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343
Losing the Quality of Life: The Move Toward Societys
Understanding and Acceptance of Physician Aid-in-Dying
and the Death with Dignity Act
LINDSAY REYNOLDS
ABSTRACT
During the November 2012 elections, Massachusetts voters
rejected the Death With Dignity initiative. Closely modeled after
Oregons Death With Dignity Act (DWDA), Massachusetts is one among
many other states that attempted to legalize physician aid-in-dying
for the terminally ill.
This Note champions the policy behind the Oregon and Washington
legislation and argues that all states should allow physician
aid-in-dying from the right-to-personal-autonomy and compassionate
standpoints. By first discussing the background and legalization of
physician aid-in-dying, Part I outlines the Oregon and Washington
DWDA statutory provisions. Part II discusses the major obstacles to
the DWDAs widespread enactment in the United States. Part III
analyzes statistical findings and studies, and argues that the law
as it stands in Oregon and Washington provides adequate safeguards
against abuse. Part IV addresses the influence and cross between
religious beliefs and physician aid-in-dying. Part V elaborates on
the right-to-personal-autonomy argument, and further argues that
the DWDA should extend to those who do not have a terminal illness.
Finally, Part VI provides a broad inquiry into the potential
overlap between the law of wills and that of the right to physician
aid-in-dying.
Candidate for Juris Doctor, New England Law | Boston 2014. B.S.,
Public Relations,
University of Idaho 2006. I would like to thank my parents, Paul
and Leslye, for their
unconditional love and support, and to all of my friends who
have made me laugh along the
way.
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344 New England Law Review v. 48 | 343
INTRODUCTION
uring the November 2012 elections, Massachusetts voters rejected
ballot Question 2, the Death With Dignity initiative.1 The
Massachusetts measure closely resembled Oregons Death with
Dignity Act.2 Massachusetts is one among many states that
attempted to pass legislation legalizing physician aid-in-dying for
the terminally ill.3 Three statesOregon, Washington, and
Vermontsuccessfully enacted legislation allowing individuals to
determine the date of their death.4 Additionally, the Montana
Supreme Court found that physician aid-in-dying does not violate
public policy.5 This Note focuses on Oregon and Washingtons
treatment of physician aid-in-dying, and champions the policy
behind the Oregon and Washington legislation, arguing that all
states should allow physician aid-in-dying from both
right-to-personal-autonomy and compassionate standpoints.6
This Note argues that the Death with Dignity Acts (DWDA) nemesis
is religion.7 The obstruction to ones right to die must end.8
Religious affiliates abuse their powertrampling on an individuals
right to determine their
1 Paula Span, How the Death With Dignity Initiative Failed in
Massachusetts, THE NEW OLD
AGE BLOG (Dec. 6, 2012, 6:53 AM), available at 2012 WLNR
25933598. 2 Christine Roberts, Massachusetts Voters Narrowly Defeat
Question 2, Measure that Would
Have Allowed Physician-Assisted Suicide for Terminally Ill
Patients, N.Y. DAILY NEWS (Nov. 7, 2012,
8:38 PM),
http://www.nydailynews.com/life-style/health/mass-votes-physician-assisted-
suicide-article-1.1198305. 3 See Kathryn L. Tucker, When Dying
Takes Too Long: Activism for Social Change to Protect and
Expand Choice at the End of Life, 33 WHITTIER L. REV. 109, 115
(2011) [hereinafter When Dying Takes
Too Long]. California voters considered a ballot measure with
terms similar to Oregons Death
with Dignity Act, which failed to pass by a small margin. Id.
After the November 2012 election,
Vermonts governor Peter Shumlin voiced his belief that Vermont
would pass a death-with-
dignity law. Span, supra note 1. New Jersey is also entertaining
efforts to pass similar legislation.
Lewis M. Cohen, Massachusetts Vote May Change How the Nation
Dies, SLATE (Oct. 29, 2012, 7:00
AM),
http://www.slate.com/articles/health_and_science/medical_examiner/
2012/10/massachusetts_death_with_dignity_2012_kevorkian_and_humphry_started_the.html.
4 State-by-State Guide to Physician-Assisted Suicide, PROCON.ORG
(last updated on May 28,
2013, 3:49 P.M.),
http://euthanasia.procon.org/view.resource.php?resourceID=000132. 5
Baxter v. State, 2009 MT 449, 1726, 224 P.3d 1211. 6 See When Dying
Takes Too Long, supra note 3, at 12123. 7 See generally Amy M.
Burdette et al., Religion and Attitudes Toward
Physician-Assisted
Suicide and Terminal Palliative Care, 44 J. SCI. STUDY RELIGION
79, 7991 (2005) (discussing
religions influence on attitudes toward physician aid-in-dying
and palliative care). 8 See generally Span, supra note 1
(discussing potential causes for the failure of the
Massachusetts Death with Dignity initiative).
D
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2014 Losing the Qual i ty o f L i f e 345
futurethus extinguishing any hope of enacting the DWDA.9
Furthermore, a review of the past decade of the Oregon statute
shows no known cases of coercion, undue influence, or harm to those
who are most vulnerable.10 Despite concerns of skeptics, the sky
has not fallen; [and] civilization in the Northwest remains intact
. . . .11
Part I of this Note discusses the background of physician
aid-in-dying, including the terminology and case law surrounding
the legalization of physician aid-in-dying. Part I also outlines
the Oregon and Washington DWDA statutory provisions and reported
statistics since its enactment in those states. Discussion of other
countries laws and views on physician aid-in-dying and euthanasia
is also included in Part I. Finally, Part I concludes with a look
at the DWDAs major opponents. Part II discusses the major obstacles
to the DWDAs widespread enactment throughout the United States.
Part III discusses further statistical findings and studies that
fail to uncover any known cases of undue influence or coercion on
vulnerable groups, thereby making the slippery-slope arguments
unconvincing. Part III continues to argue that the law as it stands
in Oregon and Washington provides adequate safeguards against such
abuse. Part IV discusses religions influence on voters and the
ethical and moral issues surrounding the interplay between
religious beliefs and physician aid-in-dying. Part IV argues that
religious affiliates needlessly abuse the freedom of religion to
impinge on others rights to autonomy and their ability to make
end-of-life care decisions. Part V elaborates on the
right-to-personal-autonomy argument and will argue that the right
to physician aid-in-dying can be found within the penumbras of the
U.S. Constitution. Further, Part V argues that the DWDA should
extend to those who are not terminally ill, and the Act would most
likely gain more supporters if it were not exclusive in this
aspect. Finally, Part VI provides a broad inquiry into the
potential overlap between the law of wills and the right to
physician aid-in-dying, and the aspects of the law of wills that
could apply to the new law surrounding the right to die and making
end-of-life care decisions.
I. Background
A. Terminology: Euthanasia, Physician-Assisted Suicide, and
Aid-in-
9 See generally id. (discussing uphill battles with religious
voters in Massachusetts). 10 See generally OR. PUB. HEALTH DIV.,
OREGONS DEATH WITH DIGNITY ACT 12 (2012),
available at
http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/
DeathwithDignityAct/Documents/year15.pdf [hereinafter OR. DWDA
REPORT] (summarizing
the statistics). 11 Cohen, supra note 3.
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346 New England Law Review v. 48 | 343
Dying
It is argued that Oregons DWDA primarily exists because the law
does not permit active euthanasia; rather, the law requires the
individual to self-administer the medication.12 Commentators define
voluntary active euthanasia as: Intentionally administering
medications or other interventions to cause the patients death at
the patients explicit request and with full informed consent.13
Indeed, it was noted that euthanasia acquired strong negative moral
connotations over the last century owing to assumptions that such a
good death can be brought about only through violating religious,
professional, and social inhibitions against killing.14
DWDA proponents, who sometimes have personal experiences with a
family member dying from a terminal illness, champion using
terminology such as aid-in-dying or end-of-life care, rather than
the assisted suicide language used by many DWDA opponents.15 The
latter is perceived to be offensive, connoting an immoral act where
proponents argue to the contrarythat the DWDA allows a humane and
dignified death.16 The term euthanasia strayed from its classically
informed meaning and etymological roots of easy, painless, happy
death.17 DWDA proponents emphasize the use of the term aid-in-dying
to resemble this classical meaning.18 Moreover, the statutory
language used in Oregon and Washington state that actions taken
under the DWDA laws do not constitute
12 See OR. REV. STAT. ANN. 127.880 (West, Westlaw through 2013
Reg. and Spec. Sess.
legislation effective through 10/8/13) (Nothing in [the Oregon
statutes] shall be construed to
authorize a physician or any other person to end a patients life
by lethal injection, mercy killing
or active euthanasia.) (emphasis added). 13 ROBIN LUNGE ET AL.,
OREGONS DEATH WITH DIGNITY LAW AND EUTHANASIA IN THE
NETHERLANDS: FACTUAL DISPUTES 2 (2004), available at
http://www.leg.state.vt.us/reports/
05Death/Death_With_Dignity_Report.htm. 14 Courtney S. Campbell,
Aid-in-dying and the Taking of Human Life, 18 J. MED. ETHICS
128,
128 (1992). This argument also finds support in studying
societys view of the infamous Dr.
