Hawaii: Oops, they did it again! Mainland suicide law proponents back in Hawaii

BY KAREN DICOSTANZO - Oops, they did it again! Mainland suicide law proponents descended on Hawaii this week for a panel discussion hosted by Rep. Blake Oshiro and sponsored by Honolulu Star-Advertiser. As before, they used misinformation to bolster their claim that physician assisted suicide is "already legal" in Hawaii.

Of course, this begs the question: If physician assisted suicide is "already legal" in Hawaii, why have suicide law proponents been trying--unsuccessfully--to legalize it for the past 10 years?The "panel" for the panel discussion consisted solely of suicide activists, so this was not a bona fide effort to air opinions from both sides and maintain balance. Rather, this was meant as a PR stunt to create a news story and arouse public interest in their cause.

Suicide law proponents are using a 1909 Hawaii law as a basis for their assertions, claiming the law allows doctors to administer lethal drugs upon patient request. In fact, this law was written to allow doctors to administer non-traditional/herbal drugs in battling such illnesses as Hansen's Disease (leprosy), tuberculousis, and asthma.

It is obvious that by grasping at straws such as this, their argument is indeed weak. Nevertheless, using equally weak arguments, physician assisted suicide was legalized in states like Oregon and Washington. We need to act now to counter these ridiculous claims and protect the public from these false reports.

Hawaii: Assisted Suicide is Still Not Legal

By Margaret Dore

Barbara Coombs Lee has a new article on Huffington Post, claiming that physician-assisted suicide ("aid in dying") is legal in Hawaii.  This is an odd claim given that bills to legalize assisted suicide in Hawaii have repeatedly failed, most recently this year.[1] 

Coombs Lee's article begins with a discussion of melting snow, moves on to a panel of experts, focuses on Montana and then finally discusses the law of Hawaii.[2]  With regard to Hawaii, her arguments are similar to those presented in a brief drafted by Kathryn Tucker, which was apparently removed from the internet after I published a critique of the arguments presented.[3]

To view my critique, click here.

The bottom line:  Assisted suicide is still not legal in Hawaii. 

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1.  On February 7, 2011, SB 803 was defeated in Committee 4 to 0.  See Hawaii Legislative website at http://www.capitol.hawaii.gov/session2011/lists/measure_indiv.aspx?billtype=SB&billnumber=803
2.  Barbara Coombs Lee, "Hawaii:  The Latest State Where Doctors Can Provide Aid in Dying," Huffington Post, October 6, 2011, available here.
3.  See:  Margaret Dore, "Hawaii: Assisted Suicide is not 'Already Legal,'" September 21, 2011, available at http://www.choiceillusion.org/2011/09/hawaii-assisted-suicide-is-not-already.html#more  and Kathryn Tucker, "End-of-life Law and Policy in Hawaii Aid in Dying," as of September 20, 2011, available at http://choiceisanillusion.files.wordpress.com/2011/10/tucker-brief_0011.pdf

Boston Globe: She pushed for legal right to die, and - thankfully - was rebuffed

http://www.boston.com/bostonglobe/editorial_opinion/letters/articles/2011/10/04/she_pushed_for_legal_right_to_die_and___thankfully___was_rebuffed/

I DISAGREE with Scot Lehigh’s Sept. 23 column, which characterizes assisted suicide as only involving people who are going to die in “a few months or weeks’’ (“Death with dignity in Mass.,’’ Op-ed). I am a retired person living in Oregon, where assisted suicide is legal. Our law was enacted through a ballot initiative that I voted for. In 2000, I was diagnosed with cancer and told that I had six months to a year to live.

I knew that our law had passed, but I didn’t know exactly how to go about making use of it. I tried to ask my doctor, but he didn’t really answer me. I didn’t want to suffer. I wanted to do what our law allowed, and I wanted my doctor to help me. Instead, he encouraged me not to give up, and ultimately I decided to fight the disease. I had both chemotherapy and radiation.

I am so happy to be alive! It is now 11 years later.

If my doctor had believed in assisted suicide, I would be dead. I thank him and all my doctors for helping me to choose “life with dignity.’’
 
Assisted suicide should not be legal. I hope Massachusetts does not make this terrible mistake.

Jeanette Hall

King City, Ore.

Massachusetts: Oregon doctor finds fault with state's law

http://www.boston.com/bostonglobe/editorial_opinion/letters/articles/2011/10/04/oregon_doctor_finds_fault_with_states_law/ 

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I am a doctor practicing medicine in Oregon and Washington, where physician-assisted suicide is legal. I disagree with Scot Lehigh that these suicides are not like other suicides in which “a healthy person [takes] his life for reasons of despair, depression, or hopelessness’’ (“Death with dignity in Mass.,’’ Op-ed, Sept. 23).

