Health Care Organization Policies about the California End of Life Option Act

doi:10.1017/9781009480468.028

22 - Health Care Organization Policies about the California End of Life Option Act

The Paper Victory of the Medical Aid in Dying Movement

from Part V - Private Law Applied

Published online by Cambridge University Press: 16 March 2025

Megan S. Wright and

Cindy L. Cain

Edited by

I. Glenn Cohen ,

Susannah Baruch ,

Wendy Netter Epstein ,

Christopher Robertson and

Carmel Shachar

Show author details

I. Glenn Cohen: Affiliation:
Harvard Law School, Massachusetts
Susannah Baruch: Affiliation:
Harvard Law School, Massachusetts
Wendy Netter Epstein: Affiliation:
DePaul University, Chicago
Christopher Robertson: Affiliation:
Boston University
Carmel Shachar: Affiliation:
Harvard Law School, Massachusetts

Book contents

Summary

In order to comply with California’s End of Life Option Act, healthcare organizations must post their medical aid in dying (AID) policy on their publicly accessible website. We analyzed available policies for whether organizations choose to participate in AID and whether organizations add restrictions to or conditions of participation for healthcare providers or patients that are not contained in the text of the law. Our research demonstrates that healthcare organizations, most of them private, mediate medical decision-making rights granted by the state. This chapter focuses on a few organizations’ AID policies to illustrate this process, and demonstrates how employment contracts with healthcare professionals and medical staff bylaws and staff privileges for physicians constrain involvement in AID and affect the physician–patient relationship. This chapter argues that the spread of AID across the United States is mostly a symbolic victory for patient rights advocates because in practice, this option is not available to many patients due to healthcare organizations’ policies. This chapter concludes by suggesting changes to informed consent practices so that seriously ill patients are informed about whether their current care providers participate in AID before the patients would need to make the request, so they can find new doctors if this is an end-of-life option they wish to pursue.

Keywords

end-of-life law medical aid in dying healthcare organizations organizational policy private health law

Information

Type: Chapter
Information: Health Law as Private Law
Pathology or Pathway
, pp. 283 - 294

DOI: https://doi.org/10.1017/9781009480468.028 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2025
Creative Commons: This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC 4.0 https://creativecommons.org/cclicenses/

22 Health Care Organization Policies about the California End of Life Option Act The Paper Victory of the Medical Aid in Dying Movement

22.1 Introduction

Law and society research demonstrates that law in practice is often different than law on the books and that organizational policy matters for the construction of law. Laws are often vague, ambiguous, or silent on important matters, and so organizations subject to the laws may respond by creating policies that define terms, resolve ambiguities, or fill gaps.Footnote ¹ Organizations that most directly shape health law include hospitals, health care systems, health insurance programs, pharmacies, and professional associations. When constructing policies, organizations mediate the impact of law and may even create the law if courts or legislatures later rely on the organization’s policies to decide legal questions, a process known as legal endogeneity.Footnote ²

This process has not been studied in the context of health care organizational policy about medical aid in dying (MAiD) laws in the United States. Since the mid-1990s, eleven US jurisdictions have legalized MAiD.Footnote ³ In the United States, MAiD is an end-of-life option wherein a competent adult patient with a terminal illness may voluntarily request a prescription medication that, when self-administered, will end their lives.Footnote ⁴ Although more Americans live in jurisdictions that have legalized this end-of-life option,Footnote ⁵ very few terminally ill individuals use MAiD.Footnote ⁶ Those individuals who choose MAiD tend to be white and highly educated.Footnote ⁷ Low use of MAiD could reflect preferences, but low use may also reflect lack of access, despite legalization.Footnote ⁸

Lack of access could be due, in part, to health care organizations’ responses to MAiD laws, where existing statutes may not adequately address eligibility and procedural questions about this end-of-life option and where hospitals and health systems may address ambiguity through policies that ultimately restrict access to MAiD. Restrictive policies can reflect organizational “opt out” of MAiD participation on behalf of the institution and affiliated health care providers. But even organizations that “opt in” can adopt policies that require providers to follow specific processes beyond what the law mandates, which may result in reduced access to MAiD. Hospitals and health systems can enforce compliance with organizational policy through employment contracts or medical staff privileges and medical staff bylaws, and thus private law choices and agreements mediate public laws.

