343

Losing the Quality of Life: The Move

Toward Societys Understanding and
Acceptance of Physician Aid-in-Dying
and the Death with Dignity Act

LINDSAY REYNOLDS

ABSTRACT
During the November 2012 elections, Massachusetts voters rejected the
Death With Dignity initiative. Closely modeled after Oregons Death With
Dignity Act (DWDA), Massachusetts is one among many other states that
attempted to legalize physician aid-in-dying for the terminally ill.
This Note champions the policy behind the Oregon and Washington
legislation and argues that all states should allow physician aid-in-dying
from the right-to-personal-autonomy and compassionate standpoints. By
first discussing the background and legalization of physician aid-in-dying,
Part I outlines the Oregon and Washington DWDA statutory provisions.
Part II discusses the major obstacles to the DWDAs widespread enactment
in the United States. Part III analyzes statistical findings and studies, and
argues that the law as it stands in Oregon and Washington provides
adequate safeguards against abuse. Part IV addresses the influence and cross
between religious beliefs and physician aid-in-dying. Part V elaborates on
the right-to-personal-autonomy argument, and further argues that the
DWDA should extend to those who do not have a terminal illness. Finally,
Part VI provides a broad inquiry into the potential overlap between the law
of wills and that of the right to physician aid-in-dying.


Candidate for Juris Doctor, New England Law | Boston 2014. B.S., Public Relations,
University of Idaho 2006. I would like to thank my parents, Paul and Leslye, for their
unconditional love and support, and to all of my friends who have made me laugh along the
way.

344 Ne w Engl and Law Revi e w v. 48 | 343

INTRODUCTION
uring the November 2012 elections, Massachusetts voters rejected
ballot Question 2, the Death With Dignity initiative.
1
The
Massachusetts measure closely resembled Oregons Death with
Dignity Act.
2
Massachusetts is one among many states that attempted to
pass legislation legalizing physician aid-in-dying for the terminally ill.
3

Three statesOregon, Washington, and Vermontsuccessfully enacted
legislation allowing individuals to determine the date of their death.
4

Additionally, the Montana Supreme Court found that physician aid-in-
dying does not violate public policy.
5
This Note focuses on Oregon and
Washingtons treatment of physician aid-in-dying, and champions the
policy behind the Oregon and Washington legislation, arguing that all states
should allow physician aid-in-dying from both right-to-personal-autonomy
and compassionate standpoints.
6

This Note argues that the Death with Dignity Acts (DWDA) nemesis is
religion.
7
The obstruction to ones right to die must end.
8
Religious affiliates
abuse their powertrampling on an individuals right to determine their

1
Paula Span, How the Death With Dignity Initiative Failed in Massachusetts, THE NEW OLD
AGE BLOG (Dec. 6, 2012, 6:53 AM), available at 2012 WLNR 25933598.
2
Christine Roberts, Massachusetts Voters Narrowly Defeat Question 2, Measure that Would
Have Allowed Physician-Assisted Suicide for Terminally Ill Patients, N.Y. DAILY NEWS (Nov. 7, 2012,
8:38 PM), http://www.nydailynews.com/life-style/health/mass-votes-physician-assisted-
suicide-article-1.1198305.
3
See Kathryn L. Tucker, When Dying Takes Too Long: Activism for Social Change to Protect and
Expand Choice at the End of Life, 33 WHITTIER L. REV. 109, 115 (2011) [hereinafter When Dying Takes
Too Long]. California voters considered a ballot measure with terms similar to Oregons Death
with Dignity Act, which failed to pass by a small margin. Id. After the November 2012 election,
Vermonts governor Peter Shumlin voiced his belief that Vermont would pass a death-with-
dignity law. Span, supra note 1. New Jersey is also entertaining efforts to pass similar legislation.
Lewis M. Cohen, Massachusetts Vote May Change How the Nation Dies, SLATE (Oct. 29, 2012, 7:00
AM), http://www.slate.com/articles/health_and_science/medical_examiner/
2012/10/massachusetts_death_with_dignity_2012_kevorkian_and_humphry_started_the.html.
4
State-by-State Guide to Physician-Assisted Suicide, PROCON.ORG (last updated on May 28,
2013, 3:49 P.M.), http://euthanasia.procon.org/view.resource.php?resourceID=000132.
5
Baxter v. State, 2009 MT 449, 1726, 224 P.3d 1211.
6
See When Dying Takes Too Long, supra note 3, at 12123.
7
See generally Amy M. Burdette et al., Religion and Attitudes Toward Physician-Assisted
Suicide and Terminal Palliative Care, 44 J. SCI. STUDY RELIGION 79, 7991 (2005) (discussing
religions influence on attitudes toward physician aid-in-dying and palliative care).
8
See generally Span, supra note 1 (discussing potential causes for the failure of the
Massachusetts Death with Dignity initiative).
D

2014 Losi ng t he Qual i t y of Li f e 345

futurethus extinguishing any hope of enacting the DWDA.
9
Furthermore,
a review of the past decade of the Oregon statute shows no known cases of
coercion, undue influence, or harm to those who are most vulnerable.
10

Despite concerns of skeptics, the sky has not fallen; [and] civilization in the
Northwest remains intact . . . .
11

Part I of this Note discusses the background of physician aid-in-dying,
including the terminology and case law surrounding the legalization of
physician aid-in-dying. Part I also outlines the Oregon and Washington
DWDA statutory provisions and reported statistics since its enactment in
those states. Discussion of other countries laws and views on physician aid-
in-dying and euthanasia is also included in Part I. Finally, Part I concludes
with a look at the DWDAs major opponents. Part II discusses the major
obstacles to the DWDAs widespread enactment throughout the United
States. Part III discusses further statistical findings and studies that fail to
uncover any known cases of undue influence or coercion on vulnerable
groups, thereby making the slippery-slope arguments unconvincing. Part
III continues to argue that the law as it stands in Oregon and Washington
provides adequate safeguards against such abuse. Part IV discusses
religions influence on voters and the ethical and moral issues surrounding
the interplay between religious beliefs and physician aid-in-dying. Part IV
argues that religious affiliates needlessly abuse the freedom of religion to
impinge on others rights to autonomy and their ability to make end-of-life
care decisions. Part V elaborates on the right-to-personal-autonomy
argument and will argue that the right to physician aid-in-dying can be
found within the penumbras of the U.S. Constitution. Further, Part V
argues that the DWDA should extend to those who are not terminally ill,
and the Act would most likely gain more supporters if it were not exclusive
in this aspect. Finally, Part VI provides a broad inquiry into the potential
overlap between the law of wills and the right to physician aid-in-dying, and
the aspects of the law of wills that could apply to the new law surrounding
the right to die and making end-of-life care decisions.
I. Background
A. Terminology: Euthanasia, Physician-Assisted Suicide, and Aid-in-

9
See generally id. (discussing uphill battles with religious voters in Massachusetts).
10
See generally OR. PUB. HEALTH DIV., OREGONS DEATH WITH DIGNITY ACT 12 (2012),
available at http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/
DeathwithDignityAct/Documents/year15.pdf [hereinafter OR. DWDA REPORT] (summarizing
the statistics).
11
Cohen, supra note 3.

346 Ne w Engl and Law Revi e w v. 48 | 343

Dying
It is argued that Oregons DWDA primarily exists because the law does
not permit active euthanasia; rather, the law requires the individual to
self-administer the medication.
12
Commentators define voluntary active
euthanasia as: Intentionally administering medications or other
interventions to cause the patients death at the patients explicit request and
with full informed consent.
13
Indeed, it was noted that euthanasia
acquired strong negative moral connotations over the last century owing to
assumptions that such a good death can be brought about only through
violating religious, professional, and social inhibitions against killing.
14

DWDA proponents, who sometimes have personal experiences with a
family member dying from a terminal illness, champion using terminology
such as aid-in-dying or end-of-life care, rather than the assisted
suicide language used by many DWDA opponents.
15
The latter is perceived
to be offensive, connoting an immoral act where proponents argue to the
contrarythat the DWDA allows a humane and dignified death.
16
The term
euthanasia strayed from its classically informed meaning and
etymological roots of easy, painless, happy death.
17
DWDA proponents
emphasize the use of the term aid-in-dying to resemble this classical
meaning.
18
Moreover, the statutory language used in Oregon and
Washington state that actions taken under the DWDA laws do not constitute

12
See OR. REV. STAT. ANN. 127.880 (West, Westlaw through 2013 Reg. and Spec. Sess.
legislation effective through 10/8/13) (Nothing in [the Oregon statutes] shall be construed to
authorize a physician or any other person to end a patients life by lethal injection, mercy killing
or active euthanasia.) (emphasis added).
13
ROBIN LUNGE ET AL., OREGONS DEATH WITH DIGNITY LAW AND EUTHANASIA IN THE
NETHERLANDS: FACTUAL DISPUTES 2 (2004), available at http://www.leg.state.vt.us/reports/
05Death/Death_With_Dignity_Report.htm.
14
Courtney S. Campbell, Aid-in-dying and the Taking of Human Life, 18 J. MED. ETHICS 128,
128 (1992). This argument also finds support in studying societys view of the infamous Dr.
Death, Jack Kevorkian, who released a recording of himself assisting patients with ending their
life by a form of euthanasia. See KEVORKIAN (Bee Holder Productions, 2010) (providing a more
detailed discussion of Jack Kevorkian and his efforts to legalize assisted suicide).
15
See When Dying Takes Too Long, supra note 3, at 11213, 15455.
16
Id. at 15456 (Opponents of aid-in-dying refer to the practice as assisted suicide. This
term is offensive to patients and their families, and has been rejected by a broad range of
medical and health policy groups which recognize that the term assisted suicide is inaccurate
and value laden.).
17
Campbell, supra note 14 (explaining that the term euthanasia entered the English
language in 1646 with the meaning of easy, painless, happy death).
18
See id.

