No Last Rites for 'Death With Dignity'

By ZP Heller, AlterNet. Posted February 3, 2006.

Last month, the Supreme Court upheld Oregon's Death With Dignity Act in Gonzales v. Oregon by a margin of 6-3. The court's decision was a critical setback for the Bush administration's crusade against Death With Dignity, more commonly known as physician-assisted suicide. Formerly Oregon v. Ashcroft, this legal battle dated back to the fall of 2001 and outlasted Attorney General Alberto Gonzales' predecessor, John Ashcroft, as well as the original patients involved in the case, who have died from their respective terminal illnesses. It was a hard-fought victory for states' rights that will no doubt have tremendous repercussions for several states looking to push their own Death With Dignity legislations in the coming years.

While the Supremes' decision was a shot across the bow of the Bush administration and its "culture of life" agenda, it was a direct hit on the legacy of John Ashcroft. As a Missouri senator, Ashcroft unsuccessfully tried twice to bring national attention to the issue of physician-assisted suicide. Once Ashcroft became attorney general, however, he declared that physician-assisted suicide was not a "legitimate medical purpose" for prescribing overdoses of federally regulated drugs to terminally ill patients. Ashcroft claimed that Death With Dignity therefore violated the 35-year-old Controlled Substances Act (CSA).

In writing the court's majority opinion, Justice Kennedy stated that Ashcroft made an overly broad interpretation of the CSA, which was designed to curb drug trafficking and not to impede the actions of state-licensed physicians. "The text and structure of the CSA," Kennedy wrote, "show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it." Kennedy never questioned the federal government's authority to regulate drugs. Instead, he contended that Ashcroft exceeded his power as attorney general.

Interestingly, this case came on the heels of Gonzales v. Raich, in which the Supreme Court upheld a federal override of a California law legalizing marijuana last year. The CSA defines marijuana as having no established medical benefits, a drug that is too dangerous to use under medical supervision. As Bruce Mirken of the Marijuana Policy Project pointed out, politicians established this categorization, not health experts. "Attempts to reclassify marijuana so that doctors may prescribe it have been blocked repeatedly by Drug Enforcement Administration bureaucrats with no medical training -- just what Kennedy said the CSA is not meant to do," Mirken said. In short, these two contradictory Supreme Court rulings suggest that terminally ill patients may relieve suffering through lethal overdoses of legal drugs, but under no circumstances are patients to use marijuana as a palliative.

Dissenting from the decision were justices Clarence Thomas, Antonin Scalia and, in his first dissent since becoming chief justice, John Roberts. "If the term legitimate medical purpose has any meaning," Scalia wrote, "it surely excludes the prescription of drugs to produce death." In a separate dissent, Thomas argued that the majority ruling wasn't in keeping with the court's decision in Gonzales v. Raich.

Yet, according to Kathryn Tucker, a co-counselor in Oregon v. Ashcroft, it was Thomas and Scalia who were inconsistent. "Their voting was hugely hypocritical," Tucker told me, "and it reveals a lack of principle, especially when Scalia talks so much about states' rights." For Tucker, who is also the director of legal affairs for Compassion and Choices, the Court's ruling allowed her an enormous sigh of relief. "This Oregon law was beleaguered because it had been fought on every level," she said, "and now there is growing excitement outside of Oregon that this power will stay with states."

Tucker then explained that had the court sided with Gonzales (the decision might have been closer if, say, Alito had been on the bench instead of O'Connor), it would have enabled the attorney general to challenge all kinds of other medical cases. "Imagine the attorney general suddenly being able to declare cases involving fertility medicine, reproductive technology or even cosmetic surgery unsavory," Tucker said. While Tucker adamantly believes that the Gonzales v. Oregon decision will galvanize efforts from other states to move forward with their own Death With Dignity legislations, she cautioned that the Bush administration will likely devise another plan of confronting physicians who assist in the deaths of their terminally ill patients.

Death With Dignity's uphill battle

Much of the controversy that surrounds physician-assisted suicide is a result of the fact that it is a kind of indirect human euthanasia. In fact, Crystal Strait, the Communications Director for Assemblyman Lloyd Levine, D-Calif., preferred that I refer to physician-assisted suicide as Death With Dignity because of the connotations associated with the word "suicide." Oregon is the first and only state thus far to make physician-assisted suicide legal. Its Death With Dignity Act was adopted by voters in 1994 but didn't go into effect until 1997. The act permits physicians to prescribe, though not administer, a lethal dose to a terminally ill patient upon request, provided that the patient is at least 18 years old, a resident of Oregon and capable of making health care decisions on his or her own behalf. Two physicians must verify that the patient's prognosis will result in death within the next six months. In addition, two witnesses are necessary for the written component of the application process, one of whom can be a family member.

