Vail Law column: Colorado’s right to die law is about personal freedom
Some would argue that the most fundamental of all rights is the right to self-determination, the right to be what you want to be, to make decisions for yourself and to chart your own course. What’s more essential to one’s personhood than — right or wrong — to be one’s self? The right to free speech, the right to the unfettered practice of the religion of one’s choosing, the right to peaceably assemble — all guaranteed under the First Amendment to the United States Constitution — pale unless one is free to define, direct and guide oneself.
This, and others, have been among the arguments exhaustively made by proponents of the right to die. Who are you (whether the “You” is the big You or government, or the small “you” of anyone else) to tell me how to run my life, or if I elect, to end it? Where does the mortised joint of government impede upon the tenon of one’s freedoms?
This, or course, like many things, expands to broader arguments. Where, opponents have countered, should the lines of freedom be drawn? May one have the right to do anything at all he chooses? May one infuse oneself with any drug of choice? May one stroll naked down a public street? May one eat pizza in a highway median, Justin Bieber blaring from one’s Bose Free Space Speakers? There are limits, they would argue. There is, after all, a social contract to which we all are bound. And even leaving morality and religion out of it — a hard thing to neglect completely — doesn’t there have to be — shouldn’t there be — some limits as to what one may do in civil society, even with one’s body?
Part of law is crafting and then institutionalizing borders. You can do this but not that. You can go this far but no further. You can toe this line, but go over it only at your peril. This particular act lacks culpability unless there is intent but its near cousin carries consequences even if intent is lacking. Part of why lawyers “practice” law is because she is a spectral mistress; the definitions morph and change, depending on the lighting and the context.
What, then, of the right to die?
To start with, it is the product of compromise. It is the invention of Herculean give and take and the wrestling with conscience. It is the Dolittleian offspring of a Pushmi-pullyu.
Passed by more than 65 percent of the votes cast in November, 2016, Colorado’s medical aid-in-dying legislation made it legal for adults suffering from a terminal illness to take life-ending medication prescribed by a doctor. Modeled after Oregon’s Death with Dignity law — passed more than 20 years ago — Colorado joins five other states —Oregon, Washington, Vermont, Montana, and California — with similar laws.
In order to exercise the option to voluntarily end one’s life, a patient must be at least 18 years old, must be informed of all of his options for care, and a doctor must offer the patient multiple opportunities to revoke his request for life-ending medication. The type of medication to be used is limited. Secobarbital (used in low doses as a sleeping pill) works by slowing down brain activity and, ultimately, snapping it off. Typically, the process of obtaining a prescription will take a month or more.
Two doctors must agree that the patient is mentally competent and has fewer than six months to live. Those suffering from Alzheimer’s disease or other dementia-state conditions may not exercise their right to die as such illnesses typically affect mental faculties. Simply, if the patient lacks mental competence, by law, she lacks the ability to knowingly consent. The legislation is carefully crafted to ensure that there’s no abuse or coercion of patients.
A patient who is over 18, is in possession of her mental faculties, is diagnosed as terminal within 6 months, and has requested aid in dying may be prescribed aid-in-dying medication only if:
• The patient makes two verbal requests to her doctor, at least 15 days apart; and
• Gives a written request to the doctor using a specified form, signed in front of two qualified, adult witnesses.
• The prescribing doctor and one other doctor must then confirm the patient’s diagnosis and prognosis. Similarly, the two doctors must determine that the patient is capable of making medical decisions. If either doctor feels the patient’s judgment is impaired, the patient must undergo a psychological examination.
Presuming those conditions are met:
• The prescribing doctor must confirm that the patient is not being coerced or unduly influenced by others;
• The doctor must inform the patient of any feasible alternatives to the medication, including care to relieve pain and efforts which may be taken to keep the patient comfortable;
• The doctor must then ask — but may not require — the patient to notify her next of kin of the prescription request; and
• The opportunity to withdraw the request for aid-in-dying medication must be offered by the doctor before the prescription is granted.
While the doctor will obtain the prescription and facilitate and monitor the process, the patient herself must self-administer the drug. Even under this new legislation, a doctor or other person who administers the lethal medication may face criminal charges.
There has been fear and speculation that the process will be abused, but statistics do not bear that out. In fact, the number of people who actually use the aid-in-dying option is vanishingly small. In 2015, for example, a mere 218 Oregon residents had prescriptions written but only 125 actually took them.
As Rabbi Harold Kushner poignantly observed in his 2001 best seller, sometimes bad things happen to good people. If and when they do, Colorado’s End-of-Life Options Act provides an option which may extend a measure of choice and control to those who heretofore had little alternative other than to suffer.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.