Illustrative image for MAID Without Borders Oregon Drops the Residency Requirement

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.

  2. In theory the removal of the residency requirement provides some equity, however I hope that it does not take time and attention away from the bigger and overall issue – the lack of MAID access across all U.S. states. While I also agree that it is unlikely that many people will travel to Oregon from states without MAID provisions, it remains true however that only those with the financial and physical resources to do so will be the ones to benefit from such – further perpetuating the social inequities – even in death.
    Where I do believe that the elimination of this requirement in Oregon will be beneficial to the overall goal of access of MAID across all U.S. states is that as you noted, other states that already provide MAID access to its residents may follow suit should data from Oregon be favorable. Should these other states also pursue removal of the residency requirement, wishful thinking would be that states without MAID provisions would more strongly consider allowing it.

  3. Oregon’s move to remove the residency requirement with their MAID program is an interesting move, especially in regards to the recent SC decision to overturn Roe v. Wade. This year alone has sparked more discussion in regards to traveling within US states for access to different forms of healthcare. I believe that this move to change the residency requirement can cause quite the ethical debate per the idea that people do in fact begin traveling to Oregon for MAID and find accommodations for all the other requirements. For example, allowing any US resident to now access MAID in Oregon opens a huge door for more equitable access to MAID, especially those in states that it is still illegal. However, on the opposite side of the spectrum, such access may be viewed as inequitable because only those that can afford such accommodations needed for all other requirements can really access MAID in Oregon after all. In other words, it is really only accessible to those that can afford it. I am interested to see the impact this change of provisions has on MAID and how other states begin to perceive it.

  4. Hi Nancy, I’m a current masters in bioethics students at Columbia University and I found your article quite interesting as Medical Aid in Dying (MAID) crosses law and bioethics. One of our assignments for my law and bioethics class is to comment on an article of an issue that intersects law and bioethics, which I believe yours does really well.

    While reading your article, I had to remind myself that MAID is one of the many bioethics topics that requires one to suspend their own moral convictions when discussing as to not impose my, what could be perceived as, self-righteous objections onto it.

    Prior to Oregon suspending their residency requirement, I wonder whether the residency requirements infringed on the dormant commerce clause, which allows for and promotes interstate commerce. Could one argue that a terminally ill patient who seeks MAID is just enacting their constitutional right to buy goods (in this case the services of expedited palliative care)? Moreover, would Oregon have been using their residency clause to interfere with what could be argued as free trade ?

    Something else that’s striking about this decision is had it not be removed, how different is a patient seeking MAID from a patient traveling to another stage for medical treatment ? A family friend of mine (we reside in VA), traveled to CA after seeing numerous doctors in the VA who could not diagnosis her. One trip to a well known facility in CA and she was properly diagnosed and began treatment shortly after. Like I said earlier, MAID requires us to suspend our own moral objections because at the base of the issue, it’s not all that different from traveling for treatment.

    Even more, had Oregon kept their residency requirements, what’s stopping the stage from restricting access of non residents from a COVID drug? Is it not the same thing ?

    I wonder though, what was Oregons interest in keeping the residency requirement ? What did the state of Oregon gain from the law when those who qualify for MAID are eligible for hospice care anyhow? It seems like unnecessary red tape for purely political reasons.

    Something I also wonder, and my course had a lecture on, is about the 3 C: capacity, consent, confidentiality, coercion. If the care team has proven the patient has capacity or has written documentation for an agent to make decisions on their behalf, via healthcare proxy, that patient is entitled to MAID. Next because they patient has capacity or healthcare proxy does, if the patient meets the requirements and are aware of the potential risks, would it be ethically wrong to infringe on their decisional rights? As for the point on patients’ liability for “assisted suicide” in their home state, how would their home states be aware of the procedure given confidentiality laws and patient-physician privilege. Or alternatively would physicians have to report non-residents to authorities? The latter may be more far fetched then reality.

    In short, I really enjoyed reading this article Nancy and may look into this issue for my final paper.

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