Saturday, February 17, 2018

Law Punctuated by a Question Mark

Joey Bunch,

Click here to view the article as published.

No one expects to pass a law that's going to have problems, but it's hardly uncommon to have those told-ya-so moments that offer hollow gratification for those who opposed it from the start. When it comes to governing life and death, these stumbles deserve a longer look.

Jakob Rodgers of The Gazette recently reported on the first data from Colorado's medical-aid-in-dying law, which voters passed in 2016. Sixty-nine people sought prescriptions to end their lives, and 50 of them reportedly picked up the lethal drugs from a pharmacist.

We don't know how many died by choice, or what happened to the deadly prescriptions, if any, that weren't used. Voters passed a law that doesn't require the state health department to keep track of that kind of information.
It gets more confusing. Death certificates were found for 56 of the 69 people who were prescribed the drugs. That doesn't shed any light on how many took the drugs, though, because the law requires coroners to list the underlying terminal illness as the cause of death, without so much as an asterisk.

A handful of doctors hadn't yet provided paperwork on those who sought the drugs, either. What do you expect? There's no penalty for being late to encourage compliance.

I listened to at last 16 hours of testimony over two legislative sessions when lawmakers refused to craft a law, leaving it instead to advocates to craft their own ballot question.

Arguments on both sides were compelling and emotional. I wrote an in-depth piece about the issue last summer, as well. Everyone is right. On one side, the terminally ill and their families deserve to choose their hour of death and be spared the pain and anguish.

But the other side is right, too. They're uneasy about whether it's proper for government to assume a role between patients, doctors and, in some cases, religious faith.

At the very least, however, it's the job of the law to have a program above reproach. Inexact record-keeping doesn't help. Craters of doubt fill in with anxiety.

Red flags don't necessarily mean fouls, that's true. Others can argue that lives aren't statistics. Voters were asked to pass this law on trust and faith.

Gaps in management and data, however, create doubt in the program that certainly will be considered in other states.

The state health department looked at the new data, and Kirk Bol, the state health department's vital statistics program manager, told Rodgers the number of prescriptions tracked with what officials had expected.

"In short, no red flags here," he said.

Carrie Ann Lucas, a Windsor resident and a board member of the national Not Dead Yet advocacy group, dismissed the missing reports from the first year as meaningless.

"The reporting is so minimal, there will be no way to determine what abuse is occurring with this law," she said.

If there are reporting problems that persist, however, a fix is within reach.

Voters in 2016 passed a statutory amendment, which means the General Assembly can amend the law. Had it been a constitutional amendment, it would have required a vote of the people, which takes a lot of money and political muscle to achieve.

There's no such thing as a perfect law. We hear that in the Statehouse when these sort of things happen there instead of the ballot. Despite a legal staff, battalions of tug-of-war lobbyists, 100 elected legislators and a press corps that feeds on mistakes, the Legislature doesn't always get it right.

The term "unintended consequences" probably wasn't born in a statehouse, but it has a home in each and every one.

Last year, Senate Bill 267 was celebrated as a grand compromise to simultaneously rescue Colorado's rural hospitals, funnel some money into transportation, raise Medicaid co-pays and lower the state spending cap. But in doing all that, lawmakers inadvertently cut special districts out of their share of local marijuana tax money. The oversight took millions of dollars away from transit, libraries, rural firefighting and other tax-supported programs.

The governor called a special session in October to fix what everyone called an honest mistake, but the problem just got worse as miffed Republicans raised questions about whether they had the authority to restore a tax once it had been eliminated.

Simplicity never has a chance against partisan politics.

Lawmakers this session also are expected to take another run at a law passed in 2015 to stop online sweepstakes offered as gambling in internet cafes. When local law enforcement tried to use the law to shut down mom-and-pop arcades that offered cash payouts, a judge in El Paso County called the law "constitutionally vague." Nothing in the original law mentioned arcades.

Now lawmakers plan to redefine the terms to distinguish between Ms. Pac Man and Las Vegas slots. But by defining a "prize" as anything of value, they could hurt such operations as Chuck E. Cheese and Dave & Busters, as well as prizes on a county fair midway.

Nobody ever said legislating is easy, and voters elect people, not perfection. Every January, lawmakers get the chance to fix what was left by previous sessions. With the aid-in-dying law, some Coloradans won't be around to see it when their state gets it right.