This chapter builds on an ongoing study of health care organizations’ policies adopted in response to the legalization of MAiD in California in 2015 and highlights how despite the seeming success of “right to die” social movements in convincing voters and legislatures that MAiD should be legal, legalization of MAiD in the United States is mostly a “paper victory.” By this we mean that the “law appears to advance [an] agenda but in reality it does no such thing.”Footnote ⁹ In this case, the law on the books should result in individuals who meet statutory requirements being able to choose MAiD, but in practice, MAiD is often not an option at all.

This chapter proceeds as follows. First, we will briefly describe the data and methods of the parent study from which this chapter draws. Second, we will show how the text of the California MAiD statute ensures that few individuals will qualify for MAiD. Third, we will show how the implementation of the law also ensures that even fewer individuals qualify. In this section, we will focus on two health care organizations’ policies and demonstrate how they restrict access to MAiD for otherwise eligible individuals. We will conclude by discussing how MAiD in the United States is not a true victory for the “right to die” movement but is instead a “paper right.”

22.2 Data and Methods of Larger Study

The California legislature passed the End of Life Option Act (EOLOA) in 2015, effective 2016.Footnote ¹⁰ The EOLOA, like most other US MAiD laws, includes a provision that health care professionals and health care organizations can choose not to participate. Additionally, because the law is silent on several implementation questions, health care organizations can write their own policies on MAiD practices. Policymakers and scholars in California began researching how the law was implemented and after two years, recommended that health care organizations be more transparent about their policies.Footnote ¹¹ In 2021, the legislature amended the Act, effective January 1, 2022, to require “health care entit[ies]” to “post on the entity’s public internet website the entity’s current policy governing medical aid in dying.”Footnote ¹² This public regulation does not mandate a particular organizational policy, which preserves organizational autonomy and private ordering, but instead attempts to promote patient autonomy by mandating that patients have access to information that may be important to their medical and end-of-life decision-making. Adopting a requirement that health care entities be transparent about their EOLOA policy also makes it possible for researchers to collect and analyze the policies.

In March 2023, we obtained a list of all licensed health care entities in the state of California from the California Department of Health Care Access and Information.Footnote ¹³ We limited our focus to general acute care hospitals. We then went to each hospital’s website and searched for the hospital’s EOLOA policy. As we report elsewhere,Footnote ¹⁴ very few hospitals are compliant with the legal mandate to publicly post their EOLOA policies on their public-facing institutional website, but there is no enforcement mechanism for this EOLOA provision included in the statute. We analyzed available policies for whether organizations choose to participate in MAiD and whether organizations add restrictions to or conditions of participation for health care providers or patients that are not contained in the text of the law.

We report on an analysis of these policies elsewhere but will briefly summarize our main findings here.Footnote ¹⁵ We found that (1) organizational policies vary in how they restrict patient and provider participation in MAiD, including adopting no policy, using the text of the law as policy, restricting provider participation only, restricting patient participation only, or adding conditions to participation for both providers and patients; (2) the predominance of religiously affiliated hospitals means that many hospitals “opt out” because MAiD is inconsistent with religious doctrine; and (3) organizations that “opt in” may burden patients seeking MAiD with onerous requirements and organizations that “opt out” may not actually preclude access to MAiD, although neither physicians nor patients may recognize this.Footnote ¹⁶

For the purposes of this chapter, we use a subset of organizational policies to illustrate reasons why MAiD is only a paper right. First, however, we focus on how eligibility and procedural requirements in the law, ignorance of the law, and functional eligibility requirements such as financial resources, limit access to MAiD. We then illustrate how private organizational policies, even for organizations that opt in, can make MAiD a “paper option” for many individuals who otherwise may desire MAiD.

22.3 Legal Requirements Limit Access to MAiD

As others have reported elsewhere,Footnote ¹⁷ the strict eligibility requirements in MAiD laws prevent many individuals from using MAiD. Only residents of states where MAiD is legal can avail themselves of this option.Footnote ¹⁸ Further, only adults with decisional capacity can access MAiD,Footnote ¹⁹ which excludes terminally ill individuals with cognitive impairments such as moderate dementia.Footnote ²⁰ The terminal illness requirement excludes from using MAiD those who are suffering from serious and incurable illnesses but who do not meet the terminal illness definition,Footnote ²¹ and the self-administration requirement may exclude individuals with disabilities that make it impossible to self-administer the medication.Footnote ²² And waiting periods imposed by law can also mean someone dies or becomes incapacitated between the first and second requests,Footnote ²³ thus losing the opportunity to die with MAiD.

