Abstract

Growing extremism in the American campaign for abortion rights has become clear to pro-life advocates, if not to the general public. Once defended as a “private choice,” or a tragic decision that should be “safe, legal, and rare,” it is now portrayed as a public entitlement for all women and girls. “Abortion access” is cited to demand the repeal of laws protecting the health and informed consent of women, as well as the conscience rights of health care providers. That trend is now obvious in the parallel movement for physician-assisted suicide, first legalized in Oregon in 1997. In Oregon and other states, provisions that supporters once hailed as essential “safeguards” against abuse and coercion are denounced as unreasonable “barriers to access.” This trend is especially clear in Washington state, where safeguards approved by the voters in 2008 were weakened or eliminated by legislators this year after a three-year effort. Lessons learned from this campaign will be reviewed.

​

The current agenda of the “abortion rights” movement in the United States is best understood by reviewing its flagship legislation pending in Congress, the “Women’s Health Protection Act of 2023” (S. 701). It authorizes lawsuits against all federal, state and local policies that may delay or limit ready “access” to abortion – suits brought by the U.S. Attorney General or by any private party, including an abortion practitioner, claiming to be “adversely affected” by those policies.[1]

 

Even regulations to ensure the safety or the free and informed consent of women are targeted for attack. The word “access” occurs five times in the current bill, while words like “free,” “choice” “choose,” “voluntary,” and even “consent” are absent.  “Freedom” occurs once, in the title of the federal “Religious Freedom Restoration Act” – cited in a provision that nullifies its protections for freedom of conscience in the abortion context.[2]

 

This sweeping agenda is not a backlash against the pro-life movement’s efforts against abortion in the wake of the U.S. Supreme Court’s Dobbs decision, overturning the Roe v. Wade decision of 1973. It has a longer pedigree.

 

The WHPA was first introduced in 2013 and has been re-introduced in every Congress since then. It was first approved by the House of Representatives in September 2021, when Roe and rulings built on its foundation were still in place. In 2019 it was publicly endorsed as priority legislation by every major national pro-abortion organization. And this year’s bill treats even its own past versions as too modest.[3]  

 

The movement’s shift from “choice” to “access” arose from its growing dissatisfaction with Roe itself, which did not invalidate public funding restrictions or modest regulation of abortion. Advocates had raised those concerns for many years. Ruth Bader Ginsburg, later a U.S. Supreme Court justice, proposed in 1985 that not “privacy” or “liberty” but equal protection should be the constitutional basis for abortion rights, because the obligation to continue a pregnancy once begun deprives women of equal rights and opportunities in society.[4] Feminist legal scholar Catherine MacKinnon attacked Roe in 1987 for its failure to recognize that women’s choices are not truly free in a male-dominated society that denies their equal status: “This right to privacy is a right of men ‘to be let alone’ to oppress women one at a time…. It keeps some men out of the bedrooms of other men.”[5]

 

This perspective became dominant in major national organizations by 2014 when it was reported that Planned Parenthood would no longer use “pro-choice” as its slogan.[6] “Access” would be the new watchword, demanding that abortion be seen as a public entitlement for women and girls and a positive social good. In 1992, President Bill Clinton could speak of wanting abortion to be “safe, legal, and rare”; by 2019, a politician could be publicly scolded for saying it. Now any measure that may “delay or deter” ready access – in short, may reduce (or prevent increases in) the number of abortions – is suspect for that very reason.[7]

 

The Parallel Trend in Assisted Suicide Laws

Legalization of physician-assisted suicide has a shorter history in the United States, with the first such law approved by Oregon voters in 1994. After a legal challenge and an unsuccessful effort to persuade voters to rescind the law, it took effect late in 1997. It was over a decade before voters in a second state, Washington, approved a similar law by ballot initiative in November 2008.

 

Unlike abortion, assisted suicide has not been a matter of constitutional mandate. Some judges have tried to define a constitutional right to assisted suicide, quoting from a 1992 abortion decision by the Supreme Court: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[8] But the Supreme Court ruled unanimously against the idea of a constitutional right to assisted suicide in 1997, citing centuries of legal precedent treating it as a crime. Commentators suggest that the justices were chastened by ongoing criticism of their decision to “constitutionalize” abortion and invalidate the laws of all 50 states on that issue.[9]

 

Assisted suicide, then, has joined most other issues in being a matter for democratic debate and vote. And that has had mixed results. Beginning in 1997, ten jurisdictions (nine states and the District of Columbia) have legalized the practice, while most states have retained their laws against it and eleven have passed new anti-assisted-suicide laws.[10]

 

