Once more to the ballot box
(from "Last Rights" #13)

by Cheryl K. Smith, J.D.

Proposals that would make euthanasia or physician-assisted suicide legal
for the terminally ill have been put forward in the United States
intermittently, beginning with one in Ohio in 1906, but to date have been
unsuccessful.  The late 1980s and early 1990s saw a resurgence of such
proposals, with the most successful (in California and Washington,
defeated by narrow margins) being brought through the initiative process
rather than through the legislature.  On Tuesday November 8, 1994, the
latest of these proposals-Oregon's Measure 16-will be put to a vote.


The initiative process, true grassroots lawmaking, is not well understood
by most people.  Oregon is one of less than half the states in the US. 
that allow this form of lawmaking.  Initiatives may be used to propose
constitutional amendments or to create legislation. They may be either
direct or indirect.

A direct initiative allows placement on the ballot of a proposed measure
after the acquisition of a specific number of registered voter signatures
on a citizen petition.  For an initiative law in Oregon, this number is
six percent of total votes cast for all candidates for governor at the
last election in which a candidate for governor was elected to a full
term.  The percentage required for an initiative to amend the constitution
is eight percent.

An indirect initiative must be submitted to the legislature for approval,
after acquisition of a specific number of signatures on a citizen petition
and prior to placement on the ballot of the proposed measure.  Direct
initiative was the method used for proposed aid-in-dying laws in
California, Washington and Oregon. 

A referendum, in contrast, is a process where a state law or
constitutional amendment passed by the legislature may be referred to
voters before it becomes effective.

The Oregon Death with Dignity Act, now Measure 16 of 1994, qualified to be
placed on the ballot by the receipt of more than 80,000 registered voter
signatures.  This was approximately 13,000 more signatures than were
required by law.  On November 8, Oregon voters will determine whether
Measure 16 becomes law.  Public opinion polls released in September
indicate that 65% of "likely voters" will support the measure. 


Oregon is one of more than half of US. states that has a statute making
assistance in suicide a criminal offence.  ORS 163.125(b) states:
"Criminal homicide constitutes manslaughter in the second degree
when...[a] person intentionally causes or aids another person to commit

Unlike many states, Oregon also has case law that differentiates assisted
suicide from murder.  In State v. House, 199 Or.676, 264 P2d 800 (1953),
the Court interpreted the prior assisted suicide statute to cover
participation such as "furnishing the means for bringing about death". 
While that case leaves some ambiguity regarding the definition of
"furnishing", it puts physicians who write a prescription for drugs to end
the life of a dying person at risk of prosecution.  In order to protect
physicians who are currently writing such prescriptions and to provide an
opportunity to physicians who are not, but whose patients make such a
request, a new law was required.


In the California and Washington initiative campaigns, opposition spending
was triple that of the advocates.  The main message of the advertising
campaign against the initiatives was that they contained no safeguards for
vulnerable individuals.  Although blatantly untrue, this strategy
apparently worked, despite the fact that the California initiative had
improved upon Washington's proposed law, with more safeguards.

As a result of those campaigns and polls indicating that physicians and
the public are less supportive of physicians taking an active role in
bringing about death than merely prescribing, the Oregon Death with
Dignity Act was written very narrowly.  Safeguards are specifically
enumerated in Measure 16.  The drafters were able not only to improve on
the weak areas of previous bills but also to draw upon the latest writings
and advice of various medical and legal professionals.

In order to make the initiative consistent with current Oregon law, much
of the language, particularly as regards definitions, was taken from the
existing law on advance directives.  This law was passed in 1993 by the
legislature, with the cooperation and support of a number of health care


The major difference between Oregon's Measure 16 and prior proposals is
that it is purely a prescribing bill.  The Death with Dignity Act does not
allow a physician to administer an overdose of a lethal drug and
specifically states that mercy killing, lethal injection and active
euthanasia are not allowed.  This decision was made, after much debate,
for the practical purpose of getting a law passed.

Informed consent of the patient is required: that is, he or she must be
informed of medical diagnosis, prognosis, potential risks and
alternatives, and the result of taking the medication.

In addition to the required of a singed, witnessed consent, the Death with
Dignity Act also requires two oral requests with specific waiting periods
delineated.  The requests would have to come voluntarily from a capable
resident of the State who was expected to die within six months.  A second
opinion regarding the person's competency to make such a request and
verifying his or her terminal disease is also required.  The Act also
states that a patient may rescind his or her request at any time and in
any manner and requires the physician to offer them a final opportunity to
change his or her mind.

Counseling referrals are necessary if the person appears to have a
psychological disorder or depression causing impaired judgment.  Either
the attending or consulting physicians may make this determination. 
Because many dying people become depressed, yet have previously stated
their beliefs regarding aid-in-dying, depression in itself does not rule
out the physician's assistance.

Informing of next-of-kin is strongly encouraged by the initiative,
although it is not required.  The drafters recognized the importance of
family involvement in the dying process, but understood that in some cases
patients may be estranged from family or that family members may have
antithetical views.

Since the drafters strongly believed that no one should have to die alone,
Measure 16 allows the family, the physician or other individuals to be
present when the person takes the prescription.

Physicians will be required, under this law, to document in the medical
record that all requirements of the law were met.  The initiative also
requires the state Health Division to annual review these records,
collection information to determine compliance with the law and present a
statistical report to the public.  This provision was included so that the
workability of the law cold be monitored.  Although the state would be
required to report certain information, the confidentiality of patients
would be maintained.

Health care providers and facilities would not be required to participate.
 This reflects the focus on choice and autonomy of the individual, both
patient and physician.

The initiative also contains a section on immunities and liabilities.  It
protects those  individuals who participate in good faith, while punishing
anyone who attempts to subvert the law or coerce a patient.

The Oregon Death with Dignity Act is a narrow aid-in-dying bill which
reflects the lessons learned from attempts to pass previous laws while
expanding the current legal boundaries for helping dying Oregonians.  If
passed on November 8, Measure 16 will the first aid-in-dying law in the
United States.

NOTE:  Cheryl K. Smith is a former attorney for the National Hemlock
Society and is one of the principal authors of "Departing Drugs".

This article is a preliminary version of an article which Ms. Smith will
publish later this year.