2014 Losi ng t he Qual i t y of Li f e 347

suicide, and suicide shall not be used when referring to the DWDA.
19

Thus, the terms aid-in-dying, dignified death, or humane death are
used for this Notes purposes.
20

B. The Presumption Against Taking Human Life:
21
Case Law
Leading to the DWDA
How has societys view of death and dying changed throughout time?
Has it changed? Humans ancestors thought life is worth living
22
and,
arguably, the basic human instinct presumptively favors survival rather
than extinction:
[T]he dominant perspective towards the taking of human life, whether by
oneself or other, as conveyed in the religious, philosophical, professional,
and legal traditions from which society gains its moral bearings . . . [states
there is] an affirmative responsibility for the protection, preservation, and
promotion of human life, and a strong presumption against the taking of
human life.
23

Furthermore, liberal political cultures have, in varying degrees, recognised
[sic] three principal scenarios as valid exceptions to the prohibition of taking

19
E.g., WASH. REV. CODE ANN. 70.245.180 (West, Westlaw through all 2013 legislation)
(Actions taken in accordance with this chapter do not, for any purpose, constitute suicide,
assisted suicide, mercy killing, or homicide, under the law. State reports shall not refer to
practice under this chapter as suicide or assisted suicide.); see also Scott Helman, Should
People Have the Right to Die?, THE BOS. GLOBE (Apr. 29, 2012), http://www.bostonglobe.com
/magazine/2012/04/29/massachusettts-death-with-dignity-act-that-would-legalize-physician-
assisted-suicide-expected-decided-november-
ballot/ljEGuMYnF1TAKgRTTMKYNO/story.html (explaining that under the Oregon and
Washington DWDA laws, decedents death certificates would not use the word suicide to
describe their death, rather the death certificates would list the underlying illness as the cause
of death).
20
See When Dying Takes Too Long, supra note 3, at 15455 (Leading health policy
organizations . . . also addressed the terminology issue, recognizing that the term "suicide" or
"assisted suicide" is inappropriate when discussing the choice of a mentally competent
terminally ill patient to seek medications that he or she could consume to bring about a peaceful
and dignified death.). Furthermore, using the phrase physician-assisted suicide or assisted
suicide is misleading as the Oregon statute explicitly conveys: Actions taken in accordance
[with the applicable statutory provisions] shall not, for any purpose, constitute suicide [or]
assisted suicide . . . under the law. See OR. REV. STAT. ANN. 127.880 (West, Westlaw through
2013 Reg. and Spec. Sess. legislation effective through 10/8/13).
21
See generally Campbell, supra note 14, at 130 (explaining the theory behind the
presumption against taking human life).
22
F.C.S. Schiller, Truth and Survival Value, 15 J. PHIL. PSYCHOL. SCI. METHODS 505, 513
(1918).
23
Campbell, supra note 14, at 130; see also Schiller, supra note 22.

348 Ne w Engl and Law Revi e w v. 48 | 343

human life, namely, self-defence [sic], capital punishment and just war.
24

Arguably, early case law reflects this presumption against taking human
life and champions the dominant perspective toward the taking of human
life, i.e., punishing suicide or those who assist a person committing suicide.
25

Controversy over the right to die dates back to England and the original
thirteen American colonies.
26
In English practice, followed by the original
American colonies, an abettor (someone present during a suicide attempt)
would often receive a harsher punishment than the suicidal offender.
27

More recently, in the seminal case, Cruzan v. Director of Missouri
Department of Health, the Supreme Court reviewed whether a person has a
constitutional right to die.
28
The Court held that competent adults have a
constitutional right to refuse medical care and a state may require clear-and-
convincing evidence that patients wanted their treatment terminated before
it is cut off.
29
Many courts and legal scholars defend the line between letting
someone die and actively intervening to promote or bring about death.
30

[F]or over 700 years, the Anglo-American common-law tradition has
punished or otherwise disapproved of both suicide and assisting suicide.
31

Those are Chief Justice Rehnquists words, writing for the Court in
Washington v. Glucksberg, wherein the majority rejected the claim that the
Washington law prohibiting assisted suicide violated a fundamental right

24
Campbell, supra note 14, at 130.
25
See, e.g., Gilbert v. Florida, 487 So. 2d 1185, 118687 (Fla. Dist. Ct. App. 1986) (affirming
defendants conviction for premeditated murder of his wife who had osteoporosis and
Alzheimers Disease and who, defendant contends, begged him to end her life); Aven v. State,
277 S.W. 1080, 1081 (Tex. Crim. App. 1925) ([W]hen an indictment charges that the appellant
administered the poison and caused the deceased to swallow it with intent on his part to kill
and injure here, and that he did thereby kill her with malice aforethought, this sufficiently
negatives the idea that appellant merely prepared the poison and went no further, and that the
deceased thereafter took it herself with suicidal intent.).
26
Anne Marie Su, Physician Assisted Suicide: Debunking the Myths Surrounding the Elderly,
Poor, and Disabled, 10 HASTINGS RACE & POVERTY L. J. 145, 14748 (2013).
27
Id. at 148.
28
497 U.S. 261, 261 (1990).
29
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 871 (4th ed. 2011).
30
See Yale Kamisar, Against Assisted SuicideEven a Very Limited Form, 72 U. DET. MERCY L.
REV. 735, 75455 (1995) (There are significant moral and legal distinctions between letting die
(including the use of medications to relieve suffering during the dying process) and killing
(assisted suicide/euthanasia). In letting die, the cause of death is seen as the underlying disease
process or trauma. In assisted suicide/euthanasia, the cause of death is seen as the inherently
lethal action itself.) (quoting COORDINATING COUNCIL ON LIFE-SUSTAINING MEDICAL
TREATMENT DECISION MAKING BY THE COURTS (U.S.) ET AL., GUIDELINES FOR STATE COURT
DECISION MAKING IN LIFE-SUSTAINING MEDICAL TREATMENT CASES 145 (2d ed. 1993)).
31
Washington v. Glucksberg, 521 U.S. 702, 711 (1997).

2014 Losi ng t he Qual i t y of Li f e 349

protected under the due process clause.
32
The Supreme Courts decision
reversed the United States Court of Appeals for the Ninth Circuit, which
found that the Constitution encompasses a due process liberty interest in
controlling the time and manner of ones deaththat there is, in short, a
constitutionally recognized right to die.
33
However, the Court left the door
open for future legal protection of a right to physician-assisted death:
Throughout the Nation, Americans are engaged in an earnest and
profound debate about the morality, legality, and practicality of physician-
assisted suicide. Our holding permits this debate to continue, as it should in
a democratic society.
34
Oregon was the first to pass through that door with
its enactment of the Death with Dignity Act.
35

C. Oregons Death with Dignity Act
1. DWDA Statutory Provisions
Oregons DWDA was enacted over a decade ago.
36
Still, many are not
aware of its statutory provisions or what patients and physicians must do
before any medications can be prescribed.
37

Provisions taken from Oregons DWDA require: a written request for
medication to end ones life; that is made by capable adults who are 18 or
older; who were determined by both an attending physician (defined as the
primary-care physician) and a consulting physician (defined as a physician
who is qualified by specialty or experience to make a professional diagnosis
and prognosis regarding the patients disease
38
) to be suffering from a
terminal disease; and who voluntarily expressed their wish to die.
39
A valid
request must be witnessed by at least two individuals who attest that . . .
the patient is capable, acting voluntarily, and is not being coerced to sign the
request.
40
Section 127.815 of the Oregon Revised Statutes lists the

32
CHEMERINSKY, supra note 29, at 87374 (Despite changes in medical technology and
notwithstanding an increased emphasis on the importance of end-of-life decision-making, we
have not retreated from this prohibition [of assisting suicide].) (alteration in original).
33
Compassion in Dying v. State, 79 F.3d 790, 816 (9th Cir. 1996) revd sub nom. Washington
v. Glucksberg, 521 U.S. 702 (1997).
34
Glucksberg, 521 U.S. at 735.
35
See id. at 717.
36
When Dying Takes Too Long, supra note 3.
37
See generally OR. REV. STAT. ANN. 127.815127.865 (West, Westlaw through 2013 Reg.
and Spec. Sess. legislation effective through 10/8/13) (outlining specific safeguards a
physician and patient must abide by prior to a prescription being delivered).
38
Id. 127.800(4) (Westlaw).
39
Id. 127.800805 (Westlaw).
40
Id. 127.810(1) (Westlaw). Furthermore, a witness cannot be: a blood relative; spouse or