Here, too, the theme of a patient’s “free choice” has been at the center of proponents’ arguments. Assisted suicide was also supposed to be safe, legal, and rare. Proponents of Washington’s law boasted of their proposal’s “strict safeguards” in the 2008 Voters’ Guide, declaring:

 

Safeguards Work

There are multiple safeguards in Washington’s death with dignity law. These safeguards include independently witnessed oral and written requests, two waiting periods, mental competency and prognosis confirmed by two physicians, and self-administration of the medication. Only the patient – and no one else – may administer the medication.[11]

 

This description was already misleading. The Death with Dignity Act created by this ballot initiative said the patient must “self-administer” the lethal drugs, but defined “self-administer” as “a qualified patient’s act of ingesting medication to end his or her life in a humane and dignified manner.”[12] The usual dictionary definition of “ingest” is to swallow or absorb. To say that the patient is the person who swallows or absorbs the drugs does not specify who inserts them into his or her body.

 

In recent years, however, supporters have turned against the “safeguards” they once hailed as essential, redefining them as “barriers to access.” Stories of patients who wanted the prescribed drugs but could not obtain them, often told by family members or caregivers after the patient’s death, are used to convince legislators that they should revisit those “barriers.”

 

A common charge is that the original law’s waiting period providing time to reconsider one’s initial decision is too long, leading to some patients dying of natural causes before they can obtain the lethal prescription.  Requirements that two licensed physicians must agree on the patient’s prognosis and mental competency, and that the mental health evaluation, if requested by either physician, must be conducted by a psychologist or psychiatrist, are also accused of limiting “access.”

 

Among the states considering such criticisms in recent years:

 

In 2021 and 2022, the Hawaii legislature considered but did not approve bills to shorten the waiting period and allow non-physicians such as nurse practitioners to diagnose the patient and prescribe the drugs. Hawaii’s law allowing assisted suicide has only been in effect since 2018.[13]

 

In 2022, Vermont expanded its 2013 law to allow the diagnosis and the prescribing of lethal drugs by telemedicine. It also eliminated a 48-hour waiting period between the patient’s final request and the prescribing of lethal drugs. “Advocates for the changes said S.74 would make the medical-aid-in-dying process more accessible for terminally ill Vermonters,” said one news report.[14] 

 

Oregon, the first state to legalize assisted suicide, amended its law in 2019 to waive the 15-day waiting period if the attending physician thinks the patient will die in less than 15 days.[15]

 

California, where assisted suicide was legalized in 2016, amended its law in 2021, chiefly to change the waiting period between requests from 15 days to 48 hours.[16]

 

In April 2023, my home state of Washington, where every elected statewide official is a Democrat, enacted the most ambitious set of “expansions” thus far. An account of this process may provide lessons helpful to other states.

 

Washington State’s Campaign for “Access,” 2020-2022

The Washington legislature’s debate began in 2020 with the approval of H.B. 2419, commissioning the University of Washington to conduct a study of “barriers to achieving full access to the Washington death with dignity act.” The prime sponsor was a libertarian Republican in eastern Washington, Rep. Skyler Rude. Among the barriers to be studied were some health facilities’ freedom to decline to participate in lethal prescriptions, “burdens for qualified patients to meet the fifteen-day waiting period,” and “the requirement that the medications under this chapter be self-administered.”[17] The bill was endorsed by End of Life Washington, an assisted suicide advocacy group that had praised these “barriers” a dozen years before. “Only the patient – and no one else – may administer the medication,” supporters had declared in 2008.

 

That bill was vetoed by Governor Jay Inslee – not on its merits, but because the COVID pandemic was leading him to veto all bills requiring new spending. One practical outcome of this effort, however, was to alert individuals and organizations in Washington who oppose assisted suicide that they must organize themselves anew to combat new “expansion” efforts.

 

In 2021, Rep. Rude and other supporters decided to skip the study and proceed directly to changing the law. H.B. 1141 stated that one of the two health care providers diagnosing the patient and approving the lethal prescription could be a non-physician such as a physician’s assistant or nurse practitioner, and any mental health evaluation could be conducted by a social worker or “mental health counselor” (a term not defined in the Washington code). The “two waiting periods” hailed by supporters in 2008 were eviscerated: The 48-hour period between the written request and lethal prescription was eliminated, and the 15-day period between the first oral request and the final written request was reduced from 15 days to 72 hours; even that period would be waived if one “qualified medical provider” thinks the patient may die in less time than that. Instead of being obtained in person by the patient, lethal drugs could be sent by mail, UPS or messenger to another person at the patient’s request.[18]

 

Other provisions began closing in on the freedom of healthcare facilities to decide not to participate. Each facility would be required to report its policies on end-of-life care, including “death with dignity,” to the state government, and provide the public with “specific information about which end of life-services are prohibited.” This requirement could enable the state to begin putting pressure on facilities that opt-out because they are limiting “access.”[19]

 

Kim Callinan, president of the national assisted suicide advocacy group Compassion & Choices, testified in favor of HB 1141 in January 2021, making two questionable arguments.[20]

 

First, she claimed that these changes only serve “the original intention of the law,” which was plainly false -- the changes would weaken or eliminate key provisions of the law that had been emphasized to win voters’ approval.

