By: Jennifer Garcia, Articles Editor, J.D. Candidate, May 2019, St. Thomas University School of Law.

Whether terminally ill patients have a right to end their life, and thereby their pain and suffering, has been debated for ages.  In the United States, the practice of physician-assisted death is prohibited in most states by either an express statute or application of general laws by judges. There have been some constitutional challenges regarding the prohibition of physician assisted death (“PAD”), but ultimately, the Supreme Court has stated that this issue should be resolved at the individual states’ level.  Throughout the nation, the American public itself is very divided on the issue.  When polled regarding the legalization of PAD, the results frequently show a 50/50 split.

Like with every major controversial topic that our legislature faces, there are valid arguments on both sides of the aisle.  Proponents of the legalization of PAD argue that first and foremost, terminally ill patients should have the right to die, should they choose to, rather than to be forced to live in chronic pain and suffering.  These proponents also believe that it is the physician’s duty to do everything he or she can to relieve the patient’s pain and suffering, even to the point of ending the patient’s life, absent an alternative. On the other hand, opponents of PAD think that it is the physician’s duty to never harm a patient and, of course, that purposefully killing a patient is inherently wrong, regardless of the situation.  Opponents also state that legalizing PAD will lead to an abuse of it, with physicians unilaterally ending unwilling, terminally ill patients’ lives.

However, there are states that allow for PAD.  Oregon was the first in the nation to legalize it.  Oregon’s “Death with Dignity Act” (“Act” or “DWDA”) was passed in 1997 and has survived a variety of legal challenges since.  The Act “allows terminally ill Oregonians who meet specific qualifications to end their lives through the voluntary self-administration of a lethal dose of medications, expressly prescribed by a physician for that purpose.” The Act requires that the patient is: 1) at least 18 years old, 2) an Oregon resident, 3) capable of making and communicating health care decisions, and 4) “diagnosed with a terminal illness that will lead to death within six (6) months.”  The attending physician is responsible for making these determinations and reporting to the state’s health authority that a prescription has been issued.

The DWDA then requires that the state’s health authority records information from the Act’s participants.  The data collected shows that last year, 218 patients received the prescriptions and as of January 19, 2018, 143 people had died from the prescriptions.  The characteristics of the patients are similar: over 80% were 65 years old or older and over 76% of those patients had cancer.  There were also no referrals of physicians for failure to comply with the Act’s requirement in 2017.

The number of deaths under the Act has been increasing over the years.  Such is the story of Ben Wald, who 11 months after he was diagnosed with colon cancer, was only a “shadow of himself.”  Ben asked his wife for help, and she reluctantly agreed to help him end his suffering.  There are also people who move to Oregon because of the Act. Britanny Maynard, a 29 year old from California, moved to Oregon after she was diagnosed with a late stage brain tumor.