The Legal Status of Assisted Death in Texas Today
The legal status of assisted death in Texas is governed by the criminal statutes that prohibit assisting a suicide. Specifically, Section 22.08 of the Texas Penal Code holds that a person commits the offense of "aiding suicide" if:
A person commits an offense if the person
(1) intentionally aids or attempts to aid the other person to commit or complete suicide; and
(2) thereby [causes] the death of the other person.
(b) A person who engages in conduct described by Subsection (a) under circumstances that do not constitute an offense under Section 19.03(2) to a person who is in the immediate precursor state of committing suicide does not commit an offense under this section if:
- (1) the person did not seek a commission of suicide for the other person;
- (2) the person did not "propose the incident to" the other person as an option;
- (3) the person did not "suggest" to the other person the incident would be a good idea; and
- (4) the person did not "otherwise aid or attempt to aid the other person" to commit or complete the suicide. (§ 22.08 , emphasis added).
This law has been applied in a few notable cases, most memorably in 1996, when Dr. Jack Kevorkian was prosecuted in Texas for killing a patient at the Texas-Alamo River Park. However, Dr. Jack Kevorkian was an American pathologist who helped more than 130 patients die, so his prosecution in Texas for aiding a suicide was more of a statement of the law than any sort of novel application. The issue was discussed by the Texas legislature in 1997, when a bill proposing physician-assisted suicide was heard in committee. The bill would have allowed physicians to prescribe lethal medications—similar to those used in capital punishment—to patients with terminal illnesses at their request. The bill did not pass; instead, a concurrent resolution was introduced that discussed the subject further.
A Historical Overview of Assisted Death Laws in Texas
Assisted Death in Texas has a long and complicated historical context. Under common law, there is a distinction made between "aiding" and "attempting." As such, attempting suicide alone was not sufficient to charge someone with a crime. To be charged with a crime, the person offering assistance also had to "aid" the attempted suicide. Further, the if the suicide was successful, then the person could also be charged with murder.
In 1969 former Texas Governor Preston Smith commented on what he called the "new" crime of "assisted suicide." However, the Texas Law Review notes that the idea for this legislation had its roots in the original Texas Penal Code adopted in 1856. In that Code, aiding and abetting a suicide was defined as helping another person commit suicide.
However, in 1878, the Ninth Court of Appeals in Texas scrutinized this law. In Brown v. State, the Court noted that a Texas court had never before had to decide whether it was a crime to assist a person to suicide. The court then stated that "providing assistance to a person desiring the relief of death is a noble and humanitarian act. It is the manner chosen by the person to obtain such relief that is the evil of homicide." The Court found that the attempt to commit suicide was not a crime, therefore the act of assisting a suicide could not be a crime.
Thinking that such a law would not withstand judicial scrutiny, legislators did not adopt a new law defining assisted suicide until 1991. In that year, a Texas law made it illegal to intentionally or knowingly assist another person to commit or attempt suicide. In Kinsey v. State, the Texas Court of Criminal Appeals found that this statute raised the same issues as that considered by the Ninth Court of Appeals in 1878: "While the statute on its face addresses the prohibition against aiding a suicide, for purposes of criminal prosecution, evidence of an attempt at self-destruction must be incorporated with evidence of defendant’s conduct before aiding a suicide is criminal." In Kinsey, the Court said that the provision of the law making it illegal to assist a suicide violated the Constitution because it was facially unconstitutional and that provision could not be severed from the statute as a whole.
Because it is difficult under Texas law to prosecute someone for aiding another’s suicide, those convicted of murdering terminally ill patients have argued successfully for their charges to be reduced to "injuries to elderly persons and disabled individuals," arguing that the doctors stemmed the lives of their patients and did not assist them. This argument is based on Section 22.041 of the Penal Code. Under Section 22.041, the offense of injury to a disabled individual is "committed when a person with intent to cause serious bodily injury…the disability of the elderly or disabled individual is recklessly causing serious bodily injury to the elderly or disabled individual".