Aside from these eligibility requirements, the law also imposes significant paperwork burdens on physicians and patients. Physicians have to make referrals to other health care providers and complete legally required forms and submit them to the state.Footnote ²⁴ And patients have to complete a written form that is witnessed by two people, neither of whom can be their current health care providers and one of whom cannot be a family member.Footnote ²⁵ Individuals at the end of life, especially if institutionalized, may not be able to satisfy these requirements. These burdens are especially significant, given that people seeking MAiD are very ill and have limited life left.

In brief, existing public law requirements may result in very few people qualifying for MAiD, regardless of subsequent private policy choices of health care organizations, making this end-of-life option a paper right.

22.4 Ignorance of Law Limits Access to MAiD

Even assuming an individual satisfies the legal eligibility requirements for MAiD, many individuals may not know about MAiD. This is in part due to silence in many states’ MAiD laws about whether physicians can initiate a discussion about MAiD with their patients. In this statutory and regulatory silence, some private professional organizations have adopted recommendations suggesting that physicians not bring up MAiD with their patients to not unduly influence patients to hasten death.Footnote ²⁶ Such recommendations from private organizations can be considered “soft [private] law,” which although not legally binding, may become very influential in practice. Following this guidance means that patients who are not well informed about end-of-life options may not know about MAiD.

Another way in which individuals may be ignorant of the law occurs when information about the law is not available in multiple languages. When we were researching California health care entities’ websites, it was not uncommon to find hospital policies and forms in both English and Spanish (e.g., advance directive forms), but never did we find an EOLOA policy posted in a language other than English.Footnote ²⁷

Ignorance means that end-of-life decision-making rights are not exercised.

22.5 Hidden Health Care Organization Opt In Limits Access to MAiD

Another way access to MAiD is limited in states where it is legal occurs when health care organizations opt in but hide this information from their patients and the public. In our research, we found several instances in which organizations had an opt-in policy, but this was not easily found using the hospital website search function or that had a policy that could be found elsewhere online but not on the hospital’s webpage. Organizations that are not transparent about opting in make it less likely that their patients will use MAiD, but this hidden opt in may serve other organizational (i.e., private law) preferences, such as maintaining the status quo of low MAiD rates, resisting controversial change, reducing administrative burden on providers, and reducing risk of liability.

22.6 Functional Ineligibility Limits Access to MAiD

An individual may desire MAiD but not be able to afford this end-of-life option. Often the MAiD medication is not covered by health insurance.Footnote ²⁸ This means that patients who choose MAiD must pay for the medication out of pocket. That cost is often from US$700 to over US$3,000 and has increased over time as more states legalize MAiD.Footnote ²⁹ This may be cost-prohibitive for lower-income individuals, making them functionally ineligible for MAiD. Further, using MAiD is not an option through the Department of Veterans Affairs (VA),Footnote ³⁰ and so veterans who receive health care through the VA will not have access to this end-of-life option, even in states where MAiD is legal.

It may also be the case that pharmacies do not have MAiD medications,Footnote ³¹ which means that patients will not be able to use this end-of-life option.

Lack of financial resources or lack of access to the aid-in-dying medication makes the right to die illusory for some otherwise eligible individuals.

22.7 Health Care Organization Opt Out Limits Access to MAiD

More significantly for limiting access to MAiD, however, is the law’s facilitation of individual health care provider and organizational opt out of participation. The law states that “[p]articipation under this part shall be voluntary. … A person or entity that elects, for reasons of conscience, morality, or ethics, not to participate is not required to participate.”Footnote ³²

The law directs that “a health care entity may prohibit its employees, independent contractors, or other persons or entities, including health care providers, from participating under this part while on premises owned or under the management or direct control of that health care entity or while acting within the course and scope of any employment by, or contract with, the entity.”Footnote ³³ Consequences for violating an organization’s policy can include “[l]oss of privileges, loss of membership, or other action authorized by the bylaws or rules and regulations of the medical staff”Footnote ³⁴ and “[s]uspension, loss of employment, or other action authorized by the policies and practices of the health care entity”Footnote ³⁵ among other potential penalties.Footnote ³⁶ Health care entities are not permitted to prohibit health care provider or employee participation in the EOLOA when not acting within the “course and scope” of their employment or independent contracting duties with the entity and when not on the facility’s premises.Footnote ³⁷

