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. Fogarty: 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. Smith: 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. Fogarty: 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. Smith: 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, "um", tried to neutralize it that way, and. Fogarty: How come? Smith: "ah" because it's "mo" it was more politically palatable that way> Fogarty: 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 16'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. Smith: It's 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. Fogarty: 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, two 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. Smith: 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 would 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. Fogarty: 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 16's. Cheryl Smith believes that without regulation, there's a greater danger of failed assisted suicide attempts and unjustified euthanasia. Smith: I think that there ought to be some societal consensus and that we- we're working towards reaching consensus on this issue, rather than have a back

alley euthanasia, as it's been called, "um" that we bring it to the front and we deal with it as a real issue. Fogarty: 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. Smith: And I- I- I think it's a good law. I- I- feel much better about this than some of the other proposals that I've seen. "um" I think it's got a lot of safeguards and "um" 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 agency 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 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. [New Interviewer] 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. Harris: 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 "um" an important consequence for how rigorously the constitutional "um" assessment of the statute will be. "um" 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 "eh" the law, which treats people differently on the basis of the race to survive constitutional sta- 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 "um" 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 "um" and therefore that- that most deferential level of scrutiny, rational basis scrutiny was "eh"

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 are terminally ill people being disadvantaged?", is the question. And as I understand the opinion, Judge Hogan ruled that the "um" statute took away from terminally ill people, protections against "um" themselves. Protections that the law generally provides to protect people against their own decision "eh" to kill themselves, to commit suicide. "um" 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, "um" which includes "eh" 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 crici- criticism that the judge makes of the statute is in the procedures used to identify who's terminally ill and who's competent. [New Speaker] Well, since there isn't a lot of case law in this area, "eh". Harris: There's no- [New Speaker] maybe ?? be-, maybe so. So clearly, the individual judge in this case, Judge Michael Hogan in Eugene, has a great deal to do with the initial read of it - 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? Harris: 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. "um" And I suspect that what the argument what- 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 co- 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 "um" 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. [New Speaker] 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. Harris: That's right. That's the compassion-in-dying case. [New Speaker] Does this suggest that one other area of- of legal [nervous laughing] of- 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? Harris: Well, I think that is actually the essence of the "um" 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 and the Oregon case, they're saying, "I don't understand. This is confusing. "um" 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 "um" and "um" 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 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 "eh" 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 "eh" 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. [New Speaker] So is it likely, do you think, that the Supreme Court will? will 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" Either we'll allow you to make your own decisions, or we'll set one rule that applies to everyone. Harris: 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 "eh" decide "um" 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. "um" Sometimes the Supreme Court "um" I mean, The- and this is not real stable. I mean, this isn't always "um" 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 ann percolate around in the lower courts and in the state courts, in the lower federal courts "um" 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 "um" the- there 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 [sic] decisions. particularly when it's when they concern matters of- of "um" 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 "eh" cases that have been decided raising these issues. Oregon's- the case in Oregon. Oregon vs Lee, of course, is the only case which addresses the question of whether or not a statute allowing assisted suicide violates the rights

of the terminally ill. On the other side, "um" cases about whether or "eh" not statutes criminalizing assisted suicide, whether those violate the rights of the terminally ill. There's only- "um" I can only think of three cases "um" which address that issue, and they are all decided within the last year or so. And so, there's really not very much law. These kinds of issues are just beginning to get fully litigated in the lower courts. "um" And so it's still, you know, sort of taking the long view early in this process. Leslie Harris is a professor at the University of Oregon Law School, in Eugene.