the world’s first ‘living will’. This is a form on which you can say that you do not want doctors to keep you alive if you become incurably ill. Living wills are now legally binding in America, and in many other countries too.
The fight for legalisation
During the late 1970s and the 1980s, public opinion shifted in favour of the right to die with dignity. Surveys show that most Americans, 75% in a 1996 independent Gallup opinion poll, now agree with assisted dying for terminally ill patients. There are now a number of national ‘right to die’ groups in the USA such as ‘The Hemlock Society’, ‘Compassion in Dying’ and ‘Choice in Dying’.
From the 1980s onwards, local campaign groups (under the guidance of the national societies) tried various routes to get ‘aid in dying’ laws in their states. In Washington and New York states, they went to court to challenge the laws which forbid helping people to die. They argued that the ban is unconstitutional, in that it denies the freedoms promised in the American Constitution. Their cases went all the way to the Supreme Court, the top court in the land. In June 1997, after six months of debate, the Supreme Court ruled that Americans do not have a constitutional right to assisted death, but on the other hand, assisted suicide is not unconstitutional. The court said that the issue is up to each individual state. They can ban it, or they can allow it.
So campaigners returned to their states to push local politicians to change the law. To date, no ‘right to die’ law has been put forward and passed by any state government.
The other route for some local groups has been through ‘citizen-initiated votes’. Through such votes, many states allow residents to suggest laws. If activists can gain enough signatures (a certain percentage of voters) to back their proposals, it is put to the vote. The process is similar to a referendum since everyone, not just politicians, can vote on it.
This route – asking people what they want – finally led to success in America.
In Washington state the ‘Death with Dignity Initiative’ qualified for the November 1991 ballot. This proposal was for active medical help to die. It would have allowed competent, terminally ill patients to ask for and receive a lethal injection from a doctor. The Act included strict guidelines and controls. Opinion polls suggested that it would pass, but on the day it lost by 54% to 46% of the vote.
In 1992, there was exactly the same result in California. State residents voted on another citizens’ initiative, the Californian ‘Death with Dignity Act’. This also aimed at allowing active help to die under certain conditions. It lost the vote by 54% to 46%.
It was third time lucky for the American ‘right to die’ campaigners. In 1994, the Oregon group collected enough signatures to put their ‘Death with Dignity Act’ on the ballot. Unlike the other efforts, this proposal was only to allow doctor assisted suicide for the terminally ill. Again, it included checks and strict guidelines, but doctors could only prescribe lethal drugs. The patient had to take the dose themselves.
The Act passed by a vote of 51% to 49% and became the first law of its kind anywhere in the world. Although voluntary euthanasia has been openly available in the Netherlands for many years, it is not actually legal there.
Main features and safeguards of the Oregon ‘Death with Dignity Act’
1. The patient must be terminally ill and expected to die within six months; mentally competent; fully informed about his or her diagnosis, prognosis, risks and alternatives, such as comfort care; and making a voluntary choice.
2. A second doctor must agree that the patient is terminally ill; acting on his or her own free will; fully informed; and capable of making health-care decisions.
3. If either doctor thinks that the patient is suffering from any form of mental illness that could affect his or her judgement, they must refer the patient for counselling.
4. The patient must make one written request and two spoken requests.
5. The doctor must ask the patient to tell the next of kin, but the patient may decide not to do so.
6. The patient is free to change his or her mind at any time.
7. There is a 15 day waiting period between the patient making the request and the doctor writing the prescription.
8. All information must be written down in the medical records.
9. Only people who normally live in Oregon may use the Act.
10. Mercy killing, lethal injection and active euthanasia are not permitted.
Almost as soon the Act had passed, groups who were against the right to die started legal action against it. Led by a lawyer from the ‘National Right to Life Organisation’, they managed to block the law by getting restraining orders and holding it up in court challenges. Oregon also had to wait six months for the result of the Supreme Court enquiry into assisted dying. Finally, in October 1997, Oregon courts disallowed the legal complaints, and people were free to use the Act.
