Minnesota: Final Exit Network Argues Assisted Suicide Law Violates Free Speech Rights in Court

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From the Telegraph-Herald:

MINNEAPOLIS — Members of a national right-to-die group are challenging Minnesota’s assisted-suicide law, saying it violates constitutional rights to freedom of speech and freedom of association.

The group Final Exit Network is challenging the law after four of its members were indicted in May in the suicide of a Minnesota woman. Prosecutors say the defendants not only supported Doreen Dunn’s decision to kill herself in 2007, but provided her with information and support to follow through.

Final Exit members claim they do not encourage suicide, but that the act of giving information and emotional support could be interpreted as “encouraging” under a Minnesota law that makes it a felony for someone to intentionally assist, advise or encourage suicide.

Defense attorneys who appeared at a hearing Tuesday in Dakota County District Court argued that the statute is unconstitutional.

In documents filed ahead of the hearing, Final Exit Network general counsel Robert Rivas wrote that while the state may bar someone from “assisting” a suicide, it is unconstitutional for the state to ban “advising” or “encouraging” a suicide — pure speech.

Defense attorneys asked Judge Karen Asphaug to dismiss the counts related to the statute.

Asphaug took the arguments under advisement; it wasn’t clear when she might issue a ruling.

This is, of course, similar to the argument that the attorneys for Final Exit Network (FEN) made in regard to the assisted suicide statute in Georgia.  They were ultimately successful in that appeal, but it’s not clear to me that they have as strong a case here by any means.

Thaddeus Pope has a succinct reaction and analysis re: the proceeding – which he attended.  He’s impressed with the FEN lawyer and the argument.

More from the story:

The 17-count indictment charges Final Exit Network, its medical director Lawrence Egbert, 85, of Baltimore, and three other officials with felony counts of assisting suicide and interference with a death scene, a gross misdemeanor. The others named in the indictment are Jerry Dincin, 82, of Highland Park, Ill., Roberta Massey, 67, of Bear, Del., and Thomas Goodwin, 66, of Punta Gorda, Fla.

Most of those names should ring a bell to regular readers of this blog.  But for right now, the most important ones to focus on in terms of what “assistance” may mean are: Thomas “Ted” Goodwin and “medical director” Lawrence Egbert.

Both of these gentlemen have claimed to give much more than “advice” in very public venues.  In January of this year, Egbert made a claim that was reported in a long profile on him that appeared in the Washington Post:

Egbert tells me that years ago he asked someone who was about to “exit” if he could reuse the hood to save future patients the cost of buying a new one. The patient was delighted with the idea, Egbert says. He started asking everyone.The hood in my bare hands feels slightly slick. So, this one, the one I’m holding, has been used to end someone’s life? I ask. Egbert tells me it has surely been used at least once, and maybe several times, and the same could be said for most of the other 17 hoods in the garbage bag.

In case you missed it, Egbert informed the reporter that he routinely supplies used “exit bags” to “patients” so he can save them money.

Just last month, PBS aired a Frontline documentary on FEN.  In it, untold millions of viewers watched Ted Goodwin tell an undercover GBI agent posing as a cancer patient that he would hold the man’s hands down to prevent him from tearing the “exit bag” off once the suicide began.  Prior to this, Goodwin denied ever making any statement like that.  You can visit this post for a link to the documentary and a transcript of Goodin’s discussion of holding hands down.

Why is that important?  For one thing, it goes beyond “advice” to “physical assistance” – with the restraint of hands amounting to potentially something even worse.

But, in the meantime, the new article on FEN’s latest round in the court closes with this:

Final Exit Network is run by volunteers who believe that mentally competent adults have a basic human right to end their lives if they suffer from “fatal or irreversible illness or intractable pain” and meet other criteria, according to the group’s website.

“We do not encourage anyone to end their life, are opposed to anyone’s encouraging another to end his life, do not provide the means to do so, and do not assist in a person’s death,” the website says. (Emphasis added.)

Isn’t it about time that FEN took that claim off their site?  It would also be refreshing for certain folks dazzled by the legal arguments to stop and reflect on the ethics and implications of a group that makes claims that have been outright contradicted by prominent members in very public venues.

