Physician-assisted suicide laws in California and New Mexico are being challenged by doctors who claim that they violate their conscience rights.
For two decades, Dr. Leslee Cochrane has treated patients in some of their darkest days — people with less than six months to live who are often frail, in pain, and vulnerable.
Cochrane, a hospice physician in Southern California, said new patients often come to him in distress. They’re scared to die. They don’t want to be burdens on their families. They’re worried about money, because being terminally ill in America is often incredibly expensive.
Although physician-assisted suicide is legal in California, Cochrane has never been involved in one, and he insists he never will. “I will not participate in a patient ending their life,” said Cochrane, a man of faith and a member of the Christian Medical & Dental Associations who takes seriously the Hippocratic Oath to “do no harm or injustice” to patients and to refuse to “give a lethal drug to anyone.”
“Hospice philosophy seeks neither to shorten someone’s life nor to prolong it, but to treat and recognize the dignity of each person,” Cochrane told National Review. “The goal of the physician should be to heal, not to harm.”
When California’s End of Life Options Act went into effect in 2016, legalizing assisted suicide — or assisted dying for those who want to obscure the obvious ethical dilemma involved — it offered key protections to doctors like Cochrane, who want nothing to do with it. But that changed last year when Senate Bill 380 took effect. The law made it easier for patients to obtain life-ending drugs faster. Cochrane said the law also now mandates his participation.
In February of 2022, Cochrane and the Christian Medical & Dental Associations, with the backing from lawyers at Alliance Defending Freedom, filed a lawsuit arguing that the law violates Cochrane’s conscience rights, his religious freedom, and compels his speech.
In late December, ADF filed a lawsuit challenging New Mexico’s new physician-assisted suicide law on similar grounds. The law, signed by the state’s Democratic governor Michelle Lujan Grisham in 2021, has been hailed by supporters as the most progressive and accessible in the nation. But ADF lawyers say it also requires doctors to participate in physician-assisted suicide in ways that violate their religious convictions and professional ethics.
The lawsuits hinge on what it means to “participate” in physician-assisted suicide. Neither state requires a doctor to prescribe lethal drugs to a terminal patient who requests them. But what about requiring doctors to fill out forms needed to move forward with a suicide request? Or requiring doctors of faith to refer patients to other doctors who will help them kill themselves, or requiring them to transfer records to those doctors? Are those forms of participation? ADF lawyers say yes, and they also argue that it is unconstitutional to mandate that doctors inform their terminally ill patients about the availability of physician-assisted suicide.
“Both New Mexico and California in some ways require doctors to basically check their beliefs at the door when it comes to physician-assisted suicide,” said Kevin Theriot, an ADF lawyer. He noted that the American Medical Association’s code of ethics states that physician-assisted suicide is “fundamentally incompatible with the physician’s role as healer.”
The legal debate over conscience rights and physician-assisted suicide is another front in the ongoing battle over the free-speech rights of medical professionals. Last year, California passed a law making it illegal for doctors to express minority opinions about Covid-19 or the effectiveness of masks and coronavirus vaccines. ADF is currently challenging a Washington State conversion-therapy ban on the grounds that it illegally prohibits conversations between counselors and young clients that seek to help the clients achieve comfort with their biological sex or reduce unwanted same-sex attractions.
In 2018, in National Institute of Family and Life Advocates (NIFLA) v. Becerra, the Supreme Court struck down a California law that required pro-life pregnancy-clinic workers to notify clients about low-cost and even free abortion services available in the state. In his ruling, Justice Clarence Thomas rejected the notion of professional speech as a separate category of speech that is entitled to a lower level of constitutional protection.
The Rise of Physician-Assisted Suicide
Physician-assisted suicide has been legal in some corners of the country for a quarter of a century.
In 1997, after a Supreme Court ruling that left the matter to the states, Oregon’s Death with Dignity Act went into effect. It was the nation’s first physician-assisted suicide law.
Physician-assisted suicide is now legal in ten states and in the District of Columbia. It typically consists of patients’ ingesting an overdose of barbiturates in a bitter-tasting drink or shake.
California’s physician-assisted-suicide law was signed by the state’s then-governor, Jerry Brown, in 2015 and went into effect the following year. “I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill,” the Democrat wrote in a letter to lawmakers.
New Mexico is the latest state to legalize the practice, with Grisham’s signing the Elizabeth Whitefield End-of-Life Options Act in April 2021.
