Legal Debate Over Doctor-Assisted Suicide

MS. DIANE REHM

10:06:56
Thanks for joining us. I'm Diane Rehm. The Montana House of Representatives last week voted to send doctors to prison for helping terminally ill patients to die. But measures to allow that procedure are pending in other states. Joining me to talk about end-of-life choices: Barbara Coombs Lee, president of Compassion & Choices, and Dr. Joanne Lynn. She's a hospice physician and director of the Altarum Center on Elder Care and Advanced Illness.

MS. DIANE REHM

10:07:34
Thaddeus Pope is director of the Health Law Institute at Hamline University School of Law. He joins us from Minnesota Public Radio in St. Paul. I do hope you'll be part of the program. Weigh in with your calls, 800-433-8850. Send us your email to drshow@wamu.org. Follow us on Facebook or send us a tweet. Good morning to all of you.

MS. BARBARA COOMBS LEE

10:08:06
Good morning, Diane.

DR. JOANNE LYNN

10:08:06
Good morning.

REHM

10:08:08
Good to have you with us. Before we begin our conversation with our guests, Dr. Krayton Kerns joins us by phone from Billings, Mont. He's a veterinarian and a Republican member of the House of Representatives. Good morning to you, Dr. Kerns. Thanks for joining us.

DR. KRAYTON KERNS

10:08:32
Good morning. Thanks for having me.

REHM

10:08:34
Tell me exactly what your bill would do and why you introduced it.

KERNS

10:08:40
Well, it's a clarification bill that prohibits physician-assisted suicide. And I say clarification -- our state constitution was redrawn in 1972. It made it fairly clear that they considered and rejected a right to die clause in the Constitution, and we kind of puddled along until 2008 when we had a Supreme Court that vacated a lower court decision Baxter vs. state and kind of left it all up in the air. So it's a gray area. So this -- my bill, by making it illegal, is kind of a statement of the constitutional convention and what their intent was.

REHM

10:09:26
And actually what would your bill do?

KERNS

10:09:30
It specifically prohibits physician-assisted suicide. It doesn't touch other aspects of palliative care, care for the terminally ill. We have certain parts of Montana code that address that end-of-life wishes, things like that. It doesn't touch any of that. It only targets specifically physician-assisted suicide.

REHM

10:09:56
So if the doctor is convicted of assisting an individual who says that he or she wishes to end his life, what happens to that physician?

KERNS

10:10:17
Well, they would be guilty of the crime, and it's a prison term not to exceed 10 years, fine not to exceed $50,000 or both. In current statute, it's in the homicide statute, so it'll be much more severe than that. So this, actually, by putting this in different part of the code, it lessens the penalty that is currently there.

REHM

10:10:41
All right. So if your bill clears the Senate and is signed by Gov. Bullock, would it overturn the Montana Supreme Court decision in Baxter v. Montana?

KERNS

10:10:56
No. It wouldn't -- yeah. No, it wouldn't overturn it because, you know, they vacated the decision and left the lower court position to stand. So it would kind of set the -- I guess, set the scene if someone wanted to challenge the law, whether or not it was constitutional, they could take it back up to the Supreme Court. But I think it will stand because of the argument that was given in 1972 when the right to die aspect was discussed in the convention.

REHM

10:11:34
So what happens if a physician offers an end of -- well, let me put it in another way. Suppose a physician offers palliative care to a patient who is in the end stages of life and that palliative care includes medication that could indeed bring an end to that person's life?

KERNS

10:12:06
Yeah. It would not affect that, and that's specifically exempted in the very first page of the bill that it doesn't affect palliative care that may incidentally hasten the dying person's death or any act where they would want to withdraw life-sustaining treatment authorized by the patient.

REHM

10:12:24
All right. Now, Dr. Kerns, you are, as I understand it, a veterinarian and therefore very thoughtful and careful about the animals you tend to. I have a dog. I am very concerned about that dog. Are you willing to put down animals who are suffering at the end-of-life?

KERNS

10:12:56
Say that again. I'm willing to?

REHM

10:12:57
Yes.

KERNS

10:12:58
Oh, yeah, without a doubt. We do it all the time.

REHM

10:13:01
And how do you see the treatment, the care and treatment of those animals as being different from the treatment of humans who say they wish to die?

KERNS

10:13:17
The big difference is that animals, entirely different premise. Number one, they can't give their consent, so they're different from that standpoint.