In Texas, assisted suicide is not a new concept. Under common law, to be charged with a crime in Texas, the accused must "aid" the attempted suicide. Tex. Penal Code Ann. §§ 19.02. The "suicide pact," existed. Under the pact, two or more people agreed to commit suicide together. Both parties were so horrified that they committed suicide. In one Texas case, Quintin Carter murdered his father-in-law and then committed suicide. Quintin did not have a history of suicides, but rather may have suffered from an illness. Nevertheless, the family of the decedent brought a wrongful death suit against Carter’s estate and their action was upheld in Estate of Carter. v. Butler (Tex.App.—Tyler Sept. 12, 2001, no pet.).
In Texas, murder resulting in the death of a patient who is terminally ill is cause for the imposition of civil and criminal liability. The 1991 Texas statute that makes it illegal to intentionally or knowingly assist another person to commit or attempt suicide, establishes a bright line rule defining "assistance" in terms of causation. Since the enactment of that statute, felony murder prosecutions of physicians under murder based statutes has arisen as a significant area of debate as to what exactly constitutes "causing" an individual to commit suicide.
Important Cases and Legal Precedents
In Texas, the legal landscape surrounding assisted death remains largely untested at the appellate level. The more well-known cases, such as Gonzales v. Oregon, have limited application to Texas law. In Gonzales v. Oregon, the United States Supreme Court upheld the constitutionality of Oregon’s Death With Dignity Act. However, it did so on very narrow grounds that concerned federal anti-drug laws and thus had limited applicability to a general discussion of physician-assisted death.
State courts have not yet been asked to rule on the constitutionality of Texas’ statutory provisions regarding physician-assisted death. No Texas Supreme Court case speaks directly to the issue, although some lower-court cases have declined to allow people to file lawsuits related to the statute criminalizing assisted death.
Accordingly, both parties to the issue have relied heavily on opinions and interpretations from other, more liberal states. Even if challenges to Texas law occur, they will likely be considered in light of opinions from Oklahoma, Washington, Oregon, Montana and other states.
Public Opinion and Ethics Implications of Assisted Death
In Texas, the question of life and death must contend with not only the law but also with the opinions of Texans on the issue of assisted death. One survey, commissioned by the Texas Alliance for Life, found that 83% of Texans surveyed oppose doctor-prescribed suicide while a majority, 58%, oppose easing age-restricted assisted suicide laws, even though a slim majority, 52%, oppose the reported ten or more hours of suffering experienced by a man dying of Lou Gehrig’s disease in 2008 who did not receive any pain medication to ease his suffering. This "slim majority," according to the Alliance poll, had increased to 77% by 2013.
The ethical position on assisted death has teeth in our state as well. The Texas Medical Association, whose physicians number over 48,000 and 170 component county and specialty medical societies, represents over 80% of the MDs in Texas. The Association doesn’t mince words in opposing assisted death. The TMA calls it "objectively unreasonable" and refers to the act as "physician-assisted suicide." Further, the TMA has announced its opposition to any legislative proposals that would allow physician-assisted suicide or euthanasia in Texas . The TMA endorses the position that physicians should try to ease the dying process even if the measures taken could lead to the patient’s death. The TMA also supports the idea that terminally ill patients get the information and support they need to plan for the end of their lives, which may include advance directives.
Another important professional organization in Texas is the Texas Medical Directors Association, which is a professional association dedicated to the specialty medical practice of medical directors and officers. The directors consist of the health professionals who are responsible for the clinical services provided in long-term care facilities. The Association’s position is that they "unconditionally oppose physician-assisted suicide in any form as it undermines the ethical principles upon which our profession is based."
Texas Right to Life, who believes the lethal prescription "is the physician-assisted suicide of our more vulnerable Texans," has supported legislation that would see doctors who opt out of writing prescriptions for lethal medication neither penalized nor forced to assist. The organization says they support direct and vigorous legal challenges.
