Measure 16: Oregon Confronts Death and Dying; 4; The Architect of Measure 16
Passage of ballot measure 16 made Oregon the first government in the world to legalize doctor assisted suicide since voters approved that initiative, a similar law has been enacted in the Northern Territory of Australia. And several other states and countries are debating whether to legalize the practice. Oregon's assisted suicide law was written on the computer of attorney Cheryl Smith in her home office in Eugene. Colin Fogarty spoke with the architect of the law and prepared this report. It's a bright summer day in Eugene, I sit across from Cheryl Smith at an outdoor cafe with short red hair, sunglasses and a yellow summer dress. Smith isn't the person you'd expect to find behind the assisted suicide law that rocked the world's medical community. She developed her interest in aid in dying as a law student at the University of Iowa. I was interested in the health law and they happened to be holding a two semester seminar on drafting a model aid in Dying Act. So I took that, um, went through this really intensive drafting process,
which ultimately led to a job with the Hemlock Society based in Eugene. The Hemlock Society is the largest right to die organization in the world. Smith's job there put her in contact with the group that crafted and campaigned for ballot measure 16 using the model developed by her law school seminar. Smith drafted the first version of the initiative and delivered it to the five member group of attorneys and health care professionals over the next year. The group revised the measure repeatedly. Measure 16 began as a bill that would have allowed lethal injections, but the drafters immediately compromised. So that was the first major decision we made that we didn't want active euthanasia. And so we took out all of that. We took out the language about aid in dying and made it providing a prescription, tried to neutralize it that way, and because it was more politically palatable that way as the process continued. Smith says the drafters invited nearly every health care organization in Oregon
to provide input on the initiative. Several people unofficially made suggestions, but most shied away from a measure many saw as a long shot. Assisted suicide initiatives in Washington and California failed in 1991 and 92, making it seem as if Americans weren't ready to enact an aid in dying law measure. Sixteen's creators wanted a bill that would pass and one that would stand up to legal challenge. In anticipation of that, the initiative uses the same definitions contained in Oregon's advanced directives. Law is that way. We were consistent with current law. We couldn't get arguments about why do you define this way? This this way. This is something that hospice had agreed to that Oregon health decisions and a variety of players who were considered to be somewhat conservative on the issue had already agreed to these definitions. The final version of Measure 16 provides immunity to doctors and nurses whose patients follow a strict procedure toward assisted death.
The law allows a person diagnosed with a terminal illness to request a prescription of lethal drugs, the person who must make three requests to orally and one by completing a written form. At least two doctors must concur that the person has six months or less to live if either doctor believes the patient suffers from depression. The law requires the patient to receive counseling. Once those hurdles are overcome, dying patients must themselves administer the lethal drugs. Smith says these procedural guidelines are meant to regulate a practice that already occurs. We know from the books that are coming out, from the newspaper accounts that are coming out, that people are already assisting each other and they're they're ending their own lives and they don't necessarily know how to do so. And so I think it's really important that this kind of information be brought to the public eye, that it be looked at. For one, we can find out what kinds of people want to end their lives early
and perhaps come up with some other interventions that will alleviate that need right to die. Advocates compare illegal assisted suicide to illegal abortion. They argue that when abortion is outlawed, women who have the procedure often risk botched attempts. Measure 16. Smith says regulates assisted suicide as a medical procedure, much the way abortion is in the Netherlands. No one regulates assisted suicide, which is nominally illegal because there's strong societal support for aid in dying. The courts there are reluctant to prosecute doctors who help people die. Many supporters of assisted suicide in this country think physicians in Holland have too much freedom. And some medical professionals in the Netherlands agree and are beginning to adopt rules similar to Measure Sixteen's Cheryl Smith believes that without regulation, there's a greater danger of failed assisted suicide attempts and unjustified euthanasia.