REHM

10:13:25
Right.

KERNS

10:13:27
And I don't equate the life of the animal for the life of a human at all.

REHM

10:13:33
But isn't that exactly the point that the animal has no choice and the human being, in fact, does?

KERNS

10:13:44
The animal has no choice. That would be correct. And the human being does have the choice. Yeah, I think that would be a correct assessment.

REHM

10:13:52
So if the human being says, I choose to die, I really am asking for you, my doctor, to assist me in dying, how would you regard that that is different?

KERNS

10:14:09
Well, you're also asking the doctor to go against their oath above all, do no harm, and you're -- they're no longer an agent of healing. You know, it's a different circumstance then. And this also gets discombobulated as this nation degrades into a single-party payer health care system where everything is controlled by the government.

KERNS

10:14:37
And then we have a very frightening situation where the government controls the diagnostic end of your disorder, the treatment end of your disorder. And due to the power of the inheritance tax, it is to their advantage for you to select suicide as early as possible before you exhaust your resources.

REHM

10:15:00
But suppose I am really suffering from something as debilitating as, say, Parkinson's disease or ALS or an invasive cancer that is bringing me so much pain and suffering that I no longer wish to live and wish to die in as humane a fashion as I would treat my dog.

KERNS

10:15:37
Well, of course, I view it as you're interfering with a decision that is not yours to make, it's God's. He'll take your life when it is time. And until that time, it's your obligation to press on and make the best that you can with what you have available.

REHM

10:15:56
So as a veterinarian, you bring in the religious element.

KERNS

10:16:04
Well, I don't because I don't think it plays in in the veterinarian end because we're dealing with the animal and not a human life.

REHM

10:16:10
All right. Dr. Krayton Kerns, he is a veterinarian, a Republican member of the House of Representatives which has just passed legislation he sponsored, which would imprison or fine or both any doctor who helps an individual end his or her life. Dr. Kerns, thanks for joining us.

KERNS

10:16:43
You bet. Thanks for having me.

REHM

10:16:45
All right. And turning to you, Barbara Coombs Lee, how have doctors in Montana responded to this?

LEE

10:16:55
Doctors in Montana have responded with shock and dismay. I think that doctors in Montana understand that it not only does remove the protections that the Montana Supreme Court gave them in the Baxter decision, that is saying that to aid a patient in dying is not against public policy, and therefore, it has some protections in the state. It would not only remove that, but it would also add new dangers because, as Rep. Kerns pointed out, his exemptions to this, you know, extremely draconian fine, plus imprisonment penalty, the exemptions depend on a state of mind.

LEE

10:17:35
So he not only has written a bill that creates a new crime. It's essentially a thought crime because the very same treatment, the very same medication given to a patient with a purpose to relieve pain -- and I would add that Rep. Kerns forgot to include exemptions for medication that would relieve other kinds of suffering: breathlessness, fatigue, panic attacks, et cetera.

LEE

10:18:01
So his exemption is strictly centered on pain medication. But if that pain medication is delivered with the intention and the purpose to relieve pain, then it's good palliative care. If it is delivered or interpreted to have been delivered with the intention to allow the patient to advance the time of their death, then it is a crime subject to 10 years imprisonment.

REHM

10:18:25
Who's going to make that decision?

LEE

10:18:27
Well, exactly. It's a subjective decision. It depends on what people -- observers imagine is in the mind of the physician and the mind of the patient while they're engaged in this treatment.

REHM

10:18:40
Barbara Coombs Lee, she's president of Compassion & Choices, chief petitioner in the 1997 Death with Dignity Act. Short break. Right back.

REHM

10:20:06
And welcome back. We're talking about assisted suicide. Montana has, in its House of Representatives, adopted a bill that would allow prosecution of any doctor who assist in a patient's death even when that patient has requested help in dying. Joining me here in the studio: Barbara Coombs Lee, president of Compassion & Choices, chief petitioner of the 1997 Oregon Death with Dignity Act. She was a nurse and physician assistant before becoming a private attorney.

REHM

10:20:57
Also here in the studio, Dr. Joanne Lynn. She is a geriatrician, hospice physician and director of the Altarum Center on Elder Care and Advanced Illness. Joining us from Minnesota Public Radio is Thaddeus Pope. He is director of the Health Law Institute, associate professor at Hamline University School of Law. And turning to you, Joanne Lynn, this is such a highly emotional issue. The term assisted suicide is loaded. Is there a nonpolitical way to discuss this issue?

