by hilzoy
From the Washington Post:
“Granting a request by the Bush administration, the Supreme Court said yesterday that it will decide whether the Justice Department may bar Oregon doctors from prescribing lethal doses of drugs to terminally ill patients who have chosen to die under that state’s 11-year-old Death With Dignity Act.
In a brief order, the court said it will review a lower court’s decision preventing enforcement of a November 2001 statement of Justice Department policy by then-Attorney General John D. Ashcroft. The directive said that assisting suicide is not a “legitimate medical purpose” under federal drug-control law and that the Drug Enforcement Administration could strip the prescribing rights of any physician who authorized drugs to help someone die.”
This will be a very interesting case. First of all, it will be interesting to see who takes what position on the federalism issues involved. I have never really thought there was much to be said for the idea that there’s anything particularly liberal or conservative about views on federalism — I think that as far as the left is concerned, our opposition to federalism had a lot more to do with its use by southern states trying to avoid discrimination laws, and to some extent with the civil war, than with Constitutional doctrine — and I have for this reason often taken positions at odds with other liberals. (I did not think the Violence Against Women Act could plausibly be thought of as an attempt to regulate interstate commerce, for instance.) But it seems to me that many conservatives’ views on federalism ought to lead them to side with Oregon, and it will be interesting to see how many of them do.
It’s also interesting because the Oregon Death With Dignity Act is (to my non-lawyer’s eye) very well constructed. It provides a lot of safeguards, and does a good job of anticipating and preventing a lot of potential problems with physician-assisted suicide. For this reason, I would think, the court is more likely to take an actual position on physician-assisted suicide than it would have been had the act had a lot of unrelated problems.
Physician-assisted suicide is what its name suggests: suicide that requires the help of a doctor. The kind of physician-assisted suicide that is most often defended is this: a patient who has a terminal illness and wishes to kill herself goes to a doctor and asks for a prescription for some drug which she can use to commit suicide. Prescribing the drug is the ‘assistance’. This is unlike euthanasia, where the doctor actually does the killing: a patient who commits physician-assisted suicide has to actually take the drug herself, possibly long after receiving the prescription.
Physician-assisted suicide raises (at least) two different sorts of issues: first, is it ever OK for a doctor to prescribe lethal drugs to a patient so that the patient can use those drugs to end her life, and second, supposing the answer to the first question is ‘yes’, is it possible to draft a law allowing this that would not get us into slippery slopes and other practical problems? (Think of these two questions as analogous to questions about legalizing torture: (a) is torture ever OK? (Here we consider ticking time bombs, etc.) (b) Assuming that torture would be OK in some really unlikely situation involving a choice between torturing someone and the destruction of the planet; can we legalize it without catastrophe? Is there any rule allowing torture in some set of circumstances that it would be good for us to adopt, or should we make it illegal across the board and trust that juries will decline to convict if they ever run across one of the tiny number of cases in which torture might be thought to be legitimate?)
The main reason for answering ‘yes’ to the first question is the idea that people who have a terminal illness should be able to decline the opportunity to die a painful, lingering death if they so choose. Of course, most of us can commit suicide by other means. However, most of them are painful, and they do not always work. Moreover — and this may just be me — I can’t help thinking that if I were dying of cancer and decided to kill myself, I would much rather do it in a way that did not leave my loved ones to find me with my head blown off, or in a bathtub full of blood, or whatever. And I would also rather do it in a way that I had some degree of confidence would actually work, especially since I am exactly the sort of person who would e.g. tie the noose wrong or whatever. I don’t think that any doctor should be obliged to help me with this, but I don’t think it should be criminalized either, especially since the question whether one has the right to kill oneself when one is facing a painful death is a deeply personal one, on which I do not think the government should take a position.