When a health care organization, such as a general acute care hospital, decides that its employees, and physicians on its medical staff, are not participating in MAiD, patients who receive their end-of-life care from the organization and affiliated personnel will likely struggle to access MAiD. In theory, patients could transfer their care to seek MAiD, but in practice, providers may not accept a new patient solely to facilitate the patient’s death through MAiD.Footnote ³⁸ Additionally, patients may be physically unable to seek new care because they are actively dying or institutionalized, or the patient may not be able or want to leave their home to search for MAiD providers that may be geographically distant.

Religious hospitals constitute a significant share of private nonprofit hospitals,Footnote ³⁹ and many religious hospitals have declined to participate in the California EOLOA.Footnote ⁴⁰ Many of these hospitals are part of a large health system, which means that patients receiving care through the system will not have access to this end-of-life option. For this chapter, we use the case of one health system that has complied with the legal requirement to post its EOLOA policy publicly – Dignity Health – to demonstrate the effect of organizational opt out on access to MAiD.

Dignity Health system’s goal is “to create environments that meet each patient’s physical, mental, and spiritual needs,” and it is “made up of more than 60,000 caregivers and staff who deliver … care to … communities in 21 states. Headquartered in San Francisco, Dignity Health is the fifth largest health system in the nation and the largest hospital provider in California.”Footnote ⁴¹ Dignity Health started with one Catholic hospital and has since grown to include thirty-nine hospitals, of which twenty-four are Catholic.Footnote ⁴²

Not surprising, given the Catholic church’s opposition to MAiD,Footnote ⁴³ Dignity Health hospitals opted out of the EOLOA, and this opt out extends to other services such as hospice and home health.Footnote ⁴⁴ Indeed, the system’s opposition to MAiD is explicit in its Statement of Common Values: “Death is a sacred part of life’s journey; we will intentionally neither hasten nor delay it. For this reason, physician-assisted suicide is not part of Dignity Health’s mission.”Footnote ⁴⁵ This language is also copied in its official hospital policy, where it asserts that “[t]he mission, values, and philosophy of care of Dignity Health compel us to reject participation in physician aid in dying.”Footnote ⁴⁶

Dignity Health’s EOLOA policy begins with a statement that the organization is committed to providing “excellent palliative care,” is opposed to MAiD, and wants to ensure that everyone is aware that Dignity Health is exercising its legal right to opt out of participating in MAiD.Footnote ⁴⁷ Dignity Health then specifies the following with respect to MAiD:

B. It is the policy of Dignity Health that its facilities, programs, staff, and related operations shall not be involved in physician aid in dying, including:
1. 1. Providing or securing an “informed decision” as defined by the Act.
2. 2. Providing or completing the written and oral request as provided by the Act.
3. 3. Providing any medication with the specific purpose of ending a human life as contemplated by the Act.
4. 4. Being present at the time of administration of the medication by the patient.
C. Patients, families, nurses, physicians, and other providers are encouraged to fully explore and discuss care and treatment options for terminally ill patients. As part of that discussion, Dignity Health recognizes that requests for physician aid in dying will occur within the context of the physician-patient relationship. Dignity Health respects the rights of patients and physicians to discuss and explore all such treatment options, but fully expect that patients and physicians will respect and adhere to the Dignity Health’s position as set forth in this policy while undergoing and providing treatment in Dignity Health facilities, programs, and services.Footnote ⁴⁸

Interestingly, Dignity Health’s website refers individuals with questions about the EOLOA to their primary care providers and the Coalition for Compassionate Care of California (CCCC), which is an organization that “promotes high-quality, compassionate care for everyone who is seriously ill or nearing the end of life”Footnote ⁴⁹ and is officially neutral about the CA EOLOA. Although it is neutral, the CCCC website includes a wide range of information about all end-of-life decisions, including the EOLOA. The CCCC website also includes a link to the American Clinicians Academy for Medical Aid in Dying, which connects interested individuals to physicians willing to assist them in accessing MAiD.Footnote ⁵⁰

Dignity Health has twenty-nine hospitals across California,Footnote ⁵¹ and thus its opt out significantly affects access to MAiD.