 

 

Canada: Council of Canadians with Disabilities, Canadian Assoc. for Community Living and Euthanasia Prevention Coalition Granted Intervener Status by BC Appeal Court

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From Alex Schadenberg, Executive Director and International Chair of the Euthanasia Prevention Coalition:

Tuesday, December 11, 2012

 

Council of Canadians with Disabilities: Help To Live Not Die

The Council of Canadians with Disabilities (CCD) and the Canadian Association for Community Living (CACL) were granted joint intervenor standing by the BC Court of Appeal, yesterday, in the Carter case.

The Euthanasia Prevention Coalition (EPC) and EPC-BC were also granted intervenor standing, by the BC Court of Appeal in the Carter case, that will be heard by the BC Court of Appeal from March 4 – 8, 2013.

On June 15, 2012, Justice Lynn Smith decided, in the Carter case, that the law protecting Canadians from assisted suicide was unconstitutional because it deprived some people with disabilities equal access to suicide. Justice Smith also ordered parliament to legalize a limited form of euthanasia and she gave Gloria Taylor, one of the plaintiffs, a constitutional exemption to die by euthanasia or assisted suicide.

Gloria Taylor died from natural causes on October 5, 2012.

On July 13, 2012, the Hon Rob Nicholson, Attorney General of Canada, appealed the decision by Justice Smith, in the Carter case, to the BC Court of Appeal. It is expected that the Carter case will ultimately be decided by the Supreme Court of Canada.

To raise money for the legal costs to intervene at the BC Court of Appeal, CCD has established a website entitled: Help To Live Not Die. The Help To Live Not Die website explains the position of CCD on assisted suicide and encourages people to donate money for the legal costs for their intervention at the BC Court of Appeal in the Carter Case.

CCD is a national human rights organization of people with disabilities working for an inclusive and accessible Canada. CCD is the leading national organization of people with disabilities in Canada.

CCD/CACL oppose assisted suicide and have been granted the right to make the following arguments before the BC Court of Appeal in the Carter case:

1. they will provide insight into the interpretation of “death with dignity” in the disabled community;2. the impugned provisions are consistent with discouraging people from choosing death over life, while the trial judgement makes death more palatable for people with disabilities, a result incompatible with the values underlying (s. 7) and (s. 15);3. decisions allowing physician-assisted suicide of persons with disabilities is based on and fosters stereotypical thinking that is inherently discriminatory, and deepens the disadvantages and inequalities suffered by people with disabilities;4. financial and social conditions place increased stress on those who provide support to the disabled, creating greater potential for abuse. The autonomy of vulnerable people cannot be separated from the perilous and dependent circumstances in which they live, and the choices that flow from this;5. No reliable half-way measure exists for achieving the purposes of the impugned provisions. The trial judge erred in failing to properly consider and balance competing interests in her (s. 7) and (s. 1) analysis; and6. the Charter value of life underlies the impugned provisions and the exemption for the disabled created by the trial judgment cannot be justified.

In granting intervenor standing to CCD/CACL Madam Justice Neilson recognized that some of the arguments are already being made by the Attorney General of Canada, but she stated:

“I am persuaded an important distinction lies in the fact these applicants present these arguments from the point of view of the disabled community, a segment of society that will be profoundly affected by the outcome of the appeal and whose perspective should be before the court.”

The Euthanasia Prevention Coalition (EPC) needs financial support to enable them to intervene in the appeal of the Carter case. Donations to EPC can be made online here.

And remember that the Council of Canadians with Disabilities (CCD) is also raising funds to support their legal efforts.  They present their case on the Help To Live Not Die website. Not Dead Yet is very pleased that the CCD/CACL were granted intervenor standing in the appeal of the decision by Justice Smith in the Carter case – largely in recognition of the organizations being a voice for people with disabilities.  Below is a video – with captioning (!) – of NDY and CCD’s Rhonda Wiebe explaining CCD’s take on assisted suicide:

Montana: Diane Coleman Letter on Elder Abuse and Assisted Suicide Published in Missoulian

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On December 2, the Missoulian published a letter from Diane Coleman – President and CEO of Not Dead Yet.