 

Second, she said the other jurisdictions allowing assisted suicide had already amended their laws in these ways, and Washington was “simply catching up” with them. This, too, was misleading. All eight of the other laws then in existence (in seven states and the District of Columbia) required approval by two physicians; five of them required that mental health, or mental competency, be determined by a psychiatrist or psychologist; and only one, California, authorized delivery of lethal drugs by mail or parcel post, with some of the other laws expressly prohibiting it.[21]

 

Not to be outdone by Compassion & Choices, End of Life Washington (EOLWA) complained that “those living in Eastern Washington have fewer options when it comes to accessing end-of-life care” because 86% of “death with dignity” patients had lived west of the Cascade mountains.

 

The group failed to mention that according to the 2020 census, 78% of Washington’s population lives west of the Cascades -- or that residents of eastern Washington are known to have more conservative views than their western neighbors.[22]

 

Opponents of assisted suicide mobilized to present testimony and write to legislators against HB 1141, requesting in-person or virtual meetings to discuss it.

 

The Washington State Medical Association opposed the bill, and the American Medical Association wrote to all legislators against it. Washington physicians with experience in end-of-life care, as well as nationally known experts in psychiatry, did likewise. Twelve disability rights organizations, including Disability Rights Washington, opposed it, arguing that people with disabilities are often dismissed as having “lives not worth living” and need protection against abuse and undue influence.

 

Opponents offered rebuttals of the central claim of “barriers to access,” making points like the following:

 

- This effort betrays the intent of the voters, who had supported the law counting on its safeguards against abuse.

 

- Lethal prescriptions had steadily increased since the law took effect in 2009, contradicting arguments about “barriers.”

 

- Patients are ill-served by efforts to have their illnesses diagnosed and their ingestion of lethal drugs approved by less qualified non-physicians. Even the prognosis of six months that qualifies a patient for the Medicare hospice benefit requires certification by two licensed physicians under federal law, excluding others such as physician assistants.

 

- Under the existing law, patients seeking the drugs were almost never referred for a mental health evaluation, despite studies showing that depression is the most common factor leading to a patient’s desire for death; now even that evaluation could be made by people without medical training.

​

- Eliminating the 15-day waiting period would not allow significant time to reconsider an irreversible fatal decision; and when a patient is depressed, medications for alleviating that condition can take at least two weeks to have a significant effect.

 

- Predictions of death within 72 hours are unreliable, and patients who are that near to death are likely to have cognitive deficits as well as great difficulty taking in and digesting medications.

 

- The legislature was trying to expand lethal drug overdoses for vulnerable Washingtonians and distribute them by mail or parcel post, at the same time that it was working to prevent such overdoses for others. HB 1074, unanimously approved by both chambers and signed by the governor in 2022, declared in its first sentence: “The legislature finds that the mortality rate in Washington state due to overdose, withdrawal related to substance abuse such as opiates, benzodiazepines, and alcohol, and suicide is unacceptably high and that such mortality may be preventable.” It is discriminatory and dangerous to create two classes of citizens: those who are valued and need more suicide prevention, and those who need more suicide “assistance.”

 

The debate on HB 1141 became a two-year process. Legislation that is approved by one chamber of the legislature but does not receive a vote in the other can sometimes carry over into the following year. The House of Representatives overwhelmingly approved HB 1141 in 2021, with only one Democrat voting against it. The Senate approved the bill in committee, 7 to 5, with one Democrat saying he thought it deserved consideration by the full Senate but he may oppose it on final passage. As concerns grew, even among some of the Senate leadership, the session ended without a Senate vote on the bill. In 2022 the House quickly approved it again, this time opposed by two Democrats, but HB 1141 did not even make it out of the Senate committee. It was defeated.

 

Washington’s Study of Death with Dignity “Access”

Rep. Rude’s efforts in 2022 were not over. He sponsored a provision to the state’s supplemental budget, virtually identical to his “study” bill of 2020, authorizing a grant of $200,000 to the University of Washington to study “the ability of Washington residents to make use of the rights established in chapter 70.245 RCW to achieve full access to the Washington death with dignity act.” This was followed by Rep. Rude’s long list of “barriers to access” from 2020, which made it clear that the study would not be about access to the provisions of the Act – it was about how the provisions of the Act create “barriers” to maximum “access” to lethal drugs, for example by not authorizing people other than the patient to administer them. Researchers were even invited to offer “legislative or administrative policy recommendations” on how to ease the barriers.[23] The study was designed to provide ammunition for approval of an “expansion” bill in 2023.

