A Critical Problem in Last Year’s “Expansion” of the Death with Dignity Act

January 18, 2024

By Richard Doerflinger

Richard Doerflinger worked for the Secretariat of Pro-Life Activities, U.S. Conference of Catholic Bishops, for 36 years. He is a Fellow with the de Nicola Center for Ethics and Culture, University of Notre Dame, and Adjunct Fellow with the National Catholic Bioethics Center. He and his wife live in La Conner.

SB 5179, approved by the legislature in 2023, sought to expand access to the Death with Dignity Act approved by voters in 2008. Largely ignored by legislators supporting and opposing this bill were two brief provisions that endanger the voluntariness and informed consent of patients using the Act, and the right of health care providers to decide whether to take part in it.

One new provision, codified as RCW 70.245.190 (2)(d)(ii)(C), violates the right of health care facilities to forbid participation, under their aegis and on their premises, in the process for providing lethal drugs. It redefines “participation” to exclude charting a patient’s first request for the drugs. Having charted this request, the employee defying an employer’s policy may then refer the patient to another professional willing to follow all other steps of the process.

The second new provision, codified as RCW 70.245.090 (3), aggravates this problem, by stating that the 7-day waiting period will not restart when the patient transfers to another health care provider. (The original Act’s 14-day waiting period was eliminated by SB 5179, as was the 48-hour period between making a second request and obtaining the lethal drugs.)

These provisions create the following situation:

First, the employee of a religions or other objecting facility charts that first request, starting the clock ticking on the 7-day waiting period, and does a referral. Medical referrals to a new provider commonly take days, sometimes over a week, before a new appointment can be made.

Second, that second provider is still responsible for making “the determination” (the only determination) that the patient’s first request was voluntary. It is impossible to do so, as that request was already made to someone else in another facility.

Third, that second provider also has sole responsibility for providing the counseling to ensure the patient’s informed decision. Counseling must include several elements, including the likely effect of taking the drugs and the availability of alternatives. The waiting period, originally designed to give the patient time to consider this information, may partly or wholly expire before the counseling is given. Legally the information can be provided as the drugs are being dispensed.

Longstanding ethical and legal principles ensuring patients’ voluntariness and informed consent are here set aside to streamline this process, on what is literally a matter of life and death.

Fourth, individual health professionals aware of these consequences, who therefore object to charting that first request and initiating this deeply flawed process, will have no right to exercise that objection. The law protects them from being forced to “participate” in the process, but charting the initial request has been redefined as not “participating.”

These infringements on individual and institutional conscience rights may conflict with existing state and federal laws, and with First Amendment guarantees for free exercise of religion.

To correct these serious, perhaps unintended, consequences of the amended Death with Dignity Act, Senator Padden has introduced SB 6066 to delete these two brief and specific provisions. This bill makes no other change in the Act. It deserves the support of all Washington legislators.