Last-Minute Vote Switches Keep Assisting Suicide Illegal in Hawaii

By Jenny Nolan, Legislative Assistant
NRLC Department of Medical Ethics

A bill to legalize assisting suicide in Hawaii was defeated 14-11 in the state Senate May 2 when three state senators who had previously voted in favor of it switched their votes. The “Death with Dignity” bill had been passed by Hawaii’s House of Representatives, and was strongly supported by Hawaii’s outgoing governor, Democrat Ben Cayetano.

The debate and vote were the culmination of an intensive roller coaster battle which drew forth the utmost efforts of Hawaii Right to Life and its allies in the fight against assisting suicide. Hawaii’s bill would have made it legal for a doctor to prescribe a lethal drug overdose to a qualifying patient, defined in the bill as a competent person, at least 18 years old, diagnosed with a terminal illness and given six months to live. It was almost identical to Oregon’s law, which remains the only law in the nation that specifically authorizes assisting suicide.

The legislation had been halted in the Senate Committee on Health and Human Services. However, pro-suicide forces suddenly revived the bill in a sneak attack on April 30, two days before the end of the legislative session, and garnered a 13-12 preliminary vote in its favor.

The Senate held its final, emotional debate on the bill in a packed chamber on the afternoon of Thursday, May 2.

State Senators Bob Hogue, Donna Mercado Kim, and Rod Tam, who voted in support of the bill on April 30, explained why they changed to opposition.

“Upon reviewing the bill, the e-mails, faxes and phone calls, it is my decision that such an important and emotional issue involving life-and-death decisions should not be decided in the short time span we have left in this session,” said Tam in a prepared statement printed in the Honolulu Star-Bulletin.

Donna Mercado Kim echoed Tam’s sentiments in her comments on the Senate floor. She said she favored assisted suicide in theory, but was disturbed by some of the flaws in the bill, such as the possibility that a doctor could prescribe a lethal dose to a patient he or she had known only two weeks.

Bob Hogue’s switched vote came after what he described as an agonizing decision-making process. Speaking on the floor, he said that he had spent that morning walking his district, seeking more input from his constituents. He related a conversation he’d had with a woman in a nursing home who convinced him that some patients would not truly be in control of the decision.

By contrast, one senator who had initially voted against the measure switched his vote to one of support. Brian Taniguchi had voted against the procedure that brought the bill to the floor April 30, but made it clear that night in his remarks that his vote should not be interpreted as a vote against the bill itself. On the final vote May 2, he voted in favor of the assisted suicide legislation.

Majority Leader Jonathan Chun spoke for almost an hour, attacking the notion that assisted suicide can ever safely be legalized. He detailed major flaws in the bill itself, as well as the dangers that assisted suicide generally poses to the elderly, those with disabilities, and the economically disadvantaged. He voiced concern that the “right to die” would become a “duty to die.”

Chun quoted the New York State Task Force on Life and the Law’s now famous report describing the risks of legalizing assisted suicide. “They would be most severe for those whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, or membership in a stigmatized social group.” The Task Force report added, “the risks for these individuals, in a health care system and society that cannot effectively protect against the impact of inadequate resources and ingrained social disadvantage, are likely to be extraordinary.”

The pro-suicide senators, led on the floor by Senators Avery Chumbley and Matt Matsunaga, characterized the issue as one of separation of church and state and personal choice. They maintained that the bill would not be abused if passed. Chumbley praised the Oregon law on which the Hawaii bill was based, claiming it provides effective safeguards to ensure that suicides are voluntary.

Matsunaga took a different tack. His speech drew from the opinion of the 9th Circuit Court of Appeals in the Washington v. Glucksberg case, arguing that assisting suicide is no different than withdrawing life-sustaining medical treatment.

The Ninth Circuit had found that terminally ill patients have a “right to die” and that those patients who are not dependent upon life-sustaining treatment can only exercise that right through physician-assisted suicide. (In a portion of its opinion not cited by Matsunaga, it had also endorsed non-voluntary euthanasia, saying that those mentally incapable of deciding for themselves should be killed at the direction of their guardians or other surrogates, just as, under current law, guardians can direct the cutoff of life-sustaining treatment for such patients.)

However, the Ninth Circuit Court’s decision was overturned by the United States Supreme Court in 1997. The High Court emphasized the long-standing distinction in medicine, ethics, and law between direct killing, on the one hand, and refusal to consent to medical treatment, on the other.

A commission appointed by Governor Cayetano had recommended legalizing assisting suicide. The governor himself introduced a bill to do so on January 27. In a form modified to track the Oregon law, it passed the Hawaii House March 7 by a vote of 30 to 20.

However, many in the public considered the bill to be dead after Senator David Matsuura, chairman of the state’s Senate Committee on Health and Human Services, announced March 22 that the committee was indefinitely deferring a vote on the bill.

That move slowed the legislation’s progress, but didn’t actually stop it. Hawaii’s Senate rules provide several procedural alternatives that allow a given number of senators to vote to circumvent the committee process. Proponents of the assisted suicide measure quietly used these rules to bring up the bill suddenly in the last week of the legislative session.

The bill’s final defeat came after two days of intense lobbying, in which grassroots support from Hawaii’s pro-life community, including Hawaii Respect Life, seemed to overwhelm efforts by the pro-suicide groups.

By Wednesday morning, May 1, one Senate staffer reported that he’d already received about 50 pro-life calls to 20 pro-suicide calls. The barrages filled up voice mail boxes and by evening of the second day volume had so overwhelmed some e-mail systems they shut down.

“Hawaii’s dramatic, last-minute defeat of this dangerous proposal in reaction to grass-roots alarm and effective constituent contacts with legislators was remarkable,” said Burke J. Balch, director of NRLC’s department of medical ethics. “Nonetheless, the narrow margin of victory raises grave concerns for next year’s legislative session in Hawaii, and will doubtless embolden suicide proponents in other states.”

This “near miss, “Balch said, “should serve as a wake-up call for all of us who know that legalizing the direct killing of the sick and those with disabilities will mean death, rather than positive treatment, for uncounted numbers of the most vulnerable in our society. Not only in Hawaii, but also in states across the nation, those who care about life must rapidly educate ourselves, and then our neighbors and legislators, about the dangers of euthanasia.”