Amicus Curiae Brief — Gonzales v. Oregon

[Supreme Court US

ors nie

JUL 20 2005

No. 04-623

E CLERK

IN THE

Supreme Court of the United States

ALBERTO R. GONZALES, Attorney General, et al.,

Petitioners,

V.

STATE OF OREGON, et ai.,

Respondents.

On WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Brier OF Amici CuRIAE SURVIVING FAMILY MEMBERS

IN SUPPORT OF RESPONDENTS

Rosert A. FREE

Counsel of Record

KATRIN E. FRANK

MacDOoNALD HoaGuE & BAyLess

1500 Hoge Building

705 Second Avenue

Seattle, WA 98104

(206) 622-1604

Attorneys for Amici Curiae

Surviving Family Members

195453 ce

SS

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ............ ll

I. STATEMENT OF AMICI CURIAE ....... l

Il. SUMMARY OF ARGUMENT ........... 5

Ii]. THE ATTORNEY GENERAL’S CONCLU-

SION THAT. OREGON’S LAW AUTHORIZES

ILLEGITIMATE MEDICAL PRACTICES

AND THREATENS THE PUBLIC HEALTH

AND SAFETY IS ARBITRARY AND

PY 4006 suedednsacensuuakuds 6

A. The Declarations of Survivors Whose

Family Members Utilized Oregon’s Law

Demonstrate the Legitimate Public

Interest and Public Health and Safety

Concerns Served by the Death with

RON. Sok cancisuccoumeeaiul 7

B. The Declarations of Survivors Whose

Family Members Could Not Utilize

Oregon’s Law Demonstrate the

Legitimate Public Interest and Public

Health and Safety Concerns Served by the

Death with Dignity Act. ............ 15

Pe GEE o's webb Vide Maadecencauas 23

ii

TABLE OF CITED AUTHORITIES

Cases:

Chevron USA v. Natural Resources Defense Council,

467 U.S. 837 (1984) 2... ccc wccevevcecescees

Northwest Natural Gas Co. v. Portland, 300 Ore. 291

CURED vc vcccccucscccesesvecsescesesuceess

Washington v. Glucksberg, 521 U.S. 702 (1997) ...

Webster v. Reproductive Health Services, 492 U.S.

490, 106 L. Ed. 2d 410, 109 S. Ct. 3040 (1989)

ee SS OSESESOSHRESSEADUESEESSCUVIASOCOSESVIeewVers

Statute:

21 U.S.C. § 823(F(S) .. 2... cece eee eee eeeeee

Other Authorities:

Battin, M.P., The Least Worst Death (1994) ......

Block, Susan D., Patient's Request to Hasten Death,

154 Archives Internal Med. 2039 (1994) ......

Burnell, George M., Final Choices: To Live or to

Die in an Age of Medical Technology (1993) ...

Chevron USA v. Natural Resources Defense Council,

467 U.S. 837 (1984) 20... .. cece eee eee eee

Compassion in Dying v. State of Washington, 79 F.3d

790 (9th Cir. 1996), rev’d. Washington v.

Glucksberg, 521 U.S. 702 (1997) .......500::

Page

me

ili

Cited Authorities

Page

Farnsworth, C., Vancouver AIDS Suicides Botched,

“N.Y. Times,” June 14,1994 ................ 5,19

Fifth Annual Report on Oregon's Death with Dignity

Act, Oregon Dept. of Human Services, Office of

Disease Prevention and Epidemiology (Mar. 6,

ECs ee debebbseeeecdsedvcceoeee 14

Fourth Annual Report on Oregon's Death with Dignity

Act, Dept. of Human Services, Oregon Health Div.,

Center for Disease Prevention and Epidemiology

hs os cas cuidecsdces 14

Hedberg, Katrina, et al., Five Years of Legal

Physician-Assisted Suicide in Oregon, 348 New

mg. J. Rlod. 961 (2003) ... 0. ccc cccccccces 14

Jamison, Stephen, Ph.D., Final Acts of Love:

Families, Friends, and Assisted Dying 169 (1995)

DMA eNeeheebbee sd obebeeeoscesceeecéa 5, 24

Kolata, G., AIDS Patients Seek Solace in Suicide But

Many Risk Added Pain in Failure, “N.Y. Times,”

June 14, 1994

Lavery, James V., et al., Origins of the Desire for

Euthanasia and Assisted Suicide in People With

HIV-1 or AIDS: A Qualitative Study, LANCET,

Vol. 358, No. 9279 (Aug. 4, 2001)

iv

Cited Authorities

Lavery, James V., et al., Desire for Physician-Assisted

Suicide: Requests for a Better Death?,

Commentary, LANCET, Vol. 358, No. 9729

GIBGED oc cccccccccccccsocescccvcsscecceees

Mayo, D. and Gunderson, M.., Vitalism Revitalized:

Vulnerable Populations, Prejudice, and Physician-

Assisted Death, The Hastings Center Report

(July-Aug. 2002, pp. 14-21) ......-.---eeeee

Nuland, Sherwin B., How We Die: Reflections on

Life's Final Chapter (1994) .......0-0eeee08

Oregon's Death With Dignity Act: The First Year's

Experience, Dept. of Human Resources, Oregon

Health Div., Center for Disease Prevention and

Epidemiology (Feb. 18, 1999) ..........++++-

Oregon's Death With Dignity Act: The Second Year s

Experience, Dept. of Human Services, Oregon

Health Div., Center for Disease Prevention and

Epidemiology (Feb. 23, 2000) ...........+++-

Oregon's Death With Dignity Act: Three Years of

Legalized Physician-Assisted Suicide, Dept. of

Human Services, Oregon Health Div., Center for

Disease Prevention and Epidemiology (Feb. 22,

SEED cccccccccccccvevcesesevcncosessaest

Quill, Timothy E., Death and Dignity: Making

Choices and Taking Charge (1993) ...........