LYNN

10:21:48
Probably not at the present moment. You know, if you call it assisted suicide, you're clearly encouraging people to think negatively. And if you call it aid in dying, you're obviously encouraging people to think positively about the issue. So you have to go to longer terms and describe, you know, in whole sentences what it is you're talking about, which probably would actually help the debate.

LYNN

10:22:11
You know, lots of the things that we've already said here are kind of code words for various categories, and we believe they exist. But as a practicing doctor, I've taken care of a couple of thousand people who've died. And I can tell you that all those categories are really very messy around the edges.

REHM

10:22:26
What about the term terminal illness?

LYNN

10:22:29
I have no idea what that means anymore. I don't use it at all. There clearly are people who have overwhelming illness that will, you know, predictably take their life within a very short time. And those folks you probably could fit in to that category. But for every person like that, there are dozens who have serious illness.

LYNN

10:22:51
It will take their life. But up until the last few days, you don't know when. So the usual person now, two weeks ahead of death, is living with a bad disease. But you don't know how long they'll live. They could live five years. They could live five months. They could live five days.

REHM

10:23:09
All right. Let's turn to Thaddeus Pope. For you as an attorney, what are the legal ramifications of all of these terms?

PROF. THADDEUS POPE

10:23:24
There's a lot of legal ramifications. So one is what Congressman Kerns is proposing to do is to basically put a red light in Montana, right? So currently, there's a yellow light. It's not quite clear what the rights and responsibilities of physicians are. And that's the situation in most states in the United States, a yellow light, not clear the physician can proceed, and there's not a clear prohibition.

PROF. THADDEUS POPE

10:23:50
And the reason the terms become significant there is because most states criminalize assisted suicide and not physician-assisted suicide specifically. And so one big question is, when those states enacted those statutes, criminalizing assisted suicide, did they mean to include a physician compassionately helping a terminally ill patient? And one argument is no. They didn't include that.

REHM

10:24:18
All right. Let me turn to you, Barbara, because as I've said before, you were the chief petitioner in the first in the nation Oregon Death with Dignity Act. Talk about how that law works.

LEE

10:24:37
That law, the Oregon Death with Dignity Act and, subsequently, the Washington Death with Dignity Act worked to clarify that efforts, accommodations that a physician might make for a patient's desire to advance the time of death and relieve themselves of intolerable suffering are clearly out of the context of a crime. And it clarifies that we're not talking about a crime.

LEE

10:25:05
We're talking about a medical treatment, a medical treatment that can be regulated by guidelines and safeguards and supervised by the usual regulatory mechanism. Conflating those two things, conflating a crime and a medical treatment is mind-boggling. It's -- and the two are so clearly different. It's like the difference between a stabbing and a surgery. We don't outlaw surgery because stabbings are illegal.

REHM

10:25:33
Tell me how and why you first got involved in this.

LEE

10:25:40
I first got involved, well, quite frankly, because I had had a long career in nursing and in medicine. And I had witnessed -- and like as Dr. Lynn has, witnessed many, many deaths. And some of those deaths are good deaths, and they're peaceful, and they're gentle. And some of those deaths are horrific. And as an intensive care unit nurse and an ER nurse, I had certainly participated in visiting horrific circumstances.

REHM

10:26:08
So what is it that has to happen for assisted suicide in Oregon to be legal and considered under the statute as it currently stands?

LEE

10:26:27
Well, it needs to be removed from the realm of assisted suicide and to aid in dying or assisted dying, which is what happens. And people are eligible when, in best medical judgment, they are, as Dr. Lynn said, likely to die within the next six months of their underlying disease. They need to be mentally capable. They need to understand the benefits and the burdens of a range of treatment options before them, and they need to be able to articulate a decision.

LEE

10:26:55
They need to articulate it in several ways. They have to have a frank conversation with their physician. They need to be evaluated for their mental status. They need to go to second physician and have the same evaluation. They need to articulate that desire in writing. They need to have that writing witnessed by two witnesses, one of whom is not related by blood or subject to an inheritance.

LEE

10:27:22
And then if they go through all of those hoops and undergo two waiting periods, one 15 days and one 48 hours, they then are eligible to obtain from their physician a prescription for medication that if they take it as directed, it will cause a peaceful and a gentle death. A lot of patients who begin the conversation with their physicians never actually carry through with the culmination of even obtaining a prescription.