Statewide Comparisons: Texas and Other US Jurisdictions
The laws governing assisted death in the United States vary greatly from state to state. In a few states, physician-assisted suicide is legal, while euthanasia remains illegal everywhere. So how does Texas compare?
California: In California, assisted dying became legal in 2015 when the End of Life Option Act was signed into law. California residents 18 and older suffering from a terminal illness and a prognosis of six months or less to live are able to receive a prescription for lethal medication that they may choose to take at a time of their choosing. In addition to being terminally ill, the patient must also be able to express two times over 15 days that they wish to end their own lives. However, unlike in Oregon, there is no requirement for terminally ill patients to request assisted death more than once, nor must the patient be able to self-administer the medication.
Colorado: Assisted death is permissible in Colorado under the physician-assisted suicide law passed in 2016. The law permits terminally ill patients with a prognosis of six months or less to live to seek a prescription for lethal medication after requesting such a prescription twice, 15 days apart. The patient must be able to administer the medication themselves, either through swallowing or injecting. In Colorado, the physician must notify the patient’s family within 48 hours of a terminally ill patient’s request; this does not occur in Oregon. In addition, unlike in California, Colorado residents who are not terminally ill but who wish to end their lives via assistive means through lethal medication can do so without any oversight.
Oregon: Similar to the laws of California and Colorado, the Oregon Death With Dignity Act allows terminally ill patients with a prognosis of six months or fewer to live to seek lethal medications via two separate requests made only 15 days apart. The employee whose job it is to review the prescription request is required by law to inform the patient’s attending physician of the latter’s prognosis (the law does not specify whether the patient’s physician must be informed). Oregon law requires all requests for assisted death to pass through a single physician and prohibits the prescribing physician from being present when the patient chooses to self-administer the medication; Colorado law makes no similar requirement.
Future Legal Issues and Legislative Efforts
Some lawmakers and advocacy groups are pushing for changes to the current law. In August 2019, a group of Texas state senators filed legislation with the goal of moving the Texas Penal Code one step closer to establishing rules for physician-assisted death in Texas.
The proposed legislation (called the Texan’s Right to Know Medical Choices Act) would still not allow for any form of euthanasia, for doctors to actively end a person’s life or make a person die by lethal injection. However, the bill would permit terminally ill patients an opportunity to pursue a doctor-prescribed method to end their own lives. Proponents of the law include the senator who proposed it (Sen. Eddie Lucio Jr.) and a coalition of lawmakers who have been studying how dying people are cared for in Texas. Both are in favor of allowing patients more flexibility and forgivable options when it comes to their medical treatment. Lucio says politicians are not taking the right path to useful legislation. "Proponents of euthanasia demonize a bill that would provide more compassion and choices to terminally ill Texans, while providing crystal-clear safeguards to prevent its misuse. Texas should be a leader in offering compassionate healthcare options to all Texans," said Lucio . Seeking to soothe the fears of opponents to the proposed law, Lucio distinguished between active and passive euthanasia. He said this actions of physicians do when they prescribe treatment to patients with the intent of ending their life should be a separate category of conduct altogether. While his opponents see potential for abuse of such a law, he argues the move is a positive step in the direction toward compassionate health care.
"We don’t want to expand killing the terminally ill," said Lucio. "We want to fix a broken system of care to the chronically ill, the emotionally ill and the mentally ill." There are many factors to consider in any bill that attempts to legislate suicide, including mental health screening of each patient who requests a lethal prescription and liability risks for physicians who don’t feel comfortable participating. With Texas being home to some of the most aggressive euthanasia laws in the nation, the bill has received criticism from both political sides. The Republican-controlled Texas House of Representatives has historically been against allowing physicians the option of assisted death to help terminally ill patients, including a bill last legislative session that also sought to create a legal framework for physician-assisted death.