Legalizing "Obstetrics of the Soul" in California

SFMMS ADVOCACY CASE STUDY

LEGALIZING “OBSTETRICS OF THE SOUL” IN CALIFORNIA

Steve Heilig, MPH

Medical Aid in Dying, as it’s now called, has been controversial for many centu-

ries. Hastening a patient’s demise in any way has long been prohibited in the Hippocratic Oath (although it’s likely that was to prohibit political leaders from ordering physicians to execute enemies), and by AMA and most other medical associations’ policies. But the advent of the HIV epidemic fostered reexamination of this in practice and policy, and therein lies a story. Oregon and Washington were the first states to legalize MAID. California advocates attempted such a change a number of times over the years, using legislation or ballot initiatives—all of which failed. A key, perhaps the key factor in their defeat was opposition by the California Medical Association. This made sense, as what legislator or voter would want to grant a practice option to a powerful profession that didn’t seem to want it? On the other hand, not all physicians were in line with the AMA, and a paper from over 150 years ago argued that MAID could in fact be a form of “obstetrics of the soul.”

In San Francisco, medical opinion—and practice—seemed less unified and often not in line with the AMA and CMA. Caring for many dying AIDS patients who wanted out of their final suffering resulted in many local physicians favoring a legal option to help them exercise their free choice. By the early 1990s, the ghoulish/courageous Dr. Jack Kevorkian had put the “right to die” into the news as he intended, and editorials were appearing in medical and other publications in favor of allowing MAID where dying patients begged for it and no other good options were available. Some SFMS leaders voiced such opinions, so we thought we’d ask the SFMS membership. A survey yielded almost 700 responses, with a majority favoring a “pro-choice” position. I’ve always recalled one of the scribbled comments on one of the survey forms: “It’s time we become as humane with our patients as we are with our pets.”

Publication of our results in the SFMS journal became the first survey of American medical opinion on this controversial topic and was front-page news in the media. There have subsequently been many more such surveys, with at last count over 30,000 cumulative respondents, with results on the basic question fairly consistent with our own. Thus our elected delegation to the CMA—which included some leading HIV clinician/researchers—began to bring policy resolutions to the CMA annual meetings, advocating for a reexamination of CMA’s anti-MAID stance. These efforts repeatedly were rejected, sometimes without even a chance for real debate. I authored an editorial for the CMA journal—not expecting them to actually publish it— gently suggesting their position was outdated, and responses poured in mostly agreeing with me. We also convened a committee of Bay Area hospital ethics committee chairs, to draft clinical guidelines for providing MAID, legal or not. Publication of these guidelines in the Western Journal of Medicine garnered headlines nationwide, including a front-page New York Times story titled “Guidelines for the Unthinkable?” But still we continued to think about it.

In 2015, a new legislative effort to legalize MAID in California was underway, developed and lobbied by the wide coalition of dedicated advocates for MAID. The CMA was again slated to oppose it, with likely success as usual. The SFMS delegation wrote to CMA leadership, citing split physician opinion and the “state laboratories” of Oregon and Washington showing MAID could be legalized without abuse and in fact seemed to improve other elements of end-of-life care. We urged a position of “studied neutrality.” To its credit, CMA finally convened its large legislative committee to consider the matter in a halfday meeting. A prior online survey of the full House of Delegates prompted over 100 responses, with neutrality favored by 2-1. Testimony at the meeting was heated and mostly eloquent, although our opponent’s likening MAID to pushing somebody off the Golden Gate Bridge was probably ill-advised. When the committee chair asked for a “vote by hand,” the result was at least 3-1 in favor of changing CMA position to neutrality. Many in the room, including the legislators who authored the bill in question, seemed mildly shocked at the vote. I saw one physician wiping tears away, and felt quite emotional myself. After a couple decades of advocacy, we had prevailed. continued on paage 37

CMA opposition thus removed, the bill quickly was passed by all legislative votes and went to then-Governor Jerry Brown’s desk. A Jesuit by training and a very thoughtful if unpredictable leader, Brown devoted a whole weekend to pondering this one bill. We knew his fellow Catholics would be weighing in, so asked physicians and others who knew him personally to contact him as well. Some did so. On a Monday he issued his signature on the bill, adding an unusual personal message that concluded “In the end, I was left to reflect on what I would want in the face of my own death. I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill. And I wouldn’t deny that right to others.” By chance that very morning I was lecturing to medical students at UCSF on ethical issues, and held up the front-page Chronicle story and asked what they thought. There was a moment of silence until one student hesitantly asked “Um, why was that illegal in the first place?” Many others then nodded. And thus a reminder that major controversies of the past can so rapidly become less so to new generations. SFMMS co-sponsored a major, sold-out conference on clinical aspects of MAID in 2020, just before COVID hit, and it was a remarkably “normal” CME gathering, especially given that it might have been judged an illegal one just a few years before. Varied specialty associations have taken softer or even supportive stances on MAID, and even the AMA in 2019 stated that physicians can act in this regard “according to the dictates of their conscience without violating their professional obligations.”

The mandated annual reports on the practice of MAID have revealed none of the feared abuses of the practice, and only a few hundred actually using the option to hasten actual death each year. Countless more, one can confidently surmise, have found the “comfort” in the option that Governor Brown cited, without actually availing themselves of it. Can MAID be seen as a “last resort” element of palliative care? Some say so, citing definitions including relieving suffering and stress in the face of severe, especially terminal, illness. Among the many clinical and ethical grey areas associated with MAID, the reassurance that their physicians will “be there” for them no matter what, to the end as needed and wished, is likely the biggest, and most positive, impact of all the work we did to change the prohibition on MAID in our state. I will be forever proud and grateful that SFMMS was a major factor in that needed evolution.

For an update on MAID issues, see the report by Lonny Shavelson, MD in this same issue, and visit the American Clinicians Academy on Medical Aid in Dying at American Clinicians Academy on Medical Aid in Dying (acamaid.org)

Steve Heilig is a longtime staff member of the SFMMS, co-editor of the Cambridge Quarterly of Healthcare Ethics, former hospice caregiver and director, and managing editor of this journal.