​

Critics of this agenda were alerted to the provision in time to urge changes when House and Senate conferees met to negotiate the budget. The final budget provision removed Rep. Rude’s entire list of alleged “barriers to access,” and his invitation to make “policy recommendations.” What remained was a request to study “access” to the provisions of the Death with Dignity Act itself, presumably including its patient protections. Specifically, researchers were to study Washingtonians’ “ability to make use of the rights established” by the Act – and the only “right” explicitly cited by the Act is “the right to rescind a request,” served by the Act’s requirement for counseling on alternatives followed by a 15-day waiting period.[24] This less biased version was signed into law as part of the budget on March 31, 2022.

 

The final study was completed and provided to the legislature on December 1, 2022. What followed were two sets of surprises.

 

The first surprises had to do with how the legislature’s mandate was implemented. The University of Washington simply acted as though the original provision by Rep. Rude had been enacted. The Death with Dignity Act’s provisions were scrutinized as barriers to “full access” to “death with dignity” itself (that is, to the lethal drugs).[25] The principal investigator at the University of Washington was also employed by the Fred Hutch Cancer Center, and had been lead author of a journal article on “implementing a death with dignity program” at that center.[26] The new study had two major components: a survey of patients and caregivers who had worked with End of Life Washington to obtain the drugs, and a survey of healthcare facilities in Washington to discover how many had policies that pose “barriers” to accessing the drugs. The patient/caregiver survey was conducted by EOLWA itself, the state’s most vigorous supporter of the Rude bills. Seven of its officials, including its contract lobbyist, were listed as taking part in the study -- more than were involved from any other organization.[27]

 

The second surprise was that all this bias and maneuvering did not supply the ammunition that supporters sought. The results of the study were so disappointing to EOLWA that it did not cite them during its 2023 testimony.

 

Instead, opponents of “expansion” pointed to the results of EOLWA’s survey of patients and caregivers.[28] The survey instrument asked respondents to identify which of various “barriers to access” they had encountered, and invited them to list additional barriers and suggest ways to address them.

 

There were 135 respondents – only 19 patients who were alive, those patients’ informal caregivers, and 97 caregivers of patients who had died.

 

That survey’s dramatic finding was that informal caregivers such as family members were much more likely to cite “barriers” to access to lethal drugs than patients. For example, only 16% of the patients found either their own health facility’s unwillingness to take part or the religious affiliation of that facility, to be a barrier – but in both cases, 47% of their own caregivers did. There was also a discrepancy between the two groups on a barrier arising from the patient’s physician being unwilling to prescribe (32% for patients, 63% for their caregivers) or unwilling to serve as the consulting health professional (21% for patients, 58% for their caregivers). The caregivers of patients who had died sometimes sided more closely with the living patients, sometimes more with those patients’ caregivers – but of course, the patient associated with those caregivers was dead so could not give his or her own opinion.

 

In all, only one patient volunteered that there were other barriers to access. Later figures in the study, without explanation, combined the groups into an aggregate, showing that 15 patients or their caregivers proposed reducing the waiting period. But since only one patient cited any additional barrier, either one patient out of 19 or none at all favored this change. Yet the 15-day waiting period had become a central complaint of witnesses supporting expansion and a key point of contention among legislators.[29]

 

The survey of healthcare facilities concluded that “55% of hospitals in Washington State currently do not participate in DWD [death with dignity]. Nearly half of these hospitals are unlikely to change their position on DWD due to their religious affiliation.” It found further that 27 of the state’s 39 counties do not have a hospital that “explicitly participates” in the process – 15 counties (out of 20 total) in eastern Washington, and 12 (out of 19 total) in western Washington.[30] This lent no support to EOLWA’s contention that residents of eastern Washington were uniquely deprived of “access.” The researchers clearly supported changing the “positions” of these facilities – and to promote that goal, they volunteered policy recommendations on what the state should “compel” them to do.[31]

 

The 2023 Session of the Washington Legislature

In 2023, for the third and final year, expansion proposals were advanced by Rep. Rude and others. Between sessions, EOLWA had lined up more co-sponsors – including Republicans, and more members of the House and Senate committees that would consider these bills.

 

Opponents, citing the study report’s finding that caregivers were far more enthusiastic than patients to streamline the “death with dignity” process, pointed to the Department of Health’s finding that most patients cite, among their reasons for wanting the lethal drugs, the feeling that they are a “burden on family, friends, or caregivers.”[32] Caregivers who are impatient with the length of the process may be subtly or overtly letting patients know that they are burdens. Opponents pointed out that patients themselves, not caregivers (some of whom may stand to inherit the patient’s estate), were supposed to be empowered by the legislation.

