When free speech is a crime in Minnesota

In May 2015, the non-profit corporation Final Exit Network, Inc. was convicted of assisting in the 2007 suicide of Doreen Dunn. In that state, “assisting” does not require any physical act. The Minnesota Supreme Court decided that if speaking to another person about how to commit suicide “enables” that person to take her own life, the speech meets the definition of “assist” as found in the Minnesota statute that prohibits “assisting suicide.”

Prior to her death at her own hand, Ms. Dunn, a member of Final Exit Network, obtained on her own and read Derek Humphry’s New York Times best-selling book Final Exit: The Practicalities of Self-deliverance and Assisted Suicide for the Dying. She asked for and received Exit Guide services from Final Exit Network. Those services consisted of education, training, guidance, and counseling provided by volunteers. In keeping with Final Exit Network policies and procedures, none of those volunteers ever encouraged Ms. Dunn in her desire to end her own life because of chronic pain that had been unrelieved for over ten years.

Ms. Dunn had asked to participate in the Exit Guide program offered by the Network to its members. Robert Rivas, attorney for the Network, explained in the Network’s petition requesting a review of the Minnesota appeal court’s decision by the United States Supreme Court how that program worked (internal reference citations are omitted):

Its signature initiative is its “Exit Guide” program, under which its volunteers provide information, education, and counseling to Network members who have decided to terminate irremediable suffering. The Network screens those members who apply for Exit Guide services to ensure that they are competent adults who seek rational “self-deliverance” in that they have no potential means of obtaining a satisfactory quality of life. The Exit Guides provide information to such qualified members on how to induce their own deaths in a painless and effective manner.

In meeting with members who have chosen to hasten their deaths, the Exit Guides are trained to comply with strict protocols: They never provide any physical assistance in the member’s death, and they never provide the means — they do not physically assist the member in obtaining any drugs or other tangible objects to be used in the member’s “suicide.” The Court of Appeals found, “In order to receive exit services, a member must demonstrate that the member has ‘an incurable condition which causes intolerable suffering’ and is mentally competent, physically strong enough to perform the required tasks, and able to procure the necessary equipment.” “The guide does not physically assist the member in acquiring the equipment. . . . The guides do not physically assist the member in conducting the procedure.”

The case against Final Exit Network was filed after the Georgia Bureau of Investigation (GBI) in 2010 notified law enforcement authorities in Minnesota that it had found documents showing that the Network, then incorporated as a Georgia non-profit organization, had provided “exit services” to Ms.Dunn at her request in 2007.

In 2014, after the prosecution of Final Exit Network had begun, the Minnesota Supreme Court decided another case in which it determined that Minnesota’s “Assisted Suicide” statute had definitional problems. The court found that the statute’s “advises” and “encourages” clauses violated the First Amendment. Then, the court explained that the statute’s “assists” clause included enabling a person to commit suicide by speech alone, as well as by a physical act. To violate the statute, the speech must enable a targeted specific individual to commit suicide.

The court justified its holding this way:

Prohibiting only speech that assists suicide, combined with the statutory limitation that such enablement must be targeted at a specific individual, narrows the reach to only the most direct, causal links between speech and the suicide. We thus conclude that the proscription against “assist[ing]” another in taking the other’s own life is narrowly drawn to serve the State’s compelling interest in preserving human life.

The prosecution of Final Exit Network proceeded under this new ruling. Originally, Minnesota had charged not only the Network, but four of its volunteers with violating the “Assisted Suicide” statute and another statute that prohibits interfering with a death scene (volunteers removed from the scene paraphernalia used by Ms. Dunn to take her own life). In order to secure a conviction of the corporation on these two charges, the state gave qualified immunity to the Network’s then Medical Director, Larry Egbert, in order to compel his testimony at the corporation’s trial.

Dr. Egbert died after the corporation’s trial and before his own. The trial court judge dismissed all charges against one defendant; another defendant died before the trial. Finally, a fourth individual defendant pleaded guilty to a minor misdemeanor in order to be relieved of the stress of being charged.

After Final Exit Network’s conviction on both charges, it was fined $30,000 under the “Assisted Suicide” statute, the maximum fine allowed.

The United States Supreme Court, if it accepts Final Exit Network’s petition, is being asked to decide that, under the First Amendment, Minnesota’s “Assisted Suicide” statute cannot support a conviction that is based on speech alone.

The Minnesota Supreme Court’s interpretation of its “Assisted Suicide” statute leaves a number of questions unresolved:

Is the speech time-limited in any way? What if I am an Exit Guide in Minnesota and someone tells me that she intends to self-deliver when her cancer becomes too painful to bear, but she doesn’t know when that will be. If I talk with her and explain the entire process, make sure she can go through the process on her own, and answer all of her questions, and three years later she reaches her pain threshold and self-delivers, am I in violation of the “Assisted Suicide” statute in Minnesota? What if she self-delivers a month after the training? Six months afterwards?

What if I provide a “target” group of twenty people self-deliverance training, all of whom tell me they intend to self-deliver when their suffering from disease or medical conditions becomes too much for them to bear, and each of them self-delivers over ten-years later. Have I violated the Minnesota statute?

What if I produce and sell to Minnesotans from an address in Texas a video targeted at people in Minnesota who have a terminal illness that explains and demonstrates in great detail how to hasten death when their suffering becomes unbearable. Have I violated Minnesota’s law?

What if I am in California and train a person in Minnesota via skype about how to use the inert gas method to hasten her death. Have I violated Minnesota’s “Assisted Suicide” law? What if a knowledgeable person is with the trainee, but says nothing, and only demonstrates correct procedures at my direction from California. Is that non-speaking knowledgeable person in violation of Minnesota’s “Assisted Suicide” law?

What if a person meets with Exit Guides outside of the state to receive instructions, then returns to Minnesota to die. Did the Exit Guides commit a crime in Minnesota even though they did nothing in Minnesota? What if someone receives instructions in self-deliverance in Minnesota, then goes out of state to apply those instructions and die elsewhere. Is a crime committed in Minnesota even though there was no “suicide” in Minnesota at all?

If the Minnesota “Assisted Suicide” law is about free speech in Minnesota, what are its limits and applicability in these examples?

State prosecutors answered one interesting question during argument before the Court of Appeals of Minnesota. If someone walks into a library in Minnesota and says to the librarian, “I am ready to die. Can you show me where to find this library’s copy of Final Exit?” If the librarian shows the patron where to find Derek Humphry’s book, and the patron self-delivers, the librarian is a felon according to the prosecutors.

But much more than free speech is involved in this case–the liberty of sick and suffering Minnesotans to control their own lives and their own deaths is at stake.