End of Life Decisions – A Fundamental Right?

Tara Silk – Albany Government Law Review

I. Introduction

            The cancer diagnoses of two young women recently debated in the media have shown a spotlight on the government’s control involving very personal medical decisions.[1] The two cases are different in that one involved the law actively making a teenage girl get treatment[2] and the other examined what limitations the law can place on choices that individuals can make when treatment is no longer effective.[3] While the medical decisions made by the women are inherently personal in nature, they are still controlled by law, and due to existing rules, both are unable to carry out their wishes exactly as they would want.[4] This may seem like an area in which the law should not be so restrictive—is not the right to die the most essential liberty interest that should be protected by the Fourteenth Amendment?

II. Two Women’s Decisions

A. Brittany Maynard

The young woman Brittany Maynard captured media attention in the fall of 2014 by her public decision to choose to end her life on her own terms.[5] Diagnosed with brain cancer on New Year’s Day 2014, the twenty-nine-year-old at first sought treatment.[6] She had a partial craniotomy and a partial resection of her temporal lobe.[7] Sadly, even after the radical surgery, her tumor came back, and she was diagnosed with stage four glioblastoma.[8] She was given a prognosis of six months to live.[9] Facing a reality that there was no treatment for her and that she potentially faced an excruciating debilitative and painful progression as a result of her tumor,[10] Maynard made a deliberative decision to pursue ‘death with dignity’, an option that allows a patient to get a prescription for life-ending medication that can be taken by the patient when he or she chooses.[11] Maynard took the medication and passed way on November 1, 2014.[12]

 B. Current Law

Maynard made her decision very public in an attempt to advocate for ‘death with dignity’ an option she was able to choose, but one that is not always available to others suffering in similar situations.[13] While it has been established that one of the liberties granted to Americans by the Fourteenth Amendment is the right for a competent adult to refuse life sustaining treatment,[14] affirmative action to ends one’s life is not.[15] Organizations fighting for physician assisted suicide have be around for over thirty years,[16] yet as of November 2014 only Oregon, Washington, Vermont, Montana, and New Mexico allow patients to get this assistance.[17] Maynard herself, originally not a resident of one of these five states, had to go through the ordeal of moving and establishing residency in Oregon, a process that required resources that she argued not everyone who need this option have.[18] In 1994, Oregon was the first state to allow ‘Death with Dignity’, an act voted in by its residents.[19] The Act contains very specific restrictions on who qualifies and how one is able to go about getting the medication prescription.[20] While there may be concerns of misuse, since 1997 1,173 patients in Oregon have received prescriptions with 752 dying after taking the medication,[21] these are not numbers that would suggest abuse.

Maynard’s advocacy is making a difference in galvanizing other states to allow for similar assistance in dying.[22] In early January 2015, Maynard’s original home state of California put forth a potential bill that would allow terminally ill patients with six months to live to get a lethal prescription from a physician.[23] While in previous years similar bills had been put forward in the state and failed, Maynard’s story may be the factor that makes a difference this time.[24] New York, in January 2015, also introduced a new bill that would allow for a similar legal right for a terminal patient to obtain medication to aid in the dying process.[25]

C. Cassandra C.

This January 2015, the story of another young woman with cancer was in the headlines, seventeen-year-old Cassandra C.[26] The Connecticut resident had been diagnosed with Hodgkin’s lymphoma in September and did not want to receive chemotherapy treatment. Cassandra’s mother was in agreement with her daughter’s decision stating that, “‘even years ago- [Cassandra] said that if ever she had cancer . . . she would not put poison into her body’”.[27] Cassandra and her mother missed appointments that resulted in the state Department of Children and Families to get involved.[28] While Cassandra’s mother stated in an interview that “‘[i]t’s her [Cassandra’s] body, and she should not be forced to do anything with her body”, that was not the way the law saw the issue.[29] The Connecticut Supreme Court on January 8th, 2015 ruled that the minor must continue to receive chemotherapy treatment, a treatment that would give the girl an eighty-five percent chance of survival, but without which she would likely die within two years.[30]

D. Current Law

At seventeen Cassandra is considered a minor in the eyes of the law. While competent adults are constitutionally allowed to refuse medical treatment,[31] that same choice for minors is not as clear.[32] Cassandra’s case was the first time Connecticut Supreme Court examined the “mature minor doctrine” according to Cassandra’s attorney.[33] The Court ruled that Cassandra at trial failed to show that she was mature to make her own medical decisions.[34]

The question remains, should a court get to dictate that one has to get treatment? In September 2015 Cassandra will be eighteen[35] and then she will be able to make her own decisions regarding any medical intervention. How much of a change in maturity will she undergo in seven months? The decision by the Court in this case may seem like the logical one given that Cassandra’s type of cancer is statistically very treatable,[36] but chemotherapy treatment is not without its risks.[37] While many of the side effects of chemotherapy discontinue when treatment ends, there can be some serious ones that may not occur until after treatment is over.[38]   These can include long lasting consequences like heart problems, kidney problems, infertility, or even the risk of a second cancer.[39] Should the government be able to make someone take treatment when that can result in the same outcome the individual already is suffering from?

III.            Conclusion

In Cassandra’s case, the law dictated that she must receive treatment even when she did not want it.[40] For Brittany Maynard, she had to leave California because the treatment she sought was illegal there.[41] Freedom is synonymous with the American life. Yet, when it comes to what some would say is the most basic of liberties, the right to control one’s own medical decisions, the law as it stands would not let these two women make the decision they wanted. The Supreme Court agrees to at least some extent that medical decisions are “deeply personal” and part of a “patient’s liberty,”[42] but that liberty is qualified. When given the opportunity to say the same for doctor assisted suicide, the argument was made that the government did not consider it a fundamental right.[43] Minors’ freedom to make their own medical decisions is also limited.[44] Given these two restrictions, what may seem, at its heart, a freedom issue, one’s potential end of life choices, can, under current laws, be not much of a personal decision.

