Oregon residents of sound mind determined to be terminally ill by a physician and having six months or less to live can request medical aid in dying. The state recently settled a lawsuit challenging the law’s residency requirement. Nick Gideonse is a physician represented by Compassion & Choices in the federal lawsuit. The suit alleged that it was unconstitutional to require someone to be an Oregon resident in order to use the state’s Death with Dignity law. The state has agreed to a settlement that includes initiating a legislative request to permanently remove the residency language from the law. Kevin Díaz is the chief legal advocacy officer at Compassion & Choices. He and Gideonse share details on what the settlement means for Oregon as well as other states.
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Dave Miller: This is Think Out Loud on OPB, I’m Dave Miller. Back in November, a Portland doctor brought suit in federal court against the State of Oregon. He did it in conjunction with the group Compassion and Choices which lobbies for medical aid and dying laws all around the country. They argued that the residency requirement in Oregon’s Death with Dignity law violates the U. S. Constitution’s guarantee of equal treatment. Yesterday we learned that the state had agreed to settle with the plaintiffs, meaning that people from other states, be it Washington or Idaho or Kansas, for that matter, should be able to access medical aid in dying in Oregon. But the legal issues surrounding this are actually pretty complicated. So for more on what this means. I’m joined by Nick Gideonse; he is a family doctor who brought the suit. He is an Associate Professor at OHSU, who practices in various parts of the Willamette Valley and in Eastern Oregon. Kevin Diaz joins us as well. He is the Chief Legal Advocacy Officer for the group Compassion and Choices. Welcome to you both.
Nick Gideonse / Kevin Diaz: Thanks so much.
Miller: Nick Gideonse first of all, welcome back, and I’m wondering for folks who didn’t hear our conversation back when you filed this suit, if you can just remind us briefly, why you brought this suit?
Nick Gideonse: The restriction on residency, which meant that Oregon physicians could prescribe for patients only who had established residency in Oregon, was a barrier or aspect of the initial law that was understandable at the time, in terms of Oregon being the first in this area, but as the care has become more standardized, it presented an obstacle to my patients – about 10% of my primary care practice lives across the river in Washington. And when those patients would discuss with me or when referrals would come to me, I would be unable to provide the service to them based on this residency requirement.
Miller: Washington does have a law that’s modeled in Oregon, so theoretically, your patients could have found a Washington-based doctor to help them, what was wrong with that?
Gideonse: When people are suffering from a terminal illness, they’re becoming weaker; some of my patients in Washington have been with me for 15 or more years, to change positions at that time can be difficult. Referrals would come to me because local physicians were hard to find. And additionally, a good chunk of health care in southwest Washington is provided through Peace Health Organization and Catholic Healthcare Organizations, the rules don’t directly participate.
Miller: So, what exactly will this settlement mean?
Gideonse: It’ll mean my patients can talk to me and know that I can help them in this as I help them in any other way – establishing that this is routine medical care. The settlement officially means that the things that I would have got in trouble for, for working with a nonresident, there’s safe harbor from those until the language of the original law is changed to remove the residency requirement.
Miller: Kevin Diaz, this happened pretty quickly. Did you think it would be addressed, that you would achieve a settlement with the state in just five months?
Kevin Diaz: Honestly, no, I didn’t think it was going to be resolved that quickly. But Oregon has been a leader in respecting patients at the end of life and we were really pleased to see that all the parties involved were willing to come to an amicable resolution as quickly as they were, so that people don’t have to suffer needlessly.
Miller: The state’s statute has not changed and the legislature is not going to be in session until next year. So what actually is the legal status right now? I’m wondering how binding the settlement can be if it does not result in a change of law.
Diaz: Essentially what has happened is that the defendants of this case have agreed to not enforce the residency requirement as it applies to the Oregon Death with Dignity Act. So while all other aspects of the act are enforced, that particular provision isn’t, and so people like Dr. Gideonse won’t have to worry about losing their medical license or somehow being prosecuted if he decides to treat a patient who is not a resident of Oregon.
Miller: Oregon Right to Life is a group that has long been critical of laws like Oregon’s. They put out a press release yesterday condemning this settlement. Lois Anderson, the Executive Director, said this in the press release, ‘We already have a problem with dangerously short physician-patient relationships, and the push to eliminate any waiting period for life-ending drugs. We should not be expanding access to lethal prescriptions. The residency requirement at least protected some patients from predatory practices, going unnoticed in the current execution of the law.’ Nick Gideonse, what’s your response to that statement?
Gideonse: I’m sorry, can you repeat that?
Miller: I’m curious what your response…
Gideonse: The Right to Life statement?
Miller: Exactly.
Gideonse: Yeah. Well, I’m glad they leave the space for full evaluation. But I do not expect… people don’t travel hard at the end of life. I don’t expect that medical tourism is going to be an issue here.
Miller: If people aren’t going to be traveling for this, this does bring up a huge question about who’s actually going to be using this law. Nick Gideonse, as you noted, some of your patients who are across the Columbia in Washington could take advantage of this. But Kevin Diaz, what about, say, a terminally ill cancer patient from Arizona. What would they need to do to use Oregon’s law?