Death, Jack Kevorkian, who released a recording of himself
assisting patients with ending their
life by a form of euthanasia. See KEVORKIAN (Bee Holder
Productions, 2010) (providing a more
detailed discussion of Jack Kevorkian and his efforts to
legalize assisted suicide). 15 See When Dying Takes Too Long, supra
note 3, at 11213, 15455. 16 Id. at 15456 (Opponents of aid-in-dying
refer to the practice as assisted suicide. This
term is offensive to patients and their families, and has been
rejected by a broad range of
medical and health policy groups which recognize that the term
assisted suicide is inaccurate
and value laden.). 17 Campbell, supra note 14 (explaining that
the term euthanasia entered the English
language in 1646 with the meaning of easy, painless, happy
death). 18 See id.
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2014 Losing the Qual i ty o f L i f e 347
suicide, and suicide shall not be used when referring to the
DWDA.19 Thus, the terms aid-in-dying, dignified death, or humane
death are used for this Notes purposes.20
B. The Presumption Against Taking Human Life:21 Case Law Leading
to the DWDA
How has societys view of death and dying changed throughout
time? Has it changed? Humans ancestors thought life is worth
living22 and, arguably, the basic human instinct presumptively
favors survival rather than extinction:
[T]he dominant perspective towards the taking of human life,
whether by
oneself or other, as conveyed in the religious, philosophical,
professional,
and legal traditions from which society gains its moral bearings
. . . [states
there is] an affirmative responsibility for the protection,
preservation, and
promotion of human life, and a strong presumption against the
taking of
human life.23
Furthermore, liberal political cultures have, in varying
degrees, recognised [sic] three principal scenarios as valid
exceptions to the prohibition of taking
19 E.g., WASH. REV. CODE ANN. 70.245.180 (West, Westlaw through
all 2013 legislation)
(Actions taken in accordance with this chapter do not, for any
purpose, constitute suicide,
assisted suicide, mercy killing, or homicide, under the law.
State reports shall not refer to
practice under this chapter as suicide or assisted suicide.);
see also Scott Helman, Should
People Have the Right to Die?, THE BOS. GLOBE (Apr. 29, 2012),
http://www.bostonglobe.com
/magazine/2012/04/29/massachusettts-death-with-dignity-act-that-would-legalize-physician-
assisted-suicide-expected-decided-november-
ballot/ljEGuMYnF1TAKgRTTMKYNO/story.html (explaining that under
the Oregon and
Washington DWDA laws, decedents death certificates would not use
the word suicide to
describe their death, rather the death certificates would list
the underlying illness as the cause
of death). 20 See When Dying Takes Too Long, supra note 3, at
15455 (Leading health policy
organizations . . . also addressed the terminology issue,
recognizing that the term "suicide" or
"assisted suicide" is inappropriate when discussing the choice
of a mentally competent
terminally ill patient to seek medications that he or she could
consume to bring about a peaceful
and dignified death.). Furthermore, using the phrase
physician-assisted suicide or assisted
suicide is misleading as the Oregon statute explicitly conveys:
Actions taken in accordance
[with the applicable statutory provisions] shall not, for any
purpose, constitute suicide [or]
assisted suicide . . . under the law. See OR. REV. STAT. ANN.
127.880 (West, Westlaw through
2013 Reg. and Spec. Sess. legislation effective through
10/8/13). 21 See generally Campbell, supra note 14, at 130
(explaining the theory behind the
presumption against taking human life). 22 F.C.S. Schiller,
Truth and Survival Value, 15 J. PHIL. PSYCHOL. SCI. METHODS 505,
513
(1918). 23 Campbell, supra note 14, at 130; see also Schiller,
supra note 22.
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348 New England Law Review v. 48 | 343
human life, namely, self-defence [sic], capital punishment and
just war.24
Arguably, early case law reflects this presumption against
taking human life and champions the dominant perspective toward the
taking of human life, i.e., punishing suicide or those who assist a
person committing suicide.25 Controversy over the right to die
dates back to England and the original thirteen American
colonies.26 In English practice, followed by the original American
colonies, an abettor (someone present during a suicide attempt)
would often receive a harsher punishment than the suicidal
offender.27
More recently, in the seminal case, Cruzan v. Director of
Missouri Department of Health, the Supreme Court reviewed whether a
person has a constitutional right to die.28 The Court held that
competent adults have a constitutional right to refuse medical care
and a state may require clear-and-convincing evidence that patients
wanted their treatment terminated before it is cut off.29 Many
courts and legal scholars defend the line between letting someone
die and actively intervening to promote or bring about death.30
[F]or over 700 years, the Anglo-American common-law tradition has
punished or otherwise disapproved of both suicide and assisting
suicide.31 Those are Chief Justice Rehnquists words, writing for
the Court in Washington v. Glucksberg, wherein the majority
rejected the claim that the Washington law prohibiting assisted
suicide violated a fundamental right
24 Campbell, supra note 14, at 130. 25 See, e.g., Gilbert v.
Florida, 487 So. 2d 1185, 118687 (Fla. Dist. Ct. App. 1986)
(affirming
defendants conviction for premeditated murder of his wife who
had osteoporosis and
Alzheimers Disease and who, defendant contends, begged him to
end her life); Aven v. State,
277 S.W. 1080, 1081 (Tex. Crim. App. 1925) ([W]hen an indictment
charges that the appellant
administered the poison and caused the deceased to swallow it
with intent on his part to kill
and injure here, and that he did thereby kill her with malice
aforethought, this sufficiently
negatives the idea that appellant merely prepared the poison and
went no further, and that the
deceased thereafter took it herself with suicidal intent.). 26
Anne Marie Su, Physician Assisted Suicide: Debunking the Myths
Surrounding the Elderly,
Poor, and Disabled, 10 HASTINGS RACE & POVERTY L. J. 145,
14748 (2013). 27 Id. at 148. 28 497 U.S. 261, 261 (1990). 29 ERWIN
CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 871 (4th
ed. 2011). 30 See Yale Kamisar, Against Assisted SuicideEven a Very
Limited Form, 72 U. DET. MERCY L.
REV. 735, 75455 (1995) (There are significant moral and legal
distinctions between letting die
(including the use of medications to relieve suffering during
the dying process) and killing
(assisted suicide/euthanasia). In letting die, the cause of
death is seen as the underlying disease
process or trauma. In assisted suicide/euthanasia, the cause of
death is seen as the inherently
lethal action itself.) (quoting COORDINATING COUNCIL ON
LIFE-SUSTAINING MEDICAL
TREATMENT DECISION MAKING BY THE COURTS (U.S.) ET AL.,
GUIDELINES FOR STATE COURT
DECISION MAKING IN LIFE-SUSTAINING MEDICAL TREATMENT CASES 145
(2d ed. 1993)). 31 Washington v. Glucksberg, 521 U.S. 702, 711
(1997).
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2014 Losing the Qual i ty o f L i f e 349
protected under the due process clause.32 The Supreme Courts
decision reversed the United States Court of Appeals for the Ninth
Circuit, which found that the Constitution encompasses a due
process liberty interest in controlling the time and manner of ones
deaththat there is, in short, a constitutionally recognized right
to die.33 However, the Court left the door open for future legal
protection of a right to physician-assisted death: Throughout the
Nation, Americans are engaged in an earnest and profound debate
about the morality, legality, and practicality of
physician-assisted suicide. Our holding permits this debate to
continue, as it should in a democratic society.34 Oregon was the
first to pass through that door with its enactment of the Death
with Dignity Act.35
C. Oregons Death with Dignity Act
1. DWDA Statutory Provisions
Oregons DWDA was enacted over a decade ago.36 Still, many are
not aware of its statutory provisions or what patients and
physicians must do before any medications can be prescribed.37
Provisions taken from Oregons DWDA require: a written request
for medication to end ones life; that is made by capable adults who
are 18 or older; who were determined by both an attending physician
(defined as the primary-care physician) and a consulting physician
(defined as a physician who is qualified by specialty or experience
to make a professional diagnosis and prognosis regarding the
patients disease38) to be suffering from a terminal disease; and
who voluntarily expressed their wish to die.39 A valid request must
be witnessed by at least two individuals who attest that . . . the
patient is capable, acting voluntarily, and is not being coerced to
sign the request.40 Section 127.815 of the Oregon Revised Statutes
lists the
32 CHEMERINSKY, supra note 29, at 87374 (Despite changes in
medical technology and
notwithstanding an increased emphasis on the importance of
end-of-life decision-making, we
have not retreated from this prohibition [of assisting
suicide].) (alteration in original). 33 Compassion in Dying v.
State, 79 F.3d 790, 816 (9th Cir. 1996) revd sub nom.
Washington
v. Glucksberg, 521 U.S. 702 (1997). 34 Glucksberg, 521 U.S. at
735. 35 See id. at 717. 36 When Dying Takes Too Long, supra note 3.