 

Opponents also did more research in the interim, during which the Department of Health issued its annual report on “death with dignity” cases in 2021. Their research provided two additional lines of argument.

 

First, the 400 lethal prescriptions in 2021 were six times the number in 2009, and the 291 deaths from the drugs in 2021 were eight times the number in that year.[33] And while EOLWA and bill sponsors had cited a need to “catch up” with states like California with more “accessible” assisted suicide laws, proportionally a Washingtonian was three times as likely as a Californian to die from the lethal drugs.[34] This was no indication of blocked “access.”

 

Second, the Department’s own annual reports indicated that in hundreds of cases since 2009, physicians had never submitted their legally required reports to the Department claiming that the safeguards had been complied with. In all, lethal medication had been provided in 2704 cases. There was no physician’s compliance form (indicating that the physician had diagnosed a terminal illness, a six-month prognosis, or mental competency on the part of the patient) in 219 cases, no consulting physician’s form (confirming the attending physician’s conclusions) in 257 cases, and no signed and witnessed patient request for the drugs in 264 cases. The law demanded that these be submitted to the Department within 30 days of writing the prescription. Moreover, half of these violations of the law were in the most recent three years, showing a dramatic “expansion” of abuse under existing law. Yet every year, despite reporting these illegal cases, the Department still listed them among the Death with Dignity cases conducted “under the terms of the law.” If there were a need to investigate and reform the implementation of the Act, it was certainly not in the direction of weakening the Act further. How could it be progress, for example, to enhance “access” to lethal drugs the patient may not even have requested?[35]

 

The companion bills introduced in 2023, HB 1281 and SB 5179, incorporated some changes.[36]

 

The waiting period between the first oral request and the final written request was reduced to seven days, not 72 hours. However, the provision for waiving that period altogether was, if anything, more disturbing than before. It would apply if the medical provider thought the patient may die in less than seven days or was experiencing “intractable suffering” – defined as “pain or other physical symptoms related to a patient's terminal disease that cannot be reasonably managed by palliative care.” Physical symptoms such as weakness and dependency, inability to care for one’s own hygiene and daily needs, or other disabilities, could indeed cause a patient to suffer in ways that palliative care will not cure. This was the first time the Washington legislature was asked to authorize an immediate death by overdose based on disability, not length of life. That message was not lost on disability rights advocates concerned about their lives being devalued by medical personnel.

 

Ultimately the waiver of the seven-day period was deleted from SB 5179 by a sponsor on the Senate floor, presumably because it might bring down the entire bill. With that change, it passed the Senate and then the House.[37] Opponents’ charges about approving “same-day death” seem to have had an effect. Supporters decided to concede this one point to pass the bill.

 

The 7-day waiting period was still undermined by the final bill, though in a more complicated way.

 

The law in effect since 2009 allowed facilities to decide whether their medical staff could participate in the “death with dignity” process when acting as their employees and on their premises. The law listed certain activities as not constituting “participation” in the process – for example, diagnosing a terminal illness, making a prognosis as to likely survival in six months, or referring the patient to another provider.[38] To this list, essentially a list of activities the facility may not prohibit, SB 5179 added: “Charting a patient's first request, as referenced in RCW 70.245.020, to services as provided in chapter 1, Laws of 2009.”[39]

 

Charting that first oral request had been the responsibility of the attending physician who would prescribe the lethal drugs – and that request is what starts the clock ticking on the waiting period. Now it could be the task of another healthcare provider who would not proceed further. And SB 5179 added: “A transfer of care or medical records does not restart any waiting period under this section.”[40] A healthcare facility with a policy against prescribing lethal drugs must allow its medical staff to chart the first request, begin the waiting period, and then refer the patient to another provider. If an appointment with that provider is not available for several days or a week, any counseling on alternatives -- to inform the patient’s decision whether to reconsider -- will be done when the patient is ready for the final written request and an immediate lethal prescription.

 

The attending provider who will prescribe the drugs (who will no longer necessarily be a physician) is still required to conduct the counseling on alternatives and to make “the determination of whether a patient … made the request voluntarily.”[41] But any counseling could be done at the very end of the process -- and assessing whether the initial request was voluntary will be impossible because that provider was not even present for a request made to another provider in another facility. SB 5179 even deleted the word “initial” before “determination,” so the drafters seemed to realize this provider would not be present for the initial request.[42]

 

However, the provider who does hear that request before referring the patient elsewhere is not given any responsibility to determine whether it is voluntary.

