Life or death – Left to the States’ Discretion

Amona Al-Refaei, Associate Member, University of Cincinnati Law Review,

End of life care is a complicated and personal topic. There are important distinctions between physician aid in dying, euthanasia, and withdrawal of life-sustaining treatment. Most states protect a competent patient’s right to refuse life-sustaining treatment.[1] Euthanasia, on the other hand, is punishable as murder or as manslaughter in every state.[2] The constitutionality of physician aid in dying was addressed by the Supreme Court in Washington v. Glucksberg, where the Court found there was no enumerated right to die.[3] To support its ruling, the Court reflected on the nation’s history and legal traditions of criminalizing assisted suicide.[4] Because the right was not enumerated, Washington State’s legislation banning physician-assisted death had to be rationally related to a legitimate government interest to be upheld.[5] The state’s interests included preserving human life; upholding the integrity and ethics of the medical profession; and protecting vulnerable groups such as the poor, the elderly, and the disabled.[6] The Court believed these interests were sufficient to uphold the state’s ban on assisted suicide.[7] Because the Supreme Court’s opinion did not recognize an enumerated right to die, it allowed states to determine whether to allow physician aid in dying.[8] This freedom of choice has created an extreme difference in options for individuals depending on the state in which they reside. Physician-assisted death is currently legal in six states.[9] However, in some states, physicians cannot prescribe lethal drugs without facing criminal charges.[10] In Baxter v. State, the Montana Supreme Court held a terminally ill patient’s consent to physician aid in dying constituted a statutory defense to a charge of homicide against the aiding physician.[11] The court in Myers v. Schneiderman reached the opposite outcome, declining to declare a constitutional right to aid in dying.[12] The federal government should provide additional guidance on this topic because currently an individual’s right to make end of life decisions varies widely from one state to state.

Protecting Personal Autonomy

The Supreme Court of Montana in Baxter v. State upheld Montana’s Terminally Ill Act, which allowed patients to use the assistance of their physicians to obtain a prescription for a lethal dose of medication.[13] In Baxter, the plaintiff was terminally ill with no prospect of recovery and wanted the option of self-administering a lethal dose of medication prescribed by his physician at the time of his choosing.[14] The Montana court emphasized that suicide is not a crime under Montana law.[15] Additionally, the court held physician aid in dying does not fall within the scope of what it had identified as “against public policy.”[16] The court noted that physicians who aid a terminally ill patient in dying are not directly involved in the final decision or the final act because patients must choose whether to cause their own death by self-administering the medicine.[17] Montana’s Terminally Ill Act provides terminally ill patients end-of-life autonomy and assurance that their life-ending wishes are followed.[18] The act also immunizes physicians from criminal and civil liability for following a patient’s directions to withhold or withdraw life-sustaining treatment.[19] The court found, “[t]he statute’s message is clear: failure to give effect to a terminally ill patient’s life-ending declaration is a crime.”[20]

Protecting State Interest in Preventing Suicide

In contrast, the Court of Appeals of New York upheld a statute prohibiting anyone from assisting a suicide.[21] In Myers v. Schneiderman, the court held there was no fundamental right to assisted suicide and the assisted suicide laws were rationally related to a legitimate government interest in prohibiting intentional killing, preserving life, preventing suicide, maintaining physicians’ roles, and protecting vulnerable people.[22] The assisted suicide statute applies to physicians who intentionally prescribe a lethal dosage of a drug because such an act constitutes “promoting a suicide attempt” or “aiding another person to commit suicide.”[23] The court also rejected claims that statutes prohibiting assisted suicide would violate the due process clauses contained in New York’s constitution.[24] The court has consistently adopted a distinction between refusing life-sustaining treatment and assisted suicide.[25] Because the court found there is no fundamental right for assisted suicide, the statute only needed to be rationally related to a legitimate government to be upheld.[26] Thus, the statute was upheld because of the state’s interest in preserving life, preventing suicide, maintaining physicians’ role as their patients’ healers, protecting vulnerable people, and avoiding a possible slide towards euthanasia.[27]

Need For Additional Federal Guidance

Since the Court’s decision in 1997, the public perception of physician aid in dying has shifted. The desire to provide individuals with the right to determine when to hasten their deaths has become more accepted by Americans.[28] In Glucksberg, the Supreme Court’s decision allowed the debate about the morality, legality, and practicality of physician aid in dying to continue.[29] Since the Court’s ruling, the majority of states still prohibit physician aid in dying, but six states have legalized physician aid in dying.[30] The laws in the minority of states permit physicians to write prescriptions for lethal drugs if the patients qualify and follow the proper procedures. For example, under D.C.’s statute, a patient who wishes to request the drug must make two oral requests, separated by at least 15 days, to an attending physician.[31] The patient must also submit a written request to the attending physician.[32] The written request must be witnessed by two individuals, one of whom cannot be a relative of the patient, to ensure the patient is capable, acting voluntarily, and is not being unduly influenced to sign the request.[33] The statute also requires the attending physician to determine the patient has a terminal disease, is capable, has made the request voluntarily, and is a resident of the District of Columbia.[34] Additionally, the attending physician must refer the patient to a consulting physician who must confirm the attending physician’s diagnosis is correct and verify the patient is capable, acting voluntarily, and has made an informed decision.[35]