Some of those who oppose legalizing physician-assisted suicide do so because they think that it’s both wrong and the sort of thing the government can legitimately criminalize. But others are worried about slippery slopes. If we allow physician-assisted suicide, will people end up being flat-out killed by their doctors? Will it be possible for doctors or family members to pressure people into consenting to this? Will nursing homes “get consent” from elderly, demented patients in order to clear out their caseload? And so forth.
In fact, the number of people who have received physician assistance in committing suicide is small: 42 patients in 2003, and 38 in 2002. (31,000 people die in Oregon each year.) This is partly because the Oregon Statute goes a long way towards alleviating “slippery slope” concerns by building in a lot of safeguards against abuse. (The statute is here; a more readable account of its provisions is here.) Specifically:
* Only a patient who is a resident of Oregon, has been diagnosed with a terminal illness, and has expressed a wish to die may request physician-assisted suicide. So it’s not available to just any suicidal person.
* A patient has to make an oral request for medication, a written request, and another oral request. At least fifteen days must elapse between the first request and writing a prescription, and at least two days between the written request and writing a prescription. Moreover, at the time of the second oral request the doctor must offer the patient the chance to rescind her request. The patient can also rescind the request at any time. So this can’t be a spur-of-the-moment decision. Also, while two of the requests are oral, they must be documented in the patient’s file.
* The written request must be signed and dated by the patient, and witnessed by two people, one of whom must not be a relative, the doctor, a beneficiary of the patient’s will, or an employee of any hospital, nursing home, etc., in which the patient is receiving care. These witnesses must, “in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request.” This makes it harder to just fabricate the needed documentation.
* At the time of the written request, the attending doctor must do a whole bunch of things, including: informing the patient of her diagnosis and prognosis, informing her about alternatives to physician-assisted suicide “including, but not limited to, comfort care, hospice care and pain control”, telling her that she has the right to rescind her request at any time, certifying that she has been diagnosed with a terminal illness and otherwise meets the statutory requirements, and arranging for a second opinion. The doctor must also certify, in writing, “that the patient is capable, acting voluntarily and has made an informed decision.” All of these things are very good. The requirement that the patient be informed about palliative care, in particular, is designed to address a good objection that opponents of physician-assisted suicide have brought up: they wonder how many of those who think they want to kill themselves would change their mind if they got good medical advice on how to manage their pain better. And no one should want anyone to kill themselves if better palliative care would make her change her mind. This statute requires that patients get information on palliative care before they can get assistance in killing themselves.
* “If in the opinion of the attending physician or the consulting physician a patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment, either physician shall refer the patient for counseling. No medication to end a patient’s life in a humane and dignified manner shall be prescribed until the person performing the counseling determines that the patient is not suffering from a psychiatric or psychological disorder or depression causing impaired judgment.” So patients cannot get assistance with suicide if they’re depressed or otherwise mentally ill.
* Before a patient gets assistance with suicide, she must be seen by a consulting physician, who must “confirm, in writing, the attending physician’s diagnosis that the patient is suffering from a terminal disease, and verify that the patient is capable, is acting voluntarily and has made an informed decision.” So the process must involve at least two doctors, both of whom must attest in writing to the patient’s having made a competent, informed, and voluntary choice.
* The attending physician has to reaffirm that the patient is making a competent, informed, voluntary choice before actually prescribing medication.
* No doctor can be forced to participate in physician-assisted suicide. This is good: people who cannot do this in good conscience should not be forced to.
* There are serious penalties for violating the various rules here. In particular, falsifying request forms, concealing or destroying recissions of those requests, and attempting to coerce someone to request physician-assisted suicide, or to exercise undue influence over her for that purpose, are all Class A felonies.
Again: I am not a lawyer, but these safeguards seem to me to go a long way towards preventing abuses. For this reason, they also make it more likely that the Supreme Court will actually pronounce on the underlying issue. Since I support the legality of physician-assisted suicide so long as appropriate safeguards are in place, I’m not sure I’m entirely thrilled by the prospect of this court taking up the question, but it will certainly be interesting.