LEE

10:27:50
Those who go through the entire -- that burdensome process and obtain a prescription, a third of those people do not take the medication. The process is completely in their control from beginning to end. They initiate the request. They decide if and when they will fill the prescription. They decide if and when they will ingest the prescription.

LEE

10:28:09
These people do not want to die. They do not want to die prematurely. They want to avoid their worst nightmare. They want to have what they call security blanket, an insurance policy. And if they die of the course of their disease with their insurance policy sitting at their bedside, that is fine with them, and many do.

REHM

10:28:29
Is there a physician present if they decide to ingest the medication that has been prescribed?

LEE

10:28:41
There may be a physician present. Sometimes patients very much want their physician present, and there is certainly is nothing to prohibit a willing physician from being present at the time.

REHM

10:28:51
All right. And let me turn again to you, Joanne. Tell me why it would be difficult to replicate what's happened in Oregon in other states.

LYNN

10:29:07
I'm very worried about the -- this question of legalization. The -- most of us now face dying bit by bit. We face living with serious frailty for a long time. The average duration of self-care disability is now about two years ahead of death.

LYNN

10:29:25
More than half of people die with frailty and not with a -- an overwhelming single medical illness. That is very expensive. It is the biggest cause of bankruptcy in the country. It is completely closeted. We don't talk about it. We don't know about it in public. We have not had an honest discussion of how we confront this period of life.

LYNN

10:29:48
So what is it I'm supposed to do as a doctor if someone comes to me, you know, an older man who's taken good care of his spouse throughout and says, you know, look, I've got bad, whatever, you know, bronchitis or emphysema, and I've got, you know, a bad hip, and I've got a tendency to fall, and I've got a small stroke, and I've got bad hearing, and I've got bad vision, and, you know, it's reasonably likely I'm going to die in the next year?

LYNN

10:30:12
I don't want to bankrupt my spouse. We've already lost most of our assets in the crash of 2008, and I, you know, want -- I want to have her be able to live on after me, and she's still in fairly good health and three years younger than me. I want to be dead next Tuesday at 10. And is that a good enough reason? I mean, assuming that he fits all the requirements? Now, you know, he'd have to wait a while and that sort of thing, but...

REHM

10:30:35
He'd have to have gone through the hoops.

LYNN

10:30:37
Yeah, but that's trivial. I mean, the question here is should a doctor be compliant with someone whose social situation is effectively pushing them into wanting to be dead rather than to live on, rather than going to the public and saying, is this what you actually want? You know, all the cases we bring up pretend that it's all about physical suffering.

LYNN

10:31:00
Well, physical suffering is the easiest piece to relieve. We can do anesthesia if we need to -- I mean, I can get you out of any level of physical suffering. What I can't get you out of is emotional suffering or bankruptcy. And, you know, that's where the big push is going to come, and we just haven't had an honest conversation about that.

REHM

10:31:18
I have watched the film "Compassion & Dying" as published -- "Compassion & Choices," forgive me. The people I watched were suffering such pain that no matter what medication was given them, they could not escape the pain, did not wish to have further treatments, did not wish to continue to live because of their own suffering. Now, you say you could even make them unconscious. If they don't want to be unconscious, but rather they want to be with their family to say goodbye to their family, to share the love with their family, why should the law tell them they cannot die?

LYNN

10:32:33
Well -- I mean, they will die. They just won't...

REHM

10:32:35
Eventually.

LYNN

10:32:36
They won't die in a highly predictable fashion. Once you commit...

REHM

10:32:40
But they wish to be able to predict.

LYNN

10:32:42
I understand that, but I'm just saying that if you commit to ongoing sedation, the person will die fairly soon -- I mean, depending how sick they are, within a few days and at most maybe a couple of weeks. So a commitment to ongoing sedation is, you know, very close to what's being asked for in physician aid in dying. One thing you don't get is the timing.

REHM

10:33:08
And you're listening to "The Diane Rehm Show." I wonder, Thaddeus, how you see that division between the request of a dying person for assistance versus enough sedation so that that person dies.

POPE

10:33:35
Right. So I think one of the arguments against legalizing aid in dying or assisted suicide or whatever term that we want to use is that it's not needed because we have other mechanisms by which we can actively hasten death. And, yes, one of them is palliative sedation to unconsciousness. So you can sedate someone. They become unconscious. They can't eat or drink themselves, so they're dependent upon artificial nutrition and hydration.