Quill, Timothy E., A Case of Individualized Decision-

making, 324 New Eng. J. Med. 691 (1991) .....

Page

10

4

14

mo

Vv

Cited Authorities

Page

Quill, Timothy E., A Midwife Throu

i gh The Dyin

POE Kdiiiccacdhetilécisncc reds :. 15, 23

Rachels, James, The End of Life (1986)

Rollin, Betty, Last Wish (1985) ................ 5

Seventh Annual Report on Oregon's Death With

Dignity Act, Oregon Dept. of Human Services,

Office of Disease Prevention and Epidemiology

GE OEE evduscnscesecsatedbucusceds 14

Shavelson, Lonny, A Chosen Death: The Dying

Confront Assisted Suicide 677 (1995) ........ 5, 19, 24

Singer, Peter, Rethinking Life and Death (1994) .. 5

Sixth Annual Report on Oregon's Death With Dignity

Act, Oregon Dept. of Human Services, Office of

Disease Prevention and Epidemiology (Mar. 10,

MET Agdebeundecwndeceebanwslinetuaenas 14

Solomon, A., A Death of One's Own, “The New

Yorker,” May 22, 1995 5,19

Sullivan, Amy D. et al., Legalized Physician-Assisted

Suicide in Oregon 1998-2000, 344 New Eng.

PUP éébnéeocenedaseckshscacc, 14

The New York State Task Force on Life and the Law,

When Death is Sought: Assisted Suicide and

Euthanasia in the Medical Context 40 (1994) .. 7

——

l

I. STATEMENT OF AMICI CURIAE

The amici curiae is composed of 17 distinct individuals —

not an organization, a religious group, or a group of politicians. '

The amici consists of six family members of individuals who

experienced the positive aspects of physician-assisted dying

under Oregon’s Death with Dignity Act and eleven family

members of individuals who experienced unnecessarily painful,

traumatic deaths in the absence of physician-assisted dying.

They submit this Brief in support of Plaintiffs’ effort to preserve

the rights afforded them by Oregon’s Death with Dignity Act

(“ODWDA”).? The family members’ are the voices of their

deceased loved ones, describing for the Court the differing

realities of what happens to families when a competent,

terminally-ill person is granted or forbidden the choice of a

hastened death. The individual experiences present the Court

' This brief has been authored in its entirety by undersigned counsel

for the amici curiae. No person or entity, other than the named amici

and their counsel, made any monetary contribution to the preparation

and submission of this brief. The parties have consented to the filing of

this brief and their letters of consent are deing lodged herewith.

? Consideration by the Court of statements similar to those filed

herein are not without precedent. In Webster v. Reproductive Health

Services, 492 U.S. 490, 106 L. Ed. 2d 410, 109 S. Ct. 3040 (1989), an

amicus brief filed with and considered by the U.S. Supreme Court,

entitled “Women Who Have Had Abortions, et al.,” included declarations

by numerous women who had experienced legal and illegal abortions.

More recently, the Ninth Circuit and the U.S. Supreme Court considered

the arguments and declarations of surviving family members of

individuals suffering from terminal illnesses who hastened their own

deaths, some resulting in tragedy because physician assistance was

unavailable. See Compassion in Dying v. State of Washington, 79 F.3d

790, 834 n. 126 (9th Cir. 1996); Washington v. Glucksberg, 521 U.S.

702 (1997). As in Webster, Compassion in Dying, and Glucksberg, the

declarations filed here contain relevant first-hand information by persons

intimately familiar with the issues presented to the Court.

> The term “family member” includes spouses, children, parents, a

cousin, and one partner involved in a close personal relationship.

2

with the emotional resonance of dying with and without

physician assistance to hasten the process. In each case, the dying

person strongly desired to hasten his or her impending death.

Contrary to the Attorney General’s contention, none was

depressed. Some were successful in hastening death without

the benefit of the provisions for a humane death provided by

the ODWDA - they used plastic bags or chese guns. Some died

slowly but “naturally,” in agony and without dignity. Those who

could use the Oregon Act died when and how they wanted, under

medical care, peacefully, with loved ones present. The

perspective of persons who have had recent experience with

this issue is relevant and necessary to the Court’s proper and

full consideration.

Declarations of the 17 family members were attached

as appendices to their amici brief filed in the Ninth Circuit.

The group includes the following who wanted to hasten their

death but who did not have the benefit of Oregon’s Death with

Dignity Act:

* a widow whose husband of 25 years shot himself in

their front yard in order to end his debilitating pain

(App. 1) (“App.” numbers reference the appendices

filed by amici at the Ninth Circuit);

* adaughter whose father shot himself in bed, with his

wife sleeping in the next room, rather than endure the

nausea, vomiting, and excruciating pain resulting from

his prostate cancer (App. 2);

* a daughter whose father asphyxiated himself with

carbon monoxide poisoning from a charcoal grill in

his bedroom, rather than suffer debilitating weakness

and suffocation from end-stage emphysema (App. 3);

¢ a daughter whose father, dying of lung cancer, went

down to his basement and shot himself with a 12-gauge

shotgun, knowing it was illegal for his family members

to assist in a suicide (App. 4)

