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Dignity in Choice: a Terminally Ill Patient's Right to Choose Cody Bauer

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Mitchell Hamline Law Review Volume 44 | Issue 3 Article 7 2018 Dignity in Choice: A Terminally Ill Patient's Right to Choose Cody Bauer Follow this and additional works at: https://open.mitchellhamline.edu/mhlr Part of the Health Law and Policy Commons, and the Medical Jurisprudence Commons Recommended Citation Bauer, Cody (2018) "Dignity in Choice: A Terminally Ill Patient's Right to Choose," Mitchell Hamline Law Review: Vol. 44 : Iss. 3 , Article 7. Available at: https://open.mitchellhamline.edu/mhlr/vol44/iss3/7 This Note is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in Mitchell Hamline Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Bauer: Dignity in Choice: A Terminally Ill Patient's Right to Choose DIGNITY IN CHOICE: A TERMINALLY ILL PATIENT’S RIGHT TO CHOOSE Cody Bauer† I. INTRODUCTION .................................................................... 1025 II. MEDICAL AID IN DYING ........................................................ 1026 A. An Overview ............................................................. 1026 B. United States Supreme Court Holdings Regarding Medical Aid in Dying ................................................................... 1029 C. States That Permit Medical Aid in Dying ....................... 1029 1. Oregon ................................................................ 1029 2. Washington .......................................................... 1032 3. Vermont ............................................................... 1034 4. California ............................................................ 1035 5. Colorado .............................................................. 1036 6. Hawaii ................................................................ 1037 7. The District of Columbia......................................... 1038 8. Montana ............................................................. 1039 D. States That Prohibit Medical Aid in Dying ..................... 1040 E. An Examination of Physicians’ Opinions ....................... 1041 F. The American Push for Medical Aid in Dying ................. 1045 III. MEDICAL AID IN DYING IN MINNESOTA ............................... 1047 A. Legislation in Minnesota ............................................. 1047 1. Prior Legislation ................................................... 1047 2. Current Legislation ............................................... 1049 B. The Minnesota Public’s Opinion .................................. 1049 IV. THE PRACTICE OF MEDICAL AID IN DYING INTERNATIONALLY ............................................................... 1050 A. The Netherlands, Belgium, Luxembourg, Switzerland, Colombia, and Canada ............................................... 1050 † J.D. Candidate, Mitchell Hamline School of Law, 2019; B.A. Criminology and Law Studies, Marquette University, 2016. I would like to thank all of the Mitchell Hamline Law Review Editors and Associates for their feedback and diligence throughout the editing process. Most importantly, a big thank you to my parents and family for always supporting me and believing in me throughout law school and in life. 1024 Published by Mitchell Hamline Open Access, 2018 1 Mitchell Hamline Law Review, Vol. 44, Iss. 3 [2018], Art. 7 2018] MEDICAL AID IN DYING LAWS 1025 B. International Attitudes on Medical Aid in Dying ............ 1054 V. FINAL EXIT NETWORK .......................................................... 1055 A. Description ................................................................ 1055 B. Criminal Litigation in Minnesota and Georgia ............... 1056 1. Minnesota ............................................................ 1057 2. Georgia ................................................................ 1058 C. Analysis of Minnesota and Georgia’s Holdings ............... 1059 VI. CONCLUSION ....................................................................... 