That effort is the most serious threat in some time. There are two reasons that it is potentially a turning point for proponents of physician-assisted suicide. First, now that the “Oregon Plus One” strategy has succeeded in Washington and Montana, advocates want to keep the momentum going, and the Northeast is the most sympathetic region. And second, no state has yet legalized doctor-prescribed suicide through its legislature. The recent defeats in Vermont, despite the insistence by the advocacy group Compassion and Choices (the snappily rebranded Hemlock Society) in December 2010 that “everyone interested in Death with Dignity should turn their eyes toward Vermont,” prove that passage of such a fundamental restructuring of the doctor-patient relationship is extremely challenging even in the friendliest of neighborhoods. And there are only two states in the sympathetic Northeast with a ballot-initiative process: Maine and Massachusetts. An effort to legalize doctor-prescribed suicide by ballot initiative was defeated in Maine in 2000, making another attempt there difficult. So Massachusetts is the last, best hope for advocates of doctor-prescribed suicide to break the Pacific Northwest quarantine.
What happens if the Massachusetts ballot effort passes in November? Doctor-prescribed suicide would almost certainly be legalized in Vermont’s next legislative session, in 2013, on its coattails. Connecticut and New York, each of which has seen three legalization attempts in its legislature in the last decade, can expect to have bills reintroduced: A symposium on the issue in New York City scheduled for just after the election, on November 16, 2012, makes clear that New York is a high-priority target for Compassion and Choices. And one of the western states, perhaps New Mexico, along with Hawaii, will be much closer to legalization after the Massachusetts bump. California, which has seen three legislative attempts since 2004, will see a serious fight as well.
Now let’s look a few years down the line, when advocates bring the case of an individual in, say, Alabama who, being terminally ill, desperately wants his doctor to provide a lethal prescription. When that case proceeds to the Supreme Court, what will a look at the “laboratory” show? Suicide as a medical treatment was made legal in Washington in 2008, Massachusetts in 2012, Vermont and New York in 2013, and New Mexico in 2014. This looks like an “emerging consensus,” doesn’t it?
Compassion and Choices uses O’Connor’s “laboratory” comment as its lodestar. The briefs are no doubt already drafted; they just need the insertion of a heart-wrenching story. After all, as the Court noted in Roper v. Simmons in 2005, when it comes to deciding if there is an “emerging consensus,” “it is not so much the number of these States that is significant, but the consistency of the direction of change.”
Stopping doctor-prescribed suicide in Massachusetts may well be our last chance to prevent the Roe v. Wade of suicide as a medical treatment. The lesson of the last 40 years is clear: Fight now, not later.