POPE

10:34:05
And they already have the legal right in every state to decline a feeding tube, and therefore by -- basically by combining two legal things, you're able to do something that would otherwise be illegal if you did it directly. That -- that's true. So at one level, you don't need to be able to take a lethal dose of barbiturates because you have other pathways to hasten your death.

LYNN

10:34:35
Right.

POPE

10:34:35
I agree with that.

LYNN

10:34:36
And if you do that, and if you can offer that, then there is -- you have to realize that there is no situation in which the physical distress is the reason to precipitate a -- an abrupt death. The other issues -- the emotional issues, the interpersonal issues, the financial issues -- are not the ones we bring forward. We talk about, you know, this overwhelming pain. I think that it would be a very interesting debate in a society that honestly offered fair support.

LYNN

10:35:10
You know, we do value people having these choices, but I've occasionally had to tell a patient, here's what I can offer. I can't offer exactly what you're asking for. You know, you can't have a party next Tuesday at 10 and be dead. I can promise you that you will not suffer greatly. I can promise you that I won't run up any extra bills. But I can't promise you Tuesday at 10.

REHM

10:35:31
Barbara.

LEE

10:35:33
I think that that is Joanne correct there. The option of palliative sedation is certainly there. You know, ask people where they want to die and the circumstances under which they want to die, and overwhelmingly people will say, I want to die in my own home. I want to die in my bed. I want to die in the bed that I made love to my spouse.

LEE

10:35:55
I want to be surrounded by the things and the people whom I love. I want to be able to say goodbye consciously. I don't want to violate the beliefs and values of a lifetime by slipping into coma and delirium and dying in the confines and the sterile environment of a hospital.

REHM

10:36:18
Does that make sense to you, Joanne?

LYNN

10:36:21
Well, but it's a false dichotomy. People can, of course, die in their homes with ongoing sedation. And remember, this is a very small proportion. Almost everybody can get out of pain and out of substantial dismay and keep them awake. So we have to remember that, you know, 95 percent of -- 99 percent, you can deliver very good care and have people, you know, having everything except that piece of control.

LYNN

10:36:45
But the very important thing that we're dodging is the question of the enormous disparities in the country and that most people are going to die bankrupt and that we are going to have doubling the number of people who are frail and old and disabled and who don't have adequate assets, and we've got to debate that one.

REHM

10:37:01
Is that what you -- excuse me. Is that what you've seen, Barbara, is that money plays a huge role?

LEE

10:37:12
The experience in Oregon is -- has been exhaustively researched, and the motives, the desires of patients, the feelings of their families, the feelings of their physicians have been studied exhaustively. Finances is just not an element. It just does not come into consideration. Dr. Lynn said that physicians can deliver everything but control. Control is exactly that element that patients desire most.

REHM

10:37:34
All right. We'll take a short break here. When we come back, we'll open the phones and hear what you have to say.

REHM

10:40:06
And welcome back. We're talking about a very sensitive subject, the right to die and whether one should be allowed to have assistance, when one dies, from a physician after going through a great many hoops as the Oregon law prescribes, making a choice to die or whether that should be against the law. The Montana State Legislature, the House side, has passed a law -- has passed a bill, which says that doctors who assist patients in dying will be fined $50,000 and be imprisoned for 10 years. Let's go now to the phones. To Perry County, Pa. Good morning, P.J. You're on the air.

P.J.

10:41:16
Good morning, Diane. Thanks for having me, and hello to your panel.

REHM

10:41:19
Thank you.

P.J.

10:41:20
Why -- I tell, you there is -- just a comment I want to make or concern I want to express, and there are two things that brought this to mind: one was the comment earlier in your program about this being a crime of conscience or a crime of intent, and there would be a fine line between did the, you know, did the medicine -- was it to relieve pain or was it to end a life?

P.J.

10:41:46
So there's that fine line I see. My son was in the hospital recently, and he had some major surgery just after Christmas. And the big concern with that hospital stay was that he was not well-managed for pain, and it was a situation where they just wouldn't give him enough pain medicine. They didn't want him to become addicted, you know? But if you're in a hospital, what better place to be given pain medicine?

P.J.