350 Ne w Engl and Law Revi e w v. 48 | 343

responsibilities of the attending physician, which include but are not limited
to: determining if the patient suffers from a terminal disease, is capable, and
made the request voluntarily;
41
ensuring the patient is making an informed
decision;
42
referring the patient to another physician for a second opinion
and confirmation; recommending the patient notify next of kin; informing
the patient that he or she may rescind the request at any time and in any
mannerand offer[ing] the patient an opportunity to rescind at the end of
the 15 day waiting period pursuant to ORS 127.840; [c]ounsel[ing] the
patient about the importance of having another person present when the
patient takes the medication . . . and of not taking the medication in a public
place; verifying the patients informed decision before writing the
prescription; and dispensing the medications directly.
43
The patient must
reiterate their oral request to end their life to his or her attending physician
no less than fifteen (15) days after making the initial oral request and, at the
time of the second request, the attending physician shall offer the patient
an opportunity to rescind the request.
44
Finally, the statute provides
immunity to civil and criminal liability or professional disciplinary action;
45

however, the statute also provides potential liabilities.
46

2. 2012 Statistics
Pursuant to Oregons Death with Dignity Act, the Oregon Health
Authority (OHA) is required to annually review a sample of records, which
reflect current statistics on various DWDA factors including how many
people obtained life-ending medication, who actually used the medication,
and a consensus of who is electing to take the medication.
47
Included in the
2012 annual report are the following findings:

adopted child; a person entitled to any portion of the estate upon the patients death; an owner,
operator or employee of a health-care facility where the qualified patient is receiving medical
treatment or is a resident; or the attending physician at the time of the request. Id. 127.810(2)
(Westlaw).
41
Id. 127.815(1)(a) (Westlaw).
42
Id. 127.815(1)(c) (Westlaw). The physician must inform the patient of: the medical
diagnosis; prognosis; potential risks associated with taking the medication prescribed; [t]he
probable result of taking the medication to be prescribed; and [t]he feasible alternatives, including,
but not limited to, comfort care, hospice care[,] and pain control. Id. (emphasis added).
43
OR. REV. STAT. ANN. 127.815 (West, Westlaw through 2013 Reg. and Spec. Sess.
legislation effective through 10/8/13).
44
Id. 127.840 (Westlaw).
45
Id. 127.885(1)(2) (Westlaw).
46
Id. 127.885, 127.890 (Westlaw).
47
See id. 127.865; OR. ADMIN. R. 333-009-0010 (West, Westlaw through rules published in
the Oregon Bulletin dated August 1, 2013); OR. DWDA REPORT, supra note 10, at 12, 46.

2014 Losi ng t he Qual i t y of Li f e 351

Since the law was passed in 1997, a total of 1,050 people have had DWDA
prescriptions written and 673 patients have died from ingesting
medications prescribed under the DWDA [(64%)]. . . . Of the 77 DWDA
deaths during 2012, most (67.5%) were aged 65 years or older; the median
age was 69 years. As in previous years, most participants were white
(97.4%), well educated (42.9% had at least a baccalaureate degree), and had
cancer (75.3%). . . . Excluding unknown cases, all (100%) had some form of
health care insurance, although the number of patients who had private
insurance (51.4%) was lower in 2012 than in previous years (66.2%), and
the number of patients who had only Medicare or Medicaid insurance was
higher than in previous years (48.6% compared to 32.1%). . . . The three
most frequently mentioned end-of-life concerns were: loss of autonomy
(93.5%), decreasing ability to participate in activities that made life
enjoyable (92.2%), and loss of dignity (77.9%). . . . During 2012, no referrals
were made to the Oregon Medical Board for failure to comply with DWDA
requirements.
48

Finally, the Oregon Public Health Divisions report indicates that roughly
one-third of those who received DWDA prescriptions died without taking
the prescribed medication.
49

D. Washingtons Death with Dignity Act
On November 4, 2008, Washington voters passed Initiative 1000, which
went into effect on March 5, 2009.
50
Washington enacted the DWDA after
Oregon, however in 1991 Washington voters were the first in the nation to
consider allowing aid-in-dying legislation.
51
DWDA advocates in
Washington have been at the forefront of the fight for the right to die.
52

1. Statutory Provisions and Recent Statistics
Washingtons DWDA statutory provisions closely resemble Oregons
with a few small differences.
53
Washington, like Oregon, requires the States

48
OR. DWDA REPORT, supra note 10 at 23.
49
See id. at 1 fig. 1 (showing an interesting look at a chart diagram of DWDA prescription
recipients compared with DWDA deaths for each year beginning in 1998 to 2012).
50
WASH. STATE DEPT OF HEALTH, DEATH WITH DIGNITY ACT REPORT 12 (2011), available at
http://www.doh.wa.gov/YouandYourFamily/IllnessandDisease/DeathwithDignityAct.aspx
[hereinafter WASH. DWDA REPORT]; see also Cyndi Bollman, A Dignified Death? Dont Forget
About the Physically Disabled and Those Not Terminally Ill: An Analysis of Physician-Assisted Suicide
Laws, 34 S. ILL. U. L.J. 395, 403 (2010).
51
Kathryn L. Tucker, In the Laboratory of the States: The Progress of Gluckbergs Invitation to
States to Address End-of-Life Choice, 106 MICH. L. REV. 1593, 1607 (2008) [hereinafter In the
Laboratory of the States].
52
See id.
53
See, e.g., WASH. REV. CODE ANN. 70.245.150 (West, Westlaw current with all 2013

352 Ne w Engl and Law Revi e w v. 48 | 343

Department of Health to annually review and report statistical information
collected pursuant to the State statute.
54

The Washington State Department of Healths 2011 report made some
key findings on the DWDA.
55
During the first year the DWDA took effect in
2009, there were sixty-five participants who were prescribed medication, of
which sixty-three people died.
56
In 2010, eighty-seven people requested life-
ending medication, of which eighty-four died.
57
In 2011, 103 patients were
prescribed life-ending medication,
58
of which ninety-four individuals died,
seventy after ingesting the medication.
59
The ninety-four participants who
died in 2011 had end-of-life concerns, including: loss of autonomy (87%);
loss of dignity (79%); and loss of the ability to participate in activities that
make life enjoyable (89%).
60
In 2011, 94% of the participants were Non-
Hispanic White; 46% achieved a baccalaureate or higher; 78% contracted
cancer; private insurance covered 34%; Medicare or Medicaid covered 40%;
and a combination of private insurance and Medicare or Medicaid covered
another 13%.
61

E. The Remaining States
Why were Oregon and Washingtonstates in the Pacific Northwest
able to pass the DWDA while states in the Midwest or the East could not?
62

Cultural differences?
63
Location?
64
As mentioned earlier, Massachusetts
voters rejected the Death with Dignity Act initiative in the November 2012
election.
65
The law proposed in Massachusetts closely resembled Oregon
and Washingtons DWDA, and would have allowed physicians to prescribe

legislation) (requiring that medication unused under the DWDA be disposed of by lawful
means); see also Bollman, supra note 50, at 40204 (2010) (discussing the Washington and
Oregon statutes).
54
See 70.245.150 (Westlaw).

55
WASH. DWDA REPORT, supra note 50, at 4.
56
Id.
57
Id.
58
Id. at 1.
59
Id.
60
Id. at 4.
61
WASH. DWDA REPORT, supra note 50, at 5.
62
See Cohen, supra note 3.
63
See generally Helman, supra note 19 (identifying the strength and popularity of the
Catholic Church in Massachusetts as a hurdle for local supporters of the DWDA).
64
See Cohen, supra note 3.
65
See Span, supra note 1.