The detailed procedure and requirements laid out in legislation protect individuals. Requiring patients to make multiple requests over a period of time helps to ensure that patients are not making this important decision without thinking it over. The voluntary and capable requirements also protect individuals from receiving the drug without their consent. Another layer of protection for terminally ill patients is added by the requirements of the attending and consulting physicians. And the requirements serve to prohibit individuals who are not terminally ill from requesting the drug to commit suicide. Overall, the requirements of the statute appear to both protect vulnerable citizens while still permitting them to exercise end-of-life autonomy. With these requirements, a state court could uphold a statute even if the state has an interest in preventing suicide and preserving life. Therefore, the federal government should provide additional guidance and factors for state courts to consider when reviewing these statutes.

Additionally, the same set of facts could reach opposite results depending on the state court where the statute is challenged. When reviewing state legislation, state courts determine whether the government’s interest in preventing suicide outweighs preserving individual’s end-of-life autonomy. Some states, like New York, have upheld legislation prohibiting physician aid in dying due to the government’s interest in preventing suicide and preserving life.[36] But a minority of states, like Montana, believe there is a greater interest in giving terminally ill patients end-of-life autonomy, respect, and assurance that their life-ending wishes will be followed.[37] For such a significant decision, it is important for the choice to be uniform for all citizens.

States are generally permitted to create laws based on the specific needs of their citizens. But, because end-of-life autonomy is so significant to citizens suffering from a terminal illness, this area should be treated differently than other areas regulated by the states. Also, allowing this range of statutes to continue to exist could place burdens on both patients and physicians. Patients suffering from a terminal illness with no prospect of recovery may have to relocate to another state to gain end-of-life autonomy. There are no similar areas of legislation that places such a high burden on patient’s ability to make medical decisions. Additionally, allowing these different laws to coexist could burden healthcare providers who may wish to assist their patients by informing them of all the possible end of life decisions.


Providing citizens of one state the option to consider physician aid in dying while denying that choice to citizens of other states will likely place burdens on terminally ill patients. Without guidance from the federal government, the states will be left to make their own determinations about whether to permit these acts, which results in some citizens have significantly less autonomy in end-of-life decisions. Decisions regarding the right of personal autonomy for terminally ill patients to ask for lethal medication to end their lives should not be left to the states’ legislature without any guidance from the federal government. Federal involvement is needed to create uniformity on this important personal decision.

[1] See Stuart G. Selkin, Legal Medicine by American College of Legal Medicine Part III Medicolegal and Ethical Encounters Chapter 24 Physician-Assisted Suicide and Palliative Sedation 7 (2007).

[2] Id.

[3] Washington v. Glucksberg, 521 U.S. 702, 709 (1997).

[4] Id. at 710-12.

[5] Id. at 728.

[6] Id. at 730-32.

[7] Id. at 733.

[8] Id. at 735.

[9] Physician-Assisted Suicide Fast Facts, CNN (June 10, 2017),

[10] See Ohio Rev. Code Ann. §3795.04(B) “Whoever violates division (A) of this section is guilty of assisting suicide, a felony of the third degree.”

[11] Baxter v. State, 224 P.3d 1211, 1222 (Mont. 2009).

[12] Myers v. Schneiderman, 2017 NY Lexis 2557, at *1 (N.Y. Sept. 7, 2017)

[13] Baxter, 224 P.3d at 1222.

[14] Id. at 1214.

[15] Id. at 1215.

[16] Id.

[17] Id. at 1217.

[18] Id.

[19] Id.

[20] Id. at 1219.

[21] Myers, 2017 NY Lexis at *1.

[22] Id. at *12.

[23] Id. at *7.

[24] Id. at *8.

[25] Id. at *9, 10. “The right to refuse medical intervention is at least partially rooted in notions of bodily integrity, as the right to refuse treatment is a consequence of a person’s right to resist unwanted bodily invasions.”

[26] Id. at *11.

[27] Id. at *12.

[28] “Last June, aid-in-dying legislation took effect in California, the most populous state. In November, Colorado votes approved a ballot measure by nearly a two-third majority. The District of Columbia Council has passed a similar law . . . ” Paula Span, Physician Aid in Dying Gains Acceptance in the U.S., The New York Times (Jan. 26, 2017)

[29] Glucksberg, 512 U.S. at 735.

[30] See Or. Rev. Stat. Ann. §127.800, Vt. Stat. Ann. 18, §5283, Wash. Rev. Code Ann. §70.245, Cal. Health & Safety Code §442, Colo. Rev. Stat. §25-48-102, D.C. Code §7-661.01, and Baxter v. State, 224 P.3d 1211, 1222 (Mont. 2009).

[31] D.C. Code §7-661.02.

[32] Id.

[33] Id.

[34] D.C. Code §7-661.03.

[35] Id.

[36] Myers, 2017 NY Lexis at *12.

[37] Baxter, 224 P.3d at 1217.

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