10:42:11
So his stay ended up being prolonged from a five-day stay to a 17-day stay because of complications related to his pain. So what I see happening in this situation is, would there be doctors out there who would be reluctant to give adequate pain medication to patients in these end-life stages because they wouldn't want to be -- have that misinterpreted as having assisted their suicide?

REHM

10:42:38
All right. Dr. Lynn.

LYNN

10:42:39
Yep. There's obviously some concerns over that. But, in fact, the medications that you would be using to see that a person was dead tend to be rather different than the ones for pain. It's actually fairly hard to kill a person with narcotics and opioids. So you usually have to use something that really stops the breathing. And those kind of stick out in the medication stream, so the intention isn't all that hard to track in general. There are certainly ways to disguise it but...

REHM

10:43:13
All right. To Grand Rapids, Mich. Good morning, Tyler.

TYLER

10:43:19
Good morning. What a great topic. I'm 32, and I'm thinking -- I noticed that Diane asked a pretty direct question about why should the government -- or should the government have any law at all in deciding this. And I'm thinking if I get to be -- if I'm blessed enough to live 80 years on this Earth, and all I have is my wife and house that we paid for, what right does the government have to tell me you must go bankrupt first and spend everything you have to try to keep yourself alive? I mean, I just fail to see why the economical as well as the medical situation shouldn't be taken into account.

REHM

10:43:55
And, Barbara, I want to go back to the question of how often that has come up in the Oregon or the Washington state experience. How much do finances enter an individual's choice to end one's life?

LEE

10:44:17
The clear evidence is that, practically, it's never a consideration. No patient who has used the Oregon Death with Dignity law, and there had been over 1,000 at this point, has indicated financial burdens as the primary reason. That's just...

REHM

10:44:30
And, Thaddeus, you're shaking your head.

POPE

10:44:34
I agree with that. And if I could just make two points, one is -- well, let me if I could -- back in the '30s, Justice Brandeis had this great observation that one of the great, happy incidents of having a federal system is that a single state can serve as a laboratory, you know, and try noble, social experiments. And Oregon has served as that laboratory, did the experiments, and they've been successful. And that's why other states are seeking to replicate that.

POPE

10:45:02
Yes, I absolutely agree with Dr. Lynn as well that there are these potential abuses, but none of -- there's no evidence in Oregon about those financial abuses. And if we're really concerned about those financial abuses, they would apply to all of the other mechanisms too: palliative sedation, turning off life support, right? So if you're worried about abuses, then why don't stop all of the other rights to hasten death through all the other medical mechanisms?

REHM

10:45:31
How do you respond, Dr. Lynn?

LYNN

10:45:32
Remember that that was Tyler's question, why wouldn't economics weigh in? Why isn't it OK for me to make that decision? And then Thaddeus Pope says well, you know, of course, we should be debating that. But that is the point, that the data so far does not actually ever bring this out in the open. So I've had hundreds of patients for whom this has been a critical issue, and, of course, it affects palliative care as well.

LYNN

10:45:57
You have families and patients saying, look what's happening to me. Look what's happening to my family. We've got to find a way to make this stop. What I'm saying is we have to actually debate that as an honest piece of the debate and not pretend that it's all about pain or control. It's also about the fact that we cannot afford to continue to pay in the way we have been paying for the last few years of life.

REHM

10:46:22
All right.

LYNN

10:46:22
And we've got to get that out on the table and debate it, or we're going to make very serious errors.

REHM

10:46:27
But that takes us really in a different direction, Dr. Lynn, from the one we're talking about today. I fully agree with you that we're going to have to have a countrywide debate on that. But this is really -- isn't it about a human being's choice?

LYNN

10:46:52
Well, I mean, you know, Barbara says this has never happened. I mean, I can remember dozens of patient. I had one patient who had a terrible metastatic cancer with bones that were just so fragile that he broke an arm turning in bed. He desperately wanted to stay alive long enough to set up his wife -- to have a trust. She was living with dementia. And as soon as he got that done, he wanted everything stopped and to be dead as quickly as possible.

REHM

10:47:21
But shouldn't he have that choice?

LYNN

10:47:22
Well, he did. I did it. I mean, that was fine. But my point is that the fact that his finances were part of his decision has been just sort of all kept out of the conversation. We're all so polite. We don't want to talk about the fact that, you know, 60 percent of all bankruptcies in the country now are old people getting sick.

REHM

10:47:43
All right. And, Barbara, you see it differently.