 

Thus many patients may be deprived of a meaningful opportunity to reconsider a fatal decision. Moreover, healthcare facilities that object to assisted suicide will be required to initiate the actual process for approving the lethal prescription and will begin losing their right of conscience – a right that Rep. Rude had first identified as a barrier to “access” in his study bill of 2020. But the interaction of these provisions to create a new and dangerous loophole in the law was not understood by opponents in the legislature until late in the process. Amendments to solve the problem were offered on the House floor just before final passage but failed, partly due to confusion as to the implications of this change in the law.

 

One other conflict over wording is worth mentioning. In 2021, opponents of HB 1141 objected that if one healthcare provider involved in the process is a physician, and the other is a physician’s assistant, the latter may not make an independent judgment due to pressure to confirm the diagnosis and other judgments of a supervising physician. Rep. Rude responded to this concern by amending HB 1141 to state: “The attending qualified medical provider and the consulting qualified medical provider selected by the qualified patient may not have a supervisory relationship with each other.”  That wording was retained in the 2023 bills as introduced.[43]

 

But the Senate’s Health & Long-Term Care Committee approved an amendment to SB 5179 to qualify this, changing it to “a direct supervisory relationship with each other.” So a physician’s assistant could not be pressured to confirm the judgments of an immediate supervisor -- but could be pressured to agree with an overall supervisor with far more power to hire and fire personnel, such as the controlling partner in a medical practice or the head of a hospital department.

 

When SB 5179 was passed by the Senate and went back to the House’s Health Care & Wellness Committee with this change, the ranking Republican member urged the committee to restore the original stronger language. Rep. Paul Harris, a Republican sponsor of HB 1281 as well as its 2021 predecessor, supported the amendment. But a Democratic member said the change may limit “access,” and the amendment failed. Rep. Harris then voted against the bill he had sponsored, in committee and on the House floor. For this sponsor, such refusal to consider a simple protection against coercion of health care providers was a step too far.

 

The full implications of SB 5179’s other changes to the Death with Dignity Act may not be clear until they are implemented. For example, it amended the patient’s written request form. The patient used to report having a disease “which my attending physician has determined is a terminal disease and which has been medically confirmed by a consulting physician.” Besides changing the first “physician” to “qualified medical provider,” as is done throughout the bill, the entire reference to the disease being “medically confirmed” by a “consulting” provider was deleted. This had been the only provision of the Act making it clear that the second opinion must precede the patient’s signing of the written request. If this deletion allows it to take place after the patient has already signed the final request authorizing the prescription, the second provider’s role is largely meaningless. Note that the 48-hour period between written request and lethal prescription would no longer exist.

 

The final version of SB 5179 was ultimately approved by the Senate, 28 to 20 (with one Democrat opposing and one Republican supporting). It was then approved by House committee 10 to 7, with all seven opponents voting “do not pass.” The full House approved it 53 to 43 (with seven Democrats opposing, two Republicans supporting, and two Republicans absent who had voted against the previous expansion bills). On April 6, 2023, it was signed into law by Governor Jay Inslee.[44]

 

To put these votes in perspective: In 2021 the House had approved HB 1141 by a margin of 60 to 37, with only one Democrat opposed; the House committee had approved it 11 to 4, with only one Republican recommending “do not pass” and another 3 making no recommendation.

 

Progress had been made in raising multiple concerns about the “expansion” agenda’s dangers to patients, and in persuading legislators with concerns to be more vocal and determined in their opposition. This was not sufficient, in a heavily Democratic legislature whose members had become comfortable with “death with dignity,” to counter the constantly repeated claim that the goal of maximum “access” overrides all other considerations.

​

CONTINUED

______________________________

[1] S. 701, Women’s Health Protection Act of 2023, at https://www.congress.gov/bill/118th-congress/senate-bill/701/text?s=1&r=1&q=%7B%22search%22%3A%5B%22s701%22%5D%7D, Sec. 8. All links in this article were accessed on April 20, 2023.

[2] Id., Sec.6 (a)(1).

[3] See Doerflinger, Richard, “The Women’s Health Protection Act of 2023: Attacking the Health and Freedom of Women,” Charlotte Lozier Institute (April 17, 2023), at https://lozierinstitute.org/the-womens-health-protection-act-of-2023-attacking-the-health-and-freedom-of-women/.

[4] Ginsburg, Ruth Bader, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” in North Carolina Law Review, Vol. 63, pp. 375-86 (1985), at https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2961&context=nclr. For an opposing view see Bachiochi, Erika, “Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights,” Harvard Journal of Law  & Public Policy, Vol. 34, pp. 889-950, at https://www.harvard-jlpp.com/wp-content/uploads/sites/21/2013/10/34_3_889_Bachiochi-1.pdf.