While this section focused on a religiously affiliated health system as a case of organizational opt-out of MAiD, other health systems in California have also opted out, despite no religious reason. Such opt outs also preclude patient access to MAiD, especially when the hospital is the only hospital in a rural region.

22.8 Health Care Organization Opt In with Additional Requirements Limits Access to MAiD

It may seem that when health care organizations decide to opt into the CA EOLOA, patients will have access to MAiD if they meet the legal requirements as outlined in the statute. However, many organizations that opt in create policies with additional requirements that may impede access to MAiD.Footnote ⁵² This section will focus on the CA EOLOA opt-in policy of the University of California San Francisco (UCSF) Medical Center to highlight organizational requirements that may restrict patient choice at the end of life.

One way that UCSF may make it more difficult for patients to obtain MAiD is by requiring that patients meet with two additional clinicians beyond the attending and consulting physicians required by law. The UCSF policy directs that patients inquiring about MAiD be referred to a social worker for information.Footnote ⁵³ If the patient decides to move forward with the process, their attending physician to whom they make their initial request for MAiD must refer them to a mental health specialist for a capacity assessment and to ensure no mental illness is affecting their decision to pursue MAiD.Footnote ⁵⁴ UCSF justifies their policy on the basis of protecting patients with impaired decisional capacity, including from mental illness.Footnote ⁵⁵

With these requirements, UCSF’s policy is trying to ensure that patients’ decisions are truly informed and voluntary and thus autonomous.Footnote ⁵⁶ However, requiring additional appointments and assessments slows the MAiD process, and because patients are terminally ill, they may die before the process is complete, frustrating their autonomy. Further, meeting with two additional providers, neither of whom the patient may have met before, can constitute a significant privacy burden and provides an opportunity for strangers to veto the patient’s decision, given that UCSF’s policy is not to prescribe aid-in-dying medication if health care team members have concerns about whether the patient is making a voluntary request.Footnote ⁵⁷

Other parts of UCSF policy may also reduce patient access to MAiD. For example, aid-in-dying medication cannot be dispensed or ingested on the premises.Footnote ⁵⁸ Patients who cannot be discharged from the hospital will not be able to use MAiD. Further, UCSF will not accept patients only for MAiD. UCSF will only facilitate MAiD for current patients.Footnote ⁵⁹ Patients must also be able to communicate in the absence of familial support as UCSF policy requires that physicians discuss the EOLOA with their patients alone,Footnote ⁶⁰ and this can negatively affect those who prefer to make decisions with family or who need decision-making assistance.Footnote ⁶¹ Moreover, there are additional requirements that physicians must meet in order to participate in MAiD at UCSF, such as obtaining UCSF Medical Staff EOLOA privilegeFootnote ⁶² and making reports to UCSF risk management,Footnote ⁶³ which may decrease physician willingness to participate, given how many burdens are on their time in everyday medical practice and are added just through complying with the statutory EOLOA requirements.

In brief, even when organizations opt into MAiD, their policies do not guarantee that statutorily qualified individuals will be able to use this end-of-life option.

22.9 Discussion and Conclusion

Our research demonstrates that health care organizations, most of them private, mediate medical decision-making rights granted by the state. Employment contracts with health care professionals and medical staff bylaws and staff privileges for physicians constrain involvement in MAiD and affect the physician–patient relationship. Thus, the spread of MAiD across the United States may be only a symbolic victory for patients’ rights advocates because in practice, this option is not available to many patients due to health care organizations’ policies. Indeed, statistics reflect that only the most privileged patients are receiving MAiD. Organizational policies thus limit patient autonomy, which California’s EOLOA law was meant to increase, but such limits will primarily be experienced by rural patients, low-income patients, and patients with low health literacy.

Footnotes

¹ Lauren B. Edelman, Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law, 97 Am. J. Soc. 1531 (1992); Frank Dobbin, Inventing Equal Opportunity (2009).

² Lauren B. Edelman et al., The Endogeneity of Law: Grievance Procedures as Rational Myths, 105 Am. J. Soc. 406 (1999).

³ Oregon Death with Dignity Act (1994); Washington Death with Dignity Act (2008); Vermont Patient Choice and Control at the End of Life Act (2013); California End of Life Option Act (2015); Colorado End of Life Options Act (2016); D.C. Death with Dignity Act (2016); Hawai’i Our Care, Our Choice Act (2018); New Jersey Medical Aid in Dying for the Terminally Ill Act (2019); Maine Death with Dignity Act (2019); New Mexico Elizabeth Whitefield End-of-Life Options Act (2021); see also Baxter v. Montana (2009 MT 449) (decriminalizing medical aid in dying).

