Assisted dying: what happens after Vermont?BMJ 2013; 346 doi: http://dx.doi.org/10.1136/bmj.f4041 (Published 24 June 2013) Cite this as: BMJ 2013;346:f4041
Following in the footsteps of Washington and Oregon, Vermont law now allows physicians to prescribe lethal doses of drugs to terminally ill patients who request prescriptions.1
The legislation is closely modelled on Oregon’s 1994 Death with Dignity Act, under which “a mentally competent person diagnosed as having less than six months to live may request a prescription which, if taken, would hasten the dying process.”
It requires that the patient be diagnosed as terminally ill by both the prescribing physician and a consulting physician; that the request be voluntary and made orally and again in writing at least 14 days after the oral request; that the patient be informed of all feasible end-of-life services available—such as palliative care, comfort care, and pain control—or be enrolled in hospice care; and that the drug must be self administered.
However, in the Vermont legislation, many safeguards included in the Oregon law will expire in 2016, including the requirement for a consultation with a second physician and a waiting period, making the practice a private matter between the patient and a single physician, and so less restrictive. The practice in Vermont will then be governed by the professional standards that apply to all medical practices without additional government oversight.
The law also differs in the way it was passed: while Oregon and Washington adopted their legislation through voter referendums, Vermont is the first to pass it through a vote of a state legislature.
Popular ballot vs state legislation
This last point is an important one. State attempts to legalize assisted dying have not always come from popular votes, but the only successful attempts have, until now. And Vermont’s state legislature comes just months after the high profile and surprising rejection of assisted dying in a popular vote in Massachusetts, pointing to a new direction for assisted dying advocates and potential for other states to follow suit.
In Massachusetts various polls taken before last November’s vote had shown consistent support for the change in the law with about two thirds of voters expected to back it after a Boston Globe poll in late September, which found 68% of state residents in favor of the proposition and 20% against it. But the initiative was narrowly defeated at the ballot box with 51% voting against it.2
Although those opposing the change said this was illustrative of how an education campaign had helped the public better understand the problems of such a law, a statement from advocacy group Death with Dignity Campaign said this illustrated how public opinion had been swayed by war-chest spending of five to one by opponents of the law.
Whatever the truth of Massachusetts, Vermont’s success in passing this law without public vote is being seen as paving the way for other states.
Barbara Coombs Lee, president of Compassion and Choices, an organisation which pushes for change in assisted dying legislation, calls Vermont’s move a “historic achievement” and a “political breakthrough.”3
“Governor Shumlin and Vermont legislators have shattered a barrier by becoming the first politicians to show the courage to enact a death-with-dignity law. Given the high margin of public support for end-of-life choices nationwide, it is only a matter of time before legislatures in Massachusetts, New Jersey, and other states that are currently considering death-with-dignity bills enact them into law.”
Her hope is that the legislation in Vermont will encourage other law makers to vote in line with constituent feeling on the subject, which she believes is often broadly favorable to assisted dying laws.
And there are several states where votes are possible in the near future. Bills concerning assisted dying regularly rise and fall around the country so it’s hard to say anything for certain, but according to data collected by the Death with Dignity National Center, there are eight states currently or recently looking at legislation, specifically in this area, including Vermont.4
Connecticut, Hawaii, Massachusetts, Kansas, New Hampshire, New Jersey, and Montana are the other seven. In the last of these, Montana, there is already a degree of legality around assisted dying. The practice is allowed by court decision rather than legislation after the legal case of Baxter vs Montana in 2009 where the Montana Supreme Court ruled that state law protects doctors in the state from prosecution for helping terminally ill patients die.5 However, it does not guarantee assisted dying as a right to patients under the state constitution. It is because of this grey area, though, that Montana, despite seeing a similar bill to Vermont’s defeated in a Senate Judiciary Committee in February, is seen as one of the states most likely to pass full legislation on an assisted dying law in the future.
