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Death with Dignity Initiative Petition-Ready

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:

  1. Adult South Dakota patients with terminal diseases may ask doctors to prescribe life-ending drugs.
  2. “Terminal” means “incurable, irreversible, and expected to produce death within six months.”
  3. Patients must make two oral requests fifteen days apart, plus a written request witnessed by two people.
  4. Doctors may only prescribe life-ending drugs to mentally competent patients acting voluntarily.
  5. A second doctor must confirm both the terminal diagnosis and the requesting patient’s competence and informed consent.
  6. 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.


  1. bearcreekbat 2016-12-26 11:18

    I wonder if the anti-suicide language is needed to protect the decedent’s life insurance beneficiaries. Doesn’t a finding of suicide show that the insured violated his contract with the insurer?

    As to residence, one of my family members was diagnosed with terminal cancer and experienced horrible pain and sickness as she died in a local hospice. She wanted to end it as quickly as possible so we considered taking her to Oregon where someone with a terminal illness could seek help in ending their life. The problem we ran into was a requirement that the individual not only change her residence to Oregon, but she also had to live fin Oregon for at least 6 months before she could take advantage of this law.

    Such rule requiring the patient to be alive in Oregon for at least 6 months essentially prevented any terminal patient from another state from using Oregon’s law since they also had to show that they were not expected to live 6 months.

  2. Richard 2016-12-26 11:37

    This is a very complicated issue: not just morally, but in terms of nitty-gritty everyday patient care and feeding.

    The MD prescribes an OD of something. Presumably the individual patients would be hospice patients. So either the hospice facility would administer the drug or someone (like a spouse) goes to the pharmacy to pick it up. Is the facility or the spouse accountable as an accomplice?
    If the patient is a paraplegic and must be fed and medications must be put in the patients food (or in his mouth) is the RN or spouse an accomplice?
    If the person is suicidally depressed and asks for help killing him or her self is that covered under the law? Shouldn’t an specified unaffilated mental health expert be involved?
    I can imagine all kinds of real world difficulties…

  3. caheidelberger Post author | 2016-12-26 11:53

    Bear, would an insurer look past the language and evaluate the act? Section 17 seems to say insurers can’t cancel policies or refuse payment for individuals acting under this proposal.

    Has the Oregon law changed since your family’s experience with it, Bear? The Oregon Public Health Division’s FAQ on their Death with Dignity Act indicates that there is no minimum time for establishing residency and that the criteria are the same as those cited above for Washington.

  4. caheidelberger Post author | 2016-12-26 12:01

    Richard, Section 4(12)(b) says that an “expressly identified agent” of the patient can pick up and deliver the drugs prescribed. Section 19 excludes anyone acting in good faith compliance with the Act from civil or criminal liability. So someone delivering the prescription or being present during the suicide faces no penalty.

    However, language throughout the proposal seems to allow only self-administration of any life-ending drug. I could be wrong, but the text seems to exclude having someone else administer the deadly drug. So quadriplegics are out.

    So are depressed people. The law says that if the doctor determines the patient’s depression impairs judgment, the doctor issues no prescription.

  5. bearcreekbat 2016-12-26 12:37

    Our experience occurred in 2008. I am not sure whether Oregon changed the law or whether we were mis-informed by a local Portland lawyer when we tried to explore that option. But today, it appears that there is no such 6 month residency requirement based on the link you provided.

    And I suppose an insurer could draft an insurance contract with its own specific definition of suicide, but using a definition differing from a specific state law intended to address whether this is legally suicide might be problematic given the typical regulation by the State of its insurance industry.

  6. mike from iowa 2016-12-26 13:17

    What’s the penalty for coercing doctors not to participate in the program? You know wingnuts will come up with some penalties for those that choose to participate.

    South Dakota wouldn’t be a wingnut state if they couldn’t get government into everyone’s life.

  7. caheidelberger Post author | 2016-12-26 13:33

    By the way, the Secretary of State has created a 2018 Ballot Question page with all three measures: Death with Dignity, Same-Sex School Facilities (as if there should be any sex in school facilities), and Regulation, Access, and Compassionate Use of Cannabis. The medical cannabis bill has the LRC suggested revisions but no AG explanation yet. With three potential measures, the field is already getting crowded for those of us keeping an eye out for one or two bad Legislative actions to refer and repeal.

  8. Mrs. Nelson 2016-12-26 19:03

    When my kidneys finally give out and soon after, my liver, I want this choice. I have a kidney disease that, barring I do not die by any other means (car accident, farm accident, falling into a hot spring and boiling to nothing) I hope I can have this choice. I don’t want to slowly die, painfully, in hospice. I don’t want to wither away while my family (or husband or caretaker) watches. I want to have the choice to die with dignity; not from being slowly poisoned by my own body, painfully or so doped up on pain medication that I cannot comprehend what is happening.

