Nobody walked away happy, but everyone lived to fight another day.
That was the sentiment on all sides Thursday at the conclusion of the Vermont Senate's epic, three-day struggle over the state's role in end-of-life choices.
A final 22-8 vote in favor of a stripped-down version of the original so-called "death with dignity" bill Thursday afternoon masked deeper divisions in a body that was essentially evenly divided on the matter.
For the second time in as many days, Lt. Gov. Phil Scott found himself breaking a tied 15-15 vote on a crucial amendment. Again, he sided with a coalition of Republicans and Democrats who favored divorcing the state from the process of prescribing life-ending drugs to people with fewer than six months to live. Instead, the narrow majority opted simply to indemnify doctors and family members who take part in the process.
That approach was clearly unsatisfactory to those who have spent a decade fighting for a more comprehensive approach modeled on a landmark 1994 Oregon law legalizing physician-assisted suicide. But after losing another amendment fight Thursday, several such advocates voted for the underlying bill anyway, with an eye to improving it in negotiations with the Vermont House.
"I voted for the bill yesterday to make sure that it would keep going. Today I voted for it because if the bill were defeated, that would be it. It wouldn't go to the House," said Sen. Claire Ayer (D-Addison), the Health and Welfare Committee chairwoman who was among the original bill's biggest advocates. "I want the discussion to continue."
Sen. Dick Sears (D-Bennington), the Judiciary Committee chairman who has fought the legislation for years, expressed mixed emotions about Thursday's outcome.
"I'd have rather seen the bill die," he said. "I don't think it's a victory for anybody. But I think the system worked as it was designed. All sides were heard and, in the end, the bill passed. I would've preferred it hadn't passed, but it did."
The bill's roller-coaster ride on the Senate floor started Tuesday with a promising vote for those advocating a comprehensive end-of-life choices bill. That day, four previously undecided Democrats voted in favor of debating the legislation further. The resulting 17-13 tally indicated to some observers (including this idiot political columnist) that the bill was destined for smooth sailing.
But on Wednesday, two of those fence-sitting Democrats — Sen. Peter Galbraith (D-Windham) and Sen. Bob Hartwell (D-Bennington) — joined the 13 opponents of the bill to radically amend it. Galbraith's and Hartwell's amendment replaced what had been a 22-page bill with a brief substitute, simply protecting doctors who prescribe lethal doses of medication to terminally ill patients.
With Scott (left) casting a dramatic, tie-breaking vote, the Senate moved that version forward late Wednesday.
After plenty of maneuvering and head-fakes Thursday morning, the opposing sides put forward two final amendments. One, offered by Sen. Ann Cummings (D-Washington), an opponent of the original bill, hewed closely to Galbraith's and Hartwell's solution. A second, offered by Sen. John Rodgers (D-Essex/Orleans), restored much of the bill's original text, but also included suggestions from its opponents.
Tempers flared soon after the Senate took to the floor Thursday afternoon, prompting Majority Leader Phil Baruth (D-Chittenden) to call for a 30-minute recess. Summoning both sides to a meeting room downstairs (pictured below), Baruth sought in vain to hash out the differences between them, but neither side seemed ready to give ground.
Back on the floor, Rodgers attempted to convince the wafflers that his amendment constituted a reasonable compromise between opposing sides.
"I'm really reaching out to everyone [to] pull everything in," he said. "I would like to improve end-of-life health care for Vermonters. That's all I'm after."
But opponents of the original bill weren't buying it.
Sen. Joe Benning (R-Caledonia), the Republican minority leader, argued that while Cummings' amendment protected those around a terminally ill patient seeking to end his or her life, Rodgers' amendment set up a lengthy, complicated, state-sponsored process.
"How dumb can we be?" Benning said. "The bottom line: We all agree there should be compassion and liability protection at the end of life. But setting up the obstacles in the last six months of your life with a state-sanctioned process that requires you to jump through those hoops— I can't think of anything more idiotic."
When the question was called, 15 senators — the bill's 13 original opponents, plus Galbraith and Hartwell — voted in favor of Cummings' stripped-down language. The bill's 15 original supporters voted against it, which was tantamount to voting for Rodgers' version. Scott broke the tie in favor of the Cummings amendment.
In a final vote to send the bill to the House, the naysayers were joined by several of the original bill's supporters, resulting in a 22-8 tally. Voting against the amended bill in the end were Baruth, Rodgers and Sens. Sally Fox (D-Chittenden), Mark MacDonald (D-Orange), Anthony Pollina (P/D-Washington), Diane Snelling (R-Chittenden), Jeanette White (D-Windham) and David Zuckerman (P/D-Chittenden).
Explaining his no vote, Baruth said that while the revised language "could accomplish what the proposers want to accomplish," it was a "quickly devised" solution that could have unintended consequences.
Moreover, he said, "It's attempting just by indemnifying doctors to end this problem, but what it doesn't do is give patients clear choices. It completely centers on protecting the doctor and hoping everything works out for the best. A process is designed to ensure everything works out for the best."
Despite losing a fight over legislative language, Patient Choices Vermont lobbyist Adam Necrason sought to cast the vote as a tactical victory for supporters of the original bill.
"We are excited that end-of-life choices for terminally ill patients has gotten so much attention and is now moving forward in the legislative process, which is, not surprisingly, full of twists and turns," he said.
Perhaps the only person who managed to fully get his way was Galbraith.
"My goal was to try to reconcile the two opposing sides, and I think the legislation we passed does that. It provides choice," he said. "The only difference is that there isn't a whole state process to go through when you're at the end of life and you want to end your life. This remains between a doctor and a patient."
As for whether he was pleased to play such a central role in the debate, Galbraith said, "Frankly, I was reluctant."
"I kept feeling that there was merit on both sides of the argument. I could understand the strong feelings on both sides — and I didn't have a position. This isn't one of my issues," he said. "It was simply that when you're stuck in the middle, you try and think, 'Where can I find common ground?' That's what I ended up doing. I'm glad with the outcome."
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