1063 I. INTRODUCTION At just twenty-nine years of age, Brittany Maynard was diagnosed with terminal brain cancer and given a mere six months to live.1 The cancer caused Maynard to suffer from debilitating seizures, head and neck pain, and stroke-like symptoms.2 In November 2014, after exhausting all available medical options and treatments, Maynard decided to end her life by drinking a lethal mixture of water, sedatives, and respiratory-system depressants prescribed by her physician.3 Maynard stated, “I’m not killing myself. Cancer is killing me.”4 According to Maynard, she chose “to go in a way that is less suffering and less pain.”5 Maynard’s death reignited a decades-long national debate about the right of terminally ill patients to access medical aid in dying.6 This Note focuses on five related areas. First, this Note provides an overview of medical aid in dying.7 Then, it discusses two landmark 1. Lindsey Bever, How Brittany Maynard May Change the Right-to-Die Debate, WASH. POST (Nov. 3, 2014), https://www.washingtonpost.com/news/morning- mix/wp/2014/11/03/how-brittany-maynard-may-change-the-right-to-die-debate-af ter-death/?utm_term=.d044902e64f5/ [https://perma.cc/SF44-Z8JY]; Death with Dignity Advocate Brittany Maynard Dies in Oregon, NBC NEWS (Nov. 2, 2014, 10:01 PM), https://www.nbcnews.com/health/health-news/death-dignity-advocate-brittany-m aynard-dies-oregon-n235091 [https://perma.cc/P5GS-3DR2]. 2. Death With Dignity Advocate Brittany Maynard Dies in Oregon, supra note 1. 3. Id. In an interview with NBC News, Maynard stated, “I’m not killing myself. Cancer is killing me.” Id. 4. Id. 5. Id. 6. Jonathan Lapook, Brittany Maynard’s Right-to-Die Movement Continues, CBS NEWS (Sept. 10, 2015, 6:52 PM), https://www.cbsnews.com/news/brittany- maynards-fight-for-right-to-die-continues-with-her-husband/ [https://perma.cc/2 UFP-RNAN]. 7. See infra Part II.A. https://open.mitchellhamline.edu/mhlr/vol44/iss3/7 2 Bauer: Dignity in Choice: A Terminally Ill Patient's Right to Choose 1026 MITCHELL HAMLINE LAW REVIEW [Vol. 44:3 Supreme Court cases on the topic.8 The Note next analyzes the practice in the eight United States jurisdictions where it is permitted, by both statute and common law,9 and advocates for the legalization of medical aid in dying in Minnesota.10 Next, the Note discusses the practice internationally.11 Finally, the Note examines two recent cases involving Final Exit Network, a controversial non-profit that provides guidance to patients with terminal illnesses on how to end their lives on their own terms.12 II. MEDICAL AID IN DYING A. An Overview “Medical aid in dying,” also known as “death with dignity” and “physician-assisted death,”13 is a term that describes when “a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life- ending act.”14 The term medical aid in dying, however, is somewhat of a misnomer, as a physician does not provide actual aid in the act.15 Instead, statutes permitting medical aid in dying require the patient, of sound mind and discretion, to administer the medication himself or herself.16 After passing a series of examinations and evaluations, the physician merely assists by prescribing lethal medication for the patient.17 For the purposes of this Note, medical aid in dying must be distinguished from the term “euthanasia.” Euthanasia describes the 8. See infra Part II.B. 9. See infra Part II.C. 10. See infra Part III. 11. See infra Part IV. 12. See infra Part V. 13. Terminology of Assisted Dying, DEATH WITH DIGNITY, https://www.deathwithdi gnity.org/terminology/#dwd [https://perma.cc/DEK8-94VX] (last visited June 20, 2018). 14. AMA Code of Med. Ethics, Op. 5.7 (2016), https://www.ama-assn.org/deli vering-care/physician-assisted-suicide [https://perma.cc/6UE8-QSDW]. 15. Stephanie M. Richards, Death With Dignity: The Right, Choice, and Power of Death by Physician-Assisted Suicide, 11 CHARLESTON L. REV. 471, 490 (2017). 16. Id. at 491 (providing Oregon law as an example, which requires “that patients must be terminally ill and mentally sound, must be capable of administering the medication themselves, and two different doctors must approve”). 17. Id. at 472. Published by Mitchell Hamline Open Access, 2018 3 Mitchell Hamline Law Review, Vol. 44, Iss. 3 [2018], Art. 7 2018] MEDICAL AID IN DYING LAWS 1027 “act of deliberately causing the death of another person who may suffer from an incurable disease or condition, commonly performed with a lethal injection.”18 Thus, the primary distinction between medical aid in dying and euthanasia is in who “pulls the trigger.” With medical aid in dying, the patient is the individual who takes the prescribed lethal medication or takes an action intended to cause the patient’s death.19 Euthanasia, on the other hand, involves an individual other than the patient taking such action.20 Specifically, euthanasia involves a physician injecting a patient with a substance meant to painlessly bring on death.21 No jurisdictions in the United States have allowed the legalization of euthanasia, and cases involving euthanasia are prosecuted under general homicide laws.22 A distinction between the two terms is further drawn around the patient’s mindset. For example, medical aid in dying allows a patient to end his or her life on his or her own terms, while euthanasia takes the power out of the patient’s hands.23 Yet,
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