Regulating Physician-Assisted Death

Following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, when the Court removed constitutional protections recognizing the right to abortion, debates around bodily autonomy have grown increasingly contentious. Notably absent in many of these debates, however, is reference to the highly divisive right to die.

According to a 2001 book chapter by Margaret P. Battin of the University of Utah, an absence of attention to the right to pursue physician-assisted suicide, or “active euthanasia,” obscures the “charged and polarized” nature of the right, with the very model of end-of-life issues in the United States at risk of substantial change.

Assisted death and other end-of-life issues gained traction in the late 1960s as medical patients and other disfavored groups fought alongside the proponents of the civil rights movement to pursue greater political and legal recognition. Battin claims that the debate over patients’ control of their deaths and the associated process of dying skyrocketed with the passage of the California Natural Death Act of 1976, which established patients’ right to determine, while still competent, the treatments they did not want to pursue as their condition deteriorated.

Proponents of assisted death initially pursued a populist strategy, Battin explains. Opponents, alternatively, partnered with existing organizations, including the Catholic Church and the American Medical Association, to speak out against the legalization of physician-assisted death with the apparent backing of authoritative institutions.

Battin contends that the involvement of these large institutions escalated the debate and led both sides to pursue state-level initiatives, ultimately shifting the focus of the debate from public opinion to state law.

Proponents initiated referenda in numerous states, including Washington, California, Oregon, Michigan, and Maine, seeking to allow physicians to provide terminally ill patients with lethal prescriptions upon request. Battin explains that, with active efforts from opponents to challenge the passage of state-assisted suicide laws, the referenda failed by narrow margins in all states but Oregon, where Measure 16 passed twice in 1994 and again in 1997, when the state enacted the Death with Dignity Act. Since then, 11 states have passed “right to die” laws.

When cases came before the U.S. Supreme Court, the Court ruled unanimously to uphold the constitutionality of state statutes prohibiting suicide assistance. Although courts seemingly ruled in the opponents’ favor, Battin argues that these rulings created a “laboratory of the states,” through which some states could legalize assisted death and others could prohibit it, thereby allowing policymakers to gain greater insight into the relative benefits and drawbacks of each approach.

Viewing the Supreme Court’s decision as inadequate and Oregon’s Death with Dignity Act as “the domino that would let many others fall,” Battin describes how opponents then sought to overrule state law by imposing new federal regulations.

After the federal Justice Department declined to prohibit physicians from using scheduled drugs for the purpose of assisting death, opponents unsuccessfully pursued congressional measures in the form of the Pain Relief Promotion Act of 1999 (PRPA). As Battin explains, the PRPA would have amended the Federal Controlled Substances Act to prevent the distribution of controlled substances “for the purpose of causing, or assisting in causing, the suicide or euthanasia of any individual.”

According to Battin, this proposed legislation would have directly challenged the Death with Dignity Act’s legalization of lethal prescriptions by targeting not the physicians or patients themselves, but the very drugs that would allow for a painless death. The legislation never passed, partly because, Battin contends, palliative care specialists testified that it would hinder the provision of effective pain relief in unrelated circumstances.

Despite the PRPA’s failure, it highlighted the vulnerability of proponents’ state-level initiatives to federal overrides. Battin claims that this revelation prompted proponents to seek alternative methods that could not be so easily eradicated by federal regulation.

This pursuit of alternative methods culminated in the creation of “NuTech:” new technologies capable of causing “easy death” without the assistance of a physician or prescription-limited drugs. Most importantly, Battin contends, this means these technologies are not subject PRPA-like restrictions.

This series of moves and countermoves—the passage of the Death with Dignity Act, attempted passage of PRPA, and creation of NuTech—has created an area of individualized medicine difficult to reach with regulation. Battin suggests that this transition toward an unregulated model of end-of-life medicine is problematic, concluding “it is not clear that this is a change for the better.”

Many centrist organizations share this cautious sentiment and have chosen to continue advocating more traditional legalization initiatives, despite the looming threat of oppositional federal regulation.

Some legalization opponents fear it will facilitate abuse by careless physicians and greedy health care institutions. NuTech may provide the perfect compromise for these opponents, Battin claims, because the decision-making power is vested solely with the patient themselves.

Although Battin fears the debate over assisted death will continue its historical pattern of escalation without appropriate regulation, she urges proponents and opponents alike to pursue conciliatory, rather than escalatory, moves.