In October I reported that New Approach South Dakota was planning to petition a “Death with Dignity” initiative onto our 2018 ballot. Last week Attorney General Marty Jackley posted his required explanation of the proposed initiative, along with the sponsors’ final draft. This publication indicates we may see petitioners on our icy streets seeking our signatures to put this measure to a vote.
A.G. Jackley reasonably explains the main provisions of the proposal:
- Adult South Dakota patients with terminal diseases may ask doctors to prescribe life-ending drugs.
- “Terminal” means “incurable, irreversible, and expected to produce death within six months.”
- Patients must make two oral requests fifteen days apart, plus a written request witnessed by two people.
- Doctors may only prescribe life-ending drugs to mentally competent patients acting voluntarily.
- A second doctor must confirm both the terminal diagnosis and the requesting patient’s competence and informed consent.
- Doctors may choose not to participate in the program.
Unlike his explanation for the recycled anti-transgender potty bill that Jack Heyd wants to place on the ballot, A.G. Jackley does not say anything about whether this measure could face court challenge.
The revised draft closely follows the original draft presented in October, which was lifted directly from Washington state’s Death with Dignity Act. I note two small but significant differences:
Both the Washington state law and the proposed initiative restrict life-ending prescription requests to state residents. The Washington state law says that the means of establishing residency “include but are not limited to” state driver’s license, voter registration, and lease or ownership of property. Section 13 of the proposed South Dakota initiative leaves out that phrase for other means; thus, South Dakotans who do not have a driver’s license, are not registered to vote, and do not own or lease property (think nursing home residents) could not request life-ending prescriptions.
Section 24 makes falsifying requests for life-ending medication, concealing or destroying rescissions of such requests, or coercing such requests a Class A felony. That’s exactly the language in the Washington state law; however, in Washington, “Class A felony” is a step down from aggravated first-degree murder, while in South Dakota, “Class A felony” is the highest murder penalty—life in prison or execution. By keeping that language, the sponsors thus seek to penalize abuse of South Dakota’s program more harshly than Washington state does.
Minor omission: the first paragraph of Section 23 still omits the statutory reference found in Washington state law 70.245.190(2)(a) on giving notice of intent not to participate in the life-ending prescription program. The South Dakota initiative draft refers to “the prohibiting provider’s policy regarding participating.” We can figure out the meaning, but to keep Judge Barnett off their backs, the initiative sponsors should add, “participating under this Act,” as they do in other paragraphs.
The original draft called for enactment 120 days after the election, which would have been March 6, 2019. Section 26 of the new draft takes away the need to do math and puts off enactment to April 1, 2019.
For the language aficionados in our audience, Section 18 of the South Dakota initiative keeps the Washington insistence that this bill does not authorize suicide or euthanasia:
Nothing in this Act authorizes a physician or any other person to end a patient’s life by lethal injection, mercy killing, or active euthanasia. Any action taken in accordance with this Act does not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law. No state report may refer to any practice under this Act as suicide or assisted suicide. Any state report shall refer to practice under this Act as obtaining and self-administering life-ending medication…. [Section 18, South Dakota Death with Dignity Act, filed with Secretary of State 2016.12.20].
Under this law, the state will issue reports counting how many people requested and took medicine to end their lives, but the state will not call those deaths suicides. The Department of Health will not include those deaths in its statistics for suicide (which has been the ninth-leading cause of death in South Dakota since 2004 and which jumped from 141 in 2014 to 173 in 2015).
I won’t disqualify a law just for playing word games, but let’s be honest: petitioners will soon be asking us to place on the ballot a measure that would allow patients to obtain drugs from doctors that will allow patients to kill themselves. That is suicide, even if they are just beating cancer or mad-cow disease to the punch.
The Legislative Research Council has also issued its prison/jail population cost estimate: probably zero. LRC says Washington has had one conviction under its Death with Dignity Act since 2009, while Oregon has had no convictions since 1998. Multiplying time and populations, LRC thus calculates South Dakota would see one conviction under this initiative every 140 years. “The average life sentence lasts 22.9 years,” writes LRC, “at a cost of $27,506.00 per year.” Spread that cost out over 140 years, and the yearly prison impact is about $4,500 per year, 0.0045% of South Dakota’s general fund appropriation for corrections this year.