by Jennifer Popik, JD, Robert Powell Center for Medical Ethics

Earlier this month, Hawaii Death With Dignity, a group which promotes doctor-prescribed death, held a meeting at their state capital announcing Hawaii was the 4th state to legalize assisted suicide. This is flat-out incorrect on several grounds.

First, assisted suicide has been specifically legalized in only two states– Oregon and Washington. In addition, due to a 2010 court decision in Montana, a physician there who aided in a suicide would, at a criminal or civil trial, be allowed to try to claim that the victim consented.

Second, despite well over one hundred legislative efforts, pro-assisted suicide forces have yet to be successful in any state legislature. They have come close to victory many times, even in Hawaii, but have thus far only been successful using two ballot initiative campaigns. So why would Hawaii Death With Dignity announce the state had suddenly legalized doctor prescribed death?

Surely the group was not referring to its huge loss in 2011. A Hawaii legislative panel unanimously voted down a bill that would have legalized physician-assisted following 4½ hours of testimony overwhelmingly against the proposal – mainly from disability rights advocates. Further, if physician assisted suicide is “already legal” in Hawaii, why have suicide law proponents been trying to pass this kind of legislation in the state for well over a decade? There was no legislative victory; there was no ballot initiative. What they relied on was an over 100-year-old arcane statute dealing with pain relief options.

A provision of the Hawaii Revised Statute [§ 453-1] states that “When a duly licensed physician or osteopathic physician pronounces a person affected with any disease hopeless and beyond recovery and gives a written certificate to that effect to the person affected or the person’s attendant nothing herein shall forbid any person from giving or furnishing any remedial agent or measure when so requested by or on behalf of the affected person.” Originally added in 1909, the provision had the purpose of allowing dying patients the option of obtaining therapy that had not yet been approved by the government.

Even if one were somehow able to stretch one’s imagination to conclude that a statute aimed at helping people get alternative pain therapy intended that the patient die, there is a simpler answer. Under Hawaii’s very active, and very real manslaughter statute [§ 707-702], a person is guilty of manslaughter if the “person intentionally causes another person to commit suicide.”

So why does Hawaii Death With Dignity rely on the 1909 provision? This sort of approach gives the pro-doctor prescribed death people what they are really after. The whole time that the national parent organization, Compassion and Choices, goes state-by- state attempting to lobby for assisted suicide, its typical approach is to promote the Oregon style law, one that contains so-called “safeguards.” These include mainly superficial requirements, including having a diagnosed terminal illness, making two separate requests, residency, reporting, and giving some lip service to competency.

How can the Death With Dignity promoters have it both ways? If this 1909 statute were really the basis for assisted suicide, then there would be none of the safeguards they claim to embrace. This echoes the behavior on display in Montana.

After one of the lower courts rendered a pro-assisted suicide decision that gave no guidance as to safeguards, Kathryn Tucker, the legal director for Compassion and Choices said lawmakers shouldn’t feel the need to pass any legislation, adding, “There are some guidelines. It’s not a free-for-all.”

In fact, had that decision stood, it would have been a “free for all.” If the 1909 statute made assisted suicide legal, which it does not, then Hawaii would quickly become a breeding ground for abuse of those at the worst time in their lives – those who are sick and contemplating suicide.

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