BRZONKALA [Lopez/Morrison] and assisted suicide

Sat Sep 9 15:47:05 PDT 2000

I think you can make a plausible argument that the six-month residency
requirement, or something like it, is fundamentally different from a
residency requirement for abortion.  In the abortion context, as I think
everybody recognizes, the decision must be made precipitately, and the
sooner the better.  There is no need for a physician to make a
determination of whether this is the woman's considered judgment--or to
put it more correctly, there is no need for a guarantee beyond a short
waiting period and mandatory "informed consent"--arguably these two are
more than is needed, but certainly it's hard to argue for more (that is,
as a way of informing the decision;  obviously if one opposes abortion
in most contexts one could make different arguments).  In the case of
assisted suicide, the physician prescribing lethal doses of legal
medication must 1) determine that the patient is in fact likely to die
within the next six months; 2) determine to her own satisfaction that
the patient is making a rational and informed choice;  and 3) obtain the
concurrence of an independent physician.  Could one not argue that a
physician will be much more likely to be inclined and able to make these
determinations if in fact the doctor-patient relationship persists over
six months?  this is not the same thing as a residency requirement but I
think it could be written in such a way that out-of-state patients could
not avail themselves of the Death with Dignity Act without in fact
relocating to Oregon for a minimum of six months before obtaining lethal
medication.  What does the gang think?

Bryan Wildenthal wrote:
>
> Surely the residency requirement cited below would be almost
> indistingushable from the abortion residency requirement struck down in Doe
> v Bolton, the companion case to Roe v Wade and the early Shapiro line of
> travel cases (the force of which has been strengthened by Saenz v Roe).
>
> Separately, I am puzzled by Prof. Laycock's suggestion that Oregon, if
> allowed to pursue its own policy on assisted suicide (and hypothetically
> protected in so doing against federal override), would be "imposing its
> policy on the whole nation," merely because Americans elsewhere have the
> freedom (as they surely do under Bolton, Saenz, and both P&I clauses) to
> move or travel temporarily to Oregon and take advantage of Oregon's policy,
> on equal terms with Oregon citizens.  Other states would remain free to
> prohibit assisted suicide, and Oregon would not purport to force them to
> liberalize within their own territories.  They may not like the fact that
> Oregon has a more liberal regime on Oregon soil, and  may resent the freedom
> of their citizens to "vote with their feet," but to the extent they seek to
> override Oregon's choices, it is they who are seeking to impose their
> policies on Oregon, not vice versa.
>
> Bryan Wildenthal, Thomas Jefferson School of Law
>
> > -----Original Message-----
> > From: Douglas Laycock [mailto:dlaycock at MAIL.LAW.UTEXAS.EDU]
> > Sent: Thursday, September 07, 2000 3:10 PM
> > To: CONLAWPROF at listserv.ucla.edu
> > Subject: Re: BRZONKALA [Lopez/Morrison] and assisted suicide
> >
> >
> >         I wondered about a residency requirement on assisted
> > suicide.  Thanks for
> > the info.  Requiring that kind of advance planning will
> > greatly inhibit the
> > interstate trade.  Might draw a privileges and immunities,
> > commerce clause,
> > and right to travel challenge too.  Surely Oregon could not generally
> > forbid its medical providers to treat patients from out of
> > state.  Is it
> > justified by Sosna v. Iowa (we don't want to be a divorce
> > mill (or in this
> > case, suicide mill))?
> >
> > At 02:55 PM 09/07/2000 -0700, you wrote:
> > >Without cavil as to Professor Laycock's larger points, I
> > must note that
> > the Death
> > >with Dignity Act restricts its terms to persons who have
> > been residents of
> > Oregon
> > >for six months.  Thus the travel rationale might be vitiated
> > in this case.
> > >
> > >Douglas Laycock wrote:
> > >
> > >>         Bryan Wildenthal says that surely Congress could
> > not regulate
> > all of
> > >> medical practice or all of legal practice, although it
> > might be different
> > >> if the focus were on excessive cost or people being denied
> > access.  Both
> > >> halves of this seems to me wrong.  I think the practice of
> > law and medicine
> > >> is inextricable from interstate commerce, but if I am
> > wrong about that,
> > >> then it does not become interstate commerce for some
> > purposes and not
> > >> others, depending on the Congressional policy goal.   Lack
> > of access to
> > >> services Congress approves is no more national than access
> > to services
> > >> Congress disapproves.
> > >>
> > >>         The actual impact on interstate commerce will be
> > greatest for those
> > >> services so important that people are willing to travel
> > for them.  People
> > >> travel to big cities, often across state lines, for scarce
> > specialties.
> > >> People would travel to Oregon if it were the only state to
> > permit assisted
> > >> suicide.    Other states, unable to prohibit advertising
> > of what was
> > >> available in Oregon, might well feel that Oregon was
> > imposing its policy on
> > >> the whole nation.  One may conclude that Oregon's interest
> > outweighs the
> > >> federal interest, but it seems plainly wrong to say there
> > is no federal
> > >> interest.
> > >>
> > >>         Lawyers may be an even easier case.  Lots of law
> > firms operate
> > nationally
> > >> and have offices in many cities.  Lots of lawyers practice
> > in multiple
> > >> states.  Lots of lawyers who practice in only one state
> > represent clients
> > >> from other states.  Much of what lawyers do is to
> > facilitate, litigate, or
> > >> untangle transactions in interstate commerce.  Probably
> > there are sound
> > >> policy reasons for Congress not to interfere with state
> > court procedural
> > >> rules.  But it is simply mistaken to say that lawyers are
> > not engaged in
> > >> interstate commerce.
> > >>
> > >> Douglas Laycock
> > >> University of Texas Law School
> > >> 727 E. Dean Keeton St.
> > >> Austin, TX  78705
> > >>         512-232-1341 (phone)
> > >>         512-471-6988 (fax)
> > >>         dlaycock at mail.law.utexas.edu
> > >
> > >--
> > >Garrett Epps
> > >Associate Professor
> > >University of Oregon School of Law
> > >357 Knight Law Center
> > >1221 University of Oregon
> > >Eugene OR 97403
> > >
> > >PHONE: (541) 346-1578
> > >  FAX: (541) 346-1564
> > >
> > >gepps at law.uoregon.edu
> > >Trouble sleeping? Try my latest works:
> > >http://www.law.uoregon.edu/faculty/epps/default.html
> > >
> >
> >
> > Douglas Laycock
> > University of Texas Law School
> > 727 E. Dean Keeton St.
> > Austin, TX  78705
> >         512-232-1341 (phone)
> >         512-471-6988 (fax)
> >         dlaycock at mail.law.utexas.edu
> >

--
Garrett Epps
Associate Professor
University of Oregon Law School
1221 University of Oregon
Eugene OR 97403
(541) 346-1587

Trouble sleeping?  Try my latest works:
http://www.law.uoregon.edu/faculty/epps/default.shtml