37 See generally OR. REV. STAT. ANN. 127.815127.865 (West, Westlaw
through 2013 Reg.
and Spec. Sess. legislation effective through 10/8/13)
(outlining specific safeguards a
physician and patient must abide by prior to a prescription
being delivered). 38 Id. 127.800(4) (Westlaw). 39 Id. 127.800805
(Westlaw). 40 Id. 127.810(1) (Westlaw). Furthermore, a witness
cannot be: a blood relative; spouse or
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350 New England Law Review v. 48 | 343
responsibilities of the attending physician, which include but
are not limited to: determining if the patient suffers from a
terminal disease, is capable, and made the request voluntarily;41
ensuring the patient is making an informed decision;42 referring
the patient to another physician for a second opinion and
confirmation; recommending the patient notify next of kin;
informing the patient that he or she may rescind the request at any
time and in any mannerand offer[ing] the patient an opportunity to
rescind at the end of the 15 day waiting period pursuant to ORS
127.840; [c]ounsel[ing] the patient about the importance of having
another person present when the patient takes the medication . . .
and of not taking the medication in a public place; verifying the
patients informed decision before writing the prescription; and
dispensing the medications directly.43 The patient must reiterate
their oral request to end their life to his or her attending
physician no less than fifteen (15) days after making the initial
oral request and, at the time of the second request, the attending
physician shall offer the patient an opportunity to rescind the
request.44 Finally, the statute provides immunity to civil and
criminal liability or professional disciplinary action;45 however,
the statute also provides potential liabilities.46
2. 2012 Statistics
Pursuant to Oregons Death with Dignity Act, the Oregon Health
Authority (OHA) is required to annually review a sample of records,
which reflect current statistics on various DWDA factors including
how many people obtained life-ending medication, who actually used
the medication, and a consensus of who is electing to take the
medication.47 Included in the 2012 annual report are the following
findings:
adopted child; a person entitled to any portion of the estate
upon the patients death; an owner,
operator or employee of a health-care facility where the
qualified patient is receiving medical
treatment or is a resident; or the attending physician at the
time of the request. Id. 127.810(2)
(Westlaw). 41 Id. 127.815(1)(a) (Westlaw). 42 Id. 127.815(1)(c)
(Westlaw). The physician must inform the patient of: the
medical
diagnosis; prognosis; potential risks associated with taking the
medication prescribed; [t]he
probable result of taking the medication to be prescribed; and
[t]he feasible alternatives, including,
but not limited to, comfort care, hospice care[,] and pain
control. Id. (emphasis added). 43 OR. REV. STAT. ANN. 127.815
(West, Westlaw through 2013 Reg. and Spec. Sess.
legislation effective through 10/8/13). 44 Id. 127.840
(Westlaw). 45 Id. 127.885(1)(2) (Westlaw). 46 Id. 127.885, 127.890
(Westlaw). 47 See id. 127.865; OR. ADMIN. R. 333-009-0010 (West,
Westlaw through rules published in
the Oregon Bulletin dated August 1, 2013); OR. DWDA REPORT,
supra note 10, at 12, 46.
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2014 Losing the Qual i ty o f L i f e 351
Since the law was passed in 1997, a total of 1,050 people have
had DWDA
prescriptions written and 673 patients have died from
ingesting
medications prescribed under the DWDA [(64%)]. . . . Of the 77
DWDA
deaths during 2012, most (67.5%) were aged 65 years or older;
the median
age was 69 years. As in previous years, most participants were
white
(97.4%), well educated (42.9% had at least a baccalaureate
degree), and had
cancer (75.3%). . . . Excluding unknown cases, all (100%) had
some form of
health care insurance, although the number of patients who had
private
insurance (51.4%) was lower in 2012 than in previous years
(66.2%), and
the number of patients who had only Medicare or Medicaid
insurance was
higher than in previous years (48.6% compared to 32.1%). . . .
The three
most frequently mentioned end-of-life concerns were: loss of
autonomy
(93.5%), decreasing ability to participate in activities that
made life
enjoyable (92.2%), and loss of dignity (77.9%). . . . During
2012, no referrals
were made to the Oregon Medical Board for failure to comply with
DWDA
requirements.48
Finally, the Oregon Public Health Divisions report indicates
that roughly one-third of those who received DWDA prescriptions
died without taking the prescribed medication.49
D. Washingtons Death with Dignity Act
On November 4, 2008, Washington voters passed Initiative 1000,
which went into effect on March 5, 2009.50 Washington enacted the
DWDA after Oregon, however in 1991 Washington voters were the first
in the nation to consider allowing aid-in-dying legislation.51 DWDA
advocates in Washington have been at the forefront of the fight for
the right to die.52
1. Statutory Provisions and Recent Statistics
Washingtons DWDA statutory provisions closely resemble Oregons
with a few small differences.53 Washington, like Oregon, requires
the States
48 OR. DWDA REPORT, supra note 10 at 23. 49 See id. at 1 fig. 1
(showing an interesting look at a chart diagram of DWDA
prescription
recipients compared with DWDA deaths for each year beginning in
1998 to 2012). 50 WASH. STATE DEPT OF HEALTH, DEATH WITH DIGNITY
ACT REPORT 12 (2011), available at
http://www.doh.wa.gov/YouandYourFamily/IllnessandDisease/DeathwithDignityAct.aspx
[hereinafter WASH. DWDA REPORT]; see also Cyndi Bollman, A
Dignified Death? Dont Forget
About the Physically Disabled and Those Not Terminally Ill: An
Analysis of Physician-Assisted Suicide
Laws, 34 S. ILL. U. L.J. 395, 403 (2010). 51 Kathryn L. Tucker,
In the Laboratory of the States: The Progress of Gluckbergs
Invitation to
States to Address End-of-Life Choice, 106 MICH. L. REV. 1593,
1607 (2008) [hereinafter In the
Laboratory of the States]. 52 See id. 53 See, e.g., WASH. REV.
CODE ANN. 70.245.150 (West, Westlaw current with all 2013
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352 New England Law Review v. 48 | 343
Department of Health to annually review and report statistical
information collected pursuant to the State statute.54
The Washington State Department of Healths 2011 report made
some
key findings on the DWDA.55 During the first year the DWDA took
effect in 2009, there were sixty-five participants who were
prescribed medication, of which sixty-three people died.56 In 2010,
eighty-seven people requested life-ending medication, of which
eighty-four died.57 In 2011, 103 patients were prescribed
life-ending medication,58 of which ninety-four individuals died,
seventy after ingesting the medication.59 The ninety-four
participants who died in 2011 had end-of-life concerns, including:
loss of autonomy (87%); loss of dignity (79%); and loss of the
ability to participate in activities that make life enjoyable
(89%).60 In 2011, 94% of the participants were Non-Hispanic White;
46% achieved a baccalaureate or higher; 78% contracted cancer;
private insurance covered 34%; Medicare or Medicaid covered 40%;
and a combination of private insurance and Medicare or Medicaid
covered another 13%.61
E. The Remaining States
Why were Oregon and Washingtonstates in the Pacific
Northwestable to pass the DWDA while states in the Midwest or the
East could not?62 Cultural differences?63 Location?64 As mentioned
earlier, Massachusetts voters rejected the Death with Dignity Act
initiative in the November 2012 election.65 The law proposed in
Massachusetts closely resembled Oregon and Washingtons DWDA, and
would have allowed physicians to prescribe
legislation) (requiring that medication unused under the DWDA be
disposed of by lawful
means); see also Bollman, supra note 50, at 40204 (2010)
(discussing the Washington and
Oregon statutes). 54 See 70.245.150 (Westlaw).
55 WASH. DWDA REPORT, supra note 50, at 4. 56 Id. 57 Id. 58 Id.
at 1. 59 Id. 60 Id. at 4. 61 WASH. DWDA REPORT, supra note 50, at
5. 62 See Cohen, supra note 3. 63 See generally Helman, supra note
19 (identifying the strength and popularity of the
Catholic Church in Massachusetts as a hurdle for local
supporters of the DWDA). 64 See Cohen, supra note 3. 65 See Span,
supra note 1.
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2014 Losing the Qual i ty o f L i f e 353
end-of-life medication to qualified patients.66 Despite early
polls showing at least 60% voter support for the Massachusetts law,
many speculate as to why voters rejected it.67 A member of a
public-relations and lobbying firm, which opposed passing the DWDA
in Massachusetts, hypothesized: If the proponents could pass this
in 40-percent-Catholic Massachusetts, theyd be running through the
other states within five years . . . .68 And the states are
certainly lined up to do so.69 Legislative attempts occurred in
Maine, New Hampshire, and New Jersey.70 Kansas and Pennsylvania are
currently drafting bills favoring aid-in-dying laws similar to
Oregon and Washingtons laws.71
F. International Perspective on Physician Aid-in-Dying: The
Netherlands, Switzerland, and the United Kingdom
When Oregon passed its DWDA in 1994, only two countries
legalized methods of aid-in-dying: the Netherlands and
Switzerland.72
The Kingdom of the Netherlands is a constitutional monarchy.73
It harbors some of the most liberal laws in the world including
laws associated with hashish, marijuana, and prostitution.74 In
2002, the Netherlands ceased punishing euthanasia.75 The
Netherlands defines euthanasia as the termination of life by the
administration of drugs by a physician at the request of a
patient.76 The Act, introduced in April 2002, states that
physicians who perform euthanasia are no longer punishable provided
they have acted according to the due care criteria and reported the
patients death
66 Compare 2012 Information for Voters: Full Text of Question 2,
SECRETARY OF THE
COMMONWEALTH OF MASSACHUSETTS,
http://www.sec.state.ma.us/ele/ele12/ballot_questions_
12/full_text.htm#two (last visited Nov. 21, 2013), with OR. REV.