LEE

10:47:45
I would say that -- well, the data is there. Three individual studies have asked specifically the patients, the caregivers and the physicians, what are the motivations? And financial questions -- maybe they are -- have been motivations in some of your patients, but in this very highly regulated, very deeply investigative experience in Oregon, that has not been an element. Now, it's interesting, though...

REHM

10:48:11
All right.

LYNN

10:48:11
Affecting how many patients per year?

LEE

10:48:14
How many patients per year use the Oregon Death with Dignity Act?

LYNN

10:48:15
In Oregon.

LEE

10:48:17
About 60.

LYNN

10:48:19
Exactly. So that's the number who die in my city in a week. We -- it's a tiny proportion.

REHM

10:48:25
OK. I don't want to stop the conversation, but I do want to get more callers in. Let's go to Claire who's in Union, Ky. Good morning.

CLAIRE

10:48:40
Good morning. I have a comment or a couple of comments with regards to the previous caller earlier who was the representative, who was a veterinarian. Sadly, he gives animals more dignity to die than human beings. However, I'm a Canadian citizen, and I've been subjected to the medical system on both sides of the border.

CLAIRE

10:49:06
And what I was interested in laughing about was with his discussion of expansion of possible Medicare for all or the Affordable Health Care Act being given to everyone at some point in the future, assuming they even get that far, that the government would make the decisions of who would die depending upon costs. And that was a fallacy that was brought up during the previous elections and all the issues with the Affordable Health Care Act.

CLAIRE

10:49:42
In all other developed nations, there is not one country that has a panel that puts anybody to death because of their age. And for that matter, a lot of those countries also don't have any right to die laws that are established and entrenched. But for an organization or for a representative who is from the side of the political aspect where they want less government, having somebody tell me what I can and cannot do when I'm at that point in my life is adding more government.

REHM

10:50:16
All right. Thanks for your call.

LEE

10:50:19
I would say to that -- if there are dangers from financial pressures, I would worry about those dangers in the setting of a covert, surreptitious wink and nod, oh, we're just going to sedate you to unconsciousness kind of an environment. I would worry less about those dangers when we actually empower people with the authority to make requests on their own behalf and transparently openly talk about those requests with their family and their clergy and their physician.

LEE

10:50:53
The way to avoid the kind of dangers that Dr. Lynn speaks of -- of subtle coercions and influences -- are to remove the cloak of secrecy and shame from the conversations and speak about them openly and address patients needs directly.

REHM

10:51:08
All right. To Orlando, Fla. Good morning, Gary.

GARY

10:51:13
Hi, Diane. I love your show.

REHM

10:51:15
Thank you.

GARY

10:51:17
Back in 1980, my dad had cancer and then he had a series of strokes that left him a comatose condition. And he was like that for several days or week or whatever, and my mother had decided -- she told the doctors, you know, don't give him oxygen and IVs and stuff. Just let the man die. So I was wondering, what is the difference between that and assisted suicide?

REHM

10:51:44
How do you see the difference, Barbara?

LEE

10:51:46
I would say the difference is where control resides, where the decision resides. The thing about aid in dying and the thing about doing what I said, making it transparent and aboveboard, is it really does empower people for the first time to speak their deepest yearnings and to have their deepest needs addressed.

REHM

10:52:01
Thaddeus.

LYNN

10:52:01
But would you agree that his was OK. I mean, he -- they made choices. That was choices too.

REHM

10:52:07
His wife made the choice.

LYNN

10:52:10
Yeah. But, I mean, that...

REHM

10:52:12
But how is that different from my making a choice?

LYNN

10:52:19
It isn't. Feel free. Make choices. You can stop anything. You can have any treatment that's available that, you know, I mean...

LEE

10:52:26
Just not this one choice.

LYNN

10:52:28
Not the choice to deliberately end a life with physician assistance until, as I say, we've had an honest conversation about how we're going to come to the end of life.

REHM

10:52:37
OK. Here's a tweet, which says, "My mother starved and dehydrated to death for five days in hospice care. It was monstrously cruel, undignified and painful to see. Is there no better way?" Joanne.

LYNN

10:53:02
Well, we'd have to know a lot more about what really happened. If that was an honest description of what happened, that would be terrible, and it should be, you know, brought to someone's attention. It certainly is the case that most people dying do better without artificial hydration and nutrition, that giving people nutrition and hydration very near death tends to overwhelm the system, cause difficulty breathing and so forth. So I can't tell, of course, from a tweet, you know, 140 characters, whether, you know, the person was not understanding the situation or whether it really was as awful as he says.