2014 Losi ng t he Qual i t y of Li f e 353

end-of-life medication to qualified patients.
66
Despite early polls showing at
least 60% voter support for the Massachusetts law, many speculate as to why
voters rejected it.
67
A member of a public-relations and lobbying firm, which
opposed passing the DWDA in Massachusetts, hypothesized: If the
proponents could pass this in 40-percent-Catholic Massachusetts, theyd be
running through the other states within five years . . . .
68
And the states are
certainly lined up to do so.
69
Legislative attempts occurred in Maine, New
Hampshire, and New Jersey.
70
Kansas and Pennsylvania are currently
drafting bills favoring aid-in-dying laws similar to Oregon and
Washingtons laws.
71

F. International Perspective on Physician Aid-in-Dying: The
Netherlands, Switzerland, and the United Kingdom
When Oregon passed its DWDA in 1994, only two countries legalized
methods of aid-in-dying: the Netherlands and Switzerland.
72

The Kingdom of the Netherlands is a constitutional monarchy.
73
It
harbors some of the most liberal laws in the world including laws associated
with hashish, marijuana, and prostitution.
74
In 2002, the Netherlands ceased
punishing euthanasia.
75
The Netherlands defines euthanasia as the
termination of life by the administration of drugs by a physician at the
request of a patient.
76
The Act, introduced in April 2002, states that
physicians who perform euthanasia are no longer punishable provided they
have acted according to the due care criteria and reported the patients death

66
Compare 2012 Information for Voters: Full Text of Question 2, SECRETARY OF THE
COMMONWEALTH OF MASSACHUSETTS, http://www.sec.state.ma.us/ele/ele12/ballot_questions_
12/full_text.htm#two (last visited Nov. 21, 2013), with OR. REV. STAT. ANN. 127.815127.865
(West, Westlaw through 2013 Reg. and Spec. Sess. legislation effective through 10/8/13), and
WASH. REV. CODE ANN. 70.245.150 (West, Westlaw current with all 2013 legislation).
67
See Span, supra note 1.
68
Id. (quoting Joe Baerlein from the firm Rasky Baerlein).
69
See Helman, supra note 19.
70
Id.
71
Death with Dignity Around the U.S., DEATH WITH DIGNITY NATL CTR. (last updated Sept.
17, 2013), http://www.deathwithdignity.org/advocates/national.
72
See HOW TO DIE IN OREGON (Peter Richardson 2011), available at http://www.howto
dieinoregon.com/see-the-film.html.
73
Lara L. Manzione, Is There a Right to Die?: A Comparative Study of Three Societies (Australia,
Netherlands, United States), 30 GA. J. INTL & COMP. L. 443, 452 (2002).
74
Id. at 453.
75
See J.A.C. Rietjens et al., Judgment of Suffering in the Case of a Euthanasia Request in the
Netherlands, 35 J. MED. ETHICS 502, 502 (2009).
76
Id.

354 Ne w Engl and Law Revi e w v. 48 | 343

to one of the five regional euthanasia review committees.
77
A euthanasia
review committee consists of a legal expert, a physician, and an ethicist, who
are assisted by a lawyer.
78
The assessment of whether a patients suffering is
unbearable, a criteria that must be met by general physicians, is most
problematic for physicians in the Netherlands.
79
A study of these physicians
decisions found:
What can be objectively determined is the underlying disease and the
accompanying symptoms and loss of function. However, the question of
whether the symptoms of suffering become unbearable, and if so when,
ultimately depends on the experience of the person who is suffering, and
hence is an individual matter. Suffering is determined by the patients
personality, physical and mental perseverance, history and perceptions of
the future. Therefore, what is still bearable to one person may be
unbearable to another.
80

It is important to contrast euthanasia from physician aid-in-dying.
81
As
explained in Part I.C, the key aspect of Oregon and Washingtons laws is
that the medication must be self-administered, thus the patients are
ultimately responsible for ending their own lives.
82
In the Netherlands, the
physicians administer the medications, which ultimately end the patients
life.
83

Swiss law condones aid-in-dying and allows non-physicians to perform
the life-ending act.
84
The Swiss rely on charitable organizations to help with
their aid-in-dying.
85
Exit, a charitable organization in Switzerland, helped
Swiss individuals who wish to end their lives with dignity since 1982.
86

Another prominent Swiss organization, Dignitas, began extending its
services abroad in 1998. Dignitas thereby does not require Swiss citizenship
to qualify for aid-in-dying and anyone willing to fly to Zurich may apply for

77
Id.
78
Id.
79
See id.
80
Id. at 50203.
81
See When Dying Takes Too Long, supra note 3, at 15456 (opining that the term aid-in-
dying should be favored over the term assisted suicide).
82
OR. REV. STAT. ANN. 127.885 (West, Westlaw current with 2013 Reg. and Spec. Sess.
legislation effective through 10/8/13); WASH. REV. CODE ANN. 70.245.020 (West, Westlaw
current with all 2013 legislation).
83
See Rietjens et al., supra note 75.
84
Samia A. Hurst & Alex Mauron, Assisted Suicide and Euthanasia in Switzerland: Allowing a
Role for Non-Physicians, 326 BRIT. MED. J. 271, 271 (2003).
85
Renske Heddema, One-Way Ticket to Switzerland, SWISS NEWS, May 1, 2007, at 16, available
at 2007 WLNR 26642429.
86
Id.

2014 Losi ng t he Qual i t y of Li f e 355

its services.
87
As of 2007, Exit does not accommodate foreigners outside of
Switzerland.
88
Both organizations insist on a rational and premeditated
decision by the patient before taking steps to grant the patients wish to end
his or her life.
89
Furthermore Exit, following in Dignitass footsteps, now
considers assisting patients with Alzheimers and psychiatric disorders.
90

For nearly a century, the Swiss distinguished between selfish and
altruistic motives to assist others with their deaths.
91
A person could face up
to five years in prison if caught helping an individual commit suicide for
selfish reasons.
92
By contrast, if individuals help a friend to die for altruistic
reasons, they face no legal consequences.
93
This practice came into existence
with the Swiss Criminal Code in 1941, allowing Swiss citizens to develop
an efficient system of so-called self-aid.
94
The Swiss government
supported this practice believing that Swiss citizens are sovereign and
should retain the final say in matters affecting their lives.
95

Citizens in countries that ban assisted aid-in-dying are known to take
advantage of Switzerlands relaxed law surrounding euthanasia and
assisted aid-in-dying.
96
Currently, in the United Kingdom suicide is not
punishable, but assisting someone to commit suicide is a crime.
97
As a result,
many British citizens travel to Switzerland, where the Dignitas clinic assists
them with hastening their death.
98
Since 2002, Dignitas helps approximately
eighteen British citizens a year with aid-in-dying.
99

Currently, the Netherlands, Belgium, Luxembourg, Switzerland, and
three states in the United States are the only locations permitting physician
aid-in-dying.
100
Recently, Canada joined the group when a British Columbia

87
Id.; see also Rohith Srinivas, Exploring the Potential for American Death Tourism, 13 MICH.
ST. U. J. MED. & L. 91, 10607 (2009).
88
See Heddema, supra note 85; Srinivas, supra note 87, at 106.
89
Heddema, supra note 85.
90
Id.
91
See Srinivas, supra note 87, at 106 (In those days, the publicly endorsed motives for
acceptable suicide were romance and honor, not poor health.).
92
Heddema, supra note 85.
93
See id.
94
Id.
95
Id.
96
See Carol C. Cleary, From Personal Autonomy to Death-On-Demand: Will Purdy v. DPP
Legalize Assisted Suicide in the United Kingdom?, 33 B.C. INTL & COMP. L. REV. 289, 28990 (2010).
97
Id. at 289.
98
Philippa Roxby, Assisted Suicide: 10 Years of Dying at Dignitas, BBC NEWS (Oct. 20, 2012),
http://www.bbc.co.uk/news/health-19989167.
99
Id.
100
Assisted-Suicide Ban Struck Down by B.C. Court, CBC NEWS, http://www.cbc.ca/news/

356 Ne w Engl and Law Revi e w v. 48 | 343

Supreme Court judge declared Canadas laws against physician aid-in-
dying unconstitutional because they discriminate against the physically
disabled.
101
Five plaintiffs brought the suit seeking the legal right to
physician aid-in-dying.
102
In the 395-page ruling, the Supreme Court judge
noted that suicide itself is not illegal in British Columbia; therefore, the law
contravenes the Canadian Charter of Rights and Freedoms
103
by denying
physically disabled people the same rights as able-bodied people who can
take their own lives.
104
The judge went further to explain that any risks
associated with allowing physician aid-in-dying are very largely avoided
through carefully designed, well-monitored safeguards.
105
The lawyer for
the Canadian Attorney General argued that those who are particularly
vulnerable are the elderly, disabled, and people who may worry about being
a burden to society and safeguards are not effectively protecting vulnerable
people in jurisdictions where assisted suicide is already allowed.
106

Nevertheless, the judge suspended the rulings effect for one year to give
Parliament time to take the necessary steps to draft and consider new
legislation.
107

II. The States Major Obstacles to Enacting the Death with Dignity Act:
Religion Confusion, and Fear of the Unknown
Arguably, at the core of the debate around physician aid-in-dying are
three main factors that stand in the way of the DWDAs broad enactment
amongst the states: (1) religion; (2) confusion about the DWDAs actual
statutory provisions; and (3) fear of the unknown and unanswered questions
associated with the DWDA.
108


canada/british-columbia/story/2012/06/15/bc-assisted-suicide-ruling.html (last updated Jun. 15,
2012, 6:22 PM) [hereinafter Assisted-Suicide Ban Struck Down].
101
Id.
102
Id.
103
Robert A. Sedler, Constitutional Protection of Individual Rights in Canada: The Impact of the
New Canadian Charter of Rights and Freedom, 59 NOTRE DAME L. REV. 1191, 1194 (1984) (comparing
the Canadian Charter of Rights and Freedom to the U.S. Constitution).
104
Id. (The impact of that distinction [between suicide and physician-assisted suicide] is
felt particularly acutely by persons . . . who are grievously and irremediably ill, physically
disabled or soon to become so, mentally competent and who wish to have some control over
their circumstances at the end of their lives . . . .).
105
Id.
106
Id.
107
Assisted-Suicide Ban Struck Down, supra note 100.
108
See Katie Hafner, In Ill Doctor, a Surprise Reflection of Who Picks Assisted Suicide, N.Y.
TIMES, Aug. 12, 2012, at A1, available at 2012 WLNR 17071211.

