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02/13/2017

The Death of Aid-in-Dying in DC

by Craig Klugman, Ph.D.

I recently gave a talk to a local chapter of a national physicians’ health care group where I was talking about what end of life could look like under a single payer health care system. Several of the attendees were advocates of aid-in-dying and were hoping I was going to talk about that issue as well. I did not as there was so much else to talk about regarding proposals for health care plans to replace the ACA and comparing death and dying in the US with countries that have a single-payer system (In short, no one is great at it; we aren’t doing so badly in comparison, and having a single payer system does not correlate with having good end of life).

As of the end of 2016, 5 US states have legalized aid-in-dying via legislation (CA, CO, OR, VT, WA) and 1 had a court ruling declaring it legal (MT). Thirty-seven states have specific laws against assisted suicide. Twenty-three states currently have bills under review to permit aid-in-dying.

The supporters of aid-in-dying at the talk were buoyed in attempts to pass such a law in Illinois by the recent efforts of Washington DC in passing their assisted suicide law. On December 19, 2017, DC Mayor Muriel Bowser signed an aid-in-dying bill that had been approved by the DC Council. Unlike states, laws passed by the DC government must be reviewed by Congress, who has a final say. Technically Congress governs DC and the local government only rules with Congress’s agreement, which can be withdrawn at any time. Congress has 30 days after a DC law is passed to block it, a step that they have taken only a handful of times. Under the 114th Congress, this law might have been allowed to stand. But under the 115th Congress, which is controlled by conservatives in the Republican Party and DC went overwhelmingly for Clinton, such a law is antithetical to their cherished beliefs. Thus, as of February 13, 2017, the House of Representatives disapproved the DC Death with Dignity Act of 2016. The Senate still needs to consider the resolution.

The House rejection was sponsored by two members, Brad Wenstrup, DO (R- Ohio) and Mr. Phil Roe, MD (R-Tennessee), both whom are medical professionals. In a recent editorial in the conservative journal, The National Review, they wrote about why they are against aid-in-dying: “In authorizing doctors to violate the Hippocratic oath of “do no harm,” physician-assisted suicide undermines a key safeguard that protects our nation’s most vulnerable citizens and helps to ensure our loved ones receive the best medical care when they need it most.” The physician-representatives further state their concerns that there is a lack of oversight in the process, that “terminal disease” (6 months of expected life) is too broad a term, and that the law does not “adequately protect patients from potential coercion and abuse.” By this statement, they mean that most people who are dying feel “depression, hopelessness, dependency and loss of control or autonomy” which can make them easy pretty to “family members, heirs, or health-care providers who might extert on a patient to choose assisted suicide.” They claim that their greatest concern is that given the high expense of aggressive care, assisted suicide may be seen as the cheapest way to go, and people may make an economic decision to end their lives.

There are several assumptions in their editorial that are worth further investigating. First, Wenstrup and Roe presume that all people at the end of life are distraught and easily manipulated. They equate being terminally ill with losing one’s ability to make reasonable choices. This certainly can be true, but is not necessarily true. Second, they presume that all people facing the end of life are depressed, hopeless, and despondent and that those things in themselves are bad. Not everyone who receives a terminal diagnosis loses hope and becomes depressed. And some level of depression in a person facing a terminal disease is expected—it only becomes a problem when it takes over a person’s ability to think and function in everyday life. Third, they presume that the role of the physician is only to save life and return to cure, but forget the part about providing comfort to patients and the fact that sometimes, there is not more than can be reasonably done. This is a controversial point and many physicians do feel writing the final prescription violates their oaths and professional role. Many hospices do not permit their staff to be present when a final prescription is ingested and some do not even let staff discuss the option.

What the physician-Representatives did not say in their editorial is that aid-in-dying laws create situations for improved end-of-life care that have nothing to do with assisted suicide. In fact, over the first 17 years of Oregon’s law, only 64% of people who received a prescription, took it. The median age of death in 2015 under the Oregon law was 73 years with 78% of patients before over 65 years of age. Most patients (92.2%) were enrolled in hospice and most (99.2%) has some form of health insurance. Plus, if a physician does not want to participate, she or he does not have to; You simply refer the patient to another doctor. Perhaps most interestingly, those who choose to use the law tend to be more educated and of higher socioeconomic status—people who have fewer economic pressures.

A 2008 article by ethicist and aid-in-dying opponent Courtney Campbell reported that relatively few people have used the law to end their lives. He also reported that “patients seem relatively free of or immune from coercive influence.” And perhaps most importantly, he shows that for all patients, there is a decrease in the number of people dying in pain. When physicians are less worried that their prescribing practices may be scrutinized by the DEA for giving too much pain medication (since people who are in terminal pain may require large doses of pain medications), they are more likely to give adequate pain control. Campbell also says he is amazed how quickly aid-in-dying has become normalized in medical discourse. Similarly,  A New York Times article from 2012 showed that fears of a slippery slope from voluntary aid-in-dying to nonvoluntary euthanasia have not happened. For most people, aid-in-dying is about maintaining a sense of control and having an ability to make an autonomous choice. The benefits can be existential.

Wenstrup and Roe trotted out some tired, old, and several disproven concerns about aid-in-dying laws for Washington DC. While they made a decision regarding what assisted suicide would mean for their medical practices, it does seem the height of hubris for them to make decisions for all medical practitioners in regards to this matter. Being a conservative has traditionally meant favoring state rule and though DC is not a state, the override of this home rule choice seems to against that value. Plus, the experiences of states with aid in dying empirically contradict their stated concerns.

If the 115th Congress does reject this law, then the DC Council and Mayor should continue to assert their autonomy by passing this law again and again, and forcing Congress to justify its disapproval each time. In the meantime, the people of DC can contact Senators serving on the Senate Committee on Homeland Security and Governmental Affairs and urge them to let DC have an aid-in-dying law.  To fully block the law, the Senate Committee would have to act by Friday–the end of the 30 day period. The benefits are not just for people with terminal illness who wish for assistance in dying, but for all people facing pain and suffering in the District.

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