3

a daughter whose mother was wasted by cancer to a

mere 60 pounds before she swallowed morphine

(App. 5);

a son whose mother suffered from ALS (Lou Gehrig’s

disease), losing the ability to walk, talk, breathe calmly,

eat whole foods, and go to the bathroom and who felt

this disease was worse than her experience in the

Holocaust because she was so alone in her agony

(App. 6);

the life partner of a man who died a painful death from

AIDS in 1995, who wanted to hasten his death but

could not because it was not then legal in Oregon (the

partner, who now has late-stage AIDS, has received

medication to hasten his death under Oregon’s law)

(App. 7);

a daughter whose mother was dying from throat cancer

and suffering from grand mal seizures (causing her head

to swell up like a balloon); the mother decided to stop

hydration and food because it was the only method of

hastening death in which her physician would assist

(App. 8);

a daughter whose father lay dying, diapered, moaning

in pain and begging to die, while the doctor refused

morphine because it could kill him (App. 9);

a son who was criminally prosecuted for helping his

88-year old father, dying of cancer, hold a plastic bag

over his head (App. 10); and

a mother who struggled to medically assist her 26 year

old daughter to die, because a doctor’s help was not

available (App 11).

4

In juxtaposition to these horrific deaths, the declarants also

include six whose family members were able to utilize the Death

with Dignity Act. This group includes:

¢ a daughter whose mother utilized the ODWDA to

hasten her impending death and died surrounded by

her five children, their spouses, her sister, her nephew,

and her long-time personal physician, peacefully

looking out over the Willamette River, in a room filled

with love (App. 12);

* a husband whose wife of 25 years chose a hastened

death rather than lingering under heavier and heavier

doses of morphine treating her lung cancer pain and

suffocating from the fluid in her lungs; with full support

from her family, her clergyperson, her primary doctor,

and other caregivers, she chose to hasten her death

under the ODWDA (App. 13);

* a husband whose wife died under the ODWDA with

her immediate family, a close friend, and two volunteers

from Compassion in Dying of Oregon at her side — she

died quickly and peacefully after saying goodbye to

her loved ones, rather than continuing to suffer from

pancreatic cancer, which had resulted in diabetes,

physical debilitation, and moderately severe

Parkinsonian-type tremors (App. 14);

* a woman whose relative wrote two days before she

died, which was the day before Thanksgiving: “On

Thanksgiving, I hope everyone in my family will take

time to feel thankful that I live in Oregon and have the

means to escape this cancer before it gets any worse. I

love you all.” (App. 15);

* a widow whose husband died a few hours before

obtaining the medication under the ODWDA that could

end his life — who died in peace because he knew he

finally had control over his life and death (App. 16);

5

* a daughter whose father died with his dignity in tact

because he knew that under the ODWDA he had been

approved to obtain medication to hasten his death (App.

17); and

The survivors are among a significant number of Americans

who have witnessed loved ones die.* They give their names and

sacrifice their privacy and that of their families to preserve their

liberty and the liberty of others who are terminally ill and wish

to die with dignity. With the combined personal experiences of

this group, the amici has a profound interest in this litigation.

Il. SUMMARY OF ARGUMENT

The amici support the District Court’s and Court of Appeals’

decision and counter the Attorney General’s erroneous

contention that permitting physicians to prescribe medication

to hasten death, in certain limited situations, threatens the public

* Various sources recount experiences of hundreds of Americans

similar to the experiences of the 18 representative family members.

M. Battin, The Least Worst Death (1994); G. Burnell, Final Choices:

To Live or to Die in an Age of Medical Technology (1993); C. Farnsworth,

Vancouver AIDS Suicides Botched, N.Y. Times, June 14, 1994 at C12;

S. Jamison, Final Acts of Love (1995); G Kolata, AIDS Patients Seek

Solace in Suicide But Many Risk Added Pain in Failure, N.Y. Times,

June 14, 1994 at C1; S. Nuland, How We Die: Reflections on Life’s

Final Chapter (1994); T. Quill, Death and Dignity: Making Choices

and Taking Charge (1993); T. Quill, A Midwife Through the Dying

Process (1996); J. Rachels, The End of Life (1986); B. Rollin, Last Wish

(1985); L. Shavelson, A Chosen Death: The Dying Confront Assisted

Suicide (1995); P. Singer, Rethinking Life and Death (1994); A. Solomon,

A Death of One's Own, “The New Yorker,” May 22, 1995 at 54; James V.

Lavery et al., Origins of the Desire for Euthanasia and Assisted Suicide

in People With HIV-1 or AIDS: A Qualitative Study, LANCET, Vol. 358,

No. 9279 (Aug. 4, 2001); James V. Lavery et al., Desire for Physician-

Assisted Suicide: Requests for a Better Death?, Commentary, LANCET,

Vol. 358, No. 9729 (2001); Susan D. Block, Patient's Request to Hasten

Death, 154 Archives Internal Med. 2039 (1994); Timothy Quill, A Case

of Individualized Decision-making, 324 New Eng. J. Med. 691, 694

(1991).

6

health and safety. The experiences of the survivors recounting

the positive aspects of having a physician assist in a hastened

death demonstrate the important legitimate public interest and

public health and safety concerns served by the Oregon law.

The accounts of the survivors whose family members were

deprived of the legal choice to obtain medical assistance to

hasten death illustrate the tragic and enduring consequences of

denying such freedom. The declarations reveal that Oregon’s

approach reduces the tragic consequences that flow from violent

suicides, from failed attempts to commit suicide, from subjecting

compassionate family members who assist in suicide to criminal

liability, and from prolonging physical and emotional suffering

of terminally-ill patients.