The title the paper gave the letter was: “National disability rights group concerned Montana could legalize assisted suicide” – the title might surprise you, since a lot of sloppy reporters and spin-doctoring reps of assisted suicide organizations have claimed that assisted suicide is legal in that state.  It’s not.

Here’s a link to the letter, with text and more info below:

Not Dead Yet is a national disability rights group with members in Montana, some of whom are seniors. On behalf of our members, I write to say that we are extremely concerned that assisted suicide, sometimes euphemistically called “aid in dying,” could be legalized in Montana.

It is estimated that there are 21,265 cases of elder abuse annually in Montana, reported and unreported (http://web.archive.org/web/20101021101332/http://www.eadaily.com/15/elder-abuse-statistics/).

Statistically, 90 percent of elder abusers are a family member or trusted other. Similarly, people with disabilities are up to four times more likely to be abused than their same-age nondisabled peers.

In Oregon and Washington, legal assisted suicide has opened new paths of abuse against persons who “qualify” to use these laws. A more obvious problem is a complete lack of oversight when the lethal drug is administered. If an abuser were to administer the drug without the person’s consent, who would know?

It is simply naive to suggest that assisted suicide can be added to the array of medical treatment options, without taking into account the harsh realities of elder abuse and the related potential for coercion.

For more information about problems with legalization of assisted suicide, please see www.notdeadyet.org and www.montanansagainstassistedsuicide.org.

Diane Coleman,

President/CEO,

Not Dead Yet,

Rochester, New York

(note – URL in text above is different than the one that originally appeared in the letter. The Elder Abuse Daily site seems to be defunct – sadly, organizations that concern themselves with  reporting and preventing elder abuse have a harder time finding funding than assisted suicide advocates, it seems.  The link provided above is to a snapshot of the original page, courtesy of the internet archive.)

Here’s a reproduction of some of the content of that page:

On February 15, 2010, in Data and Statistics, Elder Abuse, by Elder Abuse Daily
There are nearly 6 million cases of elder abuse every year.  That’s approximately one case every five seconds.  Unfortunately, many of these cases will go unreported. According to EADaily.com’s projections, California continues to be the state with the greatest number of elder abuse cases in the U.S., with 36% more than that of Florida, a state with second greatest number of elder abuse cases.
  • Every five seconds, an elderly person is abused.
  • California accounts for 10.6% of all elder abuse cases in the U.S.
  • Alaska has the fewest number of cases in the U.S. at approximately 8,900 cases per year.
  • Just five states account for over 1/3 of all elder abuse cases in the U.S.
  • California, Florida, New York, Texas and Pennsylvania have the most cases of elder abuse annually.
State / Region Elderly Population* Cases of Elder Abuse**
Arizona 1,176,503 129,952
Alabama 888,870 98,181
Alaska 80,613 8,904
Arkansas 561,850 62,060
California 5,728,021 632,693
Colorado 748,420 82,667
Connecticut 663,606 73,299
Delaware 169,763 18,751
District of Columbia 98,977 10,933
Florida 4,200,667 463,988
Hawaii 258,934 28,601
Georgia 1,433,316 158,318
Idaho 257,172 28,406
Illinois 2,176,100 240,363
Indiana 1,128,187 124,615
Iowa 596,110 65,844
Kansas 501,329 55,375
Kentucky 791,961 87,477
Louisiana 757,486 83,669
Maine 279,707 30,895
Maryland 964,119 106,492
Massachusetts 1,207,231 133,346
Michigan 1,822,024 201,253
Minnesota 902,284 99,662
Mississippi 516,129 57,009
Missouri 1,110,339 122,643
Montana 192,524 21,265
Nebraska 325,406 35,943
Nevada 432,112 47,729
New Hampshire 243,936 26,944
New Jersey 1,591,554 175,796
New Mexico 360,142 39,780
New York 3,597,839 397,402
North Carolina 1,623,389 179,313
North Dakota 125,521 13,865
Ohio 2,158,611 238,431
Oklahoma 677,530 74,837
Oregon 715,847 79,069
Pennsylvania 2,576,689 284,610
Rhode Island 202,028 22,315
South Carolina 849,263 93,806
South Dakota 157,050 17,347
Tennessee 1,155,990 127,686
Texas 3,515,525 388,310
Utah 344,758 38,081
Vermont 124,102 13,708
Virginia 1,337,055 147,685
Washington 1,127,229 124,509
West Virginia 393,061 43,416
Wisconsin 1,031,904 113,980
Wyoming 93,669 10,346
Grand Total 53,972,452 5 5,961,568
* Elderly defined as 60 years of age and older.
** Estimated # of reported and unreported cases of elder abuse.

