Supreme Court affirms bans on assisted suicide
But the issue is not closed for hospices
The U.S. Supreme Court on June 26 struck down Appellate Court decisions from New York and California which had proclaimed a Constitutionally protected right for the terminally ill to request a physician’s aid in dying.
Although this decision was hailed by opponents of assisted suicide, including hospice groups, the divisive public policy debate over legalization has really just begun. America’s hospices increasingly will find themselves challenged to respond to this debate. (See related story, p. 89.)
One of the challenges involves hospice’s role in the policy debate over legalization and whether a strident opposition stance will polarize hospice’s position and limit its ability to present hospice care as a positive alternative. But providers are also challenged to develop their own internal policies on how they would respond to patient requests for assisted suicide whether or not this becomes legal in their states. (See Hospice Management Advisor, July 1997, p. 76.)
As legal observers had predicted, the High Court ruled that states may continue to ban the practice of assisted suicide. But The New York Times described the unanimous decision as only a "tentative first step," rather than a definitive final ruling on the Constitutional question before the court. The justices also suggested, without explicitly ruling, that states are free to experiment with legalized assisted suicide if they choose.
Currently, about 35 states expressly prohibit assisted suicide, while in another dozen the ban is implied by common law doctrine. Legislation or ballot initiatives for legalization could soon appear in a number of states. At least nine states considered such legislation this year, according to the Hemlock Society USA. At least two bills in Illinois and Maine will carry over to next year’s session, while two other states Massachusetts and Vermont await reports from committees appointed by the legislatures to study the issue.
Only one state, Oregon, has voted to legalize assisted suicide for the terminally ill. That state’s Ballot Measure 16, narrowly passed in 1994, has been stuck in legal limbo ever since and faces another hurdle in November when the state’s voters will be asked to reconsider it. Earlier this year, the state legislature passed a law returning the issue to the voters, asserting that new information since the 1994 election has made the measure problematic.
Although its language is not yet finalized, most likely the new ballot measure will be structured as a proposal to repeal Measure 16, reports Ann Jackson, executive director of the Oregon Hospice Association (OHA). It also appears that Measure 16 will not be implemented in the meantime, pending possible further rulings from the Supreme Court. The state legislature declined to approved a bill which would have guaranteed universal access to hospice care for dying patients, regardless of their insurance coverage.
In early July, OHA’s board of directors voted to reaffirm its opposition to the concept of physician-assisted suicide as described in Measure 16, which also means supporting the move to repeal it, Jackson says. "I was most concerned that we not take a neutral position on this issue where we would have been effectively gagged. Our main goal is to be out there in the public debate talking about hospice and end-of-life care."
Window for improving end-of-life care?
Groups ranging from the American Medical Association (AMA) in Chicago and the American Geriatrics Society to the Project on Death in America based in New York City welcomed the Supreme Court’s assisted-suicide ruling. AMA promptly announced its Compassionate, Competent Care Initiative, which three primary thrusts are to:
• ensure that physicians are equipped with the knowledge and skills to care for dying patients;
• educate the public on quality end-of-life care;
• assist all states in enacting legislation to prohibit physician-assisted suicide.
The association hopes to reach all practicing physicians in this country with information on end-of-life care over the next two years. AMA also announced "eight elements of quality care for patients in the last phase of life." These include some of the following goals:
• ensuring the opportunity for patients to discuss and plan for end-of-life care;
• attending to patients’ suffering;
• honoring patients’ treatment preferences;
• not abandoning dying patients.
However, hospice care is mentioned only in passing, and there is no acknowledgement of or proposed remedy for the inability or unwillingness of many physicians to effect timely and appropriate referrals to hospice care.
Among the national end-of-life groups speaking out on the High Court ruling, the New York City-based Project on Death in America (PDIA) explicitly advocates ensuring that the dying "receive access to hospice and palliative care, proper assessment and treatment of pain and depression, and care that is respectful of religious, cultural, and spiritual beliefs." PDIA director Kathleen Foley, MD, says the court’s decision should open the door to a national discussion of the underlying issue how to improve care of the dying. "Discourse and death talk’ at the national, state, and community level are critical to framing a system of health care for the dying that provides the best possible quality of living," she observes.
The Arlington, VA-based National Hospice Organization (NHO) says it’s concerned that the Supreme Court decision "may raise more questions than it answers. The question shouldn’t be whether the state has an interest in allowing a person to ask a doctor to help him or her commit suicide but whether the state has an interest in helping citizens live out their final days as comfortably and with as much dignity as possible."
Lawmakers need education about hospice
The California State Hospice Association (CSHA) in Sacramento is one of four health association partners in that state in a new coalition formed to educate California lawmakers about the hospice alternative to physician-assisted suicide. The coalition also includes the California Health Care Association, representing hospitals; the Catholic Hospital Association; and the California Association for Health Services for the Aging, representing long-term care facilities.
CSHA last year convened a larger meeting of state associations to discuss its policies and positions on the issue and to start laying the groundwork for the anticipated Supreme Court decision.
"We’re closely watching for spot bills [already introduced in this year’s session] that might be amended to legalize assisted suicide," but so far none are pending, says CSHA executive director Margaret Clausen, CAE. CSHA is also distributing a two-page background pamphlet on hospice, prepared by its consulting public relations firm Hill & Knowlton, to all state legislators. CSHA’s current position on assisted suicide is to oppose it, Clausen says, although the group is still tabulating results from its most recent survey of members on the issue. "Our backgrounder doesn’t speak to physician-assisted suicide as a moral issue but highlights hospice as a positive alternative," she adds.
"We also put out a news advisory just like NHO. But frankly, there was very little response. Unfortunately, hospice gets lost in this debate since we are such a small niche provider. I have a two-inch stack of clippings on the Supreme Court ruling, and the word hospice is mentioned only a couple of times," Clausen says. "I see positive things coming out of this debate, but I just want hospice to have its rightful place."
Hospices need to be doing some hard thinking on how to respond to the continuing assisted-suicide debate, asserts Karen Kaplan, ScD, executive director of New York City-based advocacy group Choice in Dying. "The Supreme Court ruling offers a perfectly splendid window for advancing hospice’s mission. States can get enmeshed in the debate over whether physician-assisted suicide should be banned or legalized. Or else we could all direct our attention to the larger issue which is how patients at the end of life should be cared for. Hospice needs to be in there quickly, providing recommendations for states to deal with the larger issue."
Kaplan says her organization also confronted whether to take a stand on legalization and ended up choosing a neutral position. "There are much larger issues which we address. Physician-assisted suicide affects only a small slice of the much larger pie" of end-of-life care, she explains.
"In some ways, this [neutrality] has been a very successful tack for us. In other ways, those who are pro tend to think you are con, and those who are con think you are pro. But I generally recommend to organizations like ours or hospice to take the high road. Hospice has such an important message to share on this issue."
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