New Jersey and Connecticut are also being touted as front runners to make legislative changes in the coming years, if not months. The New Jersey Death with Dignity Act,6 which would allow assisted suicide in the state, subject to voter approval, was passed by a legislative committee in February and will now be taken up by the state Assembly. If passed by a majority vote in both Assembly and Senate it could be signed by the governor and put to the public vote as soon as November.
A similar bill in Connecticut7 was given a public hearing in March but stalled at the committee stage. However, it is expected that it will be reheard during the next legislative session.
And advocates on both sides of the debate might be gearing up to revisit the question in California.8 9 Several attempts have been made to pass such legislation in California over the past decade, all of which failed, but with Democrats now dominating the legislature and with Jerry Brown as a Democrat governor, there is a feeling that a bill would have a better chance of succeeding now than in the past.
North of the border in Canada, the strength of the movement is also growing. Earlier this month the Quebec government tabled bill 52.10 Quebec’s bill on assisted dying differs from those in the US in that while people in Vermont, Oregon, and Washington can have a doctor write a prescription for a lethal dose of drug, in Quebec, a doctor who receives the repeated consent of a patient could administer medication to cause death themselves. With an easy passage the bill could become law by the fall, but realistically it will face stern challenges within the province and from the federal government.
What the future holds
So after the Vermont decision, and given the number of bills already in motion, can we expect an avalanche of assisted dying legislation over the next 12 months and sweeping changes in the law? It’s unlikely to be that simple.
For example, while Montana and Connecticut are two states at the forefront of legislation in favor of change to relax laws on assisted dying, both states have also seen bills looking to strengthen opposition in recent months.
While House Bill 505 in Montana was defeated in April,11 Connecticut’s Senate Bill 229, called “An Act concerning the penalty for assisting suicide,” is still on the table. Much like the state’s bill supporting assisted dying it has stalled in the legislative process, but it is likely to re-emerge in the future.
Similarly, even if the bill in New Jersey makes it past the Assembly and Senate, it still needs the signature of the governor, Chris Christie, whose views are not public. And beyond that to the public vote stage, the experience of Massachusetts shows that although a newspaper poll may indicate public support for assisted dying, it may be harder to win an actual public vote.
Regardless of what legislation is approved there is also the issue of engaging physicians, because all models of assisted dying being proposed depend on the engagement of the profession, be it for prescription, administration, or consent. And at present the medical community is not in tune with the legislators.
To date, much of the opposition to assisted dying laws has come from medical organizations and societies.
In Massachusetts it was the state’s Medical Society, among others, that led the opposition to any relaxation in the law. Lynda M Young, the society’s past president, testified about its policy at a hearing of the House Judiciary Committee on 6 March 2012 saying that “allowing physicians to participate in assisted suicide would cause more harm than good. Physician assisted suicide is fundamentally incompatible with the physician’s role as healer.
“Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life. . . . Patients must continue to receive emotional support, comfort care, adequate pain control, respect for patient autonomy, and good communication.”
Likewise, the Medical Society of New Jersey has confirmed its opposition to the bill currently wending its way through the state, and come any potential public vote is likely to exert similar pressure as its Massachusetts based cousin did last year.
And even if legislation can pass, patients in Vermont are currently experiencing the difference between legislation and reality.
The response of most hospitals to last month’s law change in Vermont was that they would be opting out for the time being as they were not ready and able to enact the new law.12
Fletcher Allen Health Care, Vermont’s largest hospital, responded to it by immediately implementing an interim ban. Among the many questions that need answering before lifting the ban Stephen M Leffler, the chief medical officer at Fletcher Allen, confirmed that medical staff were asking “should we make this ban permanent?”13
It’s clear that this is going to be a contentious subject for legislation across the states for years to come.
Cite this as: BMJ 2013;346:f4041
Competing interests: I have read and understood the BMJ Group policy on declaration of interests and have no relevant interests to declare.
Provenance and peer review: Commissioned; not externally peer reviewed.