Compassion & Choices today filed a federal lawsuit on behalf of a terminally-ill Minnesota resident and two Colorado physicians alleging that the residency requirement in Colorado’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 Colorado officials from enforcing this unconstitutional provision of the law, which unjustly limits access to medical aid in dying on the basis of state residency.
The lawsuit is the fourth of its kind brought by Compassion & Choices challenging residency requirements in medical aid-in-dying laws. Oregon and Vermont both reached a settlement with Compassion & Choices’ clients, agreeing to not enforce the residency requirement in their state laws. Both state legislatures ultimately removed the residency requirement from the bill’s language, allowing qualified out-of-state residents access to medical aid in dying. Litigation is ongoing in New Jersey regarding a challenge to the state’s residency requirement in its aid-in-dying law. Washington, D.C. and six other states also have medical aid-in-dying laws with residency requirements: Washington, California, Hawai‘i, Maine, New Mexico and Delaware.
The Colorado End-of-Life Options Act was passed in 2016 and requires a patient’s provider to determine whether or not the person is a resident of Colorado before writing a prescription. The law 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 provider, which they may or may not then self-administer at a time of their choosing.
The lawsuit was brought by Jeff McComas, Dr. Barbara Morris, and Dr. Jennifer Harbert. Mr. McComas, a resident of Woodbury, Minnesota, has been diagnosed with terminal intestinal cancer. He would like the option to access medical aid in dying, which is not available in his home state. Although the Colorado End-of-Life Options Act could offer him that choice, the law’s residency requirement currently prevents him from pursuing it.
“If the pain from my disease becomes unbearable, I want the option of medical aid in dying,” said Mr. McComas. “Since I cannot die on my own terms where I live, I should have the option of traveling to Colorado to access the care there. Right now that option does not exist.”
Dr. Barbara Morris, a physician and geriatrician in Golden, Colorado, and Dr. Jennifer Harbert, a family physician and hospice medical director in Creede, Colorado, both have previously provided medical aid in dying to Colorado residents pursuant to the state’s End-of-Life Options Act. Although they are regularly contacted by out-of-state residents seeking such care, the residency restriction prevents them from providing the treatment. Medical aid in dying is the only care option in their practice limited to Colorado residents.
“I regularly hear from people who live outside Colorado and want to come here for help with medical aid in dying,” said Dr. Morris. “But under current law, I face the threat of criminal prosecution and civil liability if I offer non-residents the same compassionate care I provide to Colorado residents. That defies logic.”
“As the law is currently written, I cannot provide the same medical care that I deem appropriate to non-Colorado residents,” said Dr. Harbert. “I am simply saying that all the patients I treat in Colorado should have access to the same care.”
The lawsuit alleges the Colorado End-of-Life Options Act’s residency requirement violates the U.S. Constitution’s Privileges and Immunities Clause that “prohibits State officials 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 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 providers from providing specific and appropriate medical services to otherwise qualified patients that are non-Colorado residents.
“The law is discriminatory. Appropriate health care options should not be denied to someone based on their zip code,” said Jess Pezley, Senior Staff Attorney with Compassion & Choices. “Firsthand experience from countless doctors and patients, and decades of data, make it clear that the residency restriction functions more as a barrier to access than as a safeguard.”
“It is extremely burdensome and expensive to establish residency in a new state while terminally ill– no one should have to overcome that burden to access the healthcare that’s right for them,” said Liz Och, counsel at the law firm Hogan Lovells. “By enforcing this residency requirement, Colorado is imposing an unconstitutional barrier to medical care.” Hogan Lovells also represents the plaintiffs in this matter.
Colorado is one of 11 states — including California, Delaware, Hawai‘i, Maine, Montana (via state Supreme Court ruling), New Jersey, New Mexico, Oregon, Vermont, and Washington — as well as Washington, D.C., that have authorized medical aid in dying. Collectively, these 12 jurisdictions represent more than one out of five U.S. residents.
About Compassion & Choices/Compassion & Choices Action Network:
Compassion & Choices is comprised of two organizations that improve care and expand options at life’s end: Compassion & Choices (501(c)(3)) educates, empowers, defends, and advocates; the Compassion & Choices Action Network (501(c)(4)) focuses exclusively on legislation, ballot campaigns, and limited electoral work.
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