[5] MacKinnon, Catherine A., Feminism Unmodified: Discourses on Life and Law (Harvard University Press 1987), p. 102.

[6] Calmes, Jackie, “Advocates Shun ‘Pro-Choice’ to Expand Message,” The New York Times, July 29, 2014, p. A14, at https://www.nytimes.com/2014/07/29/us/politics/advocates-shun-pro-choice-to-expand-message.html.

[7] See: Flanagan, Caitlin, “Losing the Rare in ‘Safe, Legal, and Rare’,” The Atlantic, December 6, 2019, at https://www.theatlantic.com/ideas/archive/2019/12/the-brilliance-of-safe-legal-and-rare/603151/; S. 701, supra note 1, Sec. 4 (c).

[8] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992).

[9] Washington v. Glucksberg, 521 U.S. 702 (1997). In a companion case the Court denied that allowing some patients to die after refusing life-sustaining treatment, while withholding from others the opportunity to die from a lethal overdose, violated the Equal Protection clause. Vacco v. Quill, 521 U.S. 793 (1997). The founder of the assisted suicide advocacy group, the Hemlock Society, has written that “the 1997 Court did not want to invoke the same criticism” as Roe received, and “was not prepared to make the same mistake twice.” Humphry, Derek, and Clement, Mary, Freedom to Die: People, Politics and the Right-to-Die Movement (St. Martin’s Press 1998), pp. 292, 305.

[10] See Charlotte Lozier Institute, Map: Assisted Suicide in the States (April 29, 2021), at https://lozierinstitute.org/map-assisted-suicide-in-the-states/.

[11] “Washington Initiative 1000, Physician-Assisted Death Initiative (2008),” Ballotpedia, at https://ballotpedia.org/Washington_Initiative_1000,_Physician-Assisted_Death_Initiative_(2008).

[12] The Washington Death with Dignity Act, RCW 70.245.010 (12), at https://app.leg.wa.gov/RCW/default.aspx?cite=70.245.010.

[13] Lau, Joel, “Lawmakers Fail To Expand Access To Assisted Suicide In Hawaii,” Honolulu Civil Beat (May 4, 2022), at https://www.civilbeat.org/2022/05/lawmakers-fail-to-expand-access-to-assisted-suicide-in-hawaii/.

[14] Robinson, Riley, “Scott signs bill to allow telemedicine in medical aid in dying,” VTDigger (April 27, 2022) (emphasis added), at

https://vtdigger.org/2022/04/27/scott-signs-bill-to-allow-telemedicine-in-medical-aid-in-dying/.

[15] Oregon Legislative Assembly, Enrolled Senate Bill 579 (2019), at https://olis.oregonlegislature.gov/liz/2019R1/Downloads/MeasureDocument/SB579/Enrolled.

[16] California Department of Public Health, End of Life Option Act: Important Updates Regarding SB 380 and the Online Forms Portal (December 17, 2021), at https://www.cdph.ca.gov/Programs/CHSI/Pages/Important%20Updates%20Regarding%20SB%20380%20and%20the%20Online%20Forms%20Portal.aspx.

[17] Washington State Legislature, Substitute House Bill 2419 (2020), at https://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/House%20Passed%20Legislature/2419-S.PL.pdf#page=1.

[18] Washington State Legislature, 2021 Regular Session, House Bill 1141: AN ACT Relating to increasing access to the provisions of the Washington death with dignity act, at https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/House%20Bills/1141.pdf?q=20230418110200. The bill’s legislative history can be found at https://app.leg.wa.gov/billsummary?BillNumber=1141&Year=2021&Initiative=false. For a detailed critique see Doerflinger, Richard, “Assisted Suicide’s Slippery Slope in Action: Washington State May Drop ‘Safeguards’ Against Abuse,” On Point Issue 55, Charlotte Lozier Institute (January 2021), at https://lozierinstitute.org/wp-content/uploads/2021/01/On-Point-55-FINAL-.pdf.

[19] House Bill 1141, supra note 18, Sec.19.

[20] Testimony on HB 1141 before the House Health Care & Wellness Committee, January 18, 2021, at

https://tvw.org/video/house-health-care-wellness-committee-2021011283/?eventID=2021011283, beginning at 1:35.

[21] See Doerflinger, Richard, supra note 18, pp. 7-8.

[22] End of Life Washington, Increasing Access to Death with Dignity in Washington (January 3, 2022), at https://endoflifewa.org/news/increasing-access-to-death-with-dignity-in-washington/; “Western Washington,” Wikipedia (“As of the 2020 census, Western Washington was home to 6,037,688 of the state's total 7,705,281 residents”), at https://en.wikipedia.org/wiki/Western_Washington.