Ill. THE ATTORNEY GENERAL’S CONCLUSION

THAT OREGON’S LAW AUTHORIZES ILLEGI-

TIMATE MEDICAL PRACTICES AND THREATENS

THE PUBLIC HEALTH AND SAFETY IS

ARBITRARY AND CAPRICIOUS

The Courts below found that Congress did not intend the

Controlled Substances Act (“CSA”) to override a state’s decision

concerning what constitutes legitimate medical practices. Amici

supports this conclusion. However, if this Court fi. “s that the

Attorney General does have authority under the CS _ to define

what constitutes legitimate medical practices, then the Attorney

General’s conclusion that the ODWDA authorizes illegitimate

medical practices is an arbitrary and capricious conclusion. The

Supreme Court has determined that agency interpretations,

directories, and regulations are “given controlling weight unless

they are arbitrary, capricious, or manifestly contrary to the

statute.” Chevron USA v. Natural Resources Defense Council,

467 U.S. 837, 843 (1984).

The Attorney General argues that the CSA authorizes him

to prevent physicians from legally prescribing controlled

substances if he determines that it would be against the public

interest and threatening to the public health and safety. The

7

CSA does authorize the Attorney General, in making that public

interest determination, to consider “[s]uch other conduct which

may threaten the public health and safety.” 21 U.S.C. § 823(f)(5).

The crux of the Attorney General’s position is that Oregon’s

law threatens the public health and safety.

The Attorney General’s position is refuted by the

declarations of the Surviving Family Members, is not supported

by other rational argument, and is therefore arbitrary and

Capricious.

A. The Declarations of Survivors Whose Family

Members Utilized Oregon’s Law Demonstrate the

Legitimate Public Interest and Public Health and

Safety Concerns Served by the Death with Dignity

Act.

The ODWDA serves the public interest in several important

ways that are well within the police power of the state to promote.

Northwest Natural Gas Co. v. Portland, 300 Ore. 291, 297

(1985) (noting that the state has police power to ensure health

and safety of the public). The individual experiences of several

of the amici surviving family members illustrate one or more of

the following important contributions made by the ODWDA:

* The ODWDA relieves severe and prolonged

suffering of some dying patients who would prefer

death:°

* Despite new advances in pain treatment, an “irreducible core of

patients are trapped in physical agony (if they are awake).” Kreimer, 44

Am. U.L. Rev. at 831, n.93. Pain cannot be controlled in 5% to 10% of

cases. The New York State Task Force on Life and the Law, When Death

is Sought: Assisted Suicide and Euthanasia in the Medical Context 40,

n. 18 (1994). Often, controlling pain sacrifices the patient’s

cor sciousness, which “is tantamount to causing death; the patient has

no further conscious experience and thus can achieve no goods,

experience no significant communication, satisfy no goals.” M.P. Battin,

supra, at 105.

8

Alvin Davis describes his wife’s choice to utilize

the ODWDA:

“It is possible to endure a great deal of pain and

discomfort if one feels there is a purpose in doing

so — that there may be a ‘light at the end of the

tunnel.’ But when Norma learned from her

oncologist early in July, 2001 that she had at most

a few more weeks left to live, she decided she

would prefer death on her own terms to a

continuing, futile struggle ending in helplessness

and misery. . . . [I]n those cases where the patient

is suffering greatly and wishes to terminate his

or her life before losing the ability to control what

might happen, then the attempt by society to deny

that right is, I believe, unspeakably cruel and

arrogant.” (App. 14)

Robert Schwartz, suffering from late stage AIDS,

has already obtained medication under the

ODWDA rather than endure the pain suffered by

his late partner:

“During his final months [Roger] suffered from

shortness of breath, full body pain, viral load of

over one-million, CD4 count of less than 5 and

general discomfort. He constantly said he had no

relief from his medication. He also experienced

temperature disregulation which caused him to

be hot all of the time and he never found relief

from it... . In my case I was diagnosed with HIV

in the 1980s and I now have late stage AIDS.

I completed the process under Oregon’s Death

with Dignity Act and now have the lethal dose of

medication to hasten my death. I do not know if I

will take the medication, but knowing I have it

available affords me great comfort and ease of

mind. I only wish Oregon’s law was available to

9

Roger. He may not have died the tragic death he

did if he had the legal option to hasten his death.”

(App. 7)

The ODWDA promotes public safety and order by

averting violent, ghastly, and often unsuccessful

efforts to hasten impending death by patients who

previously could not make use of the ODWDA:

Tania Bloom writes of her father’s death by

gunshot:

“My son-in-law had the unfortunate and

unpleasant task of cleaning my father’s splattered

brains off the basement walls. This memory lives

with him to this day. . . . If Oregon's law had been

in effect in Washington my father’s tragic and

violent death could have been avoided.”

(App. 4)

Dr. Marcia Angell, M.D., a lecturer at Harvard,

writes about her father’s gunshot death:

“If physician-assisted-dying had been available

to my father, as it is to the people of Oregon, I

have no doubt that he would have chosen a less

violent and lonely death. My mother could have

been brought around to accepting his decision,

death could have been peaceful, and his family

could have been with him. If he knew he had the

option to get help in ending his life at any time in

the future, he probably would have chosen to live

longer. That night would not have been his last

chance.” (App. 2)

10

¢ The ODWDA provides safeguards that ensure a

decision to hasten death is made knowingly,

voluntarily, and with proper medical advice and

assistance after due consideration’:

¢ Scott Rice was involved in his wife’s utilization

of the ODWDA in 2000:

“She went through an extensive screening process

over a two-week period which involved her having

three sessions with her primary doctor, an

interview with the chief of ethics of our HMO,

and the review by a second doctor outside the

HMO. There was no doubt from anyone that she

was competent and not depressed. Her treatment

options were discussed and reviewed with her over

and over again. She was given assistance with

hospice care and pain management. We were

encouraged to share her decision with our family

members, which we did. We also took time to

discuss her desires with her clergy person. After

each meeting and discussion Colleen '’s resolve to

hasten her death strengthened.” (App. 13)

¢ The ODWDA advances the public interest in

protecting families by relieving family members of

the pressure to assist their loved ones to hasten death

illegally:

¢ Julie McMurchie writes about her mother, who

utilized the ODWDA:

6 See D. Mayo and M. Gunderson, Vitalism Revitalized: Vulnerable

Populations, Prejudice, and Physician-Assisted Death, The Hastings

Center Report (July-Aug. 2002, pp. 14-21). This paper refutes the

argument that ODWDA is not in the best interest of people with

disabilities, as posited by organizations such as Not Dead Yet. The risk

of coercion is already present in states other than Oregon and arguments

against ODWDA deny that people with disabilities are capable of

choosing intelligently and authentically.

11

“Tam proud to have supported my mother in the

final deliberate act she had in her life... Oregon’s

law gave my family and me something special and

it allowed my mother to die with dignity and

grace.” (App. 12)

Patty Rosen helped her daughter die in Oregon,

before the ODWDA took effect:

“If Oregon's law had been in effect at the time of

my daughter s death she would not have had to

endure the long, anguishing months of pain and

suffering caused by her cancer. She would not

have had to add to her pain by worrying about

whether I might be punished for assisting her. I

too would not have had to agonize for months

over whether to assist her. If Oregon's law had

been in effect in 1986 my daughter 's dying would

have been free from fear. I know in my heart she

would have chosen to use Oregon's law and our

family would have been at her bedside sharing

all our love without fear of prosecution.”

(App. 11)

The ODWDA protects the dignity, privacy, and

autonomy of patients:

Scott Rice writes:

“If my wife had not been able to access her right

to die with dignity under the law because her

physicians feared they would be prosecuted, her

rights would have been taken away from her

without recourse and she would have died a

terrible death — one that she did not want to

experience and that no one should have to

experience. She did not want that for herself or

for us who would have had to stand by watching

her drown in her own fluid.” (App. 13)

12

Julie McMurchie writes about her mother’s

decision to utilize the ODWDA:

“She often said that she feared the loss of control

over her life and that when she started the process

to use Oregon's law she found a great deal of

comfort and ease of mind. She would often talk

about her sister s death, which was an agonizingly

long and painful death because her sister, who

was unable to use Oregons law because she was

not a resident of Oregon. My mother vowed she

would not go through the same dying process as

did her sister.” (App. 12)

Beverly Heitz describes the benefits of the

ODWDA even though her husband died a few

hours before obtaining the prescribed medication:

“While I wish Arnie had started the process

sooner so that he could fulfill his wish, I am

convinced Arnie was helped tremendously just

knowing assisted suicide was an option for him.

Arnie 's daughter also saw a change in her father

after he knew a prescription would be written for

him under the law. He talked more about his death

and he asked her to take care of me. He told his

daughter that he knew he didn t have control over

anything else anymore, but at least he had control

over his death. Others told me that after Arnie

knew he would get his prescription he found peace

of mind because he wanted control over his life

and death. ... Arnie’ decision to use the law

profoundly affected my life. Arnie was a very

special person and the bravest man I think God

ever put on this earth. He taught me a lot about

acceptance and a lot about ‘letting go, ' although

I'm still stumbling through all of it.” (App. 16)

13

* Sue Parks Hilden discusses her father’s utilization

of the ODWDA:

“He often told me that he found great comfort

going through the process of obtaining the

medication. He said it was very useful and gave

him ease of mind. It always gave his family, in

particular me, time with him that I might not have

otherwise have had. He almost completed the

process of getting the medication before he died.

He did not have the medication in his possession

on the day he died, but he died peacefully at home

surrounded by his family.” (App. 17)

* Laura Boessenroth describes what her relative told

her about her decision to utilize the ODWDA:

“She told me she was very relieved to know that

the law would be available to her because, now

that her death was eminent. She told me she was

relieved about her decision to consider using

Oregon s law to facilitate a dignified end to her

agony. She was ecstatic to be able to have present

medical personnel present at her death who would

monitor the process, offer comfort and their

expertise. She was ‘happy’ with her plan, and

because her life had been reduced to few truly

happy moments, she considered the opportunity

to have this small amount of control and peace of

mind to be a gift to her and all who loved her.”

(App. 15)

Defendant has failed to provide any evidence of how the

physicians or decedents who since 1997 utilized and complied

with Oregon’s law have threatened the public health and safety.

There is no evidence that someone’s hastened death was not

voluntary or was under duress. There is no evidence that

someone’s hastened death occurred when the underlying illness

was not terminal. There is no evidence that someone hastened

14

death because he or she was depressed or lacked knowledge

about ameliorating pain. To the contrary, the declarations of

surviving family members of patients who utilized Oregon's

law are evidence that doctors and patients who complied with

Oregon’s law were able to achieve desired peaceful and dignified

deaths, immeasurably helping both the dying persons and their

family members and hurting no one.’

It will benefit all Americans to permit Oregon to continue

experimenting with this vital question facing every human: how

to die in peace and dignity. Citizens may disagree about the

issue, but that does not mean that Oregon’s position threatens

the public health and safety.