I think that there ought to be some societal consensus and that we're working towards reaching consensus on this issue rather than have a back alley euthanasia, as it's been called, that we. Bring it to the front and we deal with it as a real issue, because Measure 16 makes it easier for patients to talk openly about suicide. Smith hopes it can prompt health care professionals to improve comfort care, diagnose depression and provide respite care for families of dying patients. Smith says legal assisted suicide could allow people in pain to be relieved of suffering without harming anyone. As long as the law contains adequate safeguards. And I think it's a good law. I feel much better about this than some of the other proposals that I've seen. I think it's got a lot of safeguards and I think it can work. I'm not saying that it doesn't won't need some fine tuning. I think that as we go along that we may need to make some modifications.
But on the whole, I think it's a really good law. Smith concedes that the law doesn't provide enough direction on reporting and monitoring assisted deaths, measure 16 places reporting requirements in the lap of the Oregon Health Division in the weeks following last year's election that agencies scrambled to write administrative rules to guide legal assisted suicide. However, Health Division administrators were relieved of that monumental task when a federal judge in Eugene blocked a measure 16 from taking effect in early August. U.S. District Judge Michael Hogan found Oregon's assisted suicide law unconstitutional, despite Cheryl Smith's attempt to include in her law adequate protections for patients. Hogan ruled that it fails to protect terminally ill people who may be depressed and therefore not rational from assisted death. That ruling has been appealed for OPB. I'm Colin Fogarty.
Judge Hogan's ruling on Measure 16 breaks new legal ground, this issue is relatively new to formal public debate. So judges and lawyers are frequently confronting specific questions associated with assisted suicide for the first time. Not only that, while Oregon is seeking to legalize assisted suicide, the state of Washington is trying to ban it, and both cases are working their way through the appeals process. University of Oregon law professor Leslie Harris has analyzed Judge Hogan's decision on Measure 16. She spoke with me recently about the reasoning in that decision and what it might mean for the future of this law in the court system. When when an equal protection challenge is made, the essence of the of this challenge to a law is the claim that the law is classifying people into two different groups and treating those two different groups differently in a way that's unjustified. That is what an equal protection challenge fundamentally is. And the finding of the federal district judge in this
case is that the law classifies the population into two groups, those who are terminally ill and everyone else. So that's the basis for classification under existing federal doctrine, the basis upon which people are classified. The criteria that's used to classify people has an important consequence for how rigorously the constitutional assessment of the statute will be. If the basis for classifying the people, for classifying people entered into two groups is one that has been considered to be suspect. And the paradigm example of that is classifying people based on their race. The constitutional doctrine says that that very classifying process is suspicious, is suspect, and
therefore for the law, which treats people differently on the basis of the race to survive constitutional challenge, it must pass a very high threshold. It must be established that the law was necessary to achieve a very, very important state interest. And so that level of scrutiny. That's what lawyers call it. This level of scrutiny is one that is not at all deferential to the statute. It is highly suspicious of the statute really insists that the statute be justified. If the basis for classifying people is not something that's highly suspicious, then there is a much lower level of scrutiny. And the established doctrine says that if there is a rational basis for classifying people in this way and if it is reasonably related to some legitimate state goal, the statute will be held to be constitutional. In this case, the judge ruled that the basis for classifying people,
that is the terminally ill versus everyone else was not a suspicious ground and therefore that that most deferential level of scrutiny, rational basis scrutiny was the proper level to use. The first question in this case, they're saying, OK, we're treating terminally ill people differently from all other people. And with what significance? In what way? Our terminally ill people being disadvantaged is the question. And as I understand the opinion, Judge Hogan ruled that the statute took away from terminally ill people protections against themselves, protections that the law generally provides to protect people against their own decision to kill themselves, to commit suicide. And so then the question was whether or not the first question was
whether or not that was even a right. Is there even a right to be protected against yourself, to be protected against making a decision to commit suicide, which includes risks of someone pressuring you to make a decision or something like that? And the judge ruled that there was such a right. So it's an unusual opinion because it's got the criticism, the fundamental criticism that the judge makes of the statute is in the procedures used to identify who's terminally ill and who's competent. Well, since there isn't a lot of case law in this area, there maybe be, maybe so. So clearly, the individual judge in this. Case Judge Michael Hogan in Eugene has has a great deal to do with the initial read of it, how how is that affected then as it moves through the appeals process since this decision has been appealed to the 9th Circuit Court of Appeals?
