Talking Points

 The Massachusetts Assisted Suicide Initiative
Talking Points for the Public and the Media

For more in depth information, click here.

Margaret Dore, December 5, 2011
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1.  What is assisted suicide?

“Assisted suicide” occurs when a person provides another person with the knowledge or means to commit suicide.  When the assistance is provided in whole or in part by a doctor, the practice is “physician-assisted suicide.”[1]

2.  What is current Massachusetts law?

Under current Massachusetts law, doctors and other persons can be held liable if they cause or fail to prevent another person's suicide.[2]  Counseling, causing or aiding a suicide is a common law crime potentially chargeable as murder.[3]

3.  Do other states have similar laws?

Yes.[4]

4.  If passed, how will the proposed initiative change Massachusetts law? 

If the initiative is passed, Massachusetts will legalize physician-assisted suicide via a ten page act.[5]  Doctors, family members and other persons who counsel, cause or aid the suicide of a person in substantial compliance with the act, will be immune from civil liability and criminal prosecution.[6] 

5.  Is it true that most states have rejected assisted suicide?

Yes.  There are just two states where physician-assisted suicide is legal:  Oregon and Washington.[7]  In a third state, Montana, there is a court case that gives doctors who cause or assist a suicide a potential defense to prosecution for homicide.[8]  The Oregon and Washington laws were passed via highly financed sound-bite ballot initiatives.  No law to allow assisted suicide has made it through the scrutiny of a legislature despite more than 100 attempts.[9] 

6.  Has Massachusetts previously rejected assisted suicide?

Four bills to legalize assisted suicide have been proposed since 1995.[10]  None have passed.[11]

7.  What is a "qualified patient" under the proposed act?

A "qualified patient" has satisfied the requirements of the proposed act to obtain a prescription for a lethal dose.[12]

8.  Are qualified patients required to be dying?

No.  Qualified patients are required to have a "terminal disease," defined in terms of a prediction of less than six months to live.[13]  Such persons are not necessarily dying.  This is true for two reasons:

First, doctor predictions of life expectancy can be wrong, which is the point of this article from Washington State: “'Terminal Uncertainty,' Washington’s new 'Death with Dignity' law allows doctors to help people commit suicide - once they’ve determined that the patient has only six months to live. But what if they’re wrong?"

Second, treatment can lead to recovery.  Consider Oregonian Jeanette Hall, who was told that she had six months to a year to live and who was adamant that she would die via assisted suicide.  It is now 11 years later.  She states:

"I wanted to do what our [assisted suicide] law allowed, and I wanted my doctor to help me. Instead, he encouraged me not to give up, and ultimately I decided to fight my disease. . . . 
If my doctor had believed in assisted suicide, I would be dead." [14]

9.  How does the proposed act work?

The proposed Massachusetts act has an application process to obtain a lethal dose for the purpose of causing a patient’s death.[15]  Once the lethal dose is issued by the pharmacy, there is no oversight over its administration.[16]  The death is not required to be witnessed by disinterested persons.[17]  No one is required to be present.[18]

10.  Why is the proposed act a recipe for elder abuse?

The proposed act has significant gaps that put seniors at risk. The most obvious gap is the lack of witnesses when the lethal dose is administered.  Without disinterested witnesses, an opportunity is created for the patient's heir, or someone else who will benefit from the patient's death, to administer the lethal dose to the patient without his consent.  Even if he  struggled, who would know? 

Preventing elder abuse is official Massachusetts State policy.[19] 

11.  Will legalizing assisted suicide empower the state healthcare system and/or the state government?

Given the Oregon experience, yes.  With legalization of assisted suicide in Oregon, the Oregon Health Plan (Medicaid) has been empowered to steer patients to suicide.  The most well-known cases involve Barbara Wagner and Randy Stroup.[20]  Each wanted treatment.[21]  The Oregon Health Plan, a government entity, offered them suicide instead.[22]  Wagner and Stroup were steered to suicide. 

If assisted suicide were to be legalized via the proposed Massachusetts act, there would be a similar empowerment of the Massachusetts healthcare system and the Massachusetts state government.  These entities would be empowered to steer patients to suicide.  The healthcare system and the government would be empowered, not individual patients.

12.  Will legalization of physician-assisted suicide increase Massachusetts's suicide rate?

If Massachusetts follows Oregon’s pattern, yes.  Oregon's suicide rate, which excludes suicides under its physician-assisted suicide law, has been "increasing significantly" since 2000.[23]  Just three years prior, in 1997, Oregon legalized physician-assisted suicide.[24]  This increase is consistent with a suicide contagion.  In other words, normalizing one type of suicide appears to have encouraged other suicides. 

