Thursday morning the jungle telegraph at the Statehouse was going haywire. Lawmakers, lobbyists and journalists were texting each other: S.77, the death with dignity bill, was back on the floor of the Senate after it passed in painful deliberations in a 17-13 vote on Wednesday night.
Eighteen hours later, Sen. Bob Hartwell, D-Bennington, proposed a motion to reconsider his vote. New information, in the form of a technical challenge from Sen. Peg Flory, R-Rutland, an opponent of the so-called end of life bill, had emerged. As a result, Hartwell, who has been the swing vote on the issue, was in a dither about whether he’d made the right decision. (Senators have 24 hours to reconsider their votes.)
At issue? The definition of the word “capable,” as in whether terminally ill patients are mentally capable of make a decision about ending their own lives with prescription drugs. Paul Harrington, director of the Vermont Medical Society, said “The term most physicians are familiar with is capacity, and the introduction of a new term is going to take some time.” Flory brought the issue up with Harrington, and he told her it was a “fair concern.” Senators debated the terminology for about a half hour on Wednesday night and it was a sticking point again on Thursday morning.
The kerfuffle over one word is an indication of how difficult this legislation has been for lawmakers — in the House and the Senate — to address. The controversial bill, which was approved by the House and has the support of the governor, enables Vermont residents dying of terminal illnesses to end their own lives with a prescription cocktail. The Senate version of S.77 is a hybrid of the Oregon law, which puts safeguards in place for patients in the first three years, and then eliminates those requirements after 2016.
On Thursday, it just so happened that Sen. Chris Bray, a supporter of S.77, was out because of a medical problem, and so for a short while opponents thought they had the votes to rescind the bill.
Senate President Pro Tem John Campbell, an outspoken opponent of the legislation, had promised that a vote on the end of life bill would only take place when all of the senators were present, but because time was short, that courtesy might not be possible. (The previous day the Senate waited to take up the matter until Sen. Richie Westman, who was also seeking medical attention at the time, returned to the floor.)
A frenzy ensued. Reporters converged on the Senate President Pro Tem’s office as key lawmakers huddled for yet another confab over the bill.
The senators came to no resolution in the private meeting and returned to the floor. Campbell said he would recuse himself from the vote if need be, in order to even out the pro and con sides.
Shortly thereafter, Hartwell changed his mind again. He asked to withdraw his motion to reconsider. Hartwell had talked the matter over with legislative counsel and he was satisfied with the language. He insisted he didn’t want to hurt the bill.
“I just wanted to be sure there wasn’t a problem,” Hartwell said in an interview. “I wasn’t trying to derail the bill. … I just wanted to be sure there wasn’t another defect, particularly after the Medicaid problem was discovered.
“I think they [opponents] were hopeful it [his reconsideration] would get derailed,” Hartwell said.
Sen. Claire Ayer, chair of Senate Health and Welfare, and a proponent of the bill described the turn of events on Thursday as a “stall.” The Vermont Medical Society never brought up the “capable” vs. “capacity” wording issue to her committee. “That’s a legal term and unless you’re a doctor who works with lawyers a lot, its not an issue,” Ayer said.
“This was looking for a way to change the course of this bill and this one didn’t work,” Ayer said. “I wouldn’t be surprised if there were more. Each one is a little traumatic.”
Campbell is insistent that physicians might not understand the definition of capable in the context of the legislation. “I think certain members think doctors have the Black’s Law Dictionary next to them at all times and that’s just not the case,” Campbell said. “There are so many things that could potentially go wrong with this thing. Capacity is one of those things that’s extremely important.”
The drama, which lasted about an hour, abruptly ended, and S.77, which has been the subject of at least three tie votes on the Senate floor this year, continues its journey to passage. It now goes to the House for final approval.
Editor’s note: Alicia Freese contributed to this report. This report was updated at 6:13 a.m. May 10.
