Group Files First-in-Nation Lawsuit Challenging Residency Mandate of Medical Aid-in-Dying Law

Federal Lawsuit Alleges Residency Requirement in Oregon Medical Aid-in-Dying Law is Unconstitutional

Oct 28, 2021

Compassion & Choices today filed a federal lawsuit on behalf of an Oregon physician alleging that the residency requirement in the state’s law that provides terminally ill adults with the option of medical aid in dying to end unbearable suffering violates the U.S. Constitution’s guarantee of equal treatment. The suit asks the court to prohibit Oregon officials from enforcing this unconstitutional provision of the law.

The lawsuit is the first in the nation to challenge the residency requirement of a medical aid-in-dying law. Washington, D.C. and eight other states also have medical aid-in-dying laws with residency requirements: Washington, California, Colorado, Hawai‘i, Maine, New Jersey, New Mexico, and Vermont.

The 1994 Oregon Death with Dignity Act requires a patient’s physician to determine whether or not the person is a resident of Oregon before writing a prescription. The law, the first of its kind in the country, allows terminally ill adults of sound mind with six months or less to live to peacefully end unbearable suffering by obtaining a prescription for medication from a doctor, which they may then self-ingest at a time of their choosing. 

“The Oregon residency requirement is both discriminatory and profoundly unfair to dying patients at the most critical time of their life.” said plaintiff Dr. Nicholas Gideonse, who is licensed to practice medicine in Oregon, but not in Washington. “I don’t have to ask dying patients for proof of residency to provide them with hospice care. There is no rational reason that I should have to ask dying patients for proof of residency to provide them with medical aid in dying, especially since 95 percent of Oregon patients who use medical aid in dying are enrolled in hospice.” 

Between his work at Oregon Health & Sciences University in Portland, Kindred Hospice in the Salem and Portland metro areas, as well as the broader Willamette Valley region, and Blue Mountain Hospital in John Day, Oregon, it is typical for Dr. Gideonse to have an active panel of more than 100 patients receiving end-of-life care, including palliative care when appropriate. He typically has at least one patient engaged in the eligibility process of requesting aid-in-dying medication at any point in time. He writes approximately seven prescriptions for medical aid in dying per year. Within the past year, Dr. Gideonse has treated at least 16 patients residing in Washington. It is particularly difficult to access medical aid in dying in Clark County, Washington, where a number of his patients live, because 61 percent of the county’s hospital beds are in healthcare facilities with religious restrictions that bar physicians from prescribing such medication.

“While Washington also has a medical aid-in-dying law, the Oregon residency requirement forces Dr. Gideonse to disrupt the continuum of care for his non-resident patients who want this option that he could otherwise provide and attempt to refer these patients to another healthcare provider in Washington,” said Kevin Díaz, the chief legal advocacy officer for Compassion & Choices. “The disruption in care harms both his ability to manage the care for his patients and the care that these patients receive.”

The lawsuit alleges the Oregon Death with Dignity Act’s residency requirement violates the U.S. Constitution’s Privileges and Immunities Clause that “prevents a state from restricting non-resident visitors access to medical care within its borders absent a substantial state interest and restrictions narrowly tailored to those interests … The differential treatment between resident and non-resident patients established by the Act is not necessary to achieve any substantial state interest.” The lawsuit also alleges the residency requirement violates the U.S. Constitution’s Commerce Clause that prohibits state laws that discriminate against interstate commerce by preventing Dr. Gideonse from providing specific medical services to existing patients crossing state lines from Washington to Oregon.

“If Dr. Gideonse provides medical aid-in-dying prescriptions to non-Oregon residents who otherwise qualify for a prescription under the Oregon Death with Dignity Act, he faces criminal and civil penalties, as well as potential medical board disciplinary actions, up to and including the loss of his license to practice medicine,” said Darin M. Sands, a cooperating attorney on behalf of Compassion & Choices and a founding partner at Bradley Bernstein Sands LLP. “The result is that the Oregon Death with Dignity Act prevents him from providing his non-resident patients with care consistent with his best medical judgment at one of the most important moments in their lives.”

In the past, Dr. Gideonse has received requests from Washington residents seeking assistance with qualifying for and obtaining a prescription for medication under the Oregon Death with Dignity Act. Despite the likelihood that these individuals were otherwise eligible for medical aid in dying, he was unable to consider these requests solely on the basis of residency.

“Medical aid in dying is the only medical procedure in Dr. Gideonse’s day-to-day practice in which a patient’s lack of Oregon residency status categorically denies the otherwise appropriate care he can provide them,” said Peter D. Hawkes, a cooperating attorney on behalf of Compassion & Choices and principal at the Portland-based law firm of Angeli Law Group LLC. “For many terminally ill patients, the Oregon Death with Dignity Act’s residency requirement functions as an absolute prohibition on medical aid in dying due to their inability to relocate while experiencing debilitating medical conditions.”

Oregon and Washington are two of 10 states — including California, Colorado, Hawai‘i, Maine, Montana (via state Supreme Court ruling), New Jersey, New Mexico,  Vermont, — as well as Washington, D.C., that have authorized medical aid in dying. Collectively, these 11 jurisdictions represent more than one out of five U.S. residents (22%).