STAT. ANN. 127.815127.865
(West, Westlaw through 2013 Reg. and Spec. Sess. legislation
effective through 10/8/13), and
WASH. REV. CODE ANN. 70.245.150 (West, Westlaw current with all
2013 legislation). 67 See Span, supra note 1. 68 Id. (quoting Joe
Baerlein from the firm Rasky Baerlein). 69 See Helman, supra note
19. 70 Id. 71 Death with Dignity Around the U.S., DEATH WITH
DIGNITY NATL CTR. (last updated Sept.
17, 2013), http://www.deathwithdignity.org/advocates/national.
72 See HOW TO DIE IN OREGON (Peter Richardson 2011), available at
http://www.howto
dieinoregon.com/see-the-film.html. 73 Lara L. Manzione, Is There
a Right to Die?: A Comparative Study of Three Societies
(Australia,
Netherlands, United States), 30 GA. J. INTL & COMP. L. 443,
452 (2002). 74 Id. at 453. 75 See J.A.C. Rietjens et al., Judgment
of Suffering in the Case of a Euthanasia Request in the
Netherlands, 35 J. MED. ETHICS 502, 502 (2009). 76 Id.
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354 New England Law Review v. 48 | 343
to one of the five regional euthanasia review committees.77 A
euthanasia review committee consists of a legal expert, a
physician, and an ethicist, who are assisted by a lawyer.78 The
assessment of whether a patients suffering is unbearable, a
criteria that must be met by general physicians, is most
problematic for physicians in the Netherlands.79 A study of these
physicians decisions found:
What can be objectively determined is the underlying disease and
the
accompanying symptoms and loss of function. However, the
question of
whether the symptoms of suffering become unbearable, and if so
when,
ultimately depends on the experience of the person who is
suffering, and
hence is an individual matter. Suffering is determined by the
patients
personality, physical and mental perseverance, history and
perceptions of
the future. Therefore, what is still bearable to one person may
be
unbearable to another.80
It is important to contrast euthanasia from physician
aid-in-dying.81 As explained in Part I.C, the key aspect of Oregon
and Washingtons laws is that the medication must be
self-administered, thus the patients are ultimately responsible for
ending their own lives.82 In the Netherlands, the physicians
administer the medications, which ultimately end the patients
life.83
Swiss law condones aid-in-dying and allows non-physicians to
perform the life-ending act.84 The Swiss rely on charitable
organizations to help with their aid-in-dying.85 Exit, a charitable
organization in Switzerland, helped Swiss individuals who wish to
end their lives with dignity since 1982.86 Another prominent Swiss
organization, Dignitas, began extending its services abroad in
1998. Dignitas thereby does not require Swiss citizenship to
qualify for aid-in-dying and anyone willing to fly to Zurich may
apply for
77 Id. 78 Id. 79 See id. 80 Id. at 50203. 81 See When Dying
Takes Too Long, supra note 3, at 15456 (opining that the term
aid-in-
dying should be favored over the term assisted suicide). 82 OR.
REV. STAT. ANN. 127.885 (West, Westlaw current with 2013 Reg. and
Spec. Sess.
legislation effective through 10/8/13); WASH. REV. CODE ANN.
70.245.020 (West, Westlaw
current with all 2013 legislation). 83 See Rietjens et al.,
supra note 75. 84 Samia A. Hurst & Alex Mauron, Assisted
Suicide and Euthanasia in Switzerland: Allowing a
Role for Non-Physicians, 326 BRIT. MED. J. 271, 271 (2003). 85
Renske Heddema, One-Way Ticket to Switzerland, SWISS NEWS, May 1,
2007, at 16, available
at 2007 WLNR 26642429. 86 Id.
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2014 Losing the Qual i ty o f L i f e 355
its services.87 As of 2007, Exit does not accommodate foreigners
outside of Switzerland.88 Both organizations insist on a rational
and premeditated decision by the patient before taking steps to
grant the patients wish to end his or her life.89 Furthermore Exit,
following in Dignitass footsteps, now considers assisting patients
with Alzheimers and psychiatric disorders.90
For nearly a century, the Swiss distinguished between selfish
and altruistic motives to assist others with their deaths.91 A
person could face up to five years in prison if caught helping an
individual commit suicide for selfish reasons.92 By contrast, if
individuals help a friend to die for altruistic reasons, they face
no legal consequences.93 This practice came into existence with the
Swiss Criminal Code in 1941, allowing Swiss citizens to develop an
efficient system of so-called self-aid.94 The Swiss government
supported this practice believing that Swiss citizens are sovereign
and should retain the final say in matters affecting their
lives.95
Citizens in countries that ban assisted aid-in-dying are known
to take advantage of Switzerlands relaxed law surrounding
euthanasia and assisted aid-in-dying.96 Currently, in the United
Kingdom suicide is not punishable, but assisting someone to commit
suicide is a crime.97 As a result, many British citizens travel to
Switzerland, where the Dignitas clinic assists them with hastening
their death.98 Since 2002, Dignitas helps approximately eighteen
British citizens a year with aid-in-dying.99
Currently, the Netherlands, Belgium, Luxembourg, Switzerland,
and three states in the United States are the only locations
permitting physician aid-in-dying.100 Recently, Canada joined the
group when a British Columbia
87 Id.; see also Rohith Srinivas, Exploring the Potential for
American Death Tourism, 13 MICH.
ST. U. J. MED. & L. 91, 10607 (2009). 88 See Heddema, supra
note 85; Srinivas, supra note 87, at 106. 89 Heddema, supra note
85. 90 Id. 91 See Srinivas, supra note 87, at 106 (In those days,
the publicly endorsed motives for
acceptable suicide were romance and honor, not poor health.). 92
Heddema, supra note 85. 93 See id. 94 Id. 95 Id. 96 See Carol C.
Cleary, From Personal Autonomy to Death-On-Demand: Will Purdy v.
DPP
Legalize Assisted Suicide in the United Kingdom?, 33 B.C. INTL
& COMP. L. REV. 289, 28990 (2010). 97 Id. at 289. 98 Philippa
Roxby, Assisted Suicide: 10 Years of Dying at Dignitas, BBC NEWS
(Oct. 20, 2012),
http://www.bbc.co.uk/news/health-19989167. 99 Id. 100
Assisted-Suicide Ban Struck Down by B.C. Court, CBC NEWS,
http://www.cbc.ca/news/
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356 New England Law Review v. 48 | 343
Supreme Court judge declared Canadas laws against physician
aid-in-dying unconstitutional because they discriminate against the
physically disabled.101 Five plaintiffs brought the suit seeking
the legal right to physician aid-in-dying.102 In the 395-page
ruling, the Supreme Court judge noted that suicide itself is not
illegal in British Columbia; therefore, the law contravenes the
Canadian Charter of Rights and Freedoms103 by denying physically
disabled people the same rights as able-bodied people who can take
their own lives.104 The judge went further to explain that any
risks associated with allowing physician aid-in-dying are very
largely avoided through carefully designed, well-monitored
safeguards.105 The lawyer for the Canadian Attorney General argued
that those who are particularly vulnerable are the elderly,
disabled, and people who may worry about being a burden to society
and safeguards are not effectively protecting vulnerable people in
jurisdictions where assisted suicide is already allowed.106
Nevertheless, the judge suspended the rulings effect for one year
to give Parliament time to take the necessary steps to draft and
consider new legislation.107
II. The States Major Obstacles to Enacting the Death with
Dignity Act: Religion Confusion, and Fear of the Unknown
Arguably, at the core of the debate around physician
aid-in-dying are three main factors that stand in the way of the
DWDAs broad enactment amongst the states: (1) religion; (2)
confusion about the DWDAs actual statutory provisions; and (3) fear
of the unknown and unanswered questions associated with the
DWDA.108
canada/british-columbia/story/2012/06/15/bc-assisted-suicide-ruling.html
(last updated Jun. 15,
2012, 6:22 PM) [hereinafter Assisted-Suicide Ban Struck Down].
101 Id. 102 Id. 103 Robert A. Sedler, Constitutional Protection of
Individual Rights in Canada: The Impact of the
New Canadian Charter of Rights and Freedom, 59 NOTRE DAME L.
REV. 1191, 1194 (1984) (comparing
the Canadian Charter of Rights and Freedom to the U.S.
Constitution). 104 Id. (The impact of that distinction [between
suicide and physician-assisted suicide] is
felt particularly acutely by persons . . . who are grievously
and irremediably ill, physically
disabled or soon to become so, mentally competent and who wish
to have some control over
their circumstances at the end of their lives . . . .). 105 Id.
106 Id. 107 Assisted-Suicide Ban Struck Down, supra note 100. 108
See Katie Hafner, In Ill Doctor, a Surprise Reflection of Who Picks
Assisted Suicide, N.Y.
