Be Sure to Read the Fine Print: Will California Legalize Euthanasia?
Capron, Alexander Morgan, Michel, Vicki, Commonweal
Robert Frost once wrote of meeting a man from California,
a state so blessed,
He said, in climate, none had ever died there A natural death, and Vigilance Committees Had to organize to stock the graveyards And vindicate the state's humanity.
Much has changed since Frost's time, not the least in the way death occurs, but now a new risk to the state's humanity has arisen in the form of an initiative that will appear on the ballot in the November general election. If approved, Proposition 161--entitled "Physician-Assisted Death. Terminal Condition"--would make California the first state to legalize the performance of euthanasia by physicians acting at their patients' requests.
This is not the first time that such a proposal has been placed before American voters. The Hemlock Society, which was organized in the 1980s in Southern California, has been seeking an opportunity to put this question before the public for years and failed to qualify an initiative for the California ballot in 1988. A related organization, Americans Against Human Suffering (AAHS), succeeded in getting its "aid-in-dying" statute on the November 1991 ballot in Washington State. With that state's reputation for tolerance and liberality, it was not surprising that polls repeatedly showed a strong favorable majority. Nonetheless, on November 5, 1991, Washington voters rejected the proposal by a 54-to-46 margin.
Even before that defeat, AAHS had launched a second try in California. Beginning in October 1991, its state affiliate mounted a major campaign, with paid signature-gatherers and volunteers from a broad coalition of supporters, and succeeded in collecting better than 10 percent more than the 385,000 valid signatures required. Thus, California's Proposition 161 takes on special significance. The adoption of this radical change in the law would be momentous to Californians as well as for other patients who could come to the state for a final "magic bullet" to provide a swift end to their final illness. The polls thus far reveal strong support for Proposition 161 (and exceptionally few "undecideds") among Californians. In the barrage of other initiatives on the November ballot the public may have difficulty getting beyond media "sound bites" and giving Proposition 161 the serious attention it deserves. Leaving for others the analysis of the general risks and defects of physician "aid-in-dying," this essay will highlight internal problems and drafting defects in Proposition 161.
The problems with the initiative begin with its "Declaration of Purpose" which creates a context for the substantive provisions that follow. The Declaration affirms the importance of patient self-determination and states that the prolongation of life made possible by medical technology "may cause loss of patient dignity and unnecessary pain and suffering, for both the patient and the family, while providing nothing medically necessary or beneficial." Assertions like this give a good sense of why the initiative appeals to many people. But in also contending that "current state laws do not adequately protect the rights of terminally ill patients," the Declaration of Purpose falsely suggests that no legal mechanisms now exist for patients to avoid such "artificial prolongation" of life.
In fact, California has pioneered in the development of statutory and case law to protect the rights of patients regarding their treatment and death. The California Natural Death Act, enacted in 1976, updated in 1991, provided the impetus for U.S. jurisdictions; it allows adults to sign a "Declaration" at any time that directs their physicians to forgo life-sustaining treatment, including artificial nutrition and hydration, in the event of terminal illness or permanent unconsciousness. California again led the way with its Durable Power of Attorney for Health Care Act (1983), giving trusted "proxies" authority to carry out patients' wishes and protect their interests. …