⁴ There are other procedural and eligibility requirements as well. For a description US MAiD laws, see Megan S. Wright, Equality of Autonomy? Physician Aid in Dying and Supported Decision-Making, 63 Ariz. L. Rev. 157 (2021).

⁵ Twenty percent of Americans now live in a jurisdiction where MAiD is legal. Compassion & Choices, Medical Aid in Dying, https://www.compassionandchoices.org/our-issues/medical-aid-in-dying (last accessed Apr. 10, 2023).

⁶ See, e.g., California Dep’t of Public Health, California End of Life Option Act 2021 Data Report 4 (July 2022), https://www.cdph.ca.gov/Programs/CHSI/CDPH%20Document%20Library/CDPH_End_of_Life%20_Option_Act_Report_2021_FINAL.pdf (reporting that in 2021, between 448 and 642 individuals died using MAiD, and only 772 prescriptions were written).

⁷ See, e.g., Footnote id. at 5 (reporting that in 2021, 85.65 percent of individuals in California who died with medical assistance were white, and 76.7 percent had some college education). Only 35 percent of individuals in California are white. Hans Johnson et al., California’s Population, Public Pol’y Inst. of Cal. (Jan. 2023), https://www.ppic.org/wp-content/uploads/JTF_PopulationJTF.pdf.

⁸ Mara Buchbinder & Cindy L. Cain, Medical Aid in Dying: New Frontiers in Medicine, Law, and Culture, Ann. Rev. L. & Soc. Sci. 195, 199, 204–05 (2023).

⁹ Jaclyn Greenberg, A Right of Appeal under Ontario’s Health Care Consent Act: A Paper Victory Is No Victory at All, 44 Ottawa L. Rev. 433, 461 (2012–13).

¹⁰ Cal. Health & Safety Code §§ 443–443.22 (West 2023).

¹¹ Cindy L. Cain et al., Hospital and Health System Policies Concerning the California End of Life Option Act, 23 J. Palliative Med. 60, 65 (2020).

¹² Cal. Health & Safety Code § 443.15(i) (West 2023).

¹³ California Health and Hum. Servs. Open Data Portal, OSHPD Healthcare Facilities, https://data.chhs.ca.gov/dataset/oshpd-healthcare-facilities (last accessed Feb. 18, 2024).

¹⁴ Megan S. Wright & Cindy L. Cain, Hospital Compliance with the California End of Life Option Act Transparency Requirements (Working Paper, forthcoming) (reporting that about a third of hospitals posted their EOLOA policy).

¹⁵ Megan S. Wright & Cindy L. Cain, Mediating Autonomy (Working Paper, forthcoming).

¹⁶ Footnote Id.

¹⁷ See, e.g., Mara Buchbinder & Thaddeus M. Pope, Medical Aid in Dying in Hawaii: Appropriate Safeguards or Unmanageable Obstacles?, Health Affs. (Aug. 13, 2018), https://www.healthaffairs.org/do/10.1377/forefront.20180808.14380/; Amanda M. Thyden, Death with Dignity and Assistance: A Critique of the Self-Administration Requirement in California’s End of Life Option Act, 20 Chap. L. Rev. 421 (2017).

¹⁸ Recent lawsuits in Oregon and Vermont contesting residency restrictions have resulted in changes in these jurisdictions. Elizabeth Castillo, Oregon Settles Lawsuit Challenging Residency Requirements for State’s Death with Dignity Law, NPR (Mar. 30, 2022), https://www.opb.org/article/2022/03/30/oregon-settles-lawsuit-challenging-residency-requirement-for-states-death-with-dignity-law/; Lola Fadulu, To Die on Her Own Terms, a Connecticut Woman Turns to Vermont, N.Y. Times (Mar. 29, 2023), https://www.nytimes.com/2023/03/29/nyregion/connecticut-vermont-medical-assisted-death.html.

¹⁹ See, e.g., Cal. Health & Safety Code §§ 443.2(a) (West 2023), 443.1(e) (“‘Capacity …’ means … the individual has the ability to understand the nature and consequences of a health care decision, the ability to understand its significant benefits, risks, and alternatives, and the ability to make and communicate an informed decision to health care providers”).