TIMES, Aug. 12, 2012, at A1, available at 2012 WLNR
17071211.
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2014 Losing the Qual i ty o f L i f e 357
A. Religious Leaders Use Fear to Control Society
The Roman Catholic Church is one of the most prominent,
outspoken DWDA opponents.109 The Church considers suicide a sin and
therefore encourages terminally ill patients to consider hospice
care instead.110 In anticipation of the November 2012 election in
Massachusetts, DWDA opponents spent close to $5 million in their
campaignoutspending DWDA proponents by approximately $4 million.111
The majority of the oppositions campaign contributions came from
Catholic organizations and archdioceses from around the country.112
DWDA supporters commented on the opposition groups spending,
arguing that [i]ts so easy to scare people on this issue; thats
what happened in Massachusetts . . . . Fear-based arguments
work.113
B. Confusion Surrounding the DWDA
I think our society is very confused about liberty. I dont think
it makes sense to force women to carry children they dont want, and
I dont think it makes sense to prevent people who wish to die from
doing so.114 These are author Andrew Solomons insightful thoughts
when asked about his response to a Frontline report called The
Suicide Plan.115 Solomon supported his mothers decision to elect
physician aid-in-dying after fighting cancer.116 Opponents of the
right to die often express as outrage what they appear to
experience as anxiety; they can express as moral rigor what is in
fact merely fear.117
Furthermore, the DWDA and legalization of physician aid-in-dying
causes physicians to question their role in society and their duty
to patients.118 Some physicians also convey their opposition to
physician aid-
109 See id. 110 See id. 111 Span, supra note 1. 112 Id. 113 Id.
114 Andrew Soloman, Liberty and the Right to Die in America,
Comment to The Shadow Side of
Assisted Suicide, FRONTLINE (Nov. 13, 2012, 9:10 PM),
http://www.pbs.org/wgbh/pages/
frontline/social-issues/suicide-plan/the-shadow-side-of-assisted-suicide/.
115 Id. 116 Id. 117 Id. 118 Cf. Joan C. Callahan, Book Review, 64
Q. REV. BIOLOGY 37273 (1989) (reviewing RUTH
MACKLIN, MORTAL CHOICES: ETHICAL DILEMMAS IN MODERN MEDICINE
(1987)) (The primary
goal of medical practice is health; and, historically,
practitioners have often pursued this goal
at the expense of other moral values, including the autonomy or
self-determination of
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358 New England Law Review v. 48 | 343
in-dying.119 Many believe that writing prescriptions for
life-ending medication is antithetical to doctors role as
healers.120 Many physicians struggle with the idea of killing their
patients based on a prognosis.121
ANALYSIS
III. Enactment of the DWDA Does Not Create a Slippery Slope
At the forefront of the slippery-slope arguments are concerns
for vulnerable citizensthe elderly, disabled, minorities,
uneducated, and poor.122 The concerns include that: individuals
will fall victim to coercion or undue influence; the legalization
of physician aid-in-dying is a slippery slope; it will extend to
those who are not terminally ill; and active euthanasia will be
legalized (allowing a physician to actually administer the
life-ending medication rather than self-administration).123
Approximately nineteen years ago, voters in Oregon passed the
DWDA.124 Since the law passed in 1997, a total of 1,050 people were
written life-ending prescriptions and 673 of those recipients were
reported to actually use the prescriptions.125
In an article titled Legal Physician-Assisted Dying in Oregon
and the Netherlands: Evidence Concerning the Impact on Patients in
Vulnerable Groups, Margaret P. Battin, along with four other
authors, posed the following questions:
Would accepting or legalising [sic] physician-assisted dying at
a patients
explicit request weigh more heavily on patients in vulnerable
groupsthe
elderly, women, the uninsured, the poor, racial or ethnic
minorities, people
with disabilities, people with sometimes stigmatised [sic]
illnesses like
AIDS, and others? Would vulnerable patients be especially
heavily
targeted? Would these patients be pressured, manipulated, or
forced to
request or accept physician-assisted dying by overburdened
family
patients.). 119 See Hafner, supra note 108. 120 Id. 121 See HOW
TO DIE IN OREGON, supra note 72 (depicting physicians internal
struggles with
prescribing life-ending medication for their patients and how
they ultimately choose to adhere
to the patients wish). 122 Steven Ertell, Canadas Assisted
Suicide Ban Struck Down in Court, LIFE NEWS (June 15,
2012, 3:51 PM),
http://www.lifenews.com/2012/06/15/canadas-assisted-suicide-ban-struck-
down-in-court/. 123 See Kamisar, supra note 30, at 73740. 124
See Margaret P. Battin, Physician-Assisted Dying and the Slippery
Slope: The Challenge of
Empirical Evidence, 45 WILLAMETTE L. REV. 91, 91 (2008). 125 OR.
DWDA REPORT, supra note 10, at 2.
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2014 Losing the Qual i ty o f L i f e 359
members, callous physicians, or institutions or insurers
concerned about
their own profits?126
In her follow-up article, Battin found that the target study
provided no evidence that people in the vulnerable groups listed
above were abused.127 The data demonstrate that the option of
physician-assisted dying has not been unwillingly forced upon those
who are poor, uneducated, uninsured, or otherwise
disadvantaged.128
Scholars in other states who perform studies on Oregons DWDA
admit that the law does not pose threats to the vulnerable.129 A
report was prepared for the Vermont Legislature in 2004 after
conducting a thorough review of Oregons experience, which concluded
that it is quiet [sic] apparent from credible sources in and out of
Oregon that the Death With Dignity Act has not had an adverse
impact on end-of-life care and in all probability has enhanced the
other options.130 Further, scholars agree that Oregons experience
did not furnish any known cases of coercion or undue influence on a
patient who elected for physician aid-in-dying: I worried about
people being pressured to do this . . . . But this data confirms .
. . that the policy in Oregon is working. There is no evidence of
abuse or coercion, or misuse of the policy.131
The studies showing lack of abuse provides support for the
argument that there are adequate safeguards in place.132 The
requirements listed in Oregon and Washingtons DWDA statutes,
outlining the necessary steps a patient must take when submitting a
request for the medication, are extensive and closely adhered to by
the medical field.133 The highly acclaimed 2011 documentaryHow to
Die in Oregonoffers an insight into the interactions between
patients seeking DWDA medication and their doctors.134 It is
evident that physicians and patients take the decision to elect
126 Battin, supra note 124, at 102. 127 See id. at 104. However,
the study did find a heightened risk for people with AIDS. Id.
at
105. 128 In the Laboratory of the States, supra note 51, at
1604. 129 Id. 130 LUNGE ET AL., supra note 13, 3; see also In the
Laboratory of the States, supra note 51, at 1605.
Vermont recently signed into law Act No. 39, An Act Relating to
Patient Choice and Control at
End of Life on May 20, 2013, legalizing physician aid-in-dying.
A State-by-State Guide to
Physician-Assisted Suicide, PROCON,
http://euthanasia.procon.org/view.resource.php
?resourceID=000132 (last updated May 28, 2013). 131 In the
Laboratory of the States, supra note 51, at 1605 (internal
quotation marks omitted). 132 See id. at 1603 (The experience in
Oregon has demonstrated that a carefully drafted law
does not place patients at risk.). 133 See HOW TO DIE IN OREGON,
supra note 72. 134 See id. How to Die in Oregon received critics
praise and won various awards including
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360 New England Law Review v. 48 | 343
physician aid-in-dying very seriouslyit does not happen
overnight.135 It is emphasized throughout the process of receiving
the medication that, at any time, the patient is free to rescind
their decision with no questions asked.136 However, as shown in
parts of the documentary, the mere fact that physician aid-in-dying
is presented as an end-of-life care option upset some patients.137
The documentary touches upon individual cases where insurance
companies cover the costs for life-ending medication under the
DWDA, yet are unwilling to cover the large healthcare costs
associated with treating various terminal illnesses.138 This raises
American healthcare issues and its interaction with the DWDA, a
topic that is outside the scope of this article; still, an
important inquiry.139
The threat to vulnerable groups failed to materializeas the
statistics listed in the Oregon and Washington reports clearly
reflect.140 Therefore, the lack of evidence showing coercion or
undue influence makes the slippery-slope argument
unconvincing.141
IV. Wherein the Sin Lies: Religious Pressures Must Be Met with
Education About Physician Aid-in-Dying and What It Does for Those
Who Request the Medication142
Often, patients and their families turn to religion and
spirituality for a
prestigious Sundance Film Festival awards. See Educational DVD,
HOW TO DIE IN OREGON,
http://www.howtodieinoregon.com/educational-dvd.html (Whatever
your position on
physician-assisted suicide, you should see the movie How to Die
in Oregon . . . the movie raises
important questions about end-of-life care, physician-assisted
suicide, and the way in which we
as a society deal with (or refuse to deal with) the
inevitability of death and dying.). 135 See HOW TO DIE IN OREGON,
supra note 72. 136 See id. 137 See id. 138 See id. 139 See Kamisar,
supra note 30, at 76869 (The moral issue of our day is not whether
to
enable or prevent a few individuals dying in the comfort of
their home in the presence of their
private physicians. The moral issue of our day is whether to do
something about our immoral
system of care, in which treatment is dispensed according to a
principle best characterized as
that of economic apartheid.). 140 See supra notes 4849, 5659 and
accompanying text. 141 See supra notes 4849, 5659 and accompanying
text; Battin, supra note 124, at 104. 142 This Note is not
suggesting that religious groups should be unable to voice
their
opinion about physician aid-in-dying, for they possess a
constitutional right to freedom of
speech and freedom of religion. See, e.g., CHEMERINSKY, supra
note 29, at 125066 (The Supreme
Court consistently has held that excluding such religious speech
[situations concerning the
governments ability to restrict private religious speech on
government property] violates the
First Amendments protection of freedom of speech because it is
an impermissible content-
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2014 Losing the Qual i ty o f L i f e 361
source of comfort, guidance, and support.143 It is crucial for
society to understand the overlap between religion and end-of-life
care decisions if there is any hope that most states will enact the
DWDA.144
Studies show that church-attendance frequency and dedication to
religion are associated with conservative attitudes towards, and
general acceptability of, suicide and physician aid-in-dying.145
Further, religious affiliates may experience pressure to conform to
group ideology.146 Generally, religious followers exercise one of
two broad points of view when discussing religion and physician
aid-in-dying.147 A study found that Protestant groups . . .
