Linda Waite-Simpson: Question Supreme Court nominee on aid in dying laws

Editor’s note: This commentary is by Linda Waite-Simpson, who is the Vermont state director of Compassion & Choices. She is a former Vermont state representative who voted for the Vermont End-of-Life Choice Act (Act 39) when it became law in 2013.

Last month, former House Oversight Committee Chairman Darrell Issa, R-Calif., voted against a bill in committee that would overturn the District of Columbia’s Death with Dignity Act that authorizes medical aid in dying as an option for terminally ill adults to end unbearable suffering. Yet, Rep. Issa said he opposed medical aid-in-dying laws, including relatively new ones passed in Vermont in 2013 (End-of-Life Choice Act a/k/a Act 39), California in 2015 and Colorado in 2016, and urged Congress to develop additional ‘”national safeguards” for these laws.

To the untrained ear, Rep. Issa’s proposal may sound reasonable. That may explain why no media outlet that covered the committee vote cited his remarks. But their meaning was clear to anyone who supports laws authorizing terminally ill adults to have the option get a doctor’s prescription for medication they can decide to take to die peacefully if their suffering becomes intolerable. When opponents of medical aid in dying talk about creating “national safeguards,” that is code for crafting regulatory roadblocks to deny terminally ill adults access to this end-of-life option.

The D.C. legislation catapulted medical aid in dying onto the federal agenda at a time when Congress may have the will to criminalize the practice. Although similar efforts failed in 1997 and 2000, syndicated National Review columnist Wesley Smith called on current House Oversight Committee Chairman Jason Chaffetz, R-Utah, whose committee approved the D.C. nullification bill, to introduce a bill making medical aid in dying a federal crime. Such legislation would invalidate laws not only in Vermont, California, Colorado and the District of Columbia, but in Montana, Oregon and Washington. These seven jurisdictions collectively comprise 18 percent of our nation’s population.

Relief from federal meddling might lie with the Supreme Court. Unfortunately, the president’s Supreme Court nominee Neil Gorsuch, a federal judge in the 10th Circuit Court of Appeals in Denver, is an active opponent of medical aid in dying. His 2006 book on the issue voices strong opposition and outlines specific legal theories for the Supreme Court to invalidate medical aid-in-dying laws, with or without action by Congress. He proactively invites a federal challenge: “Thus, far from definitively resolving the [medical aid-in dying] issue, the Court’s decisions seem to assure that the debate…is not yet over—and may have only begun.”

Judge Gorsuch’s confirmation hearings before the Senate Judiciary Committee begin on Monday. We hope committee members, such as Vermont Sen. Patrick Leahy, ask Judge Gorsuch if he believes federal judges should overrule the painstaking years of deliberation of their state lawmakers in matters of medical practice.

A national ban on medical aid in dying would set end-of-life autonomy and self-determination back to the last century.


Heavy-handed federal action, either by Congress or the judiciary, would also halt consideration of medical aid in dying in 24 states where such legislation has been introduced since January (Alaska, Arizona, Connecticut, Hawaii, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Mississippi,Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Utah and Wisconsin) and invalidate a proposed November 2018 ballot initiative in South Dakota.

A federal ban would deprive lawmakers of the ability to regulate the practice in their jurisdictions and prevent their terminally ill residents from getting the comfort and peace of mind medical aid in dying provides because they have option of ending agonizing suffering.

Studies show access to medical aid in dying improves quality of life, lifting heavy worries about a needlessly difficult death. It allows patients to enjoy, to the fullest extent possible, their remaining time with their loved ones.

Studies also show that even people who would never utilize aid in dying, but live in jurisdictions where it is authorized benefit from these laws. These laws spur candid conversations between terminally ill adults, their doctors and families about all end-of-life care options. They increase utilization of hospice and palliative care. In other words, they improve all end-of-life care.

A national ban on medical aid in dying would set end-of-life autonomy and self-determination back to the last century. Those who support medical aid in dying must direct energy and resources to ensure that Congress and our nation’s highest court do not reverse hard-won progress toward compassion and dignity at life’s end.

No judge or lawmaker should mandate suffering or dictate how terminally ill adults must die.

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