²⁰ But see Wright, supra Footnote note 4 (arguing that disability law may facilitate access to MAiD for some individuals with cognitive impairments).

²¹ See, e.g., Cal. Health & Safety Code § 443.1(r) (West 2023) (“‘Terminal illness’ means an incurable and irreversible disease that … will … result in death within six months”).

²² See, e.g., Footnote id. § 443.1(q).

²³ State laws authorizing MAiD require two requests separated by a waiting period, which typically was fifteen days. However, some states chose to have a longer waiting periods (e.g., twenty-one days), and California recently reduced its waiting period to forty-eight hours. Footnote Id. § 443.3.

²⁴ Footnote Id. §§ 443.8, 443.9. Requiring the participation of multiple physicians may also create barriers.

²⁵ Footnote Id. § 443.3.

²⁶ See, e.g., Bonnie Reagan, Conscientious Practice, in The Oregon Death with Dignity Act: A Guidebook for Health Care Professionals 12, 12 (Sept. 2007), https://www.wsha.org/wp-content/uploads/Death-with-Dignity_Death-with-dignity-guidebook.pdf (“We believe that the attending physician should not initiate the discussion, because if he/she does, the patient may feel pressured …”).

²⁷ Wright & Cain, supra Footnote note 14.

²⁸ David Grube & Ashley Cardenas, Insurance Coverage and Aid-in-Dying Medication Costs, 3 JAMA Oncology 1137 (2017); Veena Shankaran et al., Insurance Coverage and Aid-in-Dying Medication Costs – Reply, 3 JAMA Oncology 1138 (2017). However, in California, Medicaid covers many of the costs associated with MAiD, but Medicaid does not cover all low-income individuals. California Dep’t of Health Care Servs., End of Life Option Act Services (Aug. 2020), https://files.medi-cal.ca.gov/pubsdoco/Publications/masters-MTP/Part2/eloa.pdf.

²⁹ JoNel Aleccia, Terminally Ill, He Wanted Aid-in-Dying. His Catholic Hospital Said No, Kaiser Fam. Found. Health News (Jan. 29, 2020), https://kffhealthnews.org/news/when-aid-in-dying-is-legal-but-the-medicine-is-out-of-reach/ (noting that the cost of one aid-in-dying drug is over US$3,000); UCSF Health: FAQs End of Life Option Act at UCSF Health, UCSF Health, https://www.ucsfhealth.org/education/faq-end-of-life-option-act-at-ucsf (last accessed May 1, 2023) (stating the cost of the medication is US$700 plus “delivery fees”); Katie Engelhart, I’m the Doctor Who Is Here to Help You Die, The Atlantic (Mar. 1, 2021), https://www.theatlantic.com/health/archive/2021/03/aid-dying-lonny-shavelson/618139/ (describing how some physicians have opened MAiD specialty practices, which are expensive for patients); Veena Shankaran et al., Drug Price Inflation and the Cost of Assisted Death for Terminally Ill Patients – Death with Indignity, 3 JAMA Oncology 15 (2017).

³⁰ Dep’t of Veterans Affs., VA Fact Sheet for Healthcare Staff 3 (Sept. 2010), https://www.ethics.va.gov/docs/pandemicflu/Ethics_and_Pandemic_Flu_Fact_Sheet_508_2010-09-30.pdf.

³¹ Aleccia, supra Footnote note 29.

³² Cal. Health & Safety Code § 443.14(e)(1) (West 2023).

³³ Footnote Id. § 443.15(a).

³⁴ Footnote Id. § 443.15(c)(1).

³⁵ Footnote Id. § 443.15(c)(2). Physicians can be fired for noncompliance with health care employer policy. See, e.g., Aleccia, supra Footnote note 29.

³⁶ Cal. Health & Safety Code §§ 443.15(c)(3), 443.15(c)(4).

³⁷ Footnote Id. § 443.15(d).

³⁸ See, e.g., FAQs: End of Life Option Act at UCSF, UCSF Health, https://www.ucsfhealth.org/education/faq-end-of-life-option-act-at-ucsf (last accessed Apr. 13, 2023) (“At this time, only established UCSF patients are eligible to pursue EOLOA with UCSF.”).

