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.