emphasize the individuals right to control end-of-life care, and
therefore are essentially proponents of physician aid-in-dying.148
The underlying principal behind these beliefs is that God has
granted humanity the right of personal choice and that this
authority must extend to matters of life and death and that
individuals should have the right to choose in a terminal situation
their death with spiritual and medical counsel.149 In contrast,
other religions believe that physician aid-in-dying is a usurpation
of Gods authority and claim that God holds absolute dominion over
matters of life and death and the transition from life to death.150
Herein lies the problem for DWDA advocates.151 The overarching fear
imposed by certain religious leaders that if an individual elects
physician aid-in-dyinga sin in the churchs eyesthen the individual
will suffer the consequences in the afterlife.152 Religious beliefs
should not trump the beliefs of patients and their desire to end
their own pain and suffering.153
V. Personal Autonomy
To live as a self-governing individual is the essence of the
value of autonomy, so that to be autonomous is the core of a
valuable human
based restriction of expression.). 143 Burdette et al., supra
note 7, at 91. 144 See id. at 79. 145 Id. at 90. 146 Id. at 91. 147
Id. at 80. 148 See id. 149 Burdette et al., supra note 7, at 80.
150 Id. 151 See id. at 90. 152 See K. Praveen Parboteeah et al.,
Ethics and Religion: An Empirical Test of a
Multidimensional Model, 80 J. BUS. ETHICS 387, 390 (2008)
([B]elievers in God are less likely to
act unethically because of the fear of being caught by an
omniscient God and being punished.). 153 See generally id.
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362 New England Law Review v. 48 | 343
existence.154 The conflict surrounding personal-autonomy rights
is longstanding.155 Historically, many of the laws concerning the
right to privacy exhibited a peculiar tendency to gravitate around
sexuality . . . the network of decisions and conduct relating to
the conditions under which sex is permissible, the social
institutions surrounding sexual relationships, and the procreative
consequences of sex.156 There is nothing sexy about terminal
illness.157 However, there are conceptual arguments that arose in
abortion and reproductive cases, which should be applied to the
right-to-die argument and the fight for autonomy:158
Ultimately, the question of whether there should be a right to
physician-
assisted death, like all difficult constitutional questions,
turns on ones
view of constitutional interpretation and the role of the
judiciary. Should
this be regarded as one of the most important aspects of
personhood and
autonomy, as the Ninth Circuit concluded? Or is this a
matter
appropriately left to the political process, as the Supreme
Court ruled?159
Proponents of physician aid-in-dying turn to various
constitutional provisions arguing that the right to die and the
right to personal autonomy are present in the Constitution and are
thus constitutional rights.160 In Griswold v. Connecticut, the
Court found the right to privacy was a fundamental right implicit
in many of the Bill of Rightss specific provisions, such as the
First, Third, Fourth, and Fifth Amendments.161 Justice Douglas,
writing for the majority, explained:
The foregoing cases suggest that specific guarantees in the Bill
of Rights
have penumbras, formed by emanations from those guarantees that
help
give them life and substance. Various guarantees create zones of
privacy
. . . . These cases bear witness that the right of privacy which
presses for
154 Tanya K. Hernndez, The Property of Death, 60 U. PITT. L.
REV. 971, 976 (1999) (quoting
John Christman, Introduction to THE INNER CITADEL: ESSAYS ON
INDIVIDUAL AUTONOMY 3, 18
(John Christman ed., 1989)). 155 See generally CHEMERINSKY,
supra note 29, at 83376 (discussing longstanding
constitutional issues surrounding personal autonomy and
protection of Medicare decisions). 156 See Kamisar, supra note 30,
at 76162. 157 See, e.g., HOW TO DIE IN OREGON, supra note 72. 158
See generally Susan Frelich Appleton, Assisted Suicide and
Reproductive Freedom: Exploring
Some Connections, 76 WASH. U. L.Q. 15, 15 (1998) (discussing the
connections between the right
to physician aid-in-dying and reproductive freedoms). 159
CHEMERINSKY, supra note 29, at 876. 160 See, e.g., Washington v.
Glucksberg, 521 U.S. 702, 702 (1997); Brief of the Washington
State Psychological Association et al. as Amici Curiae
Supporting Respondents at 67,
Washington v. Glucksberg, 521 U.S. 702 (1997) (Nos. 96-110 &
95-1858). 161 381 U.S. 479, 48485 (1965). Jack Kevorkian, the
infamous Dr. Death, argued that the
right to die existed in the penumbras of the Ninth Amendment.
See KEVORKIAN, supra note
14.
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2014 Losing the Qual i ty o f L i f e 363
recognition here is a legitimate one.162
The decision to request life-ending medication is a private
choice.163 Patients should legally be allowed to make the decision
and keep physician aid-in-dying as an option without taking matters
into their own handswhere the patients decision to end their own
life will most likely be unregulated, performed in a dangerous
manner, and potentially cloaked with guilt and shame.164
Switzerlands law is unique because it focuses on whether the
aid-in-dying is for selfish or altruistic reasons.165 Moreover,
prosecution follows if doubts are raised on the patients competence
to make an autonomous choice.166 The altruistic-versus-selfish
motive for assisting suicide is an important distinction.167
Opponents argue that physicians are assisting patients suicide by
prescribing the life-ending medication and advancing a pro-death
agenda.168 The physicians role in society, the argument
162 Griswold, 381 U.S. at 48485 (holding that the Connecticut
law criminalizing
contraceptive use violated the right to privacy by prohibiting
married couples from using
them); see also Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)
(If the right of privacy means
anything, it is the right of the individual, married or single,
to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a
person as the decision
whether to bear or beget a child.). 163 Cf. Mark C. Niles, Ninth
Amendment Adjudication: An Alternative to Substantive Due
Process Analysis of Personal Autonomy Rights, 48 UCLA L. REV.
85, 12324 (2000) (contending that
under a Ninth Amendment analysis, any government action that
significantly burdens personal
autonomy should be deemed unconstitutional for violating the
right to privacy). 164 See, e.g., Helman, supra note 19. In a story
reported in the Boston Globe, Lester Angell,
an independent spirit, a civil engineer and conservative
Republican who believed in self-
reliance, and who lived outside Orlando, developed prostate
cancer, which metastasized and
caused him great pain. Id. He underwent treatment and made it
through a few years. Id. Then
on March 14, 1988, at age 81, he fell as he tried to enter his
bedroom. Id. His wife could not lift
him, so she called the EMTs who helped him into bed. Id. The
EMTs planned to return in the
morning and bring him to the hospital for evaluation. Id. Angell
subsequently used a pistol to
end his life, fearing that it was the last night that he would
be in control of his own fate. Id. 165 See Abstracts, 18 ISSUES L.
