The Senate passed an end of life bill Wednesday, 17-13, ending a longstanding stalemate and salvaging an imperiled piece of legislation.
The unusual compromise now heads back to the House, which must decide whether to accept the latest iteration of the bill.
Sen. Claire Ayer, D-Addison, clinched the necessary votes by offering a “compromise amendment” that was an amalgamation of the two approaches that split the Senate the first time around.
The compromise deal fused together dueling visions, but rather than taking elements from each, it gives both versions a turn, swapping one out for the other after three years. It won the support of both Sen. Peter Galbraith, D-Windham, and Sen. Robert Hartwell, D-Bennington, who were the swing votes in the debate.
In February, when S.77 first passed the Senate, Galbraith led the charge on an amendment that upended the original bill, which Ayer had championed, but the two senators banded together on the version that passed Wednesay.
For the first three years, Ayer’s proposal — a condensed version of the House version, which is modeled on Oregon’s law — will prevail. Then, in July 2016, Galbraith’s approach — similar to the version that passed in the Senate the first time around — would take over.
“This is a compromise bill that brings together two major considerations,” Ayer told the Senate.
Lawmakers who support the Oregon bill will get their safeguards for three years, and lawmakers concerned about government intrusion on the doctor-patient relationship will only have to stomach that interference for three years.
Under the new amendment, Ayer told the Senate, “We open the door to patient choice very carefully.”
From the time of passage to 2016, the bill meticulously lays out requirements for doctors and terminally ill patients who seek a physician’s assistance in ending their lives.
Among the requirements: The patient has to make two separate requests with a waiting period in between and two doctors must confirm the terminal prognosis. Physicians have to report to the Department of Health the number of requests fielded and the number of prescriptions issued.
After the first three years, the bill still grants the same immunity to doctors, but the list of prerequisites and reporting requirements is eliminated.
Ayer said that that even though the safeguards are in place for only three years, she is confident that physicians will uphold the standards.
“Doctors don’t want to be sued,” she said. “They want to have a good reputation and they want to give good care. Even if they do change them, the basic idea of confirming the illness, of confirming capacity, and informed consent are going to hold up no matter what they do and those are really the basic tenets.”
Sen. Richard Sears, D-Bennington, said he was skeptical of the new tack taken by Ayer and Galbraith, and he expects proponents of the bill to reject the sunset clause.
“Obviously, you can repeal the repeal,” Sears pointed out. Later on he added, “I’m not a great predictor, but I predict someone will do that in 2015.”
Hartwell, a late convert to Ayer’s amendment, concurred with Sears’ prediction, but he was more optimistic about the outcome.
“I think Senator Sears is correct that there will be more legislative action to try to extend it but at least at that point you’ll have three years and hopefully there won’t haven’t been any big mistakes, and if there haven’t been mistakes, then maybe it works,” Hartwell said.
Rep. Anne Donahue, R-Northfield, who pushed hard to stop the House version from passing, echoed Sears’ skepticism. “Obviously, that’s just going to be removed before the three years is up. I don’t know what bone that was in theory throwing but it was a pretty transparent bone.”
When S.77 was on the House floor, Donahue offered an amendment similar to the one Galbraith proposed in the Senate, but she was far less receptive than he was to the newest version out of the Senate.
“I wouldn’t call it a compromise,” Donahue said. “I would call it sort of taking the worst of both worlds and gluing them together in a strange hodgepodge.”
Ayer said she has spoken with the committees of jurisdiction in the House — Judiciary and Human Services — and they were receptive to the most recent iteration of S.77, which, Ayers added, whittles the bill down to its key components.
“We’ve tried to make sure we kept what’s really important for them (the House) in the bill,” she said. “Those are the kinds of discussions we’ve had. Where are the deal breakers. It’s not I’ll keep A, B and C if you give me D, E and F. It’s what’s really important.”
Rep. Sandy Haas, P-Rochester, who sits on the Human Services Committee and has been one of the most vocal supporters of the version that passed out of the House, said she thinks it’s a good compromise.
“This will give us the three years to see how it works,” Haas said. “The change at the end of the three years is something that this body can always reconsider. It gets something in place now that we know works, based on the Oregon law, and gives an opportunity to take a look at the other idea that was raised in the Senate.”
Ayer won over two key votes from opponents — Hartwell and Galbraith — but the rest remained staunchly opposed.
Sen. Peg Flory, R-Rutland, was among the unimpressed. Flory argued that S.77 could cost the state hundreds of millions of dollars in federal Medicaid and Medicare dollars because Ayer’s amendment requires patients to have an advanced directive in order to receive the medication, which conflicts with both state and federal law.
Ayer quickly acceded and removed the requirement, but opponents pounced on the opportunity, making the case, that as Sen. Joe Benning, R-Caledonia, said, “This is a bill that’s not quite ready for prime time.”
Ayer, who said she has worked on bringing this legislation to the floor for 11 years, objected. (The advanced directive piece was the work of lawmakers in the House.)
Galbraith said he still had reservations about the version of S.77 he voted for Wednesday but he’s happy that it minimizes the state’s role in the process. “The issue here was to find a formula that would actually become law,” he said.
Dick Walters, president of Patient Choices, an advocacy group that has been pushing for this legislation, released the following statement after the Senate’s vote:
“We are celebrating this important step for the End of Life Choice bill and the huge step forward it represents for the movement. We appreciate the Senators who worked together to find a compromise that can work for Vermont, and we are hopeful that the House will agree before the end of the legislative session.”
Gov. Peter Shumlin, who supports the end-of life initiative, released the following statement:
“I understand the deep convictions held by Vermonters on all sides of this extraordinarily personal issue. But I also know how important it is for those who face terminal illness and tremendous pain to have this choice, in conjunction with their physicians and loved ones, in the final days of their lives. I am grateful for the Legislature’s continued hard work on this difficult issue.”
