Lawsuit targets Vermont’s death with dignity law

Aid in Dying Lawsuit
Published: Aug. 25, 2022 at 5:48 PM EDT|Updated: Aug. 25, 2022 at 10:49 PM EDT
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BURLINGTON, Vt. (WCAX) - A Vermont doctor has filed a federal lawsuit challenging the state’s nearly decade-old death with dignity law. Backed by a national advocacy group, she asserts the law is preventing her from providing end-of-life drugs to out-of-staters and is unconstitutional.

Of the 11 jurisdictions nationwide that have legalized medical aid-in-dying, 10 require the patient to be a resident there. That includes Vermont.

Dr. Diana Barnard is one of two plaintiffs who argue limiting the medical aid-in-dying option to Vermont residents violates the U.S. Constitution’s guarantee of equal treatment. “It really is about having options,” Barnard said.

Barnard is a palliative and hospice care specialist in Middlebury at Helen Porter Rehabilitation and Nursing and UVM Health Network-Porter Medical Center, and her practice treats both Vermonters and North Country, New York residents. For 13 years, she has helped terminally ill patients navigate suffering in life and decency in death.

But New York does not have a medical aid-in-dying law. Barnard says she’s forced to routinely turn down treatment for out-of-state patients, especially those on the other side of the lake.

“I am currently hamstrung by the residency requirement, and it’s really just reached a point where I no longer feel comfortable saying, ‘I’m sorry, I can’t help.’ I feel that patients are desperate and I need to step up and do my part to increase access,” she said.

Vermont in 2013 was the first state in the country to enact medical aid-in-dying legislation. It’s called the Patient Choice and Control at End of Life Act, or Act 39. But physicians are only permitted to prescribe terminally ill patients with life-ending medication if they’re residents of Vermont. Most who exercise this right have cancer.

According to the Vermont Health Department, 34 Vermont patients were prescribed life-ending medicine between 2017 and 2019 and 28 of them used it to end their life. In the most recent report submitted to the legislature, the health department cited 29 prescriptions between 2019 and 2021, and 21 people filled them. Since Act 39′s inception through June 2021, a total of 116 people received prescriptions.

“It’s about the patient, and we all should listen deeply to what they’re asking for,” Barnard said.

Patients like Bridgeport, Conn., resident Lynda Shannon Bluestein. “This is me. This is my one precious life. Why can’t I? When I’m most in need of something that Vermont has that Connecticut doesn’t have, why can’t I have access to that?” Bluestein said.

One in five Americans has access to medical aid-in-dying. Bluestein is part of the four in five Americans who don’t. Last year she was diagnosed with Stage IIIC ovarian cancer, the latest of three cancer recurrences.

Bluestein was inspired to join this fight by her dear friend Kathy’s journey. Amid the final phase of her battle against lung cancer, Kathy moved to the Green Mountains. She sent Bluestein regular emails, detailing every difficult, exhausting effort to establish residency. Her dying wish in her last letter was that Bluestein would never have to jump through the hoops she did. In the letter to Bluestein, Kathy wrote, “I wake this morning with an opportunity to make a difference in someone’s life, and it’s yours.”

Now, Bluestein is determined to give every terminally ill patient the power and peace of mind to decide when they’re done.

The advocacy organization Compassion & Choices filed the lawsuit on Barnard’s and Bluestein’s behalf.

The lawsuit asserts the Patient Choice and Control at End of Life Act violates three clauses in the U.S. Constitution: Privileges and Immunities, Dormant Commerce, and Equal Protection.

This comes a few months after settling a similar lawsuit in Oregon, successfully suspending the state’s residency requirement. During the 2021-22 legislative session, the group helped introduce medical aid-in-dying bills in 12 states. Leaders say the fight for a fairer future is far from over.