SCOTUS, should rule in favor of Oregon reflecting the concept of Federalism laid out in the Constitution.
Well I am not a lawyer, either, but it does look like the Oregon physician-assisted-suicide statute has been devised so as to address most of the problems of abuses of the procedure that are likely to arise under a system of legally-permissable PAS. However, it should really be no wonder, though, that there has been opposition to the Oregon law, and still less wonder that it should be the Bush Administration DOJ that would take action, as this sort of thing is precisely the type of law the “pro-life” lobby (who are so large a part of their support base) gets itself worked into a frenzy over.
It is, if you will, a converse of the absolutist attitude towards abortion which affects the “pro-life” movement’s reflexive opposition to things like contraceptives that “induce abortion” (or are believed to do so) – a clinging to a rigidly defined, no-exceptions-allowed paradigm, that “righteousness” demands be enacted in any and all legal regulation of the matter.
Why use euphemisms? – “physician-assisted-suicide” is just another form of euthanasia. It is quite different, IMO, since it is self-directed and controlled, rather than being imposed by an outside agent – but the distinction is likely to be lost on those [activists? legislators? Right-wing bloggers?] who have made a no-interference-whatsoever-with-“life” the touchstone of a large political/ideological movement.
Just as an aside, it was interesting to see your figures that PAS’s in Oregon have been about 40 a year (out of 31,000 deaths total): any idea how this relates to the numbers/ratio of those “late-term-viable abortions” that anti-abortion types (and yes, this means you, Sebastian) get so worked up over?
It seems a bit harsh for the Government to move to foreclose, via the legal system, a doctor’s being able to legally offer a terminal (but otherwise functioning) patient a humane alternative to a death of badly-alleviated agony. But, given that the incumbent Adminstration owes so much to the political pressure group to whom these sorts of laws is unacceptable on “moral” grounds, it’s no surprise.
Actually, I think it’s really important to distinguish physician-assisted suicide from euthanasia. PAS has a built-in safeguard: the patient takes the medicine, the doctor doesn’t administer it. One could always say: yes, but family members could pressure the patient etc., but that’s already the case with respect to other means of killing yourself; if anything, bringing cases into the highly regulated area of PAS makes this less likely.
Let’s please stop ragging on Sebastian. (Speaking not as a moderator, but as a person.) If he actually says something you disagree with, by all means say so, but on a thread he didn’t write and hasn’t commented on?
This does seem like a well-constructed law, and I’m inclined to support upholding it. I must confess that I’m not particularly comfortable with physicians being given a go-ahead to participate actively in causing *anyone’s* death (it seems like a first, hesitant step on a road that I’d rather not see society go down), but that’s not enough for me to oppose the law as written. If it turns out that my vague fears are justified by later events, I may well change my position.
Apologies, hilzoy (and Sebastian): no rag was intended – I just had SH’s recent linked pro-life/pro-choice posts in mind, in which he stressed the point about late-term abortions (and the number thereof): you’re right, comments on that particular issue are OT here.
However, I still feel that the abortion/assisted suicide issues are somewhat of parallel concepts: both involve the legal status and regulation of “life” issues (beginning and ending, respectively), are medical practices which have been around for a long time, but basically underground and unpublicized; and have both become matters of public debate over their being open and legal, in the face of an opposition movement that sees the fundamental issue as a moral, not a legal one.
Jay C: yes, I think they are, with the interesting difference that there’s no dispute about whether there’s one person involved (directly) or two. So it focuses squarely on the question whether we value autonomy (as expressed in the ability to decide whether to take your life when terminally ill) or the preservation of life (regardless of what the person whose life it is might think). And secondarily, on whether or not this is going to count as one of those deeply personal decisions that individuals have a right to make for themselves.
“the court said it will review a lower court’s decision preventing enforcement of a November 2001 statement of Justice Department policy by”
I am interested in this court’s decision, and reasoning.
Does anyone have a link?