From 1997-2004, 208 Oregonians ended their lives through Death With Dignity. What's surprising is that given the controversy and the legal obstacles facing Oregon's Death With Dignity Act, the law was never broken. Darcy Niemeyer, executive assistant at Oregon's Office of Disease Prevention and Epidemiology, works to collect data on Death With Dignity patients. "It has never been brought to our attention," Niemeyer claimed, "that there have been any instances in which the standards for the Death With Dignity Act have been abused."

Still, opponents of Death With Dignity, such as Dr. Kenneth Stevens of Physicians for Compassionate Care, have valid concerns. Stevens asserted that the state's investigations into Death With Dignity cases are superficial. Moreover, Stevens remains skeptical as to whether ill patients are able to self-administer such lethal doses of prescribed drugs. "We seek to provide proper care for patients who have significant symptoms," Stevens said. The primary objection that Stevens and many adversaries of Death With Dignity have is that physician-assisted suicide will replace patient care, becoming a default approach to treating terminally ill patients.

Kathryn Tucker argued, however, that Stevens's argument doesn't have traction because pain management across Oregon improved once the Death With Dignity Act was passed and hospice enrollment skyrocketed. "The reason the [Gonzales v. Oregon] decision was so important," she asserted, "was that it will make the likelihood of pain and symptom management here much greater."

Public support certainly seems to be behind Death With Dignity. On Jan. 5, a Pew Research Center poll concluded that 46 percent of Americans support the right to physician-assisted suicide, while 45 percent oppose it. Yet, a Harris poll from April 2005 determined that 70 percent of U.S. adults would favor a law to "allow doctors to comply with the wishes of a dying patient in severe distress who asks to have his or her life ended." That number is up sharply from a similar poll conducted in 1982, in which only 53 percent of those polled favored physician-assisted suicide. That Harris poll was conducted from long before the SCOTUS ruling, but according to Tucker, a major reason why the public has come out in favor of Death With Dignity is eight years of data from Oregon illustrating how well a state-run Death With Dignity program can work.

Decriminalizing DWD in other states

While the Supreme Court's decision may have opened the floodgates for other states to pass similar Death With Dignity initiatives, physician-assisted suicide is currently a crime in 44 states. In the past 15 years, bills that would have permitted physician-assisted suicide stalled and eventually failed in California, Vermont, Connecticut, Hawaii, Maine and Washington. Meanwhile, physician-assisted suicide is a civil offense in Virginia, and Michigan passed a law in 1998 that made it a felony. Nevertheless, advocates like Dick Walters, who runs Death With Dignity Vermont, feel invigorated by the outcome of Gonzales v. Oregon.

A Zogby poll from last year concluded that 78 percent of Vermont citizens favor Death With Dignity, but Walters explained that the reason their physician-assisted suicide bill failed in the past was because of the controversy surrounding the issue. "The court's decision takes the question out of the process here, and I have every confidence that we'll soon have legislation that will give control to terminally ill patients." This year, Death With Dignity legislation will be considered in Vermont once again. The bill mirrors Oregon's Death With Dignity Act, creating a patient-initiated, doctor-prescribed process.

Besides Vermont, the other front line for Death With Dignity legislation is in California. In 1992, the state's attempt at passing an initiative was thwarted by the Catholic Church and its expensive opposition ad campaign. The initiative process proved too costly, and so this time around Assemblymembers Lloyd Levine and Patty Berg co-authored a Death With Dignity bill and are pursuing the legislative process to enact a law. "Now that we know the court wouldn't overturn this initiative," Crystal Strait asserted, "we can put it out there knowing that the majority of Californians support Death With Dignity."

California's proposed legislation is modeled on Oregon's Death With Dignity Act, but the authors have made a few key modifications. In addition to expanding options for patients and allowing family members to serve as both witnesses, the California bill also makes psychiatric examinations mandatory for patients requesting physician-assisted suicide. (By contrast, Oregon's Death With Dignity Act states that either of the two physicians involved in a patient's case have the option to call for a psychiatric consult.)

As for the argument that Death With Dignity legislation will foster more physician-assisted suicides or detract from patient care, Strait contended, "Many terminally ill patients already commit suicide by hoarding pills without knowing the complications. By our silence, that's what we're promoting." Instead, Strait wants a state-led regulatory system to ensure that terminally ill patients have the option to discuss Death With Dignity openly with their doctors. Until more states are able to pass Death With Dignity legislation of their own, the Gonzales v. Oregon decision has at least ensured that the topic of physician-assisted suicide is no longer taboo.

Zack Pelta-Heller is a graduate student at The NewSchool and a regular contributor to AlterNet.

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