New Jersey Statehouse

In July 2015, we advocated passage of the "NJ Death with Dignity Act." In September 2018, we advocated passage of a second iteration of the 2015 bill, although we noted two deficiencies. It provided no relief to those whose physical condition makes it impossible to "self-administer" a lethal drug. It also failed to provide relief to those afflicted with a condition that is unbearable and unrecoverable but about whom the medical profession could not predict death within six months. Our objections were unaddressed in the statute that ultimately passed.

At present, physician-assisted suicide is legal in nine states and the District of Columbia. New York has such a bill pending since 2015. No state allows euthanasia in an advanced health care directive. A competent person may prospectively refuse medical treatment in an advanced health care directive, but one cannot, at present, legally authorize one's death by enlisting the aid of another.

A trial in the Netherlands recently reported in The New York Times illustrates the issue. In October 2012, the patient learned that she had Alzheimer's dementia. Shortly thereafter, she signed a written euthanasia request that included a dementia clause. In 2015, she signed a revised dementia clause. She often and for many years discussed her euthanasia wish with her husband and doctor.

The patient's doctor, defendant in the suit, obtained the opinion of two independent doctors on the patient's condition. Both were SCEN doctors, which in the Netherlands is a special designation for Support and Consultation in Euthanasia. After contact with and observation of the patient, they determined that the euthanasia request met all legal requirements. On April 22, 2016, the defendant doctor ended the patient's life and reported that she had done so to the municipal coroner.

The court framed the issue: Does the physician have a duty to verify the current desire for life or death of an incapacitated, deeply demented patient in order to speak of a voluntary, well-considered request for euthanasia? It ruled no, because of a Dutch law providing: "If a patient aged sixteen or over who is no longer capable of expressing his will, but before reaching this state was deemed capable of making a reasonable appraisal of his own interests, has made a written declaration requesting that his life be terminated, the attending physician may comply with this request."

To be sure, there were procedural requirements. The doctor must be satisfied the request was voluntary and carefully considered when made; that the patient's suffering was unbearable, and that there was no prospect of improvement; that the patient was informed about her situation and prospects; and that she, together with at least one other, independent physician, who must have seen the patient and given a written opinion that these due care criteria had been satisfied, came to the conclusion, together with the patient, that there was no reasonable alternative in the light of the patient's situation. The court concluded that the defendant doctor satisfied those conditions and acquitted her.

There are cases in which a person has no more valuable life to look forward to, valuable by their judgment, not valuable by somebody else's judgment imposing on them the idea that their life is still worthwhile, even though they, having thought the matter through—perhaps having thought it through for many years. As Supreme Court Justice William Brennan said in his dissent in Cruzan, "An ignoble end steeped in decay is abhorrent." Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).

The state's involvements with end-of-life decisions is an increasingly pressing issue. The population is aging dramatically. The U.S. Census Bureau projects that by 2035 the elderly population will outnumber children for the first time—a demographic shift that poses a unique set of public health challenges. While modern medicine can often prolong the quantity of life, too often it cannot improve the quality of life, at least a quality of life acceptable to a very sick or disabled person. Although a considered hastened death may be too emotionally fraught for some to contemplate, in a mature and companionate society such contemplation is essential. We urge the Legislature to examine the issue.