And of course, this is not necessarily directly about physician-assisted suicide. It is about(at least according to the DOJ) federalization of drug policy. The classes, definitions etc of various drugs and has direct implications for medical marijuana disputes. If I am not mistaken, there is a recent SCOTUS marijuana decision that is pertinent.
A couple of comments about assisted suicide, but first, I’d like to address hilzoy’s point about raggin on Seb. I think there is a point, but I feel equivocal about this because Seb seems to never acknowledge that there may be another side. For example, the abortion post has the following
I don’t think it would have killed Seb to have written ‘I understand that many feel that peering into medical records is a bad idea, but in this case, some proof of medical necessity must be given’. I’d certainly ask everyone to stop ragging on Seb, but I’d also ask Seb to tone his rhetoric down a bit.
But moving to assisted suicide, this link has a good summary of laws around the world.
I think it is also important to note that Oregon’s enacting of this law is not a sign that it is a liberal bastion, it is reflex of Oregonian self-image, which is less liberal and more ‘mind your own damn business’. As Bob notes, there is a drug issue here, and Oregon is on the leading edge of the medical marjuana issue. It seems pretty clear that Ashcroft’s suspension of Oregon’s suicide law is simply a cloaked attack on Oregon’s drug laws.
The issue also shows that Ashcroft was a, well words fail me, but I’m thinking of some juxtaposition of hypocrisy and crap. The LATimes article has this.
Also a gem from this RegisterGuard (Eugene Oregon) article
Here’s a link to findlaw with the 9th Circuit Court’s oinion and some other documents.
Mark Kleiman has a very good post on this. Among other things, he points out that there is no need to use a controlled substance to cause death in Oregon.
Let’s please stop ragging on Sebastian. (Speaking not as a moderator, but as a person.) If he actually says something you disagree with, by all means say so, but on a thread he didn’t write and hasn’t commented on?
Agreed.
I think this is an interesting test of the “federalism/states’ rights” position, in which both sides have certain difficulties in maintaining a consistent point of view, but that the right will have slightly more difficulty.
There are genuinely people on both sides who hold that States’ Rights as enshrined in by the founders are the correct way to go about business in a federal USA, and they will have no problems here: vote for Oregon. There are, however, many more people (and I am one of them) who feel that whichever layer of government agrees with me should win. The perfect government from any individual’s point of view, after all, is one that makes the exact same decisions you’d make if you were all-powerful emperor.
Where I feel the right has a problem here is because it has historically been rah rah for States’ Rights and a lot of the time, if we are brutally honest, “gummint can’t tell me what to do” has only been the fashionable and publicly acceptable side of the argument. The other half has been a sentiment that is racist, sexist or generally otherwise bigoted, depending on which group the feds are threatening to take away one’s freedom to abuse today. The problem now is that right-wingers who feel the Feds should absolutely be able to tell those liberal states what to do are effectively, as has been pointed out, hamstrung by their omission of the unfashionable side of the sentiment.
The left, who have traditionally been more honest about their willingness to see the Feds encroach on States’ Rights when it was obvious that the States in question needed some chivvying into the 20th Century, especially with the 21st encroaching, are on firmer ground because their argument relies less on legal esoterica and more on a moral stance — we go with the Feds when we agree with them, and the State when we agree with them. The problem from this side, however, is that although the legal situation is in their favour it’s hard to argue why this should tilt towards Oregon without arguing that a whole raft of previous laws are vastly abusing the commerce clause. And there’s always ‘turnabout is fair play’ to consider — if the libs could abuse the commerce clause while they were in charge, it seems hardly fair to complain now that the conservatives have the remote control clutched in their hands.
Thus, we see highlighted the big dilemma with any federal system: how do you compose the laws governing stratification of power such that the federal government can tell states not to enslave black people or beat women, but can’t tell states to enslave black people or beat up women?
One answer that leaps to mind is: enact the 13th and 14th amendments, and have the Supreme Court hold that they’re binding on the states.