I think the fundamental question is going to be whether or not the judge, in fact, did defer sufficiently to the choices made that are implicitly made in the statute about how terminally ill people will be identified and then their competence assured. And I suspect that what the argument might be, I mean, the essence of the argument might be something on the order of this rational level of scrutiny doesn't require that the method that the state chooses B, be the best method, merely that it be reasonable. And so I think that that's going to in other words, the argument I think the essence of the argument is that the supporters of this law will make on appeal is that the judge was not being was not really applying this rational level of scrutiny, was applying a higher level of scrutiny, was being not sufficiently deferential to the legislative choice here, and that therefore
the decision was wrong in terms of what the 9th Circuit will do with that, in some ways, it's rather hard to predict because, as I said, there aren't any cases that I can think of that are really, really close on point to this. What I can tell you in general terms is that it's highly unusual for a court to hold that legislation is unconstitutional when it applies this rational level of scrutiny. Now, at the same time, the 9th Circuit is also considering a case from the state of Washington in which that state is defending a ban on assisted suicide. That's right. That's the compassion in dying case. Does this suggest that one other area of legal of the law that needs to be looked at is states rights that at some point it is an issue that will be left up to individual states as opposed to setting one rule? Well, I think that is actually the essence of the
that's the essence of what's going on here. I think you've exactly put your finger on it. When people hear about the Washington case in the Oregon case, they're saying, I don't understand. This is confusing. I mean, ultimately, what I think might very well happen, the Washington law just to clarify here, the Washington law, like the law in most states, makes it a crime to assist suicide. And the Washington law was challenged by people claiming who were claiming that when that law was applied to people who were terminally ill, that it violated the due process, not equal protection, but due process rights of terminally ill people to make their own health care decisions, including end of life decisions and and include and they included in that claim the right. They included the claim that that right to make those decisions included the right to seek professional assistance, physician assistance if needed.
The 9th Circuit panel rejected that constitutional argument. The federal district judge in Washington held that indeed assisted suicide criminal statute in Washington did violate the due process rights of terminally ill people. That decision was reversed by the Ninth Circuit. What that Ninth Circuit decision did was to say the choice of the legislature about this problem, how to address the social problem. That is to say, there's not an exception for to the to the criminal assisted suicide law for terminally ill people is one that is not constitutionally impermissible. What you've got in Oregon is the lawmaking body making the opposite public policy choice, that there should be an exception. And you've got the constitutional challenge in Oregon being that that choice is illegitimate. But it's a very different constitutional claim. It's really quite a different constitutional claim from the constitutional claim that was
made to challenge the Washington law. And it seems to me that a very plausible outcome of this, when all is said and done, is that both laws will be held to be constitutional, which would mean that the question of whether or not assisted suicide should be allowed for terminally ill people will be up to the judgments of the legislative bodies. And here I'm including, you know, including legislation through the initiative of individual states that the Constitution doesn't dictate one resolution to that problem. So is it likely, do you think, that the Supreme Court will? We'll take one of these cases, or possibly both of them and try to to say to the rest of the states, this is what the law of the land is going to be there will allow you to make your own decisions or we'll set one rule that applies to everyone. Well, I think an important thing to know about the Supreme Court's jurisdiction is that it's discretionary. The Supreme Court doesn't have to decide
this issue. If the Supreme Court was obligated to decide these great issues of constitutional moment, I would say yes, coming out of the 9th Circuit, we're going to have two cases which are clearly going to pose the issues. And somehow or another, the Supreme Court is going to have to resolve it. However, because the Supreme Court has discretion over the cases that it's decided, it decides, I don't think that it's a sure thing at all that the Supreme Court will decide these these particular cases right now. Sometimes the Supreme Court I mean, and this is not real stable. I mean, this isn't always I mean, it's hard to say that this always happens, but there are certainly a strong tradition in the Supreme Court of letting very difficult issues like this perk in percolate around in the lower courts and in the state courts, in the lower federal courts to allow thinking about the issues to develop and to allow time for political discussion and so forth,
rather than jumping right in and resolving the issue in one way or another. Because remember that one of the consequences of deciding that the Constitution requires something, whatever it is, is that it's very difficult to change that decision. Essentially, you've got to have a constitutional amendment, which is not a trivial process. And so the there is a general I mean, I'm sort of speaking in general terms and there's lots of exceptions to this, but there's sort of a general notion that the Supreme Court and the courts in general will be reluctant to constitutionalize decisions, particularly when it's when they concern matters of of important public values and where there's lots of debate and lots of dissension and lots of lack of clarity in that they will leave that to the political process. And so that might happen in this case. Or on the other hand, they may take they may decide they want to take it. But relatively speaking, there are few there are not very many cases that have been decided raising these issues.
