physican assisted suicide and physician assisted dying and oregon and gonzalez v. oregon and supreme court and october 5, 2005

On October 5, 2005, two days after John Roberts settles into his chair as Chief Justice of the United States, the Court (with all nine Justices sitting) will hear arguments in Gonzalez v. Oregon. This case considers the legality of then-Attorney General John Ascroft's Nov. 2001 directive attempting to kill Oregon's Death with Dignity Act (allowing assisted suicide) by declaring that physicians who prescribed legal drugs to be used to end the life of a terminally ill patient would be prescribing drugs for no legimate medical purpose in violation of the law. This and the next few essays lay out the issue(s) in the case. Let's first begin with some of the questions or issues that will be on the Court's mind or the general public's mind as the Court considers the case.

Preliminary Questions

The first issue has to do with what you call the act of dispensing legal drugs in lethal quantity to a terminally ill patient. It has long been referred to as "physican-assisted suicide," even though proponents today call it "physican-assisted dying." The statute which implemented it in Oregon in 1994 is called the "Death with Dignity Act." So, part of he debate will relate to how you characterize this action. In this essay I will refer to it as PAS. Like Federal Express and Kentucky Fried Chicken, I will pursue the abbreviation route.

Then, you will want to know how the issue became a legal issue so that it is now before the Supreme Court. If the law was passed in 1994, why did it take so long to make it to the Supreme Court? We will want to know some of the provisions of the Oregon Act. What does it provide?

Then, we will have to ask what was the legal effect of AG Ashcroft's November 2001 directive. At the Supreme Court the issue will center around the interpretation of the 1970 federal Controlled Substances Act. At least two provisions of that Act and the regulations implementing that Act will call for comment. The central issue will be whether the AG overstepped his authority in issuing the directive by threatening Oregon physicians with prosecution/revocation of their licences if they prescribed legal drugs in lethal quanitites.

One of the difficult questions also relates to the issue of how the practice of medicine, which has traditionally been regulated by the states, is implicated in an action which purports only to regulate the use of controlled substances, which is clearly a federal responsibility. The Supreme Court calls this the "federalism" issue--to what extent one should defer to states as "laboratories of democracy" to try out new legal experiments for a while to see if they "work" and might be helpful for the entire country.

Underlying, or maybe overarching, all these is the larger ethical and social issue of what we do with people who are in a terminal condition, when competent medical professionals agree that death is near. Can we legally hasten the process of dying (some might say that this is actually what goes on anyway in hospitals all the time) through being explicit about physician participation in the dying process? Or, is an effort to do this an example of the return of a sort of eugenics which we tried to stamp out in mid-century? That is, will the "victims" of PAS be those least able to care for themselves and will the statute turn into an occasion for us to get rid of society's least desirable and most vulnerable people?

Let's begin at the beginning, then, with the Oregon Statute.

The Oregon Death With Dignity Act of 1994

In November 1994, by initiative petition, which has been permitted now in Oregon for more than a century, 51% of Oregon voters approved the Death with Dignity Act. It is codified now at ORS 127.800-995. The law was immediately put "on hold" by a court when it was challenged, but the court's injunction lifted in 1997. This meant that the Act was good law and could be implemented. Immediately the Oregon Legislature, acting under pressure from various lobbies, referred the statute back to the people for a vote in 1997 (it is able to do this under Oregon's Progressive era triad of "initiative, referendum and recall" statutes). The Legislative action was a sort of "You sure you want to do this, people?"-kind of referral. In the general election of 1997, Oregon voters gave an "in your face" vote to the Legislature and re-passed the measure, this time by a 60-40% margin.

So, late in 1997 the law went into effect. A few of the substantive provisions of the Act are useful to quote. The basic principle is:

"An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner in accordance with ORS 127.800 to 127.897" (ORS 127.805(1)).

So, it must be a written request made by a resident of Oregon. Suicide, like paying instate tuition at a state university, means that you just can't "show up" in Oregon and get a physician to kill you. You have to live in the state for a while. In that request the terminally-ill person (of course this is also defined in the law), asks for the medication. Actually, the physican will supply the medication but may not administer it. The statute is very helpful in that it even provides the form in which the patient should use to request this medication. Here is what the statute says about the request.

"A valid request for medication under ORS 127.800 to 127.897 shall be in substantially the form described in ORS 127.897, signed and dated by the patient and witnessed by at least two individuals who, 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" (ORS 127.810(1)).

One of the people involved in drafting the Oregon statute was a noted "wills and trusts lawyers." You can tell it by the preceding section; the same kind of solemnity involved in making a valid will is brought into the process of a person's requesting medication to end his or her life.

The next essay continues expositing the statute.

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