Proponents of physician-assisted-suicide laws typically focus on the aim of ending excruciating pain to make the case that the practice is humane and compassionate. But research has shown that pain is typically not a top reason why people with terminal illnesses choose to end their lives early. Oregon keeps some of the best data on the subject. According to a 2021 data summary, the main reasons why terminally ill patients in the state ended their lives through physician-assisted suicide included: “losing autonomy,” 93 percent; “less able to engage in activities making life enjoyable,” 92 percent; “loss of dignity,” 68 percent; and “burden on family, friends/caregivers,” 54 percent. Only a distinct minority, 27 percent, cited “inadequate pain control, or concern about it” as a reason for their decision.
“I have people in excruciating pain all the time, and we are able to remedy their pain,” Cochrane said. “Sometimes the amount of pain medicine that they’re going to require may put them to sleep, but I don’t have to administer a lethal overdose with the intention of killing them in order to get their pain under control.”
“I have never met a patient where the best or only way to treat their pain was to give them medication to kill themselves with,” he added.
When California’s physician-assisted-suicide law was first passed, it required patients who wanted to kill themselves to make two verbal requests at least 15 days apart, followed by a witnessed written request. Senate Bill 380, which was signed by Governor Gavin Newsom in October 2021, reduced the number of days between requests from 15 to two. It was changed in part because some patients were dying before they could get their assisted-suicide drugs.
Cochrane said reducing the waiting period was a “very bad idea,” because it often can take at least two days or more to stabilize patients. “Most of the patients I take care of, they come to hospice in distress, and it takes us two or three days to get them out of distress,” he said. But typically after a few days, he said, “their outlook is completely different, and they may have months to live, and enjoy some time with their family, meaningful time with their family.”
‘A Very Real Dilemma’
In addition to reducing the number of days between requests for assisted suicide, California’s new law also added new requirements for medical professionals. While the law says that no one is “required to participate” in the suicide “for reasons of conscience, morality, or ethics,” Theriot and Cochrane say that is not exactly true.
They argue that the law makes several demands of health-care providers that should be viewed as requiring their participation, including: requiring them to notify patients about the law; requiring them to document a patient’s initial assisted-suicide request, the first step in the suicide process; requiring them to refer patients to another doctor who will help them complete the suicide; and requiring them to transfer records to the new doctor, including the documented verbal request needed to start the assisted-suicide process.
“They object to that just like you would object to signing off on somebody getting a gun to kill themselves. Nobody would hesitate about that,” Theriot said of the documentation requirement. Lawyers for the state say they don’t interpret the law as requiring referrals.
In New Mexico, the law also compels doctors to inform terminally ill patients about the availability of physician-assisted suicide, and forces objecting doctors to refer patients to other providers or organizations who are “able and willing to carry out” the suicide, according to ADF. The law also prohibits professional organizations such as the Christian Medical & Dental Associations from denying membership to doctors who participate in physician-assisted suicide.
Supporters of the New Mexico law say the requirements it imposes on doctors are reasonable.
“How hard is it for a doctor to tell a patient, ‘I don’t believe suicide is the answer and I can’t be a part of it, but you have a right to know your options and I can refer you to another physician,’” read a recent editorial in the Albuquerque Journal. “Our state Constitution guarantees us the right to seek and obtain happiness and the Legislature has confirmed that the guarantee extends to end-of-life choices. It would be a shame for this right to become unraveled over the objections of a few absolutists.”
A December article in the California literary website Alta Journal questioned how ADF, a legal firm dedicated to freedom is attempting to “get in the way of terminally ill people wanting the freedom to decide the terms of their own deaths.” Jess Pezley, a senior attorney with Compassion & Choices — a leading advocate for physician-assisted-suicide laws — told the Alta Journal that the fight for assisted suicide is “all about bodily autonomy.”
But Cochrane and ADF, through their lawsuits, say they aren’t trying to roll back anyone’s freedoms or deny their autonomy. Rather, they are fighting for the freedom of dissenting physicians to ensure that they are not forced by the state to violate their consciences.
Beyond standing up for conscience rights, Cochrane also believes it the duty of doctors to protect vulnerable patients who may feel intense pressure – sometimes by their own family members, whether for financial concerns or convenience – to kill themselves.
“That’s a very real dilemma that people face,” he said. “Physicians should always be advocates for the patients to protect them.”
While the New Mexico lawsuit was filed just over a month ago, ADF has already made progress in California. In a preliminary ruling in September, a federal district court determined that Cochrane and ADF are likely to succeed on the merits of their free-speech claim, and granted a preliminary injunction putting the California law on hold while the legal fight plays out.
As a professional healer, Cochrane said the law creates a conflict of interest. He said the idea that the best way to treat terminally ill patients is to kill them is a “ludicrous proposition.”
“No physician who is serious about practicing medicine would ever say that the only option here is to kill this person, that’s the only way to treat their pain,” he said. “It just never is. That’s just never the case.”