What Oregon’s Death With Dignity Settlement Means For Out-Of-State Terminally Ill Patients

Oregon officials have reached a settlement with a group seeking to allow out-of-state patients to use the state’s Death with Dignity law to end their lives.

What does the settlement mean and how will it affect doctors, patients and their families?

It’s complicated.

Oregon was the first state to allow its adult residents to voluntarily end their own lives, if they are terminally ill and mentally competent, by self-administering a lethal dose of an approved, prescribed medication.

Now it is the first state in the nation that will allow doctors to prescribe the drugs to out-of-state residents.

With a lot of caveats.

A lawsuit filed in federal court last November challenged the residency requirement.

The lawsuit was filed by an Oregon doctor who wanted to provide aid in dying to his patients across the state line in Southwest Washington, and Compassion and Choices, a nonprofit lobbying organization that has pushed to legalize medical aid in dying.

The lawsuit alleged the residency requirement violates Article IV of the Constitution, which prevents states from discriminating against out-of-state residents.

The state settled that lawsuit this week, without weighing in on the constitutional claims in the case.

As a result of the settlement, the Oregon Health Authority, the Oregon Medical Board, and the Multnomah County District Attorney ordered their staff to stop enforcing the residency requirement in Oregon’s Death With Dignity Act.

In practice, that means that people who wish to use Oregon’s law will not need to obtain an Oregon driver’s license or lease to prove long-term residency before seeking medical help to end their lives.

They will still need to meet the rest of the Death With Dignity Act’s requirements.

The Oregon Health Authority has also agreed to propose legislation in the next regular session striking the residency requirement from the Death With Dignity Act.

However, the legal safe harbor established by the settlement doesn’t extend beyond Oregon’s borders and is strongest in Multnomah County, where, as part of the settlement, the district attorney has issued his own directive against enforcing the residency rule.

The settlement agreement in Oregon is just one part of a more complicated legal picture.

The state’s attorney general, Oregon Health Authority, and Oregon Medical Board all declined to comment on it and have yet to weigh in with any official guidance as to how medical practitioners should interpret it.

The Oregon Medical Association, the state’s largest professional association for doctors, said it is early in the process of reviewing the decision and said it is “trying to understand what that means legally.”

Compassion and Choices, however, has issued detailed guidance for doctors, patients, friends and family members helping people who are terminally ill use the law.

The group’s recommendation: people from the 40 states that do not allow medical aid in dying may need to complete the entire process — and their death — in Multnomah County, to ensure their friends and family aren’t at risk of criminal prosecution in their home state. Compassion and Choices also recommends people consult an attorney.

“The main legal issue is for friends and family who help them come to Oregon, or are at their bedside,” said Kevin Diaz, chief legal advocacy officer with Compassion and Choices.

And doctors concerned about their liability should limit their conversations with out-of-state patients to answering the question of whether they have provided medical aid in dying to qualified patients in the past.

“Most states have assisted suicide laws on the books,” Diaz said, referencing laws making it a crime to help someone in an act of suicide. “If they don’t have a corresponding medical aid in dying statute, some of those actions could fall under the assisted suicide prohibition in that home state.”

Under the protection in place due to the settlement, qualified non-residents from states where medical aid in dying is authorized, like Washington and California, can get a prescription in Oregon but choose to ingest the medication in their home state, the attorneys say.

“Any risk of legal exposure due to self-ingestion in their home state would be exceedingly low. These states have very similar if not identical requirements,” said Darin Sands, a partner at Bradley, Bernstein, and Sands who worked on the lawsuit.

The plaintiff in the case, Dr. Nick Gideonse, is a family practice and palliative care doctor and associate professor of family medicine at OHSU. About 10 percent of his patients live in Clark County, Washington.

Previously, the residency requirement prevented Gideonse from providing medical aid in dying to his Washington patients, even though Washington has a nearly identical law on the books.

He says it’s been difficult to find doctors in Southwest Washington who offer aid in dying.

The largest healthcare organization in Clark County, Peacehealth, is a Catholic health system that does not prevent its patients from seeking medical aid in dying but will not participate in it.

Gideonse says he can now provide the service to his Washington patients without being afraid he’ll lose his license.

“I can help them in this as I would help them in any other way,” he said.

The group Oregon Right To Life has condemned the settlement. It says allowing out-of-state residents to use Oregon’s law increases the risks associated with medical aid in dying — particularly the risk that a doctor will fail to identify a person suffering from depression.

“At least half of the people who received life-ending drugs knew the prescribing physician for less than five weeks,” said executive director, Lois Anderson, citing data in the state’s 2021 annual report on the Death with Dignity Act.

“We can only expect this trend to continue as the doors are opened for people outside of Oregon to receive life-ending prescriptions from the physicians here.”

In Oregon, about 60% of the people who use the law have cancer. Ninety-five percent died at home.

Medical aid in dying is legal in 11 jurisdictions: California, Colorado, District of Columbia, Hawaii, Montana, Maine, New Jersey, New Mexico, Oregon, Vermont, and Washington.

Most of those states have laws modeled closely after Oregon’s.

The legal team behind the lawsuit says they hope other states with medical aid in dying laws will review the constitutional argument in Gideonse v. Brown and consider suspending enforcement of their residency rules.

This story was originally published by Oregon Public Broadcasting.

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