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Terminal patient and her doctor challenge Vermont’s aid-in-dying law

LYNDA BLUESTEIN

As she seeks to end her life through Vermont’s medical-aid-in-dying law, Lynda Bluestein faces one major obstacle: her ZIP code.

Bluestein, 75, was diagnosed last year with terminal fallopian tube cancer. She said she’d like to make use of Vermont’s Act 39, which allows doctors to prescribe life-ending drugs to terminally ill patients, but the law requires the recipient to be a resident of the state. That’s a problem for Bluestein, who lives 150 miles from Vermont’s southern border in Bridgeport, Conn.

“Cancer has taken so much from me,” Bluestein told VTDigger. “But when it starts to take everything, and everything that makes Lynda, Lynda, I have no interest in continuing to live through that.”

Compassion & Choices, a national advocacy group that has lobbied for aid-in-dying laws, filed a federal lawsuit Thursday challenging Vermont’s medical-aid-in-dying law, arguing that the residency requirement “violates the U.S. Constitution’s guarantee of equal treatment.”

The lawsuit was filed on behalf of Bluestein and Dr. Diana Barnard, a Vermont physician who also serves patients in New York. The suit maintains that people should not have to reside in Vermont to benefit from its law.

Compassion & Choices settled a similar suit in Oregon against that state’s residency requirement in March, making Vermont the second state to have its residency mandate challenged in court.

The Vermont Attorney General’s Office, which is responsible for defending the state’s laws, is reviewing the complaint and “will file a response with the court,” according to the office’s chief of staff, Lauren Jandl.

The Vermont Department of Health submitted a report to the state Legislature in January summarizing the law’s use since its inception. Between May 2013 and June 2021, 116 people received the lethal prescription allowed under Act 39, according to the report. The report does not say how many of those people filled or used the prescription.

The suit argues that Vermont’s residency requirement violates the U.S. Constitution by restricting medical care to one state and creating unequal protections based on state boundaries. According to Amitai Heller, senior staff attorney for Compassion & Choices, case law suggests that patients have the right to access medical care across state lines.

“The Constitution doesn’t explicitly say that, but there are certainly cases that affirm that proposition, that accessing commerce, accessing medical care, is a fundamental right,” he said.

For those who are terminally ill, according to Bluestein, moving to another state is an enormous — and potentially impossible — undertaking.

“Moving is not easy under the best of circumstances,” she said.

Leaving her home, her friends, her support system, her dog, Bluestein said, is not an option.

FOR HERSELF

Bluestein said the hurdles in her way are many. She is in palliative care in Connecticut, but even without Vermont’s residency requirement, she still would have to wait until she qualified for hospice — meaning she has less than six months to live — to be allowed to apply for the lethal prescription permitted under Act 39.

“Getting the paperwork done while I’m feeling healthy is not an option,” she said.

Bluestein said this is her third cancer diagnosis in three years. She said she is privileged to be within driving distance of Vermont and to have the support and resources to accomplish her goal of a peaceful end of life on her own terms.

“It is of critical importance to me,” Bluestein said. “I don’t want my children and my grandchildren to see me the way that I saw my own mother the day that she died — when I’d flown across the country to be with her and she turned away from me. She said, ‘I don’t want you to see me like this.’ That kind of lasts.”

According to Barnard, Bluestein’s co-plaintiff, “Lynda is someone who really is just looking for the same kind of experience. She knows what feels right for her, but her access is severely limited.”

“It is my final act,” Bluestein said. “And damn it, nobody gets to step on my lines in my final lap.”

FOR HER PATIENTS

DR. DIANA BARNARD

Barnard, whose Middlebury practice specializes in hospice and palliative care, treats Vermonters, as well as those who live nearby in northern New York. She’s a leading voice in end-of-life care and has testified in several states, including Vermont, on aid-in-dying laws.

“Some of my patients, just because they live on the other side of the lake, don’t have the same access that my Vermont patients do,” Barnard said. “It just did not seem fair. And it felt like an important issue to address.”

Barnard said she has received many requests from non-Vermont residents seeking a prescription for medical-aid-in-dying, but she hasn’t been able to offer this treatment because of the prospective patients’ residency.

“As far as we know, this is the only medical practice that is limited by geography. Right?” said Sean Crowley, a spokesperson for Compassion & Choices. “I mean, people go across state lines all the time to get cancer treatments, abortions, etc. And that’s what makes this unique.”

Patient Choices Vermont, which lobbied successfully for Act 39’s passage, applauded Barnard’s efforts in a Thursday press release.

“PCV agrees with the plaintiffs in the lawsuit who state that this restriction is unconstitutional, and that it improperly restricts people from crossing state lines to receive the medical services they seek,” the organization said. “Medical aid in dying is the only medical service that is subject to such a restriction.”

Vermont’s aid-in-dying law, passed in 2013, used Oregon’s law as a template. The March settlement ending that state’s residency requirement “created an important precedent for deleting the residency requirement in Vermont,” Patient Choices said in its statement.

Though Barnard advocated for the passage of Act 39, she said she has since “come to understand” that the residency requirement is “an illegal component of the law.”

“I hear a lot about people suffering and trying to navigate what is really such a tender time in life,” she said. “And when you listen to those stories, it’s hard not to be compelled to want to really help those folks in any way you can. And this is one way that I can help.”

FOR OTHERS

Of the 11 jurisdictions that allow medical aid in dying, 10 of them have a residency requirement, according to Compassion & Choices. The group has its sights set on challenging all of those laws.

“We believe that the residency requirements in all medical-aid-in-dying laws, as currently constructed, are unconstitutional,” said Heller, the senior staff attorney.

Barnard, the Middlebury doctor, said she is frustrated by the fact that she can talk about this option with her Vermont patients, but can’t discuss this end-of-life option with her other patients. She also emphasized the fact that she writes the prescription for those who qualify, but that doesn’t necessarily mean that they take the medication, or even that they fill that prescription. Knowing it’s an option is soothing, but having to upend their life for the opportunity to qualify is contrary to the goal of the choice of a peaceful ending.

“Very few people have the time, energy and resources to make these moves, especially when they’re dying,” said Crowley, the Compassion & Choices spokesperson. “It’s a major headache to establish residency when you’re dying. Some people tried it and failed, they died before they were able to pull it off. There are only a handful of people who have done it.”

In April, Vermont expanded Act 39’s reach to include telemedicine. Heller said if the residency requirement is removed, Compassion & Choices would “strongly advise against anybody using telemedicine to access medical aid in dying when they are physically located outside of Vermont.” He said doing so could put patients and physicians at risk of criminal or civil liability.

Bluestein first learned of the obstacles from a friend in her cancer support group in Connecticut. That friend had lung cancer and eventually moved to Vermont to access aid-in-dying care. She died this year with the help of Act 39.

“She had to leave by herself, drive herself to Vermont, register her car, register to vote, rent a place to live… establish residency in your state,” Bluestein said. “And this is after she’s already been admitted to hospice.”

Bluestein’s friend wrote her daily emails detailing the complicated process in the hope of helping Bluestein when her time came.

“She said that her one last wish was that it would be easier on me than on her,” she said.

Bluestein, in turn, hopes she is helping others through her suit.

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