    This particular bit of legislation needs work, yes. But I support it and hope they can come to a consensus on it and that our state will allow it.

  9. grudznick 2016-12-26 19:12

    Mr. H, with a quad they can rig a thing like a dental dam that holds back the drugs, and then the fellow feeling the need of the end, having been prostrated by the agonies for longer than anybody should, can just release it with their teeth. That should be in the law, too.

  10. mike from iowa 2016-12-26 19:13

    Mrs Nelson, No offense, but I hope, for your sake, you get your wish for dignity. What one doesn’t need is some pious, self righteous pol to ask the state or the courts to step and protect the sanctity of human life. It is nobody’s business except the person involved and their family if they so choose. Good luck to you. I hope you live long and prosper and outlive the sanctimonious beasts.

  11. mike from iowa 2016-12-26 19:16

    Cory, what if you get a pharmacist with a god complex who refuses to distribute drugs because of sincerely held religious beliefs that trumps everyone else’s?

  12. Porter Lansing 2016-12-26 19:32

    Three bills to fight? There goes the session’s chance to build something memorable. Psychologists note it’s 75% easier to say no than to devise a solution. Not calling any political party lazy, or anything.

  13. Tom B. 2016-12-27 11:06

    This will be a mega tough one to pass. Though most of us have said they will support it for their own benefit, the issue gets much clouding when it is your child or parent that want to end their own lives.

    Ultimately the churches will fight this, as will the religious based medical providers. That will make it unavailable in some communities. So access will not be equal.

    Seems like their are a million legal issues. A parent that has signed over power of attorney may lose this option if the poa won’t cooperate.

    What happens to life insurance?

    This will be a tough sell. It will be easy for the opposition to punch holes in the ballot issue.

    Though I do want the option myself I don’t see South Dakota as ready to pass it. During a gubernatorial election year this ballot issue could work against liberal candidates up and down the ballot.

  14. bearcreekbat 2016-12-27 12:25

    Tom, just to clarify in response to your concern that “A parent that has signed over power of attorney may lose this option if the poa won’t cooperate.” No one loses the right to make whatever health care decisions they choose by giving another person a power of attorney. As long as the individual is competent he or she may revoke the poa or ignore what the holder of the poa wants. A so-called “durable” poa remains in effect after incompetency (but could have been revoked any time during competency) and is thus a wise planning move and no one should fear losing any rights when they make one.

  15. bearcreekbat 2016-12-27 13:13

    mfi – Thanks. That is an intriguing read and eye opening forecast by Wright! Now I am forced to ask myself: Do I want to believe Wright’s statements and analysis?

  16. caheidelberger Post author | 2016-12-28 07:51

    Mrs. Nelson, I’m sorry to hear about your bad kidneys. What improvements do you think this measure needs?

  17. caheidelberger Post author | 2016-12-28 08:30

    Mike, on religious objection, the way I read it, if “pharmacist” is included under the definition of “health care provider,” the pharmacist can decline to prepare the prescription.

  18. caheidelberger Post author | 2016-12-28 08:37

    Tom B, life insurance appears to be unaffected, based on the language this initiative writes into law.

    I am interested in the equal-access argument. Clearly, as with abortion, folks in small, religious communities could find themselves unable to avail themselves of this law. However, it appears that so far, the US Supreme Court has not recognized a federal constitutional right to assisted suicide.

  19. ronald fuchs 2016-12-28 10:14

    can I circulate this ? or help get signors?

    I’d like to get Medical amnesty going for SD- do you know about it??

  20. jerry 2016-12-28 10:32

    If you cannot find a pharmacist to provide end, go to a different one. There is a village in West Virginia that has one pharmacy “servicing” a population of 392. In this pharmacy, there have been prescribed some 9 million synthetic heroin pills in a short two year period of time. All of this is perfectly legal. Users say they are as good as the best heroin you can get on the street. Down a bottle of those and it is not suicide, it is a drug overdose. Your pain is gone and your legacy can deal with the insurance as it would if you suffered for weeks before succumbing.

  21. Angie 2017-03-28 09:00

    Hello everyone, I am Angie, Director of Death with Dignity. I am sorry for the delay in responding, but I do appreciate everyone’s support. We ask that you follow our page, Death with Dignity on Facebook as well as our website (which is being built now,

    Feel free to message me with any questions you may have.

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