³⁹ Maryam Guiahi et al., Patient Views on Religious Institutional Health Care, 2 JAMA Network Open e1917008 (2019) (reporting that nearly 20 percent of hospitals are religiously affiliated as of 2016, most of which are Catholic); Aleccia, supra Footnote note 29 (reporting that 1/6 US patients receives health care from a Catholic hospital).

⁴⁰ Cain et al., supra Footnote note 11.

⁴¹ About Us, Dignity Health, https://www.dignityhealth.org/about-us (last accessed Apr. 13, 2023).

⁴² Our History: Rooted in Kindness, Dignity Health, https://www.dignityhealth.org/about-us/our-organization/mission-vision-and-values (last accessed Apr. 13, 2023).

⁴³ U.S. Conf. of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services 20–22 (6th ed. 2020), https://www.usccb.org/about/doctrine/ethical-and-religious-directives/upload/ethical-religious-directives-catholic-health-service-sixth-edition-2016-06.pdf.

⁴⁴ See, e.g., Dignity Health Operations, Dignity Health Administrative Policy and Procedure, Physician Aid in Dying (Physician Assisted Suicide) 140.1.019, 2 (June 9, 2016), https://www.dignityhealth.org/content/dam/dignity-health/socal/pdfs/Dignity-Health-System-Policy-Physician-Assisted-Suicide.pdf.

⁴⁵ Dignity Health, Statement of Common Values 3, https://www.dignityhealth.org/content/dam/dignity-health/pdfs/our-1dh-missionintegration-standards-indicators2014.pdf (last accessed Oct. 9, 2024).

⁴⁶ Dignity Health Operations, supra Footnote note 44, at 1.

⁴⁷ Footnote Id. at 2.

⁴⁸ Footnote Id. at 3.

⁴⁹ About Us, Coal. for Compassionate Care of California, https://coalitionccc.org/CCCC/CCCC/About/Mission.aspx?hkey=f520866d-3c6d-4407-8445-3026cb0d9026 (last accessed Apr. 13, 2023).

⁵⁰ Key Facts about the End of Life Option Act for Patients & Families, Coal. for Compassionate Care of California, https://coalitionccc.org/CCCC/Resources/Consumer-Information-on-EoLOA.aspx (last accessed Apr. 13, 2023).

⁵¹ Our Locations, Dignity Health, https://www.dignityhealth.org/ourlocations (last accessed Apr. 13, 2023).

⁵² See Wright & Cain, supra Footnote note 15.

⁵³ UCSF Health & UCSF Med. Ctr., The California End of Life Option Act (Patient’s Request for a Drug for the Purpose of Ending Life) Policy 6.06.16, 4, https://www.ucsfhealth.org/-/media/project/ucsf/ucsf-health/pdf/end-of-life-option-act-policy.pdf (last accessed Apr. 2022).

⁵⁴ Footnote Id. at 7.

⁵⁵ Footnote Id. at 8.

⁵⁶ The meeting with the social worker can be helpful to patients whose physician does not participate in MAiD because the social worker will connect the patient to a physician who does participate. Footnote Id. at IV.G. Some research has found that UCSF’s mental health evaluation adds no benefit beyond the assessment of patient capacity that the attending and consulting physicians perform, however. Jordie Martin et al., UCSF End-of-Life Option Act 2016–2019: A Retrospective Chart Review Pilot (SC1923), 61 J. Pain Symptom Mgmt. P682 (Mar. 2021).

⁵⁷ UCSF Health & UCSF Med. Ctr., supra Footnote note 53, at 5.

⁵⁸ Footnote Id. at 4.

⁵⁹ Footnote Id. at 4.

⁶⁰ Footnote Id. at 7.

⁶¹ See Megan S. Wright, End of Life and Autonomy: The Case for Relational Nudges in End-of-Life Decision-Making Law and Policy, 77 Md. L. Rev. 1062 (2018) (describing how many individuals prefer to make end-of-life decisions in consultation and collaboration with their family members); Megan S. Wright, Dementia, Autonomy, and Supported Healthcare Decision Making, 79 Md. L. Rev. 257 (2020) (describing supported health care decision-making); Wright, supra Footnote note 4 (describing how supported decision-making can facilitate autonomous use of MAiD for individuals with cognitive impairments).

⁶² UCSF Health & UCSF Medical Center, supra Footnote note 53, at 4.

⁶³ Footnote Id. at 2–3.

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