Diaz: Well, there are really, three categories of folks when thinking about who can use the law and how they need to use the law. So we have non-residents in your example and if they complete all aspects of qualifying for medical aid and dying and self ingestion here in Oregon, then they are completely protected by the settlement. Of course, they still have to get here in their weakened state, establish a therapeutic relationship with a physician, and the physician has to go through the entire qualification process, in order to write them a prescription. Then there would be non-residents from states where medical aid and dying is authorized, like Washington or California who meet, and those folks would still have to meet Oregon statutory requirements. But let’s say they decide to self-ingest back in their home state of Washington or California, for those folks, really, any sort of risk is exceedingly low, that there would be any repercussions. Certainly there wouldn’t be any repercussions likely for the physicians, because all those actions take place in Oregon. And because they have similar laws in those states that they were going back to the family members would likely be protected as well if they’re with the individual. For nonresidents, from states where medical aid and dying is not authorized, they would look to take the medication and go back to the non-authorized states. We would advise against that because there is the potential for legal jeopardy.
Miller: What are… [Voices overlapping]
Diaz: [Unintelligible]...Oh, go ahead.
Miller: Well, I’m curious, maybe you’re going to go there, but what the legal jeopardy is, if we’re talking about civil actions or criminal actions, what are the potential repercussions for a whole bunch of people for, say, the prescribing Oregon doctor or for family or friends that they might travel with, and then go back to their home state with who might be with them if they took the lethal medication. What are the potential legal issues at play?
Diaz: Well, you’ve identified the main legal issue which is for friends and family who help the person come to Oregon, return, or at their bedside in their state when the it’s the law, if the medical aid in dying is not authorized because in most states they have what are called assisted-suicide laws on the books. And if they don’t have a corresponding medical aid and dying statute, then arguably some of the actions that those individuals may take could fall under the assisted suicide prohibition in that home state. And that’s where the biggest legal threat would come from.
Miller: And those could be serious felonies we’re talking about?
Diaz: Yes, it’s a very serious thing to face. And what we’ve seen is that patients, they really want to make sure that while they don’t want to face any sort of needless suffering, they also want to make sure that both their physician and the family members that are there supporting them aren’t facing any sort of legal risks as well. So that’s why we would advise one, we would hope that other states pass Medical Aid in Dying laws, but also, too, that if you’re coming from a jurisdiction where medical aid in dying is not authorized, that you complete all the acts and self administer the medication in Oregon.
Miller: Let’s talk about that scenario because it also seems problematic in a lot of ways. We are talking about people who, if they would qualify for Oregon’s law, would be, as far as doctors would say, within six months of dying from any given disease. I just imagine that they’d be then sick enough that it could be either very impractical, very expensive, very uncomfortable to travel to Oregon by car or by plane to perhaps be in a place where they have never been before and then to ingest the fatal dose of these medications, say in a hotel. All of what I’ve just described seems to go against the keyword in the center of Oregon’s law, which is dignity. None of that really strikes me as being dignified. If what we’ve heard so often is people making this choice at home, you know, with family and maybe with friends, how likely do you think it is that people, given this change in Oregon’s approach to the law on the books, how likely do you think it is that people would actually do this?
Diaz: As you say, there are a lot of barriers. We’re trying to remove barriers to accessing safe and humane medical aid in dying. For my patients, I am mostly motivated by those who already live in Clark County. Some of them have talked to me about this ahead of time as well. But I also think for the very few patients who do overcome those barriers you described, it will still be profoundly meaningful to obtain safe and legal medical aid in dying in a humane end to their terminal illness. Despite the efforts you’ve had to describe when they did not have it available in their own state. And I do hope this spurs states to again consider there are a number of states that have laws under consideration to join the 30% of the US population that has access, so that their residents don’t need to go through what you described.
Miller: But Nick Gideonse, it’s your best guess that given this change in approach to the law, that Oregon just announced, that some people from other states really will come here, perhaps seek you out, or other doctors and end their lives in Oregon?
Gideonse: I do expect that to occur in a small number of cases now that it’s possible, yes.
Miller: Kevin Diaz. There are, is it eight other states along with the District of Columbia, that also have residency restrictions on their versions of medical aid in dying laws, many of them simply following Oregon’s initial lead. What do you think this settlement, just announced yesterday, could mean for those other states?
Diaz: My hope is that the legislatures in those states will reconsider the residency requirement, but I think we will also be reaching out to officials in those other states to see what they think about the settlement and whether or not there’s some sort of way to address the issues that we raised in the complaint in Oregon. If not, we’re prepared to litigate the issue and other forms as well.
Miller: Kevin Diaz and Nick Gideonse, thanks very much.
Diaz / Gideonse: Thank you. Thank you, Dave.
Miller: Kevin Diaz is Chief Legal Advocacy Officer with the group Compassion and Choices. Nick Gideonse was a plaintiff in the lawsuit filed by Compassion and Choices, an Associate Professor of Family Medicine at OHSU, practices medicine in the Willamette Valley and in eastern Oregon.