This column first appeared in the San Antonio Express News on April 6, 2018.
Dear Mr. Premack: I have lived here in Texas my whole life and am a strong conservative who believes that government should stay out of my business. Too bad for me, I’ve been diagnosed with a degenerative terminal illness. When I asked my doctor about making a choice for myself about ending my life before I lose all my capabilities, the doctor said the government was in this most personal of my business and that it is not legal for her to assist me to end my life. I don’t want to damage my family – they all understand my position as I haven’t been quiet about it – but I just can’t understand how it is illegal for a person to decide about controlling the timing of their own death. Any thoughts? – O.S.
Historically, assisted suicide has been illegal and even considered immoral. No matter what the individual’s suffering, unless the individual was willing to violently end their own life (a course not guaranteed to succeed) they had to suffer the entire course of their disease before death arrived naturally. That is still the law in Texas.
In contrast, a growing number of states have recognized that a competent yet terminally ill person should have the right to avoid personal suffering, to minimize family suffering, and to end their life with dignity. In Oregon, Washington, California, Colorado, Vermont, the District of Columbia, and (starting in 2019) Hawaii, Death with Dignity (DWD) is legal. Additionally, Montana allows DWD under the Baxter v. Montana court ruling.
Those state’s DWD laws exempt licensed physicians and pharmacists from civil or criminal liability when they dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient in compliance with the law. Doctors in Montana do not have the same clear liability shield as doctors in the statutory states.
DWD laws have faced a constant uphill battle. The Oregon Death with Dignity Act was challenged but found by courts to be valid. Later, in the case Vacco v. Quill the U.S. Supreme Court decided there is no Constitutional right to assisted suicide, but that states are free to determine their own policies on the issue. Even later, the law was challenged by then U.S. Attorney General John Ashcroft. He declared the use of controlled substances to assist suicide was not a legitimate medical practice and prescribing them for this purpose was unlawful under the Controlled Substances Act. Eventually the U.S. Supreme Court ruled against Ashcroft and held that doctors may prescribe regulated drugs for use in physician-assisted suicide when authorized by state law.
Texas does not yet recognize DWD. The Texas Advance Directives Act “does not condone, authorize, or approve mercy killing or permit an affirmative or deliberate act or omission to end life except to permit the natural process of dying…” Texas law does, however, allow withholding or withdrawing life support under a properly written Directive to Physicians, honoring a do-not-resuscitate order, and declining to receive medical treatments even though that choice may result in death.
Texas allows passive withdrawal of support but does not allow active intervention to hasten death. It is legal in Texas to refuse medical interventions so nature takes its course. It is illegal in Texas to use medical intervention to bring death sooner than it would have naturally occurred. Further information about self-determination and changing Texas law can be found at www.texasdeathwithdignity.org.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.