Legality of U.S. Physician Aid-in-Dying

It struck
me, yesterday, that much of the legal work of Compassion
& Choices is not about changing
the law but more about clarifying that
the existing law (already) does not prohibit physician aid-in-dying.  Here
are four examples:

1.    
In Hawaii and New Mexico, (as earlier in Connecticut) the argument
is basically that any criminal prohibition on "assisted suicide" does
not extend to a physician's lethal prescription for a competent terminally ill
patient.  That conduct does not constitute "assisted suicide" as
that term is defined under the criminal code.

2.    
In Montana, Baxter already clarified, in 2009,
that PAD does not violate public policy and would not constitute a crime if the
patient consents.  But clinicians want more clarity: guidelines, explicit
safe harbor immunity.  Current statutory efforts are aimed at elucidating
what is already legal (but arguably not yet very practically effective).

3.    
The California Right to Know End of Life Options Act merely
codifies what was already a legal informed consent duty.
 A California physician must disclose all information that a reasonable
patient in the patient's situation would find material.  A terminally ill
patient's end-of-life options surely constitute significant information for
that patient.  Yet, again, that does not mean the law is useless.  It
serves an important clarifying and highlighting function.

    

4.    
VSED is legal in all U.S. jurisdictions, at
least for a contemporaneous request from a capacitated patient.  But the
widespread perception (especially among long term care providers) is that
assisting VSED may trigger criminal and regulatory sanctions.  So, again,
the focus is on clarifying that the law does not actually prohibit (and even
requires) assisting VSED.

Poisoning
or dehydrating another person is normally a crime.  But when (1) a
clinician does this (2) for a terminally ill patient (3) with that patient's consent,
then it is not a crime.  This reminds me of a powerful scene in Frost/Nixon when
Nixon says "when the President does it, that means it's not illegal."