In ten states and the District of Columbia, a doctor may prescribe lethal medication to a terminally ill patient who requests it.
Medical Aid in Dying (MAID) state laws have originated in three different ways: by ballot initiative, through legislative activity, and by court decision.
MAID statutes have many things in common, and a few important differences. Montana’s law is the outlier, having been created by a decision of that state’s Supreme Court.
What is similar in MAID statutes?
All MAID statutes require that the person requesting aid in dying be capable, competent, or of sound mind. All require that the person have a diagnosis of a terminal, incurable, irreversible disease or condition. MAID statutes and ballot initiatives specify that the prognosis must be that death will occur within 6 months.
Montana’s court decision legalizing MAID relies on a statute that allows terminally ill patients to refuse life-sustaining treatment. That statute says simply that the prognosis must be that death will occur “within a relatively short time.”
As enacted, MAID laws require that the person seeking aid in dying to be a resident of the state. Maine’s residency requirement is a bit vague, stating only that the person requesting aid must be occupying a residence in the state. Oregon’s residency requirement was recently challenged in court. In March 2022, the State of Oregon settled the case and agreed to remove its residency requirement. Because there was no court decision regarding the residency requirement, it is unclear what this means for the residency requirements in other states.
MAID statutes put a considerable burden on physicians. All of the MAID statutes require that a person who seeks MAID be evaluated and their request be approved by two physicians (the primary physician and a consulting physician) and by a mental health professional in certain cases. All states require that the physician inform the patient of other end-of-life options and that they can change their mind at any time.
All MAID statutes require that the request for MAID be in writing, and most statutes provide an approved form for the request. A few states require that the request be made both in writing and orally.
What is different in MAID statutes?
One of the most important differences in the MAID statutes is the waiting period. Under many of the statutes, a person requesting MAID must wait at least 15 days after their first request before they can receive a lethal prescription. In Hawaii, the waiting period is 20 days. MAID advocates say that these waiting periods are too long for people who are suffering. Oregon amended its waiting period requirement in 2020, allowing the waiting period to be bypassed if the attending physician believes that the patient will not survive it. In 2021, California reduced its waiting period from 15 days to 48 hours. In New Mexico, the most recent state to enact MAID legislation, the waiting period is 48 hours.
What do the data tell us?
MAID statutes have state reporting requirements and, as a result, we have good data about MAID. Over the past 25 years, 5,171 people have ended their lives using MAID. The data also show that about one-third of those who request MAID don’t actually use it.
What’s next?
States currently considering MAID legislation include Arizona, Delaware, Massachusetts, North Carolina, New York, Pennsylvania, and Rhode Island. We can anticipate more activity in this area in the coming year.