Suicide prevention is official Massachusetts State policy.[25] 

13.  Why are people with disabilities against the proposed Massachusetts act?

Disability rights groups such as Not Dead Yet oppose the proposed act as a threat to their lives.[26]  In Oregon and Washington, official government forms for assisted suicide acts in those states promote disability as a reason to commit suicide.[27]  People with disabilities are thereby devalued.  In 2009, there was a proposed assisted suicide bill in New Hampshire that squarely applied to people with disabilities.[28]  If the Massachusetts act were to be passed now, people with disabilities see themselves as potentially next in line for a future expansion of the law.  In Washington state, which has had legal assisted suicide since 2009, there is already a public proposal to expand that law to direct euthanasia for non-terminal people. [29] 
* * *  

[1]  Compare, A.M.A. Code of Medical Ethics, Opinion 2.211.
[2]  Nelson v. Massachusetts Port Authority, 55 Mass.App.Ct. 433, 435-6, 771 N.E.2d 209 (2002) (These cases fit into two patterns: (1) the defendant's negligence was the cause of the decedent's uncontrollable suicidal impulse; or (2) the decedent was in the defendant's custody and the defendant had knowledge of the decedent's suicidal ideation).  
[3]  Commonwealth v. Bowen, 13 Mass. 356 (1816) states:  "If one counsel another to commit suicide, and the other, by reason of the advice, kill himself, the advisor is guilty of murder, as principal."
[4]  See, for example, Edwards v. Tardif, 240 Conn. 610, 692 A.2d 1266 (1997)(Connecticut Supreme Court affirmed judgment against a physician who had prescribed an "excessively large dosage" of barbiturates to a foreseeably suicidal patient who killed herself via the barbiturates); and Cramer v. Slater, 146 Idaho 868, 878, 204 P.3d 508 (2009), stating that doctors "can be held liable for [a] patient's suicide."  In Cramer, doctors negligently informed a patient about his HIV/AIDS status, which allegedly caused him to commit suicide.  See also In re Joseph G., 194 Cal.Rptr 163, 165-167 (1983) (giving an overview of assisted suicide laws in the United States).
[6]  The proposed act, Section 18 (1)(a) states:  "No person shall be subject to civil or criminal liability . . .  for any actions taken in compliance with this chapter. . . .  A person who substantially complies in good faith with the provisions of this chapter shall be deemed to be in compliance with this chapter."
[7]  To view the Oregon and Washington assisted suicide acts in their entirety, see ORS 127.800-995 and RCW 70.245
[8]  Baxter v. State, 354 Mont. 234, ¶50, 224 P.3d 1211 (2009).  The meaning of Baxter is still being argued nearly two years after the decision.  See "The aid-in-dying debate: Can a physician legally help a patient to die in Montana? Court ruling still leaves the issue open to argument," The Montana Lawyer, November 2011.
[9] Patients Rights Council, "Attempts to Legalize Euthanasia/Assisted Suicide in the United States," as of November 26, 2011 ("Between January 1994 and March 2011, there were 122 legislative proposals in 25 states. All bills that are not currently pending were either defeated, tabled for the session, withdrawn by sponsors, or languished with no action taken").
[10]  Id.

[11]  Id.
[12]  See proposed act, Section 1(11) defining "qualified patient."
[13]  The act, Section 1(13) defines "terminal disease" as "an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months."  See also proposed act, Section 2 (requiring a terminal disease).
[14] Jeanette Hall, Letter to the Editor, "She pushed for legal right to die, and - thankfully - was rebuffed," Boston Globe, October 4, 2011, available at http://articles.boston.com/2011-10-04/bostonglobe/30243525_1_suicide-doctor-ballot-initiative. Author confirmed accuracy with both Ms. Hall and her doctor, Kenneth Stevens, MD. See also Kenneth Stevens, Letter to the editor, "Oregon mistake costs lives," The Advocate, the official publication of the Idaho Bar Association, September 2010, to view, scroll down to the last letter at http://www.margaretdore.com/info/September_Letters.pdf  
[15]  The proposed act, Sections 2-13, and 21.
[16]  See proposed act in its entirety.
[17]  Id.
[18]  Id.
[19]  See e.g. M.G.L.A. Chapter 19A, Department of Elder Affairs, § 16, Protective services system ("protective services for elderly persons who are determined to be abused").
[20]  See Susan Donaldson James, "Death Drugs Cause Uproar in Oregon," ABC News, August 6, 2008, available at http://abcnews.go.com/Health/story?id=5517492&page=1 ; "Letter noting assisted suicide raises questions," KATU TV, July 30, 2008, available at http://www.katu.com/news/26119539.html 
[21]  Id.
[22]  Id.
[24] "Oregon's Death with Dignity Act: The First Year's Experience," page 1 ("On October 27, 1997, physician-assisted suicide became . . . legal . . ."). Available at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year1.pdf
[25]  See e.g. M.G.L.A. 40, § 36C ("All members of municipal police departments, and all uniformed members of the state police shall be trained in the detection, intervention and prevention of suicide.") 
[26]  See Not Dead Yet, "Massachusetts:  Good News on Mass. Medical Society -Organization reaffirms opposition to assisted suicide," December 5, 2011 and Not Dead Yet mission statement opposing assisted suicide and euthanasia (right hand margin of blog).
[27]  See e.g. "Oregon Death with Dignity Act Attending Physician Follow-up Form," question 15, providing seven suggested answers as to why there was a lethal dose request.  Some of these prepared answers are written in terms of disability being an acceptable reason to kill yourself.  These answers include:  "[A] concern about . . . the loss of control of bodily functions."
[28]  Stephen Drake and Not Dead Yet, "New Hampshire Poised to Redefine "Terminally Ill" - to PWDs and others for Assisted Suicide Eligibility," January 30, 2009 (regarding New Hampshire's 2009 assisted suicide bill, HB 304, which squarely applied to people with disabilities, people with HIV/AIDS and other non-dying people).
[29]  Brian Faller, "Perhaps it's time to expand Washington's Death with Dignity Act, The Olympian, November 16, 2011, available at http://www.theolympian.com/2011/11/16/1878667/perhaps-its-time-to-expand-washingtons.html