’ See Oregon s Death With Dignity Act: The First Year s Experience,

Dept. of Human Services, Oregon Health Div., Center for Disease

Prevention and Epidemiology (Feb. 18, 1999); Oregon's Death With

Dignity Act: The Second Year's Experience, Dept. of Human Services,

Oregon Health Div., Center for Disease Prevention and Epidemiology

(Feb. 23, 2000); Oregon's Death With Dignity Act: Three Years of

Legalized Physician-Assisted Suicide, Dept. of Human Services, Oregon

Health Div., Center for Disease Prevention and Epidemiology (Feb. 22,

2001); Fourth Annual Report on Oregon's Death with Dignity Act, Dept.

of Human Services, Oregon Health Div., Center for Disease Prevention

and Epidemiology (Feb. 6, 2002); see also Amy D. Sullivan et al.,

Legalized Physician-Assisted Suicide in Oregon 1998-2000, 344

New Eng. J. Med. 605 (2001). Fifth Annual Report on Oregon's Death

with Dignity Act, Oregon Dept. of Human Services, Office of Disease

Prevention and Epidemiology (Mar. 6, 2003); Sixth Annual Report on

Oregon's Death with Dignity Act, Oregon Dept. of Human Services,

Office of Disease Prevention and Epidemiology (Mar. 10, 2004); Seventh

Annual Report on Oregon's Death with Dignity Act, Oregon Dept. of

Human Services, Office of Disease Prevention and Epidemiology (Mar.

10, 2005); see also Katrina Hedberg et al., Five Years of Legal Physician-

Assisted Suicide in Oregon, 348 New Eng. J. Med. 961 (2003).

15

B. The Declarations of Survivors Whose Family

Members Could Not Utilize Oregon’s Law

Demonstrate the Legitimate Public Interest and

Public Health and Safety Concerns Served by the

Death with Dignity Act.

Several declarations of amici establish that the Oregon Act

works as intended and that prior to its enactment real people

suffered real harm that could not be alleviated by medication or

therapy. The individual experiences of surviving family

members illustrate one or more of the following harms to the

public interest that the position of the United States would inflict

by effectively reinstating the law in existence before the passage

of Oregon’s Death with Dignity Act:

* Prior law resulted in untold pain, agony, and

suffering for some dying patients who would prefer

death; a slow, debilitating death is often

accompanied by a profound loss of dignity and sense

of self. *

¢ Stewart Florsheim describes his mother’s

condition shortly before her death:

“During the course of the disease [ALS/Lou

Gehrig’s disease], my mother suffered greatly.

Over a short period of time, she lost the ability to

walk and to swallow whole foods. Breathing

became more and more difficult, as the muscles

in her chest weakened. She used a Bi-Pap machine

to assist her breathing. When that no longer was

effective, the doctor recommended that she stop

using the machine, and step up the dose of

morphine to calm her breathing. At the end, she

* T. Quill, A Midwife Through the Dying Process (1996) at 197

(“Often, doctors undermedicate dying patients’ pain or shortness of breath

because of the legal risks [both exaggerated and real] associated with

overmedicating.”)

16

started to lose her ability to talk. She became

increasingly anxious because she felt as if she

were suffocating. Because eating became a chore,

she lost interest in food and became thin as a rail.

That — in combination with the morphine — made

her so constipated that her nurse had to come in

many times to evacuate her bowels by hand. It

was so painful to her that she screamed out...

Toward the end of her life, she said that having

this disease was worse than going through the

Holocaust because she was alone in her agony.

No one could really know how much she suffered.”

(App. 6)

Leanne Gallison describes her mother’s lung

cancer:

“Sharp pains developed in her chest and her

spine. Terrifying episodes of shortness of breath

increased. Chemotherapy made her horribly ill,

nauseated around the clock. At this time, she

began to have seizures. Tumors were discovered

in her brain. Radiation was added to treat her

brain but this resulted in my mother becoming

completely flattened with no stamina, no energy...

On her bad days, she would ask me, ‘How am I

going to get out of here?’ And, ‘I want to go, and

I want to go NOW!’ She weighed about 60

pounds.” (App. 5)

Linda Kilcrease and her four siblings watched

their mother die from throat cancer:

“We watched as her head blew up like a balloon,

forcing her eyes closed, when the blood first began

to back-up and could not drain. We watched as

her heart beat so hard and fast, nearly ripping

through her chest, trying to get blood into her

head. The hospital staff gave us heartbeat and

17

blood pressure monitors, and we watched the wild

fluctuations in vital statistics. We learned how to

position Mom’ head so her heart would calm

down. We watched her change from a robust

woman into a shriveled-up skeleton... It was

torture for everyone, but especially for Mom...

Those who say that pain medication and

psychiatric help is all that is needed to help

someone facing death have it all wrong. Neither

would be of any use to my mother.” (App. 8)

Gail Bereny could not obtain help for her father’s

pain:

“My fathers pain was severe and unrelenting.

Almost worse was his loss of dignity. As my father

lay dying he was completely lucid and aware that

he was diapered, weak, and needed help for even

basic tasks. Dignity was very important to him,

and the fact that he knew what was going on was

terrible. He moaned in pain, begging to die. I

called the doctor s office, crying, begging him to

relieve Dads pain. He refused, saying morphine

would kill him.” (App. 9)

Prior law caused some patients to choose a violent,

often gruesome manner of hastening death; these

acts are generally committed alone, without family

present.

Patsy McGeorge was in the house when her

husband shot himself outside:

“Mac did not want to be a sedated vegetable.