Why I Support the CRPD

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This past week, the U.S. Senate voted to proceed with consideration of U.S.ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).  With a two-thirds majority required to move to the next step, the cloture vote was 61 to 36, with 3 not voting.

Not Dead Yet has not yet formally considered endorsing the CRPD, but after this week, I think a Board vote is on the immediate horizon.  The attention that the CRPD is receiving this week and next is a reminder of how important it is for the disability community to unite behind this groundbreaking treaty that has been years in the making.  I say “groundbreaking” not because it necessarily adds to U.S.law, as most say it does not, but because it demonstrates the worldwide significance of the disability community and disability rights.

That being said, let me point to some specific Articles of the CRPD that are relevant to Not Dead Yet’s goals. 

First, there is Article 10, entitled “Right to life,” which does not carry exactly the same connotation and meaning that the phrase does in U.S.culture-war politics.  Article 10 simply states:

States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.

Not Dead Yet’s concerns about futility policies, surrogate decision-making and assisted suicide all pertain to the notion that persons with disabilities have the same inherent right to live as everyone else.

CRPD Article 16 addresses “Freedom from exploitation, violence and abuse.”  Article 16 begins by stating,

1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects. . . .

The Article goes on to call for related efforts toward abuse prevention, public education, reporting, victim support services, protection services, investigation of abuse and appropriate prosecution of abusers.

As we also know, persons with disabilities are more likely to experience abuse than their non-disabled peers.  This reality has a direct bearing on Not Dead Yet’s goals of ensuring that the civil rights of disabled people are protected from inappropriate surrogate decisions to withhold life-sustaining treatment, and of ensuring the equal protection of the law when disabled people are the victims of violence and even homicide.

Finally, CRPD Article 25 addresses “Health.”  The most relevant portions affirm essential principles of nondiscrimination in health care:

States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to . . .

d) Require health professionals to provide care of the same quality to persons with disabilities as to others, . . . through training and the promulgation of ethical standards for public and private health care;

e) Prohibit discrimination against persons with disabilities in the provision of health insurance, . . . ;

f) Prevent discriminatory denial of health care or health services or food and fluids on the basis of disability.

Obviously, subsection “f” directly states Not Dead Yet’s goal to prevent the withholding of health care, and even food and fluids, on the basis of disability.  Sadly, we know that this happens in the U.S.and elsewhere.  Not Dead Yet has been talking about it for years, and this year our concerns were substantiated in a major Report from the National Disability Rights Network.  The CRPD won’t cure this injustice, but it will affirm that it is an injustice, and help establish that it is an international human rights issue.

The U.S. should ratify the CRPD, which has already been ratified by 117 other nations as of July 2012.  It won’t change U.S.law, given that disability rights consistent with the CRPD are already on the books here.  But it will provide global leadership on disability rights and help protect our disabled citizens abroad.  Moreover, it will affirm our nation’s commitment to our stated ideals of equality and justice for all. – Diane Coleman

NDY Activists Leaflet Justice Action Center (NY Law School) Featuring Opponents Discussing “Disability Concerns” Without Including Disability Rights Activists to Speak for Ourselves

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Last Friday, three disability activists in New York City went to the Justice Action Center at the NY Law School to distribute flyers protesting the way in which a symposium on “Freedom of Choice at the End of Life” handled “issues of concern” that people with disabilities have with proponents of assisted suicide (and other “end of life” issues).  The “discussion” was relegated to a session about “special people” and the discussion framed by opponents of disability rights advocates and activists.  The problems with that approach – for those who don’t immediately see one – were discussed on the blog last month.

We are very grateful to disability activists Marla DeFex, Nadina Laspina and Danny Robert for taking this on for us.  Between their presence and leafleting – and some correspondence with faculty associated with the Justice Action Center – I think there was – finally – some discomfort regarding the way in which disability concerns were handled at this event (e.g. without us).  It will be interesting to see what Thaddeus Pope writes about this – if he writes anything at all.