& MED. 293, 293 (2003) [hereinafter Abstracts] (summarizing
Samia A. Hurst & Alex Mauron, Assisted Suicide and
Euthanasia in Switzerland: Allowing a Role for
Non-Physicians, 326 BRIT. MED. J. 271 (2003)) (Article 115 of
the Swiss penal code considers
assisting suicide a crime only if the motive is selfish.). Even
further, the Swiss code does not
require the involvement of a physician, nor that the patient be
terminally ill. It only requires
that the motive be unselfish. Id. 166 Id. Resources for
palliative care in Switzerland are not yet available to all
terminally ill
patientsa concept that supports opponents who argue against
decriminalizing euthanasia,
and also against assisted suicide. Id. at 294. 167 See, e.g.,
id. at 293. 168 See Ira Byock, Why Assisted Suicide Is No Realm for
Physicians, Comment to The Shadow Side
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364 New England Law Review v. 48 | 343
continues, is a healer who protects and preserves life.169
Opponents also attribute the selfish motives behind physician
aid-in-dying to insurance companies, arguing that insurance will
pay to end a patients life but they will not pay for the patient to
live, i.e., cover medical bills for terminal-illness
treatment.170
However, the DWDAs focus is ending patients suffering and
respecting the autonomous choice to end their own lives.171 The
statutes provide safeguards to ensure that a patient is making an
informed, well thought-out decision that can be rescinded at any
time, in any manner.172
Another aspect of the DWDA, which gives credence to altruistic
motives behind physician aid-in-dying, is the fact that Oregon and
Washingtons DWDA statutes do not require the patient to notify
family members of the patients medication request.173 However, the
notification-to-family-members statutory provision sparked
controversy amongst the DWDA opponents.174 Opponents argue that
patients should be required to notify their next of kin about their
medication request because family members deserve to know.175 Yet,
opponents also argue that family members are likely to unduly
influence and coerce loved ones, forcing them to request
life-ending medication because the patients terminal illness is
considered to be a burden to the family.176 The DWDA statutes allow
patients to make the
to Assisted Suicide, FRONTLINE (Nov. 13, 2012, 9:10 PM),
http://www.pbs.org/wgbh/pages/
frontline/social-issues/suicide-plan/the-shadow-side-of-assisted-suicide/#seg1
(The
admonition against killing other people is the bedrock of
civilization.). 169 Id. 170 See Helman, supra note 19. 171 See OR.
REV. STAT. ANN 127.805(1) (West, Westlaw through 2013 Reg. and
Spec. Sess.
legislation effective through 10/8/13). Indeed, the statutory
language under the DWDA focuses
on a patients request to end his or her life in a humane and
dignified manner. Id. This
language implicitly supports the altruistic approach to
physician aid-in-dying rather than
selfish motives since the focus is on allowing one to die with
dignitynowhere is there
language basing the prescription of medication on a physicians
motives. Id. 172 See, e.g., 127.810, 127.815, 127.830, 127.840,
127.845, 127.850 (Westlaw). 173 127.835; WASH. REV. CODE ANN.
70.245.080 (West, Westlaw current with all 2013
legislation). 174 See e.g., Helman, supra note 19 (reporting the
story of Deborah O'Hara-Rusckowski, an
opponent to the DWDA, and her experience with her dying mother
who outlived the doctor's
prognosis by two years, which O'Hara-Rusckowski claims allowed
her to share one last
intimate moment with her mother); see OR. REV. STAT. ANN.
127.835 (West, Westlaw current
with 2013 Reg. and Spec. Sess. legislation effective through
10/8/13). 175 See Helman, supra note 19. 176 See id. (reporting
that opponents to the DWDA argue that a patients decision to
ingest
the medication was backed by her family and health maintenance
organization and exerted
undue influence); see also HOW TO DIE IN OREGON, supra note
72.
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choice for themselves without requiring others to weigh in on
the decision; nevertheless, if the patients wish to include family
members or friends, they are at liberty to do so.177 The DWDAs
overarching goal is to accommodate patients needs, wishes, and
desiresan altruistic motive.178 The statutory safeguards are in
place to confirm patients requests and work to ensure patients are
fully informed and aware of what they are asking.179 Patients
desires and right to personal autonomy are, and should remain, the
focus of the law.180
A. Physician Aid-in-Dying Should Not Be Limited to the
Terminally Ill
The DWDA introduces the concept of physician aid-in-dying by
limiting its availability to the terminally ill.181 But should
physician aid-in-dying be limited to the terminally ill?182
Arguably, if the DWDA included those who are not terminally ill,
the DWDA would attract more supporters.183 Janet Adkins, a
fifty-four year old who was recently diagnosed with Alzheimers
disease, became Dr. Jack Kevorkians first public assisted suicide
twenty-two years ago.184 Not only were there many negative
responses from the public, but many physicians who were familiar
with Adkins at the time of her death were also outraged.185 Adkins
was seen as a vital, athletic, engaged woman with mild dementia who
still maintained a good quality of life.186 However, Adkins
explained in a note right before her death that she did not want to
put her family through the hardship and difficulty of watching
someone they love become a complete stranger.187 As is the case
with many Alzheimers patients, Adkins was physically strong but was
losing control of her mind.188 For those afflicted with Alzheimers
disease, the capacity to
177 See HOW TO DIE IN OREGON, supra note 72. 178 See OR. REV.
STAT. ANN. 127.805 (West, Westlaw current with 2013 Reg. and Spec.
Sess.
legislation effective through 10/8/13). 179 See 127.810,
127.815, 127.830, 127.840, 127.845, 127.850 (Westlaw). 180 See HOW
TO DIE IN OREGON, supra note 72. 181 See 127.805(1) (Westlaw). 182
See, e.g., Abstracts, supra note 165 ([The Swiss penal code] does
not require the
involvement of a physician, nor that the patient be terminally
ill.). 183 See generally Bollman, supra note 50, at 412 (noting
that the law fails to consider patients
who are not terminally ill, but are in perpetual agony). 184 Soo
Borson, Confronting the End with an Unsound Mind, Comment to The
Shadow Side of
Assisted Suicide, PBS (Nov. 13, 2012, 9:10 PM),
http://www.pbs.org/wgbh/pages/front
line/social-issues/suicide-plan/the-shadow-side-of-assisted-suicide/#seg2.
185 See id. 186 Id. 187 Id. 188 Id.
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366 New England Law Review v. 48 | 343
elect for physician aid-in-dying diminishes long before the
person is technically in the diseases terminal phase because of its
psychological effects.189 Adkins knew the effects of the disease
and wanted no part of it; therefore, she chose to elect physician
aid-in-dying before she was unable to do so.190
There are many cases showing the negative effects of Alzheimers
disease and the hardships families endure when their loved ones do
not even recognize them.191 Many, like Adkins, ask to end their
lives knowing they will soon not recognize those closest to
them.192 Yet, the DWDA in Oregon and Washington are only available
to the terminally ill.193 Similarly, what about those who possess
the mental capacity to choose physician aid-in-dying, but cannot
self-administer the medication as required? In a broad sense, and
looking at the issue of physician aid-in-dying through the lens of
personal autonomy, the concept is simple: allow people the freedom
and respect of determining when their quality of life is not worth
bearing, whether because of a mental or physical
deterioration.194
VI. Do You Have More Control Over Your Life After Death?
A. A Comparison of the Law and Underlying Policy of the Law of
Wills and Its Focus on the Donors Intent: Why Cant We Treat
Individuals Life Choices Like We Treat Individuals Choices After
Death?
The Court in Washington v. Glucksberg found that the right to
physician-assisted suicide was not a fundamental right, relying
heavily on our countrys history, tradition, and its adversity to
legalizing any form of suicide.195 It, therefore, begs the
question, what established body of law comprised of centuries of
legal doctrine and practice can provide guidance
189 Id. 190 Borson, supra note 184. 191 Id. 192 See, e.g.,
Gilbert v. Florida, 487 So. 2d 1185, 1187, 1192 (Fla. Dist. Ct.
App. 1986)
(affirming conviction of defendant who shot his wife, afflicted
with Alzheimers Disease, after
defendant felt he needed to end her suffering). 193 OR. REV.
STAT. ANN. 127.805(1) (West, Westlaw current with 2013 Reg. and
Spec. Sess.
legislation effective through 10/8/13); WASH. REV. CODE ANN.
70.245.020(1) (West, Westlaw
current with all 2013 legislation). 194 See, e.g., Bollman,
supra note 50, at 412 (Bioethicists are generally committed to
the
notion that competent individuals have the right to determine
their own fates, especially with
regard to personal matters of profound individual importance, so
long as the rights of others
are not violated in the process.). 195 521 U.S. 702, 703
(1997).
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2014 Losing the Qual i ty o f L i f e 367
on how society and the courts should perceive physician
aid-in-dying?196 One potential inquiry is into the ancient law of
wills.197
The law of wills is largely statutory and based on varying state
law.198 However, states mostly agree on the basic points concerning
wills, trusts, and estates.199 Respect for the transferors (or
decedents, testators, settlors, etc.) expectations is a recurring
theme.200 At first glance this may seem like a simple concept.201
However, in the history of cases dealing with contested wills,
judges are faced with considering shifting societal norms as a
backdrop to determining the testators intent.202 Further, the
testator must possess sufficient mental capacity to execute a
will.203 Possessing sufficient mental capacity to execute a will
requires that the testator: (1) know the nature and extent of the
testators property, (2) know the persons who are the natural
objects of his bounty . . . [,] and (3) understand the disposition
being made of his property by his will.204 Those contesting a will,
however, can claim the testator was suffering from an insane
delusion or general incapacity as grounds for invalidating the
will.205 An insane delusionwhich bears on testamentary capacityis
one to which the testator adheres against all evidence and reason
to the contrary.206 For example, an Arizona court judge rejected a
testators will because he found her belief to be without foundation
or basis in fact . . . [and] her beliefs were too bizarre to be
real.207 However, what was once considered bizarre, may be
completely normal or understandable in todays society: societal
norms and expectations are ever-changing and what used to be
considered grotesquee.g., racial integration, gay marriage, or
posthumously
196 See id. 197 See generally WILLIAM M. MCGOVERN ET AL., WILLS,
TRUSTS, AND ESTATES 197200 (4th ed.