2014 Losi ng t he Qual i t y of Li f e 357

A. Religious Leaders Use Fear to Control Society
The Roman Catholic Church is one of the most prominent, outspoken
DWDA opponents.
109
The Church considers suicide a sin and therefore
encourages terminally ill patients to consider hospice care instead.
110
In
anticipation of the November 2012 election in Massachusetts, DWDA
opponents spent close to $5 million in their campaignoutspending DWDA
proponents by approximately $4 million.
111
The majority of the oppositions
campaign contributions came from Catholic organizations and archdioceses
from around the country.
112
DWDA supporters commented on the
opposition groups spending, arguing that [i]ts so easy to scare people on
this issue; thats what happened in Massachusetts . . . . Fear-based arguments
work.
113

B. Confusion Surrounding the DWDA
I think our society is very confused about liberty. I dont think it makes
sense to force women to carry children they dont want, and I dont think it
makes sense to prevent people who wish to die from doing so.
114
These are
author Andrew Solomons insightful thoughts when asked about his
response to a Frontline report called The Suicide Plan.
115
Solomon supported
his mothers decision to elect physician aid-in-dying after fighting cancer.
116

Opponents of the right to die often express as outrage what they appear to
experience as anxiety; they can express as moral rigor what is in fact merely
fear.
117

Furthermore, the DWDA and legalization of physician aid-in-dying
causes physicians to question their role in society and their duty to
patients.
118
Some physicians also convey their opposition to physician aid-

109
See id.
110
See id.
111
Span, supra note 1.
112
Id.
113
Id.
114
Andrew Soloman, Liberty and the Right to Die in America, Comment to The Shadow Side of
Assisted Suicide, FRONTLINE (Nov. 13, 2012, 9:10 PM), http://www.pbs.org/wgbh/pages/
frontline/social-issues/suicide-plan/the-shadow-side-of-assisted-suicide/.
115
Id.
116
Id.
117
Id.
118
Cf. Joan C. Callahan, Book Review, 64 Q. REV. BIOLOGY 37273 (1989) (reviewing RUTH
MACKLIN, MORTAL CHOICES: ETHICAL DILEMMAS IN MODERN MEDICINE (1987)) (The primary
goal of medical practice is health; and, historically, practitioners have often pursued this goal
at the expense of other moral values, including the autonomy or self-determination of

358 Ne w Engl and Law Revi e w v. 48 | 343

in-dying.
119
Many believe that writing prescriptions for life-ending
medication is antithetical to doctors role as healers.
120
Many physicians
struggle with the idea of killing their patients based on a prognosis.
121

ANALYSIS
III. Enactment of the DWDA Does Not Create a Slippery Slope
At the forefront of the slippery-slope arguments are concerns for
vulnerable citizensthe elderly, disabled, minorities, uneducated, and
poor.
122
The concerns include that: individuals will fall victim to coercion or
undue influence; the legalization of physician aid-in-dying is a slippery
slope; it will extend to those who are not terminally ill; and active euthanasia
will be legalized (allowing a physician to actually administer the life-ending
medication rather than self-administration).
123

Approximately nineteen years ago, voters in Oregon passed the
DWDA.
124
Since the law passed in 1997, a total of 1,050 people were written
life-ending prescriptions and 673 of those recipients were reported to
actually use the prescriptions.
125

In an article titled Legal Physician-Assisted Dying in Oregon and the
Netherlands: Evidence Concerning the Impact on Patients in Vulnerable Groups,
Margaret P. Battin, along with four other authors, posed the following
questions:
Would accepting or legalising [sic] physician-assisted dying at a patients
explicit request weigh more heavily on patients in vulnerable groupsthe
elderly, women, the uninsured, the poor, racial or ethnic minorities, people
with disabilities, people with sometimes stigmatised [sic] illnesses like
AIDS, and others? Would vulnerable patients be especially heavily
targeted? Would these patients be pressured, manipulated, or forced to
request or accept physician-assisted dying by overburdened family

patients.).
119
See Hafner, supra note 108.
120
Id.
121
See HOW TO DIE IN OREGON, supra note 72 (depicting physicians internal struggles with
prescribing life-ending medication for their patients and how they ultimately choose to adhere
to the patients wish).
122
Steven Ertell, Canadas Assisted Suicide Ban Struck Down in Court, LIFE NEWS (June 15,
2012, 3:51 PM), http://www.lifenews.com/2012/06/15/canadas-assisted-suicide-ban-struck-
down-in-court/.
123
See Kamisar, supra note 30, at 73740.
124
See Margaret P. Battin, Physician-Assisted Dying and the Slippery Slope: The Challenge of
Empirical Evidence, 45 WILLAMETTE L. REV. 91, 91 (2008).
125
OR. DWDA REPORT, supra note 10, at 2.

2014 Losi ng t he Qual i t y of Li f e 359

members, callous physicians, or institutions or insurers concerned about
their own profits?
126

In her follow-up article, Battin found that the target study provided no
evidence that people in the vulnerable groups listed above were abused.
127

The data demonstrate that the option of physician-assisted dying has not
been unwillingly forced upon those who are poor, uneducated, uninsured,
or otherwise disadvantaged.
128

Scholars in other states who perform studies on Oregons DWDA admit
that the law does not pose threats to the vulnerable.
129
A report was
prepared for the Vermont Legislature in 2004 after conducting a thorough
review of Oregons experience, which concluded that it is quiet [sic]
apparent from credible sources in and out of Oregon that the Death With
Dignity Act has not had an adverse impact on end-of-life care and in all
probability has enhanced the other options.
130
Further, scholars agree that
Oregons experience did not furnish any known cases of coercion or undue
influence on a patient who elected for physician aid-in-dying: I worried
about people being pressured to do this . . . . But this data confirms . . . that
the policy in Oregon is working. There is no evidence of abuse or coercion,
or misuse of the policy.
131

The studies showing lack of abuse provides support for the argument
that there are adequate safeguards in place.
132
The requirements listed in
Oregon and Washingtons DWDA statutes, outlining the necessary steps a
patient must take when submitting a request for the medication, are
extensive and closely adhered to by the medical field.
133
The highly
acclaimed 2011 documentaryHow to Die in Oregonoffers an insight into
the interactions between patients seeking DWDA medication and their
doctors.
134
It is evident that physicians and patients take the decision to elect

126
Battin, supra note 124, at 102.
127
See id. at 104. However, the study did find a heightened risk for people with AIDS. Id. at
105.
128
In the Laboratory of the States, supra note 51, at 1604.
129
Id.
130
LUNGE ET AL., supra note 13, 3; see also In the Laboratory of the States, supra note 51, at 1605.
Vermont recently signed into law Act No. 39, An Act Relating to Patient Choice and Control at
End of Life on May 20, 2013, legalizing physician aid-in-dying. A State-by-State Guide to
Physician-Assisted Suicide, PROCON, http://euthanasia.procon.org/view.resource.php
?resourceID=000132 (last updated May 28, 2013).
131
In the Laboratory of the States, supra note 51, at 1605 (internal quotation marks omitted).
132
See id. at 1603 (The experience in Oregon has demonstrated that a carefully drafted law
does not place patients at risk.).
133
See HOW TO DIE IN OREGON, supra note 72.
134
See id. How to Die in Oregon received critics praise and won various awards including

360 Ne w Engl and Law Revi e w v. 48 | 343

physician aid-in-dying very seriouslyit does not happen overnight.
135
It is
emphasized throughout the process of receiving the medication that, at any
time, the patient is free to rescind their decision with no questions asked.
136

However, as shown in parts of the documentary, the mere fact that physician
aid-in-dying is presented as an end-of-life care option upset some patients.
137

The documentary touches upon individual cases where insurance
companies cover the costs for life-ending medication under the DWDA, yet
are unwilling to cover the large healthcare costs associated with treating
various terminal illnesses.
138
This raises American healthcare issues and its
interaction with the DWDA, a topic that is outside the scope of this article;
still, an important inquiry.
139

The threat to vulnerable groups failed to materializeas the statistics
listed in the Oregon and Washington reports clearly reflect.
140
Therefore, the
lack of evidence showing coercion or undue influence makes the slippery-
slope argument unconvincing.
141

IV. Wherein the Sin Lies: Religious Pressures Must Be Met with
Education About Physician Aid-in-Dying and What It Does for
Those Who Request the Medication
142

