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Bioethics Forum Essay

MAID Without Borders? Oregon Drops the Residency Requirement

Oregon, which legalized medical aid-in-dying (MAID) in 1997, has dropped the requirement that had limited MAID access to residents of the state. Under a settlement of a lawsuit filed in federal court by the advocacy group Compassion & Choices, Oregon public health officials will no longer apply or enforce this requirement as part of eligibility criteria for MAID.  The lawsuit was filed on behalf of an Oregon physician who challenged the state’s residency requirement and its consequences for his patients in neighboring Washington State.

In Oregon and in nine other jurisdictions – California, Colorado, the District of Columbia, Hawaii, Maine, New Jersey, New Mexico, Vermont, and Washington – with Oregon-type provisions (Montana has related but distinct case law), MAID eligibility criteria include being an adult with a life expectancy of six months or less; the capacity to make a voluntary medical decision; and the ability to self-administer lethal medication prescribed by a physician for the purpose of ending life. Because hospice eligibility criteria also include a six-month prognosis, all people who are eligible for MAID are already hospice-eligible, and most people who seek to use a provision are enrolled in hospice.

The legal and practical implications of this policy change are not yet known and are potentially complex. Advocates have called attention to potential legal risks associated with traveling to Oregon to gain access to MAID. For example, a family member or friend who accompanies a terminally ill person to Oregon could be liable under the laws of their state of residence for “assisting a suicide.”

What are the ethical and social implications of this policy change? Here are some preliminary thoughts:

First, it is unlikely that many people will travel to Oregon from states without MAID provisions. MAID is used by extremely small numbers of terminally ill people, and Oregon’s removal of its residency requirement did not change the multistep evaluation process to determine eligibility. To relocate to another state for the weeks that this process takes would not be practicable or financially feasible for many terminally ill, usually older, adults who are already receiving hospice care.

Second, it is likely that other jurisdictions with Oregon-type provisions will want to see what happens in Oregon as the result of this change before they decide if they will do the same. MAID is well-established in Oregon, and the state’s public reporting on MAID utilization is a key dataset for research and policymaking. It is not surprising that Oregon would be the first state to waive the residency requirement. In addition to its long experience with this provision, it borders two other states with MAID provisions, and so is familiar with access issues that cross state lines.

Third, expanding access to MAID in the United States by waiving state-level residency requirements could raise ethical concerns related to equity and reciprocity between state health systems. For example, should a state that may not wish to pursue MAID legalization, or where efforts to legalize MAID have stalled, view a nearby state with a MAID provision as a potential “resource”? Critical thinking will be needed about approaches to MAID access that could encourage states to rely on health care professionals and hospice programs in other states.

In the U.S., access to MAID will continue to be determined by the states, rather than covered by federal law and policy as in most other nations that have legalized some form of the practice. (Australia also legalizes MAID at the state level; five of that nation’s six states now have provisions.) Waiving the residency requirement in Oregon is the start of a new chapter in thinking about ethics and law in access to MAID across state lines.

Nancy Berlinger is a research scholar at The Hastings Center.

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  1. From a practical standpoint, I am sure you are correct, although there may be people living near the Oregon border who get their health care in Oregon. But from a legal or ethical standpoint, why should this be any different than access to abortion? I imagine you support women in Texas being able to get abortions in New Mexico; why is this different?

    1. Thank you for your comment, Dena. What I had in mind as ethically problematic was a hypothetical state that *could feasibly* legalize MAID — where, for example, there had been some grassroots and political movement toward legalization — but chose not to pursue legalization (and the work of developing policies and processes) after a nearby state with a MAID provision dropped its residency requirement. In this scenario, State A policymakers would rationalize that terminally ill people could choose to cross the border to State B, which had done the policy and process work. This seems ethically different from a situation in which one state has *no* prospect of MAID legalization, as in your TX/NM example. I hope that is clearer.

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