Below is a copy of the flyer that they distributed at the event (with pictures following).

 

NOTHING ABOUT US WITHOUT US!

WE ARE DISABILITY RIGHTS ACTIVISTS WHO OBJECT TO A SYMPOSIUM THAT CLAIMS TO ADDRESS DISABILITY RIGHTS CONCERNS BUT INCLUDES NO PRESENTERS FROM THE DISABILITY RIGHTS MOVEMENT.

Today, Friday, November 16th, the Justice Action Center, part of New York Law School, is presenting a symposium entitled ” Freedom of Choice at the End of Life – Patients’ Rights in a Shifting Legal and Political Landscape.”

There are multiple and major problems with the third panel which the Symposium materials describe as follows:

“Panel III: Special People, Special Issues
This panel will discuss the issues of concern for people with disabilities and the conflict between organizations dedicated to protecting their rights and end-of-life advocates. The panel will discuss the views of some of the major religion (sic) and whether conservative theological values can co-exist with patient choice. Finally, the panel will conclude with a discussion of the quality of medical care provided to prisoners and how their end of life choices are treated.”

It is likely that “issues of concern” to disability rights activists will be discussed by panelist Alicia Ouellette.  Ouellette recently published a text on bioethics and disability – apparently becoming the newest bioethicist who wants to become known as the “disability-conscious” bioethicist – someone who relates slanted, distorted and outright “straw man” versions of disability critiques, concerns and strong objections to both bioethics and so-called “end of life” advocates. Ouellette gets many things wrong about disability issues in her book.

For more information, contact www.notdeadyet.org.

 (PAGE 2)

NOTHING ABOUT US WITHOUT US (CONT.)

It appears likely that panelist Ann Neumann will focus on religious issues, but her blog “Otherspoon” has demonstrated her longstanding marked disdain for disability advocates who organize against pro-euthanasia and assisted suicide groups.  In her July 2012 post on “Otherspoon,” she used a familiar move that privileged people make when they’re about to demean and dismiss members of a minority, writing about her great “friendship” with disability studies academic Bill Peace (Bad Cripple blogger), a conventional shield for what came next in her post:

I would never take him to task for how he feels.  Or over not seizing his autonomy from hypothetical others, including “pro-life” organizations that have worked very hard to recruit disabled individuals and groups to “their side”–with scary threats of a “culture of death” just waiting around to kill off the “abnormal.”

Instead of giving a fair account of the concerns of disability advocates about these issues, she inserts extreme slogans from the Religious Right – and then implies that we are jumping on their bandwagon because we’re just poor, scared little cripples who can easily be “recruited” by the right propaganda.  She denies the agency of disabled people, asserting that those stands we take that she disagrees with can’t be our own.

What makes this all the more appalling is that this Symposium will happen under the auspices of the University’s Justice Action Center.  Sadly, the Justice Action Center fails to show even a modicum of respect in making sure the perspectives of disability rights advocates and activists are represented fairly and accurately, and by disability rights activists ourselves, as other minority groups and women would have a right to expect. 

On November 12, we wrote to the following Symposium co-sponsors, urging them to withdraw their sponsorship:

New York Law School Law Review and the Diane Abbey Law Center for Children and Families, the American Bar Association Commission on Law and Aging; the National Academy of Elder Law Attorneys; the Elder Law Section of the New York State Bar Association; and Collaborative for Palliative Care, Westchester/NYS Southern Region.

For more information, contact www.notdeadyet.org.

(End flyer)

Below are pics from the action:

Marla DeFex, Nadina Laspina and Danny Robert

In the picture above (from left to right), Marla DeFex holds a sign that says “EQUAL RIGHTS INCLUDE EQUAL SUICIDE PREVENTION,” Nadina Laspina holds a sign that says “IT’S NOT COMPASSION, IT’S CONTEMPT!” and Danny Robert holds a sign that says “WOULD YOU RATHER BE DEAD?”

Nadina Laspina at left talks to Thaddeus Pope while Danny Robert - facing away - talks to unknown symposium participant
Nadina Laspina at left talks to Thaddeus Pope while Danny Robert – facing away – talks to unknown symposium participant