Often, patients and their families turn to religion and spirituality for a

prestigious Sundance Film Festival awards. See Educational DVD, HOW TO DIE IN OREGON,
http://www.howtodieinoregon.com/educational-dvd.html (Whatever your position on
physician-assisted suicide, you should see the movie How to Die in Oregon . . . the movie raises
important questions about end-of-life care, physician-assisted suicide, and the way in which we
as a society deal with (or refuse to deal with) the inevitability of death and dying.).
135
See HOW TO DIE IN OREGON, supra note 72.
136
See id.
137
See id.
138
See id.
139
See Kamisar, supra note 30, at 76869 (The moral issue of our day is not whether to
enable or prevent a few individuals dying in the comfort of their home in the presence of their
private physicians. The moral issue of our day is whether to do something about our immoral
system of care, in which treatment is dispensed according to a principle best characterized as
that of economic apartheid.).
140
See supra notes 4849, 5659 and accompanying text.
141
See supra notes 4849, 5659 and accompanying text; Battin, supra note 124, at 104.
142
This Note is not suggesting that religious groups should be unable to voice their
opinion about physician aid-in-dying, for they possess a constitutional right to freedom of
speech and freedom of religion. See, e.g., CHEMERINSKY, supra note 29, at 125066 (The Supreme
Court consistently has held that excluding such religious speech [situations concerning the
governments ability to restrict private religious speech on government property] violates the
First Amendments protection of freedom of speech because it is an impermissible content-

2014 Losi ng t he Qual i t y of Li f e 361

source of comfort, guidance, and support.
143
It is crucial for society to
understand the overlap between religion and end-of-life care decisions if
there is any hope that most states will enact the DWDA.
144

Studies show that church-attendance frequency and dedication to
religion are associated with conservative attitudes towards, and general
acceptability of, suicide and physician aid-in-dying.
145
Further, religious
affiliates may experience pressure to conform to group ideology.
146

Generally, religious followers exercise one of two broad points of view when
discussing religion and physician aid-in-dying.
147
A study found that
Protestant groups . . . emphasize the individuals right to control end-of-life
care, and therefore are essentially proponents of physician aid-in-dying.
148

The underlying principal behind these beliefs is that God has granted
humanity the right of personal choice and that this authority must extend to
matters of life and death and that individuals should have the right to
choose in a terminal situation their death with spiritual and medical
counsel.
149
In contrast, other religions believe that physician aid-in-dying
is a usurpation of Gods authority and claim that God holds absolute
dominion over matters of life and death and the transition from life to
death.
150
Herein lies the problem for DWDA advocates.
151
The overarching
fear imposed by certain religious leaders that if an individual elects
physician aid-in-dyinga sin in the churchs eyesthen the individual will
suffer the consequences in the afterlife.
152
Religious beliefs should not trump
the beliefs of patients and their desire to end their own pain and suffering.
153

V. Personal Autonomy
To live as a self-governing individual is the essence of the value of
autonomy, so that to be autonomous is the core of a valuable human

based restriction of expression.).
143
Burdette et al., supra note 7, at 91.
144
See id. at 79.
145
Id. at 90.
146
Id. at 91.
147
Id. at 80.
148
See id.
149
Burdette et al., supra note 7, at 80.
150
Id.
151
See id. at 90.
152
See K. Praveen Parboteeah et al., Ethics and Religion: An Empirical Test of a
Multidimensional Model, 80 J. BUS. ETHICS 387, 390 (2008) ([B]elievers in God are less likely to
act unethically because of the fear of being caught by an omniscient God and being punished.).
153
See generally id.

362 Ne w Engl and Law Revi e w v. 48 | 343

existence.
154
The conflict surrounding personal-autonomy rights is
longstanding.
155
Historically, many of the laws concerning the right to
privacy exhibited a peculiar tendency to gravitate around sexuality . . . the
network of decisions and conduct relating to the conditions under which sex
is permissible, the social institutions surrounding sexual relationships, and
the procreative consequences of sex.
156
There is nothing sexy about terminal
illness.
157
However, there are conceptual arguments that arose in abortion
and reproductive cases, which should be applied to the right-to-die
argument and the fight for autonomy:
158

Ultimately, the question of whether there should be a right to physician-
assisted death, like all difficult constitutional questions, turns on ones
view of constitutional interpretation and the role of the judiciary. Should
this be regarded as one of the most important aspects of personhood and
autonomy, as the Ninth Circuit concluded? Or is this a matter
appropriately left to the political process, as the Supreme Court ruled?
159

Proponents of physician aid-in-dying turn to various constitutional
provisions arguing that the right to die and the right to personal autonomy
are present in the Constitution and are thus constitutional rights.
160
In
Griswold v. Connecticut, the Court found the right to privacy was a
fundamental right implicit in many of the Bill of Rightss specific provisions,
such as the First, Third, Fourth, and Fifth Amendments.
161
Justice Douglas,
writing for the majority, explained:
The foregoing cases suggest that specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help
give them life and substance. Various guarantees create zones of privacy
. . . . These cases bear witness that the right of privacy which presses for

154
Tanya K. Hernndez, The Property of Death, 60 U. PITT. L. REV. 971, 976 (1999) (quoting
John Christman, Introduction to THE INNER CITADEL: ESSAYS ON INDIVIDUAL AUTONOMY 3, 18
(John Christman ed., 1989)).
155
See generally CHEMERINSKY, supra note 29, at 83376 (discussing longstanding
constitutional issues surrounding personal autonomy and protection of Medicare decisions).
156
See Kamisar, supra note 30, at 76162.
157
See, e.g., HOW TO DIE IN OREGON, supra note 72.
158
See generally Susan Frelich Appleton, Assisted Suicide and Reproductive Freedom: Exploring
Some Connections, 76 WASH. U. L.Q. 15, 15 (1998) (discussing the connections between the right
to physician aid-in-dying and reproductive freedoms).
159
CHEMERINSKY, supra note 29, at 876.
160
See, e.g., Washington v. Glucksberg, 521 U.S. 702, 702 (1997); Brief of the Washington
State Psychological Association et al. as Amici Curiae Supporting Respondents at 67,
Washington v. Glucksberg, 521 U.S. 702 (1997) (Nos. 96-110 & 95-1858).
161
381 U.S. 479, 48485 (1965). Jack Kevorkian, the infamous Dr. Death, argued that the
right to die existed in the penumbras of the Ninth Amendment. See KEVORKIAN, supra note
14.

2014 Losi ng t he Qual i t y of Li f e 363

recognition here is a legitimate one.
162

The decision to request life-ending medication is a private choice.
163

Patients should legally be allowed to make the decision and keep physician
aid-in-dying as an option without taking matters into their own hands
where the patients decision to end their own life will most likely be
unregulated, performed in a dangerous manner, and potentially cloaked
with guilt and shame.
164

Switzerlands law is unique because it focuses on whether the aid-in-
dying is for selfish or altruistic reasons.
165
Moreover, prosecution follows if
doubts are raised on the patients competence to make an autonomous
choice.
166
The altruistic-versus-selfish motive for assisting suicide is an
important distinction.
167
Opponents argue that physicians are assisting
patients suicide by prescribing the life-ending medication and advancing a
pro-death agenda.
168
The physicians role in society, the argument

162
Griswold, 381 U.S. at 48485 (holding that the Connecticut law criminalizing
contraceptive use violated the right to privacy by prohibiting married couples from using
them); see also Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (If the right of privacy means
anything, it is the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child.).
163
Cf. Mark C. Niles, Ninth Amendment Adjudication: An Alternative to Substantive Due
Process Analysis of Personal Autonomy Rights, 48 UCLA L. REV. 85, 12324 (2000) (contending that
under a Ninth Amendment analysis, any government action that significantly burdens personal
autonomy should be deemed unconstitutional for violating the right to privacy).
164
See, e.g., Helman, supra note 19. In a story reported in the Boston Globe, Lester Angell,
an independent spirit, a civil engineer and conservative Republican who believed in self-
reliance, and who lived outside Orlando, developed prostate cancer, which metastasized and
caused him great pain. Id. He underwent treatment and made it through a few years. Id. Then
on March 14, 1988, at age 81, he fell as he tried to enter his bedroom. Id. His wife could not lift
him, so she called the EMTs who helped him into bed. Id. The EMTs planned to return in the
morning and bring him to the hospital for evaluation. Id. Angell subsequently used a pistol to
end his life, fearing that it was the last night that he would be in control of his own fate. Id.
165
See Abstracts, 18 ISSUES L. & MED. 293, 293 (2003) [hereinafter Abstracts] (summarizing
Samia A. Hurst & Alex Mauron, Assisted Suicide and Euthanasia in Switzerland: Allowing a Role for
Non-Physicians, 326 BRIT. MED. J. 271 (2003)) (Article 115 of the Swiss penal code considers
assisting suicide a crime only if the motive is selfish.). Even further, the Swiss code does not
require the involvement of a physician, nor that the patient be terminally ill. It only requires
that the motive be unselfish. Id.
166
Id. Resources for palliative care in Switzerland are not yet available to all terminally ill
patientsa concept that supports opponents who argue against decriminalizing euthanasia,
and also against assisted suicide. Id. at 294.
167
See, e.g., id. at 293.
168
See Ira Byock, Why Assisted Suicide Is No Realm for Physicians, Comment to The Shadow Side

364 Ne w Engl and Law Revi e w v. 48 | 343

continues, is a healer who protects and preserves life.
169
Opponents also
attribute the selfish motives behind physician aid-in-dying to insurance
companies, arguing that insurance will pay to end a patients life but they
will not pay for the patient to live, i.e., cover medical bills for terminal-illness
treatment.
170

