For many years the New Jersey Legislature has been trying to enact a statute which would, in narrowly defined circumstances, insulate from criminal responsibility those who participate in hastening the death of a terminally ill patient who has expressed a contemporaneous wish to die quickly rather than to continue living with great suffering.
In January 2018, two identical bills, A-1504 and S-1072, both entitled “The New Jersey Aid in Dying for the Terminally Ill Act,” were introduced in the New Jersey Assembly and Senate respectively. When first introduced in the 2012-13 session, they were called the “Death with Dignity” bills. Although these bills passed relevant committees in each house, they never mustered enough votes to become law. Gov. Chris Christie’s 2014 declaration that he would veto any such bill obviously hindered passage. However, with a new governor in place, the proponents of the bill presently before the legislature are optimistic that their proposed statute will be enacted.
Although we were critical of certain portions of the prior bill, we advocated its passage in an editorial entitled “Pass NJ Death with Dignity Act” (NJLJ 7/17/15). Seven jurisdictions in the United States have in place assisted-dying laws restricted to terminally ill and mentally competent adults—California, Colorado, Oregon, Hawaii, Washington, Vermont and the District of Columbia. Montana has such a law as a result of a court ruling. In April and May 2018, the New York State Legislature held extensive hearings on proposed legislation similar to that presently before our legislature. The New York bill is pending enactment.
The prerequisites for ending one’s life under the proposed New Jersey statute are virtually identical to those contained in its previous drafts and, remarkedly, to those of all U.S. jurisdictions which sanction such relief. The prerequisites are many, but the statute basically requires a clear and informed decision from a person with a terminal illness competent to make the decision to end his or her life. Being “terminally ill” is defined as being in a stage of “an irreversibly fatal illness, disease, or condition with a prognosis, based upon reasonable medical certainty, of a life expectancy of six months or less.” The legislation provides protocols for that person to reconsider at any time before the final act which will result in death.
Of course, a competent person can opt to deny food and medical treatment at any time. Although the consequence of withholding treatment will certainly be death, its coming may be long and unnecessarily painful. Anticipating incompetency, one can opt to go without life- sustaining treatment under certain conditions with an advance directive denominating the condition under which one wants no life-prolonging care. The proposed statute provides a lawful method to speed one’s death whether one has executed an advance directive or not.
In our prior editorial on the subject, we found two difficulties with the failed Death with Dignity Act. Both remain unaddressed in its present incarnation. First, that the drug which is the agent that facilitates death must be “self-administer[ed].” Therefore, those whose physical condition makes it impossible to “self-administer” get no relief. The second is that those afflicted with a condition that is unbearable but about whom the medical profession cannot predict death within six months get no relief either.
Aid in Dying for the Terminally Ill is characterized as an assisted suicide, not a euthanasia, statute. The main difference between assisted suicide and euthanasia seems to be that in assisted-suicide, the patient is in complete control of the process that leads to death because he or she is the person who performs the final act that results in death. Another person simply helps (for example, by providing the means for carrying out the action, such as furnishing, but not administering, the lethal medication). In a euthanasia scenario, another person, such as a doctor or nurse, can administer a lethal injection without adverse legal consequences. Although we support the passage of the Aid in Dying for the Terminally Ill Act, we do not think it goes far enough. We urge its modification to relieve suffering by offering the choice of an early death to the terminally ill who do not fall within its ambit.
Huntington’s disease (HD) is a fatal genetic disorder that causes the progressive breakdown of nerve cells in the brain. It deteriorates a person’s physical and mental abilities. In ALS, unlike Huntington’s disease, the brain is last to be affected. However, in both disorders, voluntary muscle action is progressively lost. There is currently no cure for either or any way to stop each from getting worse. Both are always fatal, although ALS patients might choose to have a ventilator which artificially breathes for them and which may delay death. It has been estimated that 30,000 people in the United States are currently afflicted with HD and that as many as 20,000 have ALS at any given time. Although the life expectancy of an ALS patient averages about two to five years from the time of diagnosis, those with HD can live in a degenerating state for around 20 years following the onset of visible symptoms.
Aid in Dying for the Terminally Ill laws cannot bring relief to those unable to bring about their death by relying solely on their physical ability to do so. They need help. Euthanasia obviates some of our objections. As of March 2018, the Netherlands, Belgium, Columbia, Luxenberg, Canada and India have legalized euthanasia.
In July 2016, Canada, for example, passed an enlightened end-of-life law. There are many procedural prerequisites to come within its law. To avail oneself of its benefits, one must have “a serious and incurable illness, disease or disability” in an advanced state of irreversible decline. Further, “that illness, disease or disability or that state of decline [must] cause[ ] them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable.” Finally, that “their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.” We endorse the Canadian position and its obvious humanity.
We fully understand that few of us choose to think about planning how and when we will die. The instinct to survive is part of our DNA. Some in the religious community strongly believe that life and death decisions are in God’s hands alone, and therefore oppose any legislation which suggests otherwise. Some in the disabled community oppose such laws because they fear they will be used by caregivers or financial supporters to pressure disabled people to lighten the burden of caring for them by acceding to an early death.
We also understand that in history, some evildoers have engaged in euthanasia for the most egregious reasons and in a most inhumane fashion. For many, the mere word triggers a negative emotional response. Nonetheless, in a well-ordered and compassionate world, there is an important place for its availability. A well-thought-out statutory protocol for its utilization when strictly enforced is essential to achieving its salutatory purpose.
We believe the choice of whether to live or die under circumstances where an individual has no quality of life and no reasonable hope of obtaining one rests solely with the person who is suffering yet competent to make that choice. Obviously, the state has an interest that the process not be abused. However, as one witness in the New York hearing considering its proposed law asked, “What right has a healthy person to tell me that I should live in sustained suffering with no reasonable hope of relief until someone divines that I will die within six more months?”