Gonzales v. Oregon

by hilzoy

The Supreme Court today ruled (pdf) that the Attorney General does not have the right to decide that doctors who prescribe controlled substances under Oregon's Death With Dignity Act can be prosecuted. This means that physician-assisted suicide can continue in Oregon, where it is legal subject to very tight controls and is used pretty rarely (pdf).

I suspect that this is one of those decisions that will outrage a lot of conservatives, despite the fact that it is, at bottom, a very conservative opinion. For some reason, while most of us have no trouble understanding that we should support e.g. a fair election in which our side lost, because having a system in which we choose our representatives through elections matters more than getting the result we want in any given case, lots of people seem to have trouble taking a similar view of court cases. Some liberals have been known to argue that anyone who opposes something ought to think that federal laws against it should be upheld, regardless of whether those laws have anything to do with any power given to Congress under the Constitution. Likewise, some conservatives who normally rail against judicial activism in the abstract are furious when the court strikes down laws banning things they happen not to like, regardless of whether or not the Congress had the right to enact those laws. In both cases, the idea that one might like a procedure for making decisions better than any alternative, even when in a given instance it produces a result one doesn't like, seems to get lost.

In this case, Attorney General Ashcroft was asserting that the Controlled Substances Act gave him an extraordinary amount of power: the power (1) to interpret the Controlled Substances Act (and specifically to decide what its requirement that drugs be prescribed for a 'legitimate medical purpose' means), and therefore (2) by deciding what the 'legitimate practice of medicine' means, to regulate the practice of medicine, which has traditionally been left to the states; and (3) to criminalize any conduct by doctors that does not accord with his interpretation. These are large powers, and it's hard to read the Controlled Substances Act as having granted them to the Attorney General. Traditional conservatives should be concerned by any such federal power grab, especially since there is no reason whatsoever to think that it can only be used in the context of physician assisted suicide.

To see what the issues are, consider the difficulty of deciding what counts as a 'legitimate medical purpose'. Offhand, if asked what the point of medicine is, a lot of people would say: to cure disease. And curing disease is certainly a large part of medicine. Even this part is contentious, since it's hard to come up with a good definition of 'disease'. Homosexuality is the obvious example of something that was once considered a disease but is no longer; my personal favorite, however, has always been drapetomania:

"DRAPETOMANIA, OR THE DISEASE CAUSING NEGROES TO RUN AWAY.

(...) The cause in the most of cases, that induces the negro to run away from service, is as much a disease of the mind as any other species of mental alienation, and much more curable, as a general rule. With the advantages of proper medical advice, strictly followed, this troublesome practice that many negroes have of running away, can be almost entirely prevented, although the slaves be located on the borders of a free state, within a stone's throw of the abolitionists."

In order to define 'disease', you need to have some corresponding view of what's 'normal', from which disease represents an undesirable departure. Your view of what's normal might be a statistical one: defined in terms of what is in fact true of most (human) bodies. In this case, however, any disease that most people have -- e.g., dental cavities, osteoperosis in the very old, or malaria in parts of Africa -- will count as normal, and thus not as a disease. Alternately, you could define 'normal' in terms of the way the body is supposed to function. Here, however, you cannot look to observation to settle the question of what's 'normal'. It is irreducibly normative, and endlessly contested. And it's because the definition of 'normal' is necessarily normative that those who took homosexuality or drapetomania to be diseases were not making a simple mistake of the sort that could have been remedied by more careful observation. They were defining same-sex attraction and slaves' desire to flee as undesirable deviations from the norm, and their mistake was not empirical but moral.

Suppose, however, that we arrive at some clear and uncontested definition of disease. Our problems are not over, since medicine is not limited to curing diseases, or even to curing diseases plus various medical problems that are not diseases (gunshot wounds, broken bones, etc.) Consider anaesthesia: it cures nothing; it just alleviates pain. And yet it is plainly part of the legitimate practice of medicine, as are other interventions that treat symptoms rather than curing disease. (Note: the same problems that make it hard to define 'disease' will also make it hard to define the sorts of 'symptoms' that medicine can legitimately treat.) And consider preventive medicine: it's devoted to preventing disease before it starts, not to curing or ameliorating anything.

And besides that, there are a whole range of activities that are not related to curing or preventing medical problems or to the amelioration of symptoms, but that we nonetheless only allow doctors to perform. Abortion is the obvious example here, but to be less contentious, consider plastic surgery. It seems fairly obvious that a nose job or breast enhancement is not 'curing' anything at all, or ameliorating a symptom of disease, or even 'promoting health'. And yet, for obvious reasons, if someone is going to be doing breast enhancement surgery, it had better be a licensed doctor. Likewise, it's not all that clear, if you stop to think about it, that even the sort of plastic surgery that's required to remove disfiguring scars or burns after some terrible accident is "medical" in the sense of curing disease, ameliorating symptoms, etc.

This leads to a general point: the core purpose of medicine is the treatment of medical problems and the promotion of health. In the process of learning how to treat medical problems and promote health, doctors acquire certain skills that have other uses. Sometimes states reasonably require that only doctors should do something, on the grounds that only someone with medical skills should do it. (Plastic surgery, abortion.) In such cases, one might think, the activities in question are not part of the core purpose of medicine, but they are, according to the states that pass laws allowing only doctors to legally engage in them, legitimate medical activities (i.e.: activities that doctors can legitimately engage in in the course of their professional practice.)

Oregon decided that physician assisted suicide was such an activity. It is not curing or preventing a disease. It does, I suppose, ameliorate symptoms, but not in a way that doctors normally consider as part of their therapeutic arsenal. It is, I take it, in the same category as plastic surgery: something a state might decide that doctors, and only doctors, can legitimately do, on the grounds that while it is (according to the state of Oregon) an OK thing to do, no one who does not have a doctor's skills should be allowed to do it. In deciding that physician assisted suicide is not a 'legitimate medical purpose', the Attorney General is overruling the State of Oregon on this point. And to do so he would have to have the power to decide what is and is not a 'legitimate medical purpose'.

If what I wrote above is at all right, then if the Attorney General has the power to decide what counts as a 'legitimate medical purpose', he would have to be able to decide what counts as a disease, a symptom, or a medical problem, and what sorts of activities other than treating medical problems and promoting health doctors should be allowed to engage in. He might, for instance, decide that plastic surgery was not a legitimate medical activity, and therefore that any doctor who prescribes a controlled substance (e.g., an anaesthetic) during the course of plastic surgery can be prosecuted. Or he could decide that helping people to emulate the life of Kurt Cobain was a legitimate medical purpose, Kurt Cobain's life being the norm to which we should all aspire, and deviations from that life being, necessarily, diseases; and therefore that doctors cannot be prosecuted for making heroin freely available to their patients. He could, in a word, decide for himself which uses of controlled substances are legitimate and which are not, and what counts as the legitimate practice of medicine and what does not, despite his lack of any obvious qualifications to make such judgments.

The Court, it seems to me, acted rightly in striking down this claim. It said that the Congress had not intended the Controlled Substances Act to confer any such power on the Attorney General, or to take the regulation of medicine away from the States except in matters related to the use of recreational drugs. And whatever you think of physician assisted suicide, this is (I think) plainly the right result. Moreover, it's a result conservatives should welcome. For while this case concerned physician assisted suicide, the powers the Attorney General claimed apply far more broadly.

The fact that three of the justices normally called 'conservative' dissented from the majority in this case makes me, once again, wonder what on earth they take 'judicial activism' to be. I agree with Mark Kleