November 14, 2014

Right to die statutes - Brittany Maynard

Rod of Asclepius
The story of the late Brittany Maynard has brought to light the contrast between states regarding right-to-die statutes, also known as euthanasia or assisted suicide. These statutes pertain to a third-party assisting with the death of the patient. Typically this entails a doctor administering a lethal dose of toxin, but in a humane fashion, to the patient.

Many people have heard of the late Dr. Kervorkian, a Michigan doctor, who famously assisted patients with ending their lives. Mr. Kervorkian was convicted of second-degree murder for providing a lethal injection to a patient who suffered from Lou Gehrig's disease. Due to his conduct, he was pejoratively labeled "Dr. Death."  

In regards to Ms. Maynard, she was a Californian diagnosed with terminal brain cancer in early 2014. She opted to end her life voluntarily by moving to Oregon which has an assisted suicide statute, titled the "Death with Dignity Act." She did so earlier this November and was only 29 years old.

Occasionally an estate planning client asks if California has a right-to-die statute because they are completing an advanced health care directive. The AHCD instructs the agent on how the patient wants them to handle an end-of-life situation, e.g. the patient is in a persistent vegetative state (a "vegetable"). The answer is a clear no. California does not have a right-to-die statute. California law is explicit in forbidding a health care agent from undertaking any action that might be perceived as assisted suicide. Probate Code 
§ 4653 reads:

"Nothing in this division shall be construed to condone, authorize, or approve mercy killing, assisted suicide, or euthanasia. This division is not intended to permit any affirmative or deliberate act or omission to end life other than withholding or withdrawing health care pursuant to an advance health care directive, by a surrogate, or as otherwise provided, so as to permit the natural process of dying."

Naturally this statute may be changed by the California legislature. So just as assisted suicide in California is illegal in California today, an assisted suicide law can be enacted in the future. A bill to allow assisted suicide in California was introduced in 2004 but failed during the legislative process. I would not be surprised if a legislator introduced such a bill again given Ms. Maynard's case. 

From a constitutional perspective, the U.S. Supreme Court stated that there is no constitutional right to assisted suicide. See Washington v. Glucksberg, 521 U.S. 702 (1997). Hence, assisted suicide is not a given. Rather, if one seeks to utilize assisted suicide, they must live in a state where this is authorized. In Ms. Maynard's case, this meant she had to travel to Oregon from California.