REHM

10:53:40
And you're listening to "The Diane Rehm Show." Thaddeus, you wanted to say something.

POPE

10:53:46
Well, I just wanted to say that both in law and in ethics, there's a firm, well-established distinction between active and passive means of hastening death. And so if you're just turning something off or forgoing a medical intervention, such as dialysis, a ventilator and so forth, that's passive and that's perfectly well-accepted. So the difference between that and Oregon aid-in-dying is that that's active 'cause you're introducing a new lethal agent into the equation. So that's where the line has typically been drawn.

LEE

10:54:15
But I would say, for patients, it's the distinction without a difference. And often using that reliance on passivity, that's what -- it sounds as though this tweeter's mother was resurgent to do. All right, I cannot ask my physician for something to do actively, therefore, I will stop eating and drinking. And many, many dying patients do this in order to advance the time of death.

LYNN

10:54:39
Although in hospice care, it may have been appropriate and just inappropriately explained. We can't tell.

REHM

10:54:44
Let's go to Reston, Va. Rubica, (sp?) you're on the air.

RUBICA

10:54:49
Hi, Diane. This is in response to a comment by the gentleman who is from the House of Representatives. He said that physician-assisted suicide or death with dignity was going against God's will. So my question is if someone gets cancer and that, too, is God's will, so are we now to become a society that denies medication for all illness because they're going against God's will? And I'll take your comments off the air. Thank you.

REHM

10:55:14
All right. Thanks for calling.

LYNN

10:55:17
I mean, there's all manner of theological debate over why we have various afflictions, and I'm certainly no expert in that. So I think I will leave it to whatever it is people believe. And certainly, I've had some patients who turned down treatment because of their religious beliefs and that's OK.

LEE

10:55:31
Well, I wish I could leave it to whatever people believe, but the fact is that Dr. Kern's view of morality is enshrined in the criminal law. And he wants to enshrine it even more so. So in effect, our laws favor one moral and religious view point over the rest of us who do not share that particular religious construct.

REHM

10:55:52
Where does Oregon's law and Washington's law go from here? Aren't there other states considering?

LEE

10:56:02
There are a lot of states that are considering emulating Oregon and Washington right now. These are bills pending in the legislatures in Connecticut and in Vermont and in New Jersey and in Kansas.

REHM

10:56:13
And would they be similar to Oregon's law?

LEE

10:56:17
Well, we don't know what they'll look like when they finally emerge, but they're similar in the basic concept. And that is that they take that shroud of secrecy off and they allow patients to make forthright clear recommendation, a clear request of their physicians and allow their physicians to respond with medication that would allow the patient a gentle and a peaceful death.

REHM

10:56:39
And going through all the same hoops that Oregon demands.

LEE

10:56:45
For the most part, these bills do emulate Oregon very closely.

REHM

10:56:49
And, Joanne.

LYNN

10:56:50
There's another direction, though, that we need to attend to, which is most people are very concerned about dying after a period of disability and mental incompetence. And, you know, the big push for most people I talked with is desperately not wanting to have years of dementia. And, of course, this doesn't help that at all.

REHM

10:57:09
Dr. Joanne Lynn, she's a geriatrician, hospice physician. She directs the Altarum Center on Elder Care and Advanced Illness. Barbara Coombs Lee, president of Compassion & Choices. She was chief petitioner of the 1997 Oregon Death with Dignity law. You can find both of their websites at our website, drshow.org. And Thaddeus Pope of Hamline University School of Law. Thanks for listening. I'm Diane Rehm.
Transcripts of WAMU programs are available for personal use. Transcripts are provided "As Is" without warranties of any kind, either express or implied. WAMU does not warrant that the transcript is error-free. For all WAMU programs, the broadcast audio should be considered the authoritative version. Transcripts are owned by WAMU 88.5 FM American University Radio and are protected by laws in both the United States and international law. You may not sell or modify transcripts or reproduce, display, distribute, or otherwise use the transcript, in whole or in part, in any way for any public or commercial purpose without the express written permission of WAMU. All requests for uses beyond personal and noncommercial use should be referred to (202) 885-1200.

Our address has changed!

The Diane Rehm Show is produced by member-supported WAMU 88.5 in Washington DC.