First, doctors can be wrong. So, what looks like a few months to live can be years. For a good article on this subject, see Nina Shapiro’s January 2009 "Terminal Uncertainty" in the Seattle Weekly.

Second, despair, depression, and hopelessness are a part of assisted suicide. A few years ago, a patient of mine who was undergoing cancer treatment with a specialist became depressed, and expressed a wish for assisted suicide.

In most jurisdictions, suicidal ideation is interpreted as a cry for help. In Oregon, the only help my patient got was a lethal prescription intended to kill him.  Don’t make our mistake. Keep assisted suicide out of Massachusetts.

Dr. Charles J. Bentz

Portland, Ore.

The writer is an associate professor of medicine in the division of general medicine and geriatrics at Oregon Health & Science University.

Hawaii: Assisted Suicide is Not "Already Legal"

By Margaret Dore

Kathryn Tucker, Director of Legal Affairs for Compassion & Choices, claims that physician-assisted suicide, which she terms "aid in dying," is already legal in Hawaii.[1]  Her claim, based in part on a 1909 statute, fails for the reasons set forth below.

A.  Hawaii's Manslaughter Statute Applies

Tucker argues that Hawaii's manslaughter statute, providing that an individual commits manslaughter if "[t]he person intentionally causes another person to commit suicide," does not apply to "aid in dying" because aid in dying is not "suicide."[2]  Just last year, in Blick v. Connecticut, Tucker made a similar argument that was summarily rejected by the trial court.[3]  The trial judge stated:

"[T]he legislature intended the [manslaughter] statute to apply to physicians who assist a suicide . . ." [4]

Montana Propaganda: Baxter & Assisted Suicide

By Margaret Dore, Esq.

Barbara Coombs Lee, President of Compassion & Choices, has posted a propaganda piece on Huffington Post falsely claiming that a physician who assists a suicide in Montana is "safe" from prosecution.  My request for equal time to correct the record on Huffington Post has been ignored.  A discussion of the actual law of Montana is set forth below. 

A.  Assisted Suicide

There are just two states where physician-assisted suicide is legal: Oregon and Washington.  These states have statutes that give doctors and others who participate in a qualified patient’s suicide, immunity from criminal and civil liability.  (ORS 127.800-995 and RCW 70.245). 

In Montana, by contrast, the law on assisted suicide is governed by the Montana Supreme Court decision, Baxter v. State, 354 Mont. 234 (2009).  Baxter gives doctors who assist a suicide a potential defense to criminal prosecution.  Baxter does not legalize assisted suicide by giving doctors or anyone else immunity from criminal and civil liability.  Under Baxter, a doctor cannot be assured that a particular suicide will qualify for the defense. 

B.  The Baxter Decision is Wrong

Baxter found that there was no indication in Montana law that physician-assisted suicide, which the Court termed “aid in dying,” is against public policy.  (354 Mont. at 240, ¶¶ 13, 49-50).  Based on this finding, the Court held that a patient’s consent to assisted suicide “constitutes a statutory defense to a charge of homicide against the aiding physician.”  (Id. at 251, ¶ 50).

Baxter, however, overlooked caselaw imposing civil liability on persons who cause or fail to prevent a suicide.  See e.g., Krieg v. Massey, 239 Mont. 469, 472-3 (1989) and Nelson v. Driscoll, 295 Mont. 363, ¶¶ 32-33 (1999).  Baxter also overlooked elder abuse.  The Court stated that the only person “who might conceivably be prosecuted for criminal behavior is the physician who prescribes a lethal dose of medication.”  (354 Mont. at 239, ¶ 11).  The Court thereby overlooked criminal behavior by family members and others who benefit from a patient’s death, for example, due to an inheritance.

The Baxter decision is fundamentally flawed and wrong.

C.  Doctors are not "Safe" Under Baxter

Baxter is a narrow decision via which doctors cannot be assured that a particular suicide will qualify for the defense. Attorneys Greg Jackson and Matt Bowman provide this analysis:

"If the patient is less than 'conscious,' is unable to 'vocalize' his decision, or gets help because he is unable to 'self-administer,' or the drug fails and someone helps complete the killing, Baxter would not apply. . . .

http://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html

Even if a doctor "beats the rap" on prosecution, there is the issue of civil liability.  See Krieg and Nelson, supra.  Like O.J. Simpson, a doctor who escapes criminal liability could find himself sued by a family member upset that he "killed mom."  The doctor could be held liable for civil damages.

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Margaret Dore is President of Choice is an Illusion, a nonprofit corporation opposed to assisted-suicide. (www.choiceillusion.org)  She is also an attorney in Washington State where assisted suicide is legal.

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[1] http://www.huffingtonpost.com/barbara-coombs-lee/aid-in-dying-montana_b_960555.html