A federal lawsuit filed Thursday seeks to open up Oregon’s medical-aid-in-dying law to residents from other states.
The national advocacy organization Compassion & Choices and an OHSU professor of family medicine have filed the suit, alleging the Oregon Death with Dignity Act’s residency requirement violates the U.S. Constitution.
The lawsuit could have broad implications as the first challenge in the nation to raise the question of whether such residency requirements are constitutional, according to two legal experts.
Oregon was the first state to legalize medical aid in dying in 1997, when it allowed adult residents with a terminal diagnosis and prognosis of six months or less to live to end their lives by taking a lethal dose of prescribed medication.
Its statute formed the backbone of the laws that have since been adopted in eight other states and Washington, DC. Washington, California, Colorado, Hawai’i, Maine, New Jersey, New Mexico and Vermont allow aid in dying for residents of their states only.
The lawsuit was filed in US District Court in Portland against Gov. Kate Brown, Attorney General Ellen Rosenblum and a number of other officials.
The suit asks the court to prohibit Oregon officials from enforcing the residency provision of the law.
It claims the residency requirement violates the Privileges and Immunities Clause in Article IV of the Constitution and the Commerce Clause in Article I.
The plaintiff in the case, Dr. Nick Gideonse, is a family practice and palliative care doctor and associate professor of family medicine at OHSU.
“I’ve been providing medical aid in dying since the early days of Oregon’s law. It’s profoundly beneficial to patients who have nothing left but suffering at the end of their life,” Gideonse said.
In addition to his work at OHSU, Gideonse sees patients at Blue Mountain Hospital in John Day and Kindred Hospice in the Salem and Portland metro area. Many of his regular patients are residents of Washington state, in particular Clark County. According to the lawsuit, Gideonse has treated at least 17 Washington patients in the past year.
Washington also allows medical aid in dying, but Gideonse cannot offer his Washington patients medical aid in dying without risking his medical license or criminal prosecution.
“I have patients who are Washington residents currently. They’ve been my patients, some of them, for decades,” Gideonse said.
“I may have diagnosed their terminal illness, or managed their care so far, and they should have the freedom to approach the doctor who knows them best to access medical aid in dying, just as they would any other service.”
Gideonse said the residency requirement made sense when Oregon was the only state in the nation that allowed medical aid in dying, but the justification for it has weakened as more states have passed similar laws. He believes other safeguards in the law — waiting periods, multiple verbal requests and a written requests from the patient, as well as review by a second doctor — are adequate to protect patients from abuse of the law.
Kevin Diaz, the chief legal and advocacy officer for compassion and choices, said the constitutional challenge to the residency requirement is the first of its kind in the end of life health care arena, but there is U.S. Supreme Court precedent in a case involving abortion and in other cases that require states to provide health care and benefits to out of state visitors.
“The differential treatment between resident and nonresident patients established by the Death with Dignity Act is just not necessary to achieve any substantial state interest and therefore we believe it is unconstitutional,” Diaz said.
Bill Funk, a constitutional law expert and professor emeritus at Lewis and Clark College who is not affiliated with the lawsuit, said the plaintiffs have a very strong claim under the privileges and immunities clause of the Constitution.
“There’s all sorts of states where cases have tried to impose laws to keep people from coming into their state because they’ll get a benefit from it, and the Supreme Court has left and right knocked those down,” he said.
Funk said the state could try to argue that medical aid in dying doesn’t constitute standard medical care — but that could prove challenging given the Oregon’s history of defending the Death with Dignity Act against federal challenges in the 1990s.
In a statement, Oregon’s attorney general defended the Death with Dignity Act without commenting on the plaintiff’s constitutional claims, or whether the state plans to defend the residency requirement.
“The law has served Oregonians well in its 24 years of existence. It is compassionate and careful in its requirements,” Rosenblum said. “We will review this lawsuit, as we always do, before commenting officially on its merits. But, I certainly will go on record as a supporter of making it possible for those who live in Oregon to be able to avail themselves of the law.”
This is a breaking news story that will be updated.