Since being enacted in 2019, the New Jersey Medical Aid in Dying Act has had a threshold condition on a patient’s request for medication under the Act: that they be an “adult resident of New Jersey.” The physician’s record must contain documentation of the patient’s status as a resident of New Jersey, whether in the form of a driver’s license, voter registration or tax returns. This “residency” requirement is a common factor in the laws of other states that have enacted similar legislation authorizing the dispensation of lethal medication to end a person’s life. Only two states currently do not have this requirement.
Focusing on a Pennsylvania resident, the article “Traveling to Die: The Latest Form of Medical Tourism,” originally appearing in the August 20, 2024 issue of KFF Health News and republished in the August 21 issue of Medscape, reviews the experience of individuals who live in states that have not legalized and authorized medical assistance for dying and who travel to one of the two locations which have dispensed with the residency requirements: Oregon and Vermont. This is seen by some as an “emerging trend.” However, the subject of medical tourism, sometimes referred to in this context as “circumvention tourism,” has been a matter of controversy.
The residency requirement presents several obstacles for patients. These include having to find cooperative doctors in a new state since every state requires confirmation of the terminal condition and limited prognosis by two physicians. In addition, there is a need to arrange for a place in the new state to ingest the medication and die. Moreover, the residency requirement imposes a burden of traveling “when too sick to walk to the next room, let alone climb into a car.” The practical burdens of the trip are increased by statutory requirements for a waiting period intended to give a patient the opportunity to calmly reflect and deliberate on their decision. Not only does this result in the need to obtain housing or engage in repeat travel, but the waiting period also presents the risk of the underlying condition progressing to a point where an individual loses capacity for decision-making and can no longer participate or where an individual dies before the waiting period is over while suffering throughout that time from the underlying condition that brought them to make the request for a physician-assisted death. In New Jersey, like most other states, the waiting period is 15 days. Several states have modified their laws to either shorten the waiting period or provide exceptions in the event of imminent death. A bill to eliminate the 15-day waiting period under the New Jersey Medical Aid in Dying Act was introduced in the 2022-2023 session of the legislature, but not acted upon. It was introduced again on January 9, 2024 in the 2024-2025 session but remains in committee.
The changes to the residency requirements in Oregon and Vermont resulted from the settlement of federal lawsuits challenging these requirements as violating the privileges and immunities clause of the United States Constitution with resulting legislative action to remove the requirement. New Jersey’s residency requirement is being questioned in the case of Govatos v. Murphy. On August 29, 2023, a complaint was filed in the United States District Court for the District of New Jersey asserting a challenge to New Jersey’s residency requirement as violating the Privileges and Immunities Clause (Art. IV, § 2), the Commerce Clause (Art. I, § 8), and the Equal Protection Clause (Amend. XIV, § 2) of the United States Constitution. The State has moved to dismiss the complaint. The motion has been fully briefed and is awaiting disposition and a decision by the court.
If the New Jersey residency requirement is declared constitutionally invalid, there likely will be an increase in the utilization of the Medical Aid in Dying Act. Travel to New Jersey is relatively easy from the abutting states of New York and Pennsylvania which do not permit medical assistance in dying. The Delaware legislature passed a bill to authorize medical assistance with dying and awaits action by the governor. Whether or not the governor will sign the bill is uncertain. However, the Delaware statute as passed would only allow an adult resident of Delaware to request and self-administer medication to end the individual’s life, leaving New Jersey as a probable destination for an individual seeking a physician-assisted death.
First appeared in JDSupra 28 August 2024
New Jersey
United States of America