However, the DWDAs focus is ending patients suffering and
respecting the autonomous choice to end their own lives.
171
The statutes
provide safeguards to ensure that a patient is making an informed, well
thought-out decision that can be rescinded at any time, in any manner.
172

Another aspect of the DWDA, which gives credence to altruistic motives
behind physician aid-in-dying, is the fact that Oregon and Washingtons
DWDA statutes do not require the patient to notify family members of the
patients medication request.
173
However, the notification-to-family-
members statutory provision sparked controversy amongst the DWDA
opponents.
174
Opponents argue that patients should be required to notify
their next of kin about their medication request because family members
deserve to know.
175
Yet, opponents also argue that family members are likely
to unduly influence and coerce loved ones, forcing them to request life-
ending medication because the patients terminal illness is considered to be
a burden to the family.
176
The DWDA statutes allow patients to make the

to Assisted Suicide, FRONTLINE (Nov. 13, 2012, 9:10 PM), http://www.pbs.org/wgbh/pages/
frontline/social-issues/suicide-plan/the-shadow-side-of-assisted-suicide/#seg1 (The
admonition against killing other people is the bedrock of civilization.).
169
Id.
170
See Helman, supra note 19.
171
See OR. REV. STAT. ANN 127.805(1) (West, Westlaw through 2013 Reg. and Spec. Sess.
legislation effective through 10/8/13). Indeed, the statutory language under the DWDA focuses
on a patients request to end his or her life in a humane and dignified manner. Id. This
language implicitly supports the altruistic approach to physician aid-in-dying rather than
selfish motives since the focus is on allowing one to die with dignitynowhere is there
language basing the prescription of medication on a physicians motives. Id.
172
See, e.g., 127.810, 127.815, 127.830, 127.840, 127.845, 127.850 (Westlaw).
173
127.835; WASH. REV. CODE ANN. 70.245.080 (West, Westlaw current with all 2013
legislation).
174
See e.g., Helman, supra note 19 (reporting the story of Deborah O'Hara-Rusckowski, an
opponent to the DWDA, and her experience with her dying mother who outlived the doctor's
prognosis by two years, which O'Hara-Rusckowski claims allowed her to share one last
intimate moment with her mother); see OR. REV. STAT. ANN. 127.835 (West, Westlaw current
with 2013 Reg. and Spec. Sess. legislation effective through 10/8/13).
175
See Helman, supra note 19.
176
See id. (reporting that opponents to the DWDA argue that a patients decision to ingest
the medication was backed by her family and health maintenance organization and exerted
undue influence); see also HOW TO DIE IN OREGON, supra note 72.

2014 Losi ng t he Qual i t y of Li f e 365

choice for themselves without requiring others to weigh in on the decision;
nevertheless, if the patients wish to include family members or friends, they
are at liberty to do so.
177
The DWDAs overarching goal is to accommodate
patients needs, wishes, and desiresan altruistic motive.
178
The statutory
safeguards are in place to confirm patients requests and work to ensure
patients are fully informed and aware of what they are asking.
179
Patients
desires and right to personal autonomy are, and should remain, the focus of
the law.
180

A. Physician Aid-in-Dying Should Not Be Limited to the Terminally Ill
The DWDA introduces the concept of physician aid-in-dying by limiting
its availability to the terminally ill.
181
But should physician aid-in-dying be
limited to the terminally ill?
182
Arguably, if the DWDA included those who
are not terminally ill, the DWDA would attract more supporters.
183
Janet
Adkins, a fifty-four year old who was recently diagnosed with Alzheimers
disease, became Dr. Jack Kevorkians first public assisted suicide twenty-two
years ago.
184
Not only were there many negative responses from the public,
but many physicians who were familiar with Adkins at the time of her death
were also outraged.
185
Adkins was seen as a vital, athletic, engaged woman
with mild dementia who still maintained a good quality of life.
186

However, Adkins explained in a note right before her death that she did not
want to put her family through the hardship and difficulty of watching
someone they love become a complete stranger.
187
As is the case with many
Alzheimers patients, Adkins was physically strong but was losing control
of her mind.
188
For those afflicted with Alzheimers disease, the capacity to

177
See HOW TO DIE IN OREGON, supra note 72.
178
See OR. REV. STAT. ANN. 127.805 (West, Westlaw current with 2013 Reg. and Spec. Sess.
legislation effective through 10/8/13).
179
See 127.810, 127.815, 127.830, 127.840, 127.845, 127.850 (Westlaw).
180
See HOW TO DIE IN OREGON, supra note 72.
181
See 127.805(1) (Westlaw).
182
See, e.g., Abstracts, supra note 165 ([The Swiss penal code] does not require the
involvement of a physician, nor that the patient be terminally ill.).
183
See generally Bollman, supra note 50, at 412 (noting that the law fails to consider patients
who are not terminally ill, but are in perpetual agony).
184
Soo Borson, Confronting the End with an Unsound Mind, Comment to The Shadow Side of
Assisted Suicide, PBS (Nov. 13, 2012, 9:10 PM), http://www.pbs.org/wgbh/pages/front
line/social-issues/suicide-plan/the-shadow-side-of-assisted-suicide/#seg2.
185
See id.
186
Id.
187
Id.
188
Id.

366 Ne w Engl and Law Revi e w v. 48 | 343

elect for physician aid-in-dying diminishes long before the person is
technically in the diseases terminal phase because of its psychological
effects.
189
Adkins knew the effects of the disease and wanted no part of it;
therefore, she chose to elect physician aid-in-dying before she was unable to
do so.
190

There are many cases showing the negative effects of Alzheimers
disease and the hardships families endure when their loved ones do not even
recognize them.
191
Many, like Adkins, ask to end their lives knowing they
will soon not recognize those closest to them.
192
Yet, the DWDA in Oregon
and Washington are only available to the terminally ill.
193
Similarly, what
about those who possess the mental capacity to choose physician aid-in-
dying, but cannot self-administer the medication as required? In a broad
sense, and looking at the issue of physician aid-in-dying through the lens of
personal autonomy, the concept is simple: allow people the freedom and
respect of determining when their quality of life is not worth bearing,
whether because of a mental or physical deterioration.
194

VI. Do You Have More Control Over Your Life After Death?
A. A Comparison of the Law and Underlying Policy of the Law of Wills
and Its Focus on the Donors Intent: Why Cant We Treat
Individuals Life Choices Like We Treat Individuals Choices After
Death?
The Court in Washington v. Glucksberg found that the right to physician-
assisted suicide was not a fundamental right, relying heavily on our
countrys history, tradition, and its adversity to legalizing any form of
suicide.
195
It, therefore, begs the question, what established body of law
comprised of centuries of legal doctrine and practice can provide guidance

189
Id.
190
Borson, supra note 184.
191
Id.
192
See, e.g., Gilbert v. Florida, 487 So. 2d 1185, 1187, 1192 (Fla. Dist. Ct. App. 1986)
(affirming conviction of defendant who shot his wife, afflicted with Alzheimers Disease, after
defendant felt he needed to end her suffering).
193
OR. REV. STAT. ANN. 127.805(1) (West, Westlaw current with 2013 Reg. and Spec. Sess.
legislation effective through 10/8/13); WASH. REV. CODE ANN. 70.245.020(1) (West, Westlaw
current with all 2013 legislation).
194
See, e.g., Bollman, supra note 50, at 412 (Bioethicists are generally committed to the
notion that competent individuals have the right to determine their own fates, especially with
regard to personal matters of profound individual importance, so long as the rights of others
are not violated in the process.).
195
521 U.S. 702, 703 (1997).

2014 Losi ng t he Qual i t y of Li f e 367

on how society and the courts should perceive physician aid-in-dying?
196

One potential inquiry is into the ancient law of wills.
197

The law of wills is largely statutory and based on varying state law.
198

However, states mostly agree on the basic points concerning wills, trusts,
and estates.
199
Respect for the transferors (or decedents, testators, settlors,
etc.) expectations is a recurring theme.
200
At first glance this may seem like a
simple concept.
201
However, in the history of cases dealing with contested
wills, judges are faced with considering shifting societal norms as a
backdrop to determining the testators intent.
202
Further, the testator must
possess sufficient mental capacity to execute a will.
203
Possessing sufficient
mental capacity to execute a will requires that the testator: (1) know the
nature and extent of the testators property, (2) know the persons who are
the natural objects of his bounty . . . [,] and (3) understand the disposition
being made of his property by his will.
204
Those contesting a will, however,
can claim the testator was suffering from an insane delusion or general
incapacity as grounds for invalidating the will.
205
An insane delusion
which bears on testamentary capacityis one to which the testator adheres
against all evidence and reason to the contrary.
206
For example, an Arizona
court judge rejected a testators will because he found her belief to be
without foundation or basis in fact . . . [and] her beliefs were too bizarre to
be real.
207
However, what was once considered bizarre, may be
completely normal or understandable in todays society: societal norms
and expectations are ever-changing and what used to be considered
grotesquee.g., racial integration, gay marriage, or posthumously

196
See id.
197
See generally WILLIAM M. MCGOVERN ET AL., WILLS, TRUSTS, AND ESTATES 197200 (4th ed.
2010) (discussing the law of wills, trusts, and estates).
198
Id. at 27.
199
Id.
200
Id. at 36.
201
See id.
202
See id. at 39 (According to Blackstone, when judges find that an older decision is most
evidently contrary to reason, they do not pretend to make a new law, but to vindicate the old
one from misinterpretation. For if it be found that the former decision is manifestly absurd or
unjust, it is declared, not that such a sentence was bad law, but that it was not law.).
203
MCGOVERN ET AL., supra note 197, at 316.
204
Id.
205
See id.
206
JESSE DUKEMINIER ET AL., WILLS, TRUSTS, AND ESTATES 168 (Vicki Been et al. eds., 8th ed.
2009).
207
In re Estate of Killen, 937 P.2d 1368, 1373 (Ariz. Ct. App. 1996).