2010) (discussing the law of wills, trusts, and estates). 198
Id. at 27. 199 Id. 200 Id. at 36. 201 See id. 202 See id. at 39
(According to Blackstone, when judges find that an older decision
is most
evidently contrary to reason, they do not pretend to make a new
law, but to vindicate the old
one from misinterpretation. For if it be found that the former
decision is manifestly absurd or
unjust, it is declared, not that such a sentence was bad law,
but that it was not law.). 203 MCGOVERN ET AL., supra note 197, at
316. 204 Id. 205 See id. 206 JESSE DUKEMINIER ET AL., WILLS,
TRUSTS, AND ESTATES 168 (Vicki Been et al. eds., 8th ed.
2009). 207 In re Estate of Killen, 937 P.2d 1368, 1373 (Ariz.
Ct. App. 1996).
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368 New England Law Review v. 48 | 343
conceived childrenmay now be socially acceptable.208 Judges
should be cognizant of gray areas in what could be considered an
insane delusion or a result of undue influence, and what may be at
the forefront of a shift in societys perceived notion of acceptable
behavior.209
An illustrative case is In re Kaufmanns Will,210 decided in the
mid-1960sa time when the fight for gay rights was intensifying.211
In that case, the family of Robert Kaufmann, who suspected Kaufmann
was involved in a homosexual relationship with a man named Walter,
sued to set aside Kaufmanns will on the grounds of undue
influence.212 Kaufmann was a multimillionaire by inheritance who
sought an independent life away from his family and moved from
Washington to New York City in 1948, where he met his partner,
Walter.213 Kaufmann executed a document that gave Walter the power
a legal spouse would wield over matters concerning Kaufmans
estate.214 After two jury trials, both finding undue influence, a
majority of New Yorks appellate division agreed that there was
sufficient evidence to find undue influence, which tainted all
prior wills and gifts to Walter.215
More recent court opinions have shown that courts do not
consider the testators sexuality when analyzing undue influence.
216 Thus, a lesson can be learned upon reviewing history of case
law surrounding will contests and applied to the adjudication of
potential claims involving undue influence and physician
aid-in-dying.217 Legislatures and judiciaries must be cognizant of
shifting societal norms when grappling with arguments surrounding
physician aid-in-dying.218 Using the acceptance of gay rights as an
example,
208 Compare id. (noting that the trial court rejected an experts
opinion that although the
testator suffered from paranoid delusions, she still had
testamentary capacity), with
DUKEMINIER ET AL., supra note 206, at 73 ([I]ntestacy rights of
cohabitating partners are in
flux.). 209 See, e.g., In re Kaufmanns Will, 247 N.Y.S.2d 664,
68891 (N.Y. App. Div. 1964) (Witmer,
J., dissenting), affd, 205 N.E.2d 864 (N.Y. 1965). 210 Id. at
664. 211 See, e.g., Gay Rights Timeline, TIME,
http://www.time.com/time/interactive/
0,31813,1904681,00.html (last visited Nov. 21, 2013). In 1965, a
significant figure in the gay-rights
movement, Dr. Frank Kennedy, launched the first public protests
by gays and lesbians with a
picket line at the White House. Id. 212 DUKEMINIER, supra note
206, at 192. 213 Id. at 191. 214 Id. at 192. 215 Id. 216 See, e.g.,
Evans v. May, 923 S.W.2d 712, 714 (Tex. App. 1996) (declining to
hold that the
decedents 30-year relationship with his lifemate constituted
undue influence). 217 See, e.g., DUKEMINIER, supra note 206, at
19192. 218 See, e.g., id.
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2014 Losing the Qual i ty o f L i f e 369
as society gains more exposure to the concept of allowing
individuals to die humanely and with dignity, there is a chance
that pro-DWDA legislation will have a more substantial presence in
the vast majority of states in the future.219
Adopting the mentality of the courts attempts to adhere to
testators intentions in the law of wills could only benefit future
case law involving physician aid-in-dying.220 As this Note
discusses above, societys acceptance of physician aid-in-dying is
in its infancy.221 Changing a deeply imbedded train of thoughti.e.
committing or assisting suicide as inherently wrongtakes time.222
However, if a majority of states legalized physician aid-in-dying,
it would be important for courts to keep in mind evolving societal
norms.223 For example, if aggrieved family members brought a
lawsuit against physicians who prescribed life-ending medication
under a DWDA statute, the courts main inquiry should be whether the
decedent truly intended to take the life-ending prescription
medication without external undue influence.224 Judges unfamiliar
with the concept of physician aid-in-dying, or who are internally
conflicted about accepting the legalization of physician
aid-in-dying, nevertheless may need to yield to societys
expectations when reviewing whether a physician lawfully prescribed
medication under a DWDA.225
The law of wills also pertains to the right to impose conditions
on the disbursement of assets to beneficiaries of a will, i.e. the
dead hand control, a right ancillary to the right to pass property
to heirs.226 One could argue that courts give great deference to
decedents autonomy when they are allowed
to impose condition in their wills that may conflict with the
beneficiaries
autonomy.227 Yet, courts allow these provisions, which adhere to
the dead
219 See Span, supra note 1 (If the proponents could pass [the
DWDA] in 40-percent-
Catholic Massachusetts, theyd be running through the other
states within five years . . . .). 220 See generally MCGOVERN ET
AL., supra note 197 (explaining the functions and formalities
of wills). 221 See HOW TO DIE IN OREGON, supra note 72. 222 See
Washington v. Glucksberg, 521 U.S. 702, 703 (1997). 223 See, e.g.,
DUKEMINIER, supra note 206, at 19192. 224 See generally id. at
180200 (discussing undue influence in the context of wills). 225
See, e.g., id. at 19192. 226 See, e.g., id. at 2728. 227 See John
H. Merryman, Comment, Policy, Autonomy, and the Numerus Clausus in
Italian
and American Property Law, 12 AM. J. COMP. L. 224, 225 (1963)
(If one is to speak of individual
autonomy in property matters it is obvious that he must specify
whose autonomy is in question.
The owner of property is only one of the parties concerned. The
more power of dead hand
control he is given the less autonomy is enjoyed by subsequent
generations with respect to that
property.).
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370 New England Law Review v. 48 | 343
hand control concept.228 Apparently, the law respects a persons
wishes concerning their property and assets more than it does their
wishes concerning their own body.229
The deep-rooted law of wills can offer guidance when forecasting
potential issues surrounding future legalization of physician
aid-in-dying in the majority of states.230 The underlying principal
imposing the testators intent as a guiding force to interpreting
wills, trusts, and estate documents can, by analogy, translate into
courts adhering to individuals decisions and intent to end their
life with dignity.231
This is a broad inquiry into the potential overlap of wills,
trusts, and estates law and the laws surrounding physician
aid-in-dying.232 As with any developing area of law, new and
unforeseen issues arise.233 This section intends to invoke
discussion and compare well-established areas of law with new,
innovative lawsuch as the legalization of physician aid-in-dyingand
to compare and contrast areas of law society is accustomed
to.234
CONCLUSION
Physician aid-in-dying is not a problem, its a solution. A
solution for those whose quality of lifefor one reason or
anotherdiminished to a point where it is unbearable to continue
living and the will to die dominates. The Federal Government has
not enacted assisted-suicide laws.235 These laws are generally
proposed at the state level.236 Four states rightfully chose to
respect an individuals choice by permitting their citizens to keep
control at the end of their lives, leaving forty-six states and
D.C. that refuse their citizens the freedom to die with dignity.237
It is an individual decisionnot
228 See, e.g., Shapira v. Union Natl Bank, 315 N.E.2d 825, 832
(1974) (holding that
conditions in testators will are reasonable restrictions upon
marriage, and valid). 229 Cf. RESTATEMENT (THIRD) OF PROPERTY 10.1
(2003). 230 See generally MCGOVERN ET AL., supra note 197
(discussing the law of wills). 231 See HOW TO DIE IN OREGON, supra
note 72. 232 See generally MCGOVERN ET AL., supra note 197
(providing an overview of the law of
wills, estates, and trusts). 233 See HOW TO DIE IN OREGON, supra
note 72 (portraying various issues associated with a
patient exercising his or her right to physician aid-in-dying
under Oregons Death with Dignity
Act). 234 See id. 235 State-by-State Guide to Physician-Assisted
Suicide, PROCON (last updated on May 28, 2013),
http://euthanasia.procon.org/view.resource.php?resourceID=000132.
236 Id. 237 Moreover, states that criminalize physician-assisted
suicide impose penalties ranging
from felonies to charges of manslaughter. See State-by-State
Guide to Physician-Assisted Suicide,
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2014 Losing the Qual i ty o f L i f e 371
that of the church, government, or any other person. Religious
leaders and affiliates should not abuse their freedom-of-religion
rights by intruding on personal autonomy rights of others. It is a
personal decision, which the law should recognize and respect.
PROCON (last updated on May 28, 2013),
http://euthanasia.procon.org/view.resource.php?
resourceID=000132.