Following an almost 24 hour drugged stupor, he

decided that was not the answer. . . . After a brief

and very personal conversation, he gave me the

note he had carried for months, attesting to the

fact that his decision was his own; kissed me

18

goodbye; went into the front yard; put a shotgun

in his mouth and pulled the trigger. Since a

peaceful death was not available, this was his way

to insure death with the dignity he valued so

highly. Two months later I was emotionally

wrenched by finding a portion of his upper dental

plate 50 feet from the site of his death —a testament

to the violent alternative he was forced to

choose... I wish I could have been with him at the

end, but he said no, ‘it will be messy.’(App. 1)

Dr. Angell describes her father’s suicide:

“At the time my father killed himself, he was living

with my mother near Orlando, Florida. My

mother was a housewife who had always been

dependent on him. Now it was the other way

around. The day before his death, he fell while

walking from the bed to the bathroom. My mother

was unable to lift him, so she called the emergency

medical technicians. They lifted him onto the bed

and said they would return the next day to take

him to the hospital to make certain he had not

fractured a bone. I believe he decided to kill

himself that night because it might be his last

chance to do it. He had always kept a pistol in his

bedside table. If he went to the hospital the next

day, he would be without it and he might never

again have the option of ending his own life. My

mother was sleeping in the next room, and had to

bear the shock of finding his body. If he had told

her of his intentions, she would have stopped him,

as she later told me. So he did not tell her. Later,

I could see from the trajectory of the bullet that

he had turned in such a way that the bullet could

not have gone through the wall and harmed her.”

(App. 2)

19

* Leslie Ghan discovered her father after his suicide:

“He discussed his desire to hasten his death with

me on several occasions and I did not know how

to advise him. Starving himself did not seem like

an easy or peaceful option. He believed that his

doctor would not assist him in any way. My father

decided to take matters into his own hands. He

went out with great difficulty and with his oxygen

and bought a charcoal grill and charcoal. He

assembled the grill and put it in his bedroom. Then

he sealed the windows and door and lit the

charcoal and lay down on the bed. I knew nothing

about this plan. I went to his home the next day

because he did not answer his phone and found a

note on the table that said I should not go into

the bedroom. I was shaking and crying and called

the police. The coroner said he died of carbon

monoxide poisoning and that it was probably a

peaceful death. I will never forget that he had to

do this all alone, that I couldnt be there.”

(App. 3)

* Prior law resulted in the failure of some attempts

to hasten death, due to the absence of trained

medical care — sometimes leaving the patient in

worse condition than before the attempt. °

* L. Shavelson, supra, at 126 (“From safer sleeping pills to air bags

in cars, science had made killing yourself without professional help a

tremendously difficult task — and a mission fraught with the potential

for ghastly errors.”) See C. Farnsworth, Vancouver AIDS Suicides

Botched, “N.Y. Times,” June 14, 1994 at C12 (of 34 assisted suicides

studied in Vancouver, B.C. [which, similar to the U.S., bans physician

assisted suicide], half were “botched, increasing suffering when the aim

was to alleviate it.”); Andrew Solomon, A Death of One's Own, “The

New Yorker,” May 22, 1995, at 57

I heard of suicides as grueling as the diseases they were meant

(Cont'd)

20

Prior law resulted in some family members feeling

compelled to assist their loved ones to hasten death,

with concomitant fear and hiding, guilt, and

occasional criminal investigation and prosecution.

¢ William Meyer describes his prosecution for his

involvement in his father’s death in Connecticut:

“After my father and I met with my father s doctor

of 25 years, my father decided that he would take

sleeping pills and place a plastic bag over his

head, as described in the book Final Exit.

My father ’ first attempt at this failed when his

reflex action, which comes of feeling suffocated,

caused him to pull off the plastic bag. Since my

father wanted to protect me from getting into

trouble with the law, he instructed me to leave

the house immediately after he placed the plastic

bag over his head. He was alone. The next

morning, when I returned, I found him awake and

distressed that he was still alive. He pleaded with

me to do everything possible to end his life that

evening. This was undoubtedly the most difficult

day of my life. He consulted with his doctor and

was advised that I could hold my father s hands

so the reflex action would not remove the plastic

bag. My father and I followed this procedure and

he was able to end his life. . . . | was arrested and

charged by the police with second degree

(Cont'd)

to terminate. In some cases, irreplaceable pills were

regurgitated. “My husband had to just eat his vomit,” one

woman said. “He was that determined. But then he threw up

again. We waited about an hour; then he downed it all again

and I put a plastic bag over his head so he would suffocate

before he got sick, and he finally died. He’d been through so

much, and that whole disgusting, humiliating business was

the living end.”

21

manslaughter. If convicted, I faced ten years in

prison. At a hearing in December 1994, before a

Superior Court judge in Hartford, Connecticut,

two ministers and several friends spoke on my

behalf. Numerous people, including eleven

ministers and eighteen doctors and nurses wrote

to the judge to support me. Even though the

District Attorney pleaded that my case go to trial,

the judge stated that although I had broken the

law, I was following my father’s wishes. I was

given two years ‘accelerated rehabilitation” and

after two years, all charges were dropped with

no record.” (App. 10)

Patty Rosen describes her agony being present at

her daughter’s suicide in Oregon before the

ODWDA took effect:

“Jody, bedridden from the inexorable growth of

the [bone] cancer, felt trapped in her body that

would barely work. She slept with the aid of

medication almost 23 hours each day. Even in

sleep her face reflected the pain she was

constantly enduring. She was also losing her

sight, experienced excruciating pain from totai

bowel obstruction, and shuddered in pain

whenever someone touched her because now there

were also tumors, just below the surface of her

skin, that inflamed her nerves and caused even

more severe pain... My daughter was dying. She

knew it and she was ready to die sooner than later.