(Ducks)
Ah, the lost art of taking a metaphor literally for comedic value. How we did done laughed.
Thus, we see highlighted the big dilemma with any federal system
Yes, but in modern times, it was Reagan who let the States Rights genie out of the bottle with his speech at the Neshoba County fair (right near Philadelphia, Mississippi, where the civil rights workers were murdered, ah, the subtlety!) Some have said that Reagan’s next speech was to the Urban League in NY, so he couldn’t have really meant it as a ‘you go guys’ signal. Yet the rapid oscillation between drowning government in a bathtub and putting it in the bedroom or making sure it has an overabundance of raw materials to manufacture cases casting people as terrorists should be contrasted with the left’s desire to have the power of the government help people, yet assure individual privacy. (but obviously, I would think this way, right?)
As for Kleiman’s argument, I find it rather naive. The reason that opiates are used is because they are controlled. Nitrogen, on the other hand, is not a controlled substance. The state has a huge interest in being able to monitor this, and it is probable that physicians have, before this law, prescribed lethal amounts of opiates. I’m relatively sure that no doctor strapped on masks connected to nitrogen tanks to patients. IANAL, but it seems that if the Oregon legislature passed a law that said doctors could use nitrogen, the federal government could prosecute those doctors for murder or at least for denial of civil rights to patients.
lj: I took the point of Kleiman’s post to be: only certain medications are “controlled substances” subject to the law Ashcroft/Gonzales is invoking, and Oregon doesn’t require that these medications be used. He’s probably wrong about nitrogen — at least, I’m assuming it wouldn’t count as a ‘medication’, which is what the Oregon law allows doctors to prescribe — but he may be right about non-opioid medications.
I went back and reread the piece and if the point is that there are lots of substances that can kill you that aren’t controlled, then the point is utterly fatuous. Maybe this is Swiftian in intent (“uncounted numbers (tens of thousands? hundreds of thousands?) of people who would like to die quickly and painlessly will instead be condemned to die slowly and miserably”? really?), but when he writes
But for a death covered by an Oregon-style law, the controlled substances are utterly irrelevant, and their use is either merely vestigial or the result of a bloody-minded decision to seek a confrontation.
he seems to be suggesting that if the legislature really wanted to write a foolproof law, they should have just written it using nitrogen and he generously adds that some jurisdictions might require a doctor ‘if they insist’. He also cites the low number of people who have used the statute as proof of its uselessness. Having lived in Oregon, I’m pretty sure that the legislators didn’t want a 4 figure body count, they wanted to affirm individual rights in a way that would stand legal challenge and would not abdicate their responsibilities. I get the impression that Kleiman thinks that this stems from liberal tendencies and a desire to stick a finger in the eye of the DOJ, but Oregon’s ‘liberalism’ is, as I noted, a much more ‘leave-me-alone-ism’.
Perhaps they didn’t think of using nitrogen, but I would really like to hear from some lawyers as to how nitrogen would withstand a legal challenge that opiates would not.
Note that the decision being reviewed (which barred the DOJ from enforcing its position) is another Ninth Circuit opinion — funny how we haven’t heard any right-winger lines about “that out-of-control Ninth Circuit” on this issue.
Legally, the question is similar to the medical marijuana controversy (state laws permitting it contradicted by federal laws prohibiting it), which so far has resulted in DOJ victories. There is another case already argued this term (decision pending) which presents a different wrinkle on the medical marijuana question that could yield a different result, but I doubt it.
I would expect the Supreme Court to uphold the DOJ (reverse the Ninth Circuit). Otherwise, they probably would not have bothered to take the case.
Based on trends, this court’s use of federalism unfortunately has had more to do with ideology than the underlying principle of federalism, which has to do the practicalities of power sharing rather than ideology. In other words, upholding federal power for issues dearer to conservatives, but never admitting as much. Rehnquist started that trend years ago.