368 Ne w Engl and Law Revi e w v. 48 | 343

conceived childrenmay now be socially acceptable.
208
Judges should be
cognizant of gray areas in what could be considered an insane delusion or a
result of undue influence, and what may be at the forefront of a shift in
societys perceived notion of acceptable behavior.
209

An illustrative case is In re Kaufmanns Will,
210
decided in the mid-
1960sa time when the fight for gay rights was intensifying.
211
In that case,
the family of Robert Kaufmann, who suspected Kaufmann was involved in
a homosexual relationship with a man named Walter, sued to set aside
Kaufmanns will on the grounds of undue influence.
212
Kaufmann was a
multimillionaire by inheritance who sought an independent life away from
his family and moved from Washington to New York City in 1948, where he
met his partner, Walter.
213
Kaufmann executed a document that gave Walter
the power a legal spouse would wield over matters concerning Kaufmans
estate.
214
After two jury trials, both finding undue influence, a majority of
New Yorks appellate division agreed that there was sufficient evidence to
find undue influence, which tainted all prior wills and gifts to Walter.
215

More recent court opinions have shown that courts do not consider the
testators sexuality when analyzing undue influence.
216
Thus, a lesson can
be learned upon reviewing history of case law surrounding will contests and
applied to the adjudication of potential claims involving undue influence
and physician aid-in-dying.
217
Legislatures and judiciaries must be cognizant
of shifting societal norms when grappling with arguments surrounding
physician aid-in-dying.
218
Using the acceptance of gay rights as an example,

208
Compare id. (noting that the trial court rejected an experts opinion that although the
testator suffered from paranoid delusions, she still had testamentary capacity), with
DUKEMINIER ET AL., supra note 206, at 73 ([I]ntestacy rights of cohabitating partners are in
flux.).
209
See, e.g., In re Kaufmanns Will, 247 N.Y.S.2d 664, 68891 (N.Y. App. Div. 1964) (Witmer,
J., dissenting), affd, 205 N.E.2d 864 (N.Y. 1965).
210
Id. at 664.
211
See, e.g., Gay Rights Timeline, TIME, http://www.time.com/time/interactive/
0,31813,1904681,00.html (last visited Nov. 21, 2013). In 1965, a significant figure in the gay-rights
movement, Dr. Frank Kennedy, launched the first public protests by gays and lesbians with a
picket line at the White House. Id.
212
DUKEMINIER, supra note 206, at 192.
213
Id. at 191.
214
Id. at 192.
215
Id.
216
See, e.g., Evans v. May, 923 S.W.2d 712, 714 (Tex. App. 1996) (declining to hold that the
decedents 30-year relationship with his lifemate constituted undue influence).
217
See, e.g., DUKEMINIER, supra note 206, at 19192.
218
See, e.g., id.

2014 Losi ng t he Qual i t y of Li f e 369

as society gains more exposure to the concept of allowing individuals to die
humanely and with dignity, there is a chance that pro-DWDA legislation
will have a more substantial presence in the vast majority of states in the
future.
219

Adopting the mentality of the courts attempts to adhere to testators
intentions in the law of wills could only benefit future case law involving
physician aid-in-dying.
220
As this Note discusses above, societys acceptance
of physician aid-in-dying is in its infancy.
221
Changing a deeply imbedded
train of thoughti.e. committing or assisting suicide as inherently wrong
takes time.
222
However, if a majority of states legalized physician aid-in-
dying, it would be important for courts to keep in mind evolving societal
norms.
223
For example, if aggrieved family members brought a lawsuit
against physicians who prescribed life-ending medication under a DWDA
statute, the courts main inquiry should be whether the decedent truly
intended to take the life-ending prescription medication without external
undue influence.
224
Judges unfamiliar with the concept of physician aid-in-
dying, or who are internally conflicted about accepting the legalization of
physician aid-in-dying, nevertheless may need to yield to societys
expectations when reviewing whether a physician lawfully prescribed
medication under a DWDA.
225

The law of wills also pertains to the right to impose conditions on the
disbursement of assets to beneficiaries of a will, i.e. the dead hand control,
a right ancillary to the right to pass property to heirs.
226
One could argue that
courts give great deference to decedents autonomy when they are allowed
to impose condition in their wills that may conflict with the beneficiaries
autonomy.
227
Yet, courts allow these provisions, which adhere to the dead

219
See Span, supra note 1 (If the proponents could pass [the DWDA] in 40-percent-
Catholic Massachusetts, theyd be running through the other states within five years . . . .).
220
See generally MCGOVERN ET AL., supra note 197 (explaining the functions and formalities
of wills).
221
See HOW TO DIE IN OREGON, supra note 72.
222
See Washington v. Glucksberg, 521 U.S. 702, 703 (1997).
223
See, e.g., DUKEMINIER, supra note 206, at 19192.
224
See generally id. at 180200 (discussing undue influence in the context of wills).
225
See, e.g., id. at 19192.
226
See, e.g., id. at 2728.
227
See John H. Merryman, Comment, Policy, Autonomy, and the Numerus Clausus in Italian
and American Property Law, 12 AM. J. COMP. L. 224, 225 (1963) (If one is to speak of individual
autonomy in property matters it is obvious that he must specify whose autonomy is in question.
The owner of property is only one of the parties concerned. The more power of dead hand
control he is given the less autonomy is enjoyed by subsequent generations with respect to that
property.).

370 Ne w Engl and Law Revi e w v. 48 | 343

hand control concept.
228
Apparently, the law respects a persons wishes
concerning their property and assets more than it does their wishes
concerning their own body.
229

The deep-rooted law of wills can offer guidance when forecasting
potential issues surrounding future legalization of physician aid-in-dying in
the majority of states.
230
The underlying principal imposing the testators
intent as a guiding force to interpreting wills, trusts, and estate documents
can, by analogy, translate into courts adhering to individuals decisions and
intent to end their life with dignity.
231

This is a broad inquiry into the potential overlap of wills, trusts, and
estates law and the laws surrounding physician aid-in-dying.
232
As with any
developing area of law, new and unforeseen issues arise.
233
This section
intends to invoke discussion and compare well-established areas of law with
new, innovative lawsuch as the legalization of physician aid-in-dying
and to compare and contrast areas of law society is accustomed to.
234

CONCLUSION
Physician aid-in-dying is not a problem, its a solution. A solution for
those whose quality of lifefor one reason or anotherdiminished to a
point where it is unbearable to continue living and the will to die dominates.
The Federal Government has not enacted assisted-suicide laws.
235
These
laws are generally proposed at the state level.
236
Four states rightfully chose
to respect an individuals choice by permitting their citizens to keep control
at the end of their lives, leaving forty-six states and D.C. that refuse their
citizens the freedom to die with dignity.
237
It is an individual decisionnot

228
See, e.g., Shapira v. Union Natl Bank, 315 N.E.2d 825, 832 (1974) (holding that
conditions in testators will are reasonable restrictions upon marriage, and valid).
229
Cf. RESTATEMENT (THIRD) OF PROPERTY 10.1 (2003).
230
See generally MCGOVERN ET AL., supra note 197 (discussing the law of wills).
231
See HOW TO DIE IN OREGON, supra note 72.
232
See generally MCGOVERN ET AL., supra note 197 (providing an overview of the law of
wills, estates, and trusts).
233
See HOW TO DIE IN OREGON, supra note 72 (portraying various issues associated with a
patient exercising his or her right to physician aid-in-dying under Oregons Death with Dignity
Act).
234
See id.
235
State-by-State Guide to Physician-Assisted Suicide, PROCON (last updated on May 28, 2013),
http://euthanasia.procon.org/view.resource.php?resourceID=000132.
236
Id.
237
Moreover, states that criminalize physician-assisted suicide impose penalties ranging
from felonies to charges of manslaughter. See State-by-State Guide to Physician-Assisted Suicide,

2014 Losi ng t he Qual i t y of Li f e 371

that of the church, government, or any other person. Religious leaders and
affiliates should not abuse their freedom-of-religion rights by intruding on
personal autonomy rights of others. It is a personal decision, which the law
should recognize and respect.


PROCON (last updated on May 28, 2013), http://euthanasia.procon.org/view.resource.php?
resourceID=000132.