- Episode Number
- The Architect of Measure 16
- Producing Organization
- Oregon Public Broadcasting
- KOAC (Radio station : Corvallis, Or.)
- Contributing Organization
- The Walter J. Brown Media Archives & Peabody Awards Collection at the University of Georgia (Athens, Georgia)
- AAPB ID
- "In November, 1994, Oregon voters approved a citizen initiative that legalized doctor-assisted suicide. The initiative created a law that outlined how a person with less than six months to live could request and receive a lethal prescription from any doctor. Within a month, a federal judge prevented the law from taking effect. But the issues and questions raised during the election sparked a quiet revolution in Oregon--from the way doctors talk to and treat patients facing end-of-life decisions to a greater awareness among the public of the options and decisions associated with death. This debate has now rippled out to states like Michigan, New York and Washington, which are all dealing with similar issues raised by the debate over doctor-assisted suicide. OPB Radio decided to explore the health care and social issues surrounding doctor-assisted suicide. Our six-part series captures the diversity of thought and experience that has contributed to the movement to legalize this form of self-administered death. We discovered an evolution underway in Oregon's medical community as doctors learned new ways to treat pain and to make untreatable patients comfortable as they died."Oregon's experience with this initiative, Measure 16 on the ballot, is bringing to light a network of back-alley euthanasiasts, operating without guidelines. It's also focusing on new attention on how people with the virus that causes AIDS are facing the prospect of dying from an incurable disease. "Our series also demonstrates how people are turning to alternative medicine and hospice in their search for meaningful ways to die. This state is leading the way into uncharted legal and social waters. Our series defines the beginning of that journey."--1995 Peabody Awards entry form.
- Broadcast Date
- Media type
Producing Organization: Oregon Public Broadcasting
Producing Organization: KOAC (Radio station : Corvallis, Or.)
- AAPB Contributor Holdings
The Walter J. Brown Media Archives & Peabody Awards Collection at the
University of Georgia
Identifier: cpb-aacip-c43522e7564 (Filename)
Format: 1/4 inch audio cassette
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- Chicago: “Measure 16: Oregon Confronts Death and Dying; 4; The Architect of Measure 16,” 1995-10-20, The Walter J. Brown Media Archives & Peabody Awards Collection at the University of Georgia, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed June 26, 2022, http://americanarchive.org/catalog/cpb-aacip-526-rb6vx0790b.
- MLA: “Measure 16: Oregon Confronts Death and Dying; 4; The Architect of Measure 16.” 1995-10-20. The Walter J. Brown Media Archives & Peabody Awards Collection at the University of Georgia, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Web. June 26, 2022. <http://americanarchive.org/catalog/cpb-aacip-526-rb6vx0790b>.
- APA: Measure 16: Oregon Confronts Death and Dying; 4; The Architect of Measure 16. Boston, MA: The Walter J. Brown Media Archives & Peabody Awards Collection at the University of Georgia, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Retrieved from http://americanarchive.org/catalog/cpb-aacip-526-rb6vx0790b