Medical Aid in Dying: Time for Evidence-Based Legislation
Pictured: Doctor holding elderly patient’s hands.
By Thaddeus Mason Pope, JD, PhD
This article originally appeared on kevinmd.com and is reprinted with the author’s permission.
Medical aid in dying (MAID) is poised to be one of the hottest political healthcare issues of 2024. As in 2023, more than a dozen states will hold both impassioned hearings in legislative chambers and equally fervent debates in the community. Already, nearly twenty states have introduced bills to authorize MAID this year. They seek to join the eleven states that already authorize MAID for 73 million Americans (California, Colorado, District of Columbia, Hawaii, Maine, Montana, New Mexico, Oregon, Vermont, and Washington).
All these new bills are closely patterned on the 1994 Oregon Death with Dignity Act. On the one hand, this makes sense. The Oregon model has a solid patient safety track record and has served as a template for other U.S. and foreign laws. On the other hand, such feckless duplication is inexpedient. Many sponsors of the 2024 bills have taken a too-simplistic “copy and paste” approach. The Oregon model is dated. Over the past 30 years old, states have made significant innovations and amendments to their MAID statutes.
Accordingly, prospective states drafting their first MAID legislation should gather and consider more recent data and evidence. They should evaluate how MAID has been working in more than 100 years of combined experience in the existing 11 states. They should evaluate whether safeguards in the original Oregon model are still appropriate and effective. And they should examine innovations in other states and consider whether those changes are worth adopting.
“One innovation is permitting non-physician professionals. For decades, only physicians could provide MAID. But it became increasingly obvious that this limited access. Especially in rural areas, physicians weren’t always available. So, when New Mexico enacted its MAID statute in 2021, it also authorized advanced practice registered nurses and physician assistants to provide MAID. In 2023, Hawaii and Washington followed suit. Prospective states should consider authorizing not only physicians but also APRNs and PAs.”
A second innovation is shortening or waiving waiting periods. One of the traditional safeguards in U.S. MAID statutes required that the patient make two separate oral requests, the second after a waiting period of at least 15 days. The rationale was to permit patients to calmly reflect and deliberate about their decision. But decades of experience with MAID shows that many patients cannot wait that long. Since many patients don’t seriously consider MAID until the late stages of their illness, they either die or lose decision-making capacity before the end of the 15-day period. In short, the waiting period frequently constitutes an undue burden.
In response, several states have either shortened or waived the waiting period. Both California and New Mexico reduced their waiting periods from 15 days to 48 hours. Hawaii, Vermont, and Washington also reduced their waiting periods. A pending New Jersey bill proposes similar reductions. In addition to, or instead of, shortening the waiting period, some states exempt patients from having to satisfy the waiting period, however long it is, when the patient isn’t expected to survive that period. New Mexico, and Oregon, have already enacted such waiver laws. Prospective MAID states should consider this too.
A third innovation is removing the residency requirement. Traditionally, states limited MAID to their own residents. Many patients have been able to satisfy these residency requirements by, for example, briefly renting an apartment in the MAID jurisdiction. But while surmountable, residency requirements still pose an obstacle. Consequently, physicians and patients brought federal lawsuits challenging residency requirements in Oregon and Vermont as violating the privileges and immunities clause of the U.S. Constitution. After settling the lawsuits, those states removed the residency requirement. That opened the door to patients traveling to Oregon and Vermont for MAID from other states. A new lawsuit is proceeding in New Jersey. Prospective MAID states should consider whether they should (or constitutionally can) limit healthcare services to their own residents.
North Carolina House of Representatives, North Carolina General Assembly, Raleigh, North Carolina
Admittedly, some states are undertaking a more careful and deliberate examination of MAID legislation. In January 2024, a task force of the New York State Bar Association published a 60-page report assessing various policy approaches for the legislature. North Carolina legislation calls on its state Institute of Medicine to study “developments in MAID legislation.” And in March 2024, a major academic conference in Salt Lake City will compare leading approaches to regulating MAID.
We now have a substantial and growing body of evidence on the effectiveness of different models of MAID legislation. More states should evaluate this evidence when crafting their own legislation.
Pictured: Professor Thaddeus Mason Pope. Photo Credit: Mitchell Hamline School of Law
Thaddeus Mason Pope is a health law professor and author of Right to Die: Law of End-of-Life Decision Making and Voluntarily Stopping Eating and Drinking: A Compassionate, Widely Available Option for Hastening Death.