[1] See Associated Press [AP], Brittany Maynard, 29, Kills Herself Under Oregon’s ‘Death with Dignity’ Law, The Guardian (Nov. 3, 2014), http://www.theguardian.com/us-news/2014/nov/03/terminally-ill-oregon-death-with-dignity-brittany-maynard; Dave Collins, Connecticut Court to Hear Case of Teen Refusing Chemotherapy, Yahoo.com (Jan. 6, 2015), http://news.yahoo.com/connecticut-court-hear-case-teen-refusing-chemotherapy-164746613.html.

[2] Collins, supra note 1.

[3] See AP, supra note 1.

[4] See id.; Collins, supra note 1.

[5] AP, supra note 1.

[6] Brittany Maynard, My Right to Death with Dignity at 29, CNN.com, http://www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/ (last updated Nov. 2, 2014).

[7] Id.           

[8] Lindsey Bever, Cancer Patient Brittany Maynard, 29, has Scheduled her Death for Nov. 1, Wash. Post (Oct. 8, 2014), http://www.washingtonpost.com/news/morning-mix/wp/2014/10/08/terminally-ill-brittany-maynard-29-has-scheduled-her-death-for-nov-1/.

[9] Id.

[10] Maynard, supra note 6 (“[D]octors prescribed full brain radiation. . . . [and] [m]y scalp would be left covered with first-degree burns. My quality of life, as I knew it, would be gone . . . . But even with palliative medication, I could develop potentially morphine-resistant pain and suffer personality changes and verbal, cognitive and motor loss of virtually any kind.”).

[11] Id.

[12] Catherine E. Shoichet, Brittany Maynard, Advocate for ‘Death with Dignity,’ Dies, CNN.com, http://www.cnn.com/2014/11/02/health/oregon-brittany-maynard/index.html (last updated Nov. 3, 2014) (emphasis added).

[13] See AP, supra note 1 (only five states allow assistance in dying).

[14] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278, 279 (1990).

[15] See Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[16] Sarah Childress, The Evolution of America’s Right-to-Die Movement, PBS.org (Nov. 13, 2012, 9:12 PM). http://www.pbs.org/wgbh/pages/frontline/social-issues/suicide-plan/the-evolution-of-americas-right-to-die-movement/ (the first right to die organization in the U.S. was the Hemlock Society founded in 1980 by Derek Humphry).

[17] AP, supra note 1.

[18] See Maynard, supra note 6 (“[E]stablishing residency in the state to make use of the law required a monumental number of changes. I had to find new physicians, establish residency in Portland, search for a new home, . . . my husband, Dan, had to take a leave of absence from his job. The vast majority of families do not have the flexibility, resources and time to make all these changes.”).

[19] Childress, supra note 16.

[20] See Oregon Death with Dignity Act, Or. Rev. Stat. § 127.800–127.897 (2015).

[21] Oregon’s Death with Dignity Act – 2013, Public.Health.Oregon.Gov (last visited Jan. 23, 2015), http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year16.pdf.

[22] See, e.g., The Times Editorial Board, Editorial Californians Deserve the Right to Die with Dignity, LA Times (Jan. 19, 2015), http://www.latimes.com/opinion/editorials/la-ed-right-to-die-legislation-california-20150120-story.html.

[23] Id.

[24] Id.

[25] H.R. 2129, 238th Gen. Assemb., Reg. Sess. (N.Y. 2015), available at http://assembly.state.ny.us/leg/?default­_fld=&bn=A02129&term=&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y.

[26] Collins, supra note 1.

[27] Id. 

[28] Associated Press [AP], Conn. Supreme Court Rules Teen Can’t Refuse Chemo, NECN, http://www.necn.com/news/new-england/State-Supreme-Court-Hears-Arguments-in-Teen-Chemotherapy-Case-Cassandra-Connecticut-287933331.html (last updated Jan. 9, 2015)

[29] Elizabeth A. Harris, Connecticut Teenager with Cancer Loses Court Fight to Refuse Chemotherapy, N.Y. Times, Jan. 9, 2015, http://www.nytimes.com/2015/01/10/nyregion/connecticut-teenager-with-cancer-loses-court-fight-to-refuse-chemotherapy.html?_r=0.

[30] Id.

[31] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278-79 (1990).

[32] Doriane Lambelet Coleman & Philip M. Rosoff, The Legal Authority of Mature Minors to Consent to General Medical Treatment, 131 Pediatrics 786, 790–91 (2013) (different states’ laws regulate what type of consent minors can give).

[33] Collins, supra note 1.

[34] Harris, supra note 29.

[35] AP, supra note 28.

[36] Id.

[37] Chemotherapy, Mayo Clinic, http://www.mayoclinic.org/tests-procedures/chemotherapy/basics/risks/prc-20023578 (last visited Jan. 23, 2015).

[38] Id.

[39] Id.

[40] Harris, supra note 29.

[41] See The Times Editorial Board, supra note 22.

[42] See Cruzan v. Dir., Mo. Dep’t of Health, 497 US 261, 289 (1990) (ruling that the Fourteenth Amendment allowed one to refuse medical intervention).

[43] See Washington v. Glucksberg, 521 US 702, 728 (1997).

[44] See Coleman & Rosoff, supra note 32.