The Vermont House passed a much-debated end-of-life bill Wednesday, but the legislation is far from reaching the end of the road.
Now, the bill has become a looking glass into the procedural nuances that arise when the two legislative bodies – House and Senate – settle upon two very different versions of the same bill. And how it ends up is very much up in the air.
The end-of-life bill, which began in the Senate as S.77, has had a tortuous existence. It started as a bill that allows patients to request and self-administer a lethal prescription if they have less than six months left to live, while setting out an elaborate set of procedural safeguards. A deeply divided Senate ended up passing an altogether different and whittled-down bill that grants legal immunity to physicians and caretakers should a patient decide to take a lethal dose of a pain medication.
The House then restored the original version of the bill, but it passed by a slim 17-vote margin.
Many of the rules the Legislature operates by, set out in Mason’s Manual of Legislative Procedure, collect dust during the session. But every now and then, the Senate and House clerks — the keepers of this knowledge — are called upon to dispense some of the more arcane ins and outs of procedure.
Thursday, the clerks have been in high demand, fielding inquiries from the lawmakers, stakeholders, and reporters about the different paths S.77 can take at this point.
Senate clerk John Bloomer explains that when the House passes an amended version of a Senate bill, the Senate has a number of options. Members can accept the amendment, in which case the bill goes to the governor. They can propose amendments of their own, sending the bill back to the House. They can reject the House amendment and send it to a conference committee from both bodies, or they can reject it without sending it anywhere. They can also refer it to another Senate committee. And finally, they can “order the bill to lie”— putting it into an indefinite holding pattern.
If the Senate amends S.77, the House has another chance to amend it. Then it’s back to the Senate, which has two choices: accept it or reject it.
Unless it doesn’t want to do either.
Throughout the session, both the Senate and the House are free to flout the rules, unless a member objects. And even then, if enough lawmakers vote to suspend the rules, they can continue with the errant procedure.
“Rules are implicitly suspended,” Bloomer says, unless someone cries foul.
Because of this, bills have gone back and forth as many as five times before, according to Bloomer.
But with the end of the session expected on May 11, there isn’t much time for S.77 to ricochet between the chambers. So what’s on the horizon for the bill?
Sen. Bob Hartwell, D-Bennington, has wavered on the issue for the last few months. In February, he was one of several senators still on the fence at the outset of the debate on S.77.
Now Hartwell has taken on the unenviable task of searching for a middle ground between two philosophical poles.
“My procedural attitude is it’s not a good idea to be the guy that kills the bill. If that had been my motivation, I would have killed it in February.”
The issue doesn’t lend itself to compromise. Safeguards can be tweaked, stipulations can be altered, but, for many lawmakers, their position on the bill boils down to the reading on their moral compass and whether they favor or oppose end-of-life choices.
Hartwell wants to devise an amendment that shortens the time span a person has been told they have left to live and can therefore request a lethal prescription. In the House version, a person can make this request when a doctor informs them they have less than six months to live. Opponents to the bill have repeatedly said they are concerned about the fallacy of prognoses, which could lead people to prematurely take the life-ending prescription.
Hartwell has homed in on that concern as a possible area for compromise.
“My amendment will be shorter and to-the-point and focused on what is really the end of life. One of the problems with this bill is the six-month prognosis that’s in there. They told Ted Kennedy he had four months, and he thought to himself, I’ll show them, and he did. … So when you tell someone you’ve got a prognosis for six months, that’s really troubling to me.”
Sen. Claire Ayer, D-Addison, chair of the Health and Welfare Committee, has been a longtime advocate for the version of the bill passed by the House, which is modeled on Oregon’s law. Ayer said she’s glad Hartwell is on the hunt for a compromise.
“The safeguards are modeled on a bill [in Oregon] that we know has been successful, but if there were some adaptation of those that still had some safeguards and some way of looking back to see how it worked … then I think it would be acceptable,” Ayer said.
The Senate’s other option, if it wants to reach a compromise before the end of the session, is to send the bill to a conference committee.
In this scenario, six lawmakers, selected by Senate and House leadership, fashion the final product, which is then put to a vote in both chambers. It’s a handy method for reconciling legislation when that is a matter of hashing out details.
But when the two versions are as dissimilar as they are in S.77’s case, it leaves a lot of discretion up to the proclivities of a few. In this case, two of the three senators charged with appointing the Senate half of the conference committee — Senate President Pro Tem John Campbell and Lt. Gov. Phil Scott— are firmly opposed to the House version.
A revised bill requires four votes to emerge from conference committee— two from each chamber. Bloomer says there are “traditions” but no mandates when it comes to choosing these committee members.
This has led many lawmakers to conclude that, as Ayer put it, “a vote to send this bill to conference committee is a vote to kill the bill.”
Ayer voted for the bill that left the Senate solely so she could serve on the conference committee. Generally, lawmakers who vote for the bill will be selected for its conference committee.
Rep. Anne Donahue, R-Northfield, was one of the most vociferous opponents of the version of S.77 that passed in the House. Donahue also hopes Hartwell can craft an amendment that brings the Senate and House bills into alignment, and she supports shortening the six-month time frame. But she wants to move in the opposite direction of Ayer, away from a state-sanctioned process and closer to the version passed by the Senate.
Donahue doesn’t like the idea of doctors doling out lethal prescriptions, but she wants a law that would make it clear that physicians are immune from liability if they answer a patient’s inquiry about how much pain medication they would need to end their life. “The transfer is of information, not of the tool,” Donahue said.
Many lawmakers in the House will remain wedded to the version passed by that body, however, which supporters say offers more protections and has already been proven effective in Oregon. But Donahue said she doesn’t think that preference “remotely resembles the majority of Vermonters and what they think this is about and I don’t think it represents the majority of the Legislature if they think it through.”
In the end, though, the bill’s fate could be determined by Mason’s Manual and the order of priority it establishes for the Senate’s various options. If an opponent to bill, like Sen. Richard Sears, D-Bennington, who chairs the Judiciary Committee, makes a motion to order the bill to lie or to send it back to his committee, that takes precedence— meaning it must be voted on before the discussion of any amendments.
Campbell says he is pulling in all the key stakeholders in the Senate, Sears and Ayer included, together Friday to make sure everyone has a clear understanding of the Senate rules and the options before them.