However, another complication arose. Pro-life members of the Oregon government persuaded the state government to send the whole Act back to the people to vote on it again. This was the first time an issue decided by the voters had been questioned in this way. On 4 November 1997, instead of rejecting the law, Oregonians voted by an increased majority to keep their ‘Death with Dignity Act’. Support had grown to 60% in favour, while only 40% wanted it abolished. The ‘Death with Dignity Act’ was now definitely law.
Anyone who wants to use the Act can rely on having their privacy respected. Oregon’s Health Division is collecting information about cases of assisted suicide to make a report every year. However, they will not give details of individual cases.
Their second report was published in February 2000. It showed that, in the previous year, 27 people used the law to die peacefully at a time of their choice. The main reason for asking for help to die was quality of life – not pain or worries about finances. There were no reports of any problems with the law. In every death all the guidelines and regulations in the law were followed properly.
Quotes from the Oregon ‘Death with Dignity Act’
2.01 Who may initiate a written request for medication
‘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 in accordance with this Act.’
2.02 Form of the written request
‘(1) A valid request for medication under this Act shall be … signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.’
3.01 Attending physician responsibilities
‘The attending physician shall:
(9) Ensure that all appropriate steps are carried out in accordance with this Act prior to writing a prescription for medication to enable a qualified patient to end his or her life in a humane and dignified manner.’
‘(1) No person shall be subject to civil or criminal liability or professional disciplinary action for participating in good faith compliance with this Act. This includes being present when a qualified patient takes the prescribed medication to end his or her life in a humane and dignified manner.’
Assisted suicide is not legal in the state of Michigan. However, since 1990, a retired Michigan pathologist has helped over 100 people suffering from incurable illnesses to commit suicide. Dr Jack Kevorkian soon became known as ‘Dr Death’ for openly admitting what he does. He helps patients fix themselves up to a ‘suicide machine’ which he developed himself. This delivers a dose of lethal drugs when the patient presses the button.
Dr Kevorkian has been in court five times, and he walked free from each of the first four trials. Charged in each case with assisting suicide, juries just would not convict him. With the help of an excellent lawyer, he has escaped prosecution on other cases as well. However, in his last trial, Dr Kevorkian was convicted of murder, and he is now serving a long prison sentence (see the box below for more on this).
Dr Kevorkian has often called on the state to change the law. Although he is not a member of any ‘right to die’ organisation and does not follow the guidelines and safeguards proposed by them, he is a hero to many ordinary Americans. At a dinner held by ‘Time’ magazine in March 1998, actor Tom Cruise was among the many celebrities who made a point of going up to Dr Kevorkian to offer support.
The fifth trial of Jack Kevorkian
In March 1999, Jack Kevorkian faced his fifth trial for helping people to die. He was back in a Michigan court charged with murder over the death of Thomas Youk, a 52-year-old sufferer of motor neurone disease. Mr Youk died in September 1998. His disease had progressed to a stage where he was confined to a wheelchair and fed through a tube in his stomach. Mr Youk’s death, assisted by Dr Kevorkian, was televised in November 1998 on a programme called ’60 Minutes’, one of the most respected current affairs programmes in the United States. After this, prosecutors had no choice but to charge Dr Kevorkian for his part in the death.
During the trial, Dr Kevorkian decided to defend himself. The prosecution case was simple – they had a video-tape of Jack Kevorkian giving a lethal injection to Thomas Youk. Dr Kevorkian’s response was to say that he had only meant to relieve Mr Youk’s pain and suffering. The judge told the jury that they must remember that, even if Thomas Youk asked for help to die, this was not allowed as a defence to the murder charge.
After hearing all the evidence, the jury convicted Dr Kevorkian of second-degree murder. This is not as serious as the original charge of first-degree murder. However, Dr Kevorkian was still sentenced to spend between 10 and 25 years in prison. He started his sentence in April 1999, and may be released after serving two thirds of the time.