[23] Washington State Legislature, 2022 Regular Session, Substitute House Bill 1816, p. 643, at https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/House%20Bills/1816-S.pdf?q=20230418133257.

[24] Id., Engrossed Substitute Senate Bill 5693, p. 711, at https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/Senate%20Passed%20Legislature/5693-S.PL.pdf?q=20230418134026.

[25] Report to the Washington State Legislature: Barriers to Death with Dignity in Washington State (December 1, 2022). This document is not available online.

[26] Loggers, Elizabeth, et al., “Implementing a Death with Dignity Program at a Comprehensive Cancer Center,” The New England Journal of Medicine, Vol. 368, No. 15 (April 11, 2013), pp. 1417-23, at https://www.nejm.org/doi/full/10.1056/NEJMsa1213398. This study followed 40 patients who received the lethal prescriptions, 24 of whom died from the drugs. Another eleven lived “longer than the estimated six months” – but Dr. Loggers and her co-authors “purposefully” withheld that information from the attending physicians, as it may lead them to be more cautious in their prognoses. Id., pp. 1417, 1423. Once again, maximizing “access” overrode all other considerations.

[27] Report, supra note 25, p. 32.

[28] Testimony on HB 1281of Richard Doerflinger before the House Health Care & Wellness Committee, January 25, 2023, at https://tvw.org/video/house-health-care-wellness-2023011491/?eventID=2023011491, beginning at 0:30.

[29] Report, supra note 25, pp. 6-8.

[30] Id., pp. 11, 13.

[31] Id., p. 19. The legislature of course had removed from the budget proposal any request for such recommendations.

[32] In 2021, 56% pf the patients who died after receiving the prescription cited this reason. Washington State Department of Health, 2021 Death with Dignity Act Report (July 15, 2022), p. 7, at  https://doh.wa.gov/sites/default/files/2022-11/422-109-DeathWithDignityAct2021.pdf.

[33] Id., p. 1; Washington State Department of Health, 2009 Death with Dignity Act Report (2010), p. 1, at https://doh.wa.gov/sites/default/files/legacy/Documents/Pubs/422-109-DeathWithDignityAct2009.pdf?uid=643f1669d9b28.

[34] California’s population is 39,538,223, or 5.1 times Washington’s population of 7,705,281. U.S. Census Bureau, STATE PROFILES: 2020 Census, at https://www.census.gov/library/stories/state-by-state.html. In 2021, Washington reported 291 deaths from the drugs, while California reported 486. Proportionally, then, a Washington resident is three times more likely than a California resident to die from the prescribed drugs. See 2021 Death with Dignity Act Report, supra note 32, p. 1; California Department of Public Health, CALIFORNIA END OF LIFE OPTION ACT 2021 DATA REPORT (July 2022), p. 3, at https://www.cdph.ca.gov/Programs/CHSI/CDPH%20Document%20Library/CDPH_End_of_Life%20_Option_Act_Report_2021_FINAL.pdf.

[35] For documentation and analysis see Doerflinger, Richard, “Lethal Non-Compliance with Washington’s ‘Death with Dignity Act’,” On Point Issue 92, Charlotte Lozier Institute (December 20, 2022), at https://lozierinstitute.org/lethal-non-compliance-with-washingtons-death-with-dignity-act/.

[36] Washington State Legislature, 2023 Regular Session, House Bill 1281, at https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/House%20Bills/1281.pdf?q=20230418155828; Id., Senate Bill 5179, at https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/Senate%20Bills/5179.pdf?q=20230418160007. As introduced the bills were identical; SB 5179 will be the focus in what follows, as it became the vehicle for amendments and final passage.

[37] For SB 5179’s versions, legislative history, and amendments, see https://app.leg.wa.gov/billsummary?BillNumber=5179&Initiative=faland (2)(d).se&Year=2023.

[38] The Washington Death with Dignity Act, RCW 70.245.190 (2)(b), at https://app.leg.wa.gov/RCW/default.aspx?cite=70.245.190&pdf=true.

[39] Senate Bill 5179, supra note 36, Sec. 16 (2)(d)(ii)(C).

[40] Id., Sec. 10 (3).

[41] Id., Sec. 5 (1)(a) and (1)(c); see Sec. 13 (3).

[42] Compare The Washington Death with Dignity Act, RCW 70.245.040 (1)(a), at https://app.leg.wa.gov/RCW/default.aspx?cite=70.245.040&pdf=true, with Senate Bill 5179, supra note 36, Sec. 5 (1)(a).

[43] Senate Bill 5179, supra note 36, Sec. 2 (2)(c).

[44] See Senate Bill 5179’s legislative history, supra note 37.

​

​