On the day Gov. David Ige made doctor-prescribed deaths by lethal drugs legal in Hawaii, proponents were quick to proclaim: “Today, Hawaii made history.”
I couldn’t agree more. It will forever be remembered as the day politics triumphed over patient rights and safety. The way in which this bill sailed through the Legislature and ultimately was signed into law will go down in the annals of Hawaii’s history as yet another case study of brazen politics.
Those in favor of the bill and those against urged legislative committees in both the House and Senate to heed the recommendations of the Attorney General’s Office.
Ford Fuchigami, the governor’s administrative director, and former Attorney General Doug Chin testifying as the lieutenant governor, both deferred to the Attorney General’s Office in their testimonies.
Yet, the bill went to a full Senate floor vote without amendments and then straight to the governor’s desk, where it was signed into law within a week — despite the red flags raised in the five pages of written testimony the Attorney General’s Office submitted in committee hearings.
Now that the bill, which many legislators publicly admitted is flawed, has become law, the community can take a closer look at what we’ve gotten ourselves into without the diversionary rhetoric about patient safety and autonomy.
First, the Attorney General’s Office pointed out the law tips in favor of health-care providers who are bad actors because of vague language. “No person shall be subject to civil or criminal liability or professional disciplinary action for participating or acting in good-faith compliance with this chapter … ” It recommended deleting “good faith” to establish a clearer, objective standard for liability. This would have protected both physicians and patients, but this was ignored by the elected officials.
The Attorney General’s Office made it clear: “Good-faith compliance is difficult to disprove as one could simply claim that he or she was ‘acting in good faith compliance’ without additional evidence.” Good-faith compliance with the law means if the doctor makes a mistake, the doctor is off scot-free, but that is NOT the standard for doctor liability.
With this new law, doctors are protected from being charged with murder in the second degree for intentionally or knowingly causing the death of another or manslaughter for intentionally causing another person to commit suicide. This is modeled after the Oregon law, so Hawaii residents should be wary and not be so gullible when they are told there has never been any abuse in that state.
Finally, the Attorney General’s Office suggested adding language into the law that health-care providers are not required to inform a patient about the option to obtain medication for the purpose of ending the patient’s life or refer a qualified patient to another health-care provider who is willing to participate in carrying out a qualified patient’s request if the current health care provider is unable or unwilling to participate.
Without this language in place, it will only be a matter of time before government compels health-care providers who opt out of participating in this practice to make it mandatory to tell their patients about drug-induced deaths and refer their patients to those who are willing to engage in this act. This imposes government’s values on providers and violates their First Amendment rights of free speech.
As the attorney general’s testimony noted: “… similar laws have generated lawsuits in other states.” The suggested revisions attempted to “clarify that health-care providers are not required to participate in any way with the provision of lethal drugs under this chapter” and “would help strengthen the bill in the event of a constitutional challenge.”
Haste makes waste. Only time will tell what the unintended consequences of this law will be.
Jim Hochberg is a Hawaii attorney who has been at the forefront of legal issues involving religious freedom and liberty.