She was rational, calm, and ready to die. However,

in 1986 it was illegal for anyone, in any state in

the United States, to assist in hastening a death.

Jody said to me that she ‘should be able to talk

with [her] doctor and plan this, not ask [you].’

She said to me, ‘Mom, what if you go to prison?

What will happen to you?’ This concern and worry

22

made her small face, already marred with the

sunken eyes of the near dead, take on an incredibly

distressed, painful appearance. Her trust and faith

in me made me humble and I vowed I would not

let her continue to suffer merely because of what

might happen to me if I assisted her. ... When it

was time for Jody to hasten her death she calmly

and determinedly swallowed all of the medication

we had gathered, took a few sips of water, kissed

me, and said, ‘See you later Mom.’ She then closed

her eyes and went to sleep. At that moment I went

into a pure panic. I thought, ‘What if I failed?

What if she regains consciousness? 'If this didnt

work she might even be worse off than before

and an even more consequence; I would have

failed her. I then gave her all the I. V. medications

I could pump into her stilled body. I moaned,

sobbed, prayed, and kept pushing the drugs into

her body. I was as desperate as I had ever been in

my life... . The silence came ten hours after we

had started the process. My daughter finally

stopped breathing. Her year and a half of pain,

suffering, rage, and hopelessness had ended. I

crawled into her bed, gathered her still body into

my arms; at last able to hold my daughter without

hurting her. I stroked her hair while rocking her

gently. I was able to surrender to my own grief

knowing that my young, brave and wise daughter,

Jody Lynn Grape, age 26, found her peace on

October 30, 1986 at 1:30 p.m.” (App. 11)

¢ Prior law resulted in suffering, guilt, anger, and remorse

for some surviving family members.

Gail Bereny writes about her father’s slow, “natural”

death:

“] felt very guilty then, and feel guilty now, about

Dad's terrible death. I feel guilty that he died in

23

so much pain and with no dignity left. The doctor

had the means to give him a gentle, painless death.

I have been left with frustration, anger, regret,

and sadness. He had been a very good father.”

(App. 9)

* Leanne Gallison describes her feelings about the

end of her mother’s life:

“My mother s illness was awful for me because I

was very close to her. I had nightmares for weeks

prior to her death. She was so miserable and in a

state that she never wanted to find herself in. In

spite of my being a nurse, I felt helpless.”

(App. 5)

* Patsy McGeorge describes her current reaction to

her husband’s suicide in their front yard several

years ago:

“Tt has been nearly six years since that February

morning, but I can remember those events as

clearly as though they occurred only yesterday.

And in my mind 5 ear, I can still hear the sound of

that shotgun blast, and with it the gut-wrenching

realization of what had just happened. I suspect I

always will.” (App. 1)

IV. CONCLUSION

As the experiences of the 17 amici surviving family

members show, many people are determined to control the dying

process when faced with a debilitating terminal illness. Neither

this Court nor the Attorney General can stop the terminally ill

from hastening their deaths — it does happen and will continue

to happen as long as human beings have free will. '° The real

'° Timothy E. Quill, M.D., A Midwife Through The Dying Process,

at 199 (“Doctors, patients, and their families are engaged in negotiated

(Cont'd)

24

question is how hastened dying for the adult terminally ill should

occur: Will it be acts of violence taken alone? Will it be untrained

family members compelled to assist in secrecy and fear? '' Or

will it be medically trained personnel evaluating and assisting,

in the open, according to legal guidelines? '* Amici urge the

Court to recognize that the legal guidelines established in Oregon

promote the public health and safety and serve a legitimate public

interest, not only of citizens of Oregon but of the United States.

Come Death

walk toward me

in your flower-printed silk

and fine mossy velvet or

in your impeccably tailored

black suit

come in all your perfection

extending your hand

and saying your name

(Cont'd)

deaths every day in every community in the United States.”) With AIDS,

the number of end-of-life suicides has increased dramatically. G. Kolata,

AIDS Patients Seek Solace in Suicide But Many Risk Added Pain in

Failure, “N.Y. Times,” June 14, 1994, at C1.

'! Stephen Jamison, Ph.D., Final Acts of Love: Families, Friends,

and Assisted Dying 169(1995) (“Until the laws change, secrecy will

remain one of the most dominant features of assisted death.”’).

'2 [bid. 5 (“This illegal assistance . . . goes on without guidelines,

safeguards, psychological counseling or evaluations, required

consultation with specialists, referrals to hospice, or even mandatory

discussion of alternatives.”). Moreover, sometimes family members are

not those assisting. “In the absence of legally available aid from

physicians, abuses are occurring at the hands of unregulated freelance

euthanasists, illegal suppliers meeting an otherwise unmet demand.”

Lonny Shavelson, A Chosen Death: The Dying Confront Assisted Suicide

677 (1995).

25

draw me toward you as my close friends do

hold me elegantly still

in dance position

then waltz me away

glancing over your shoulder once

and with the sn.allest gesture

let them know how much

I liked to dance

(Written by Norma Davis, who died on July 16, 2001 from a

self-administered dose of barbiturates prescribed under Oregon’s

Death with Dignity Act)

Respectfully submitted,

Ropert A. FREE

Counsel of Record

KATRIN E. FRANK

MacDona_p Hoacue & BAYLEss

1500 Hoge Building

705 Second Avenue

Seattle, WA 98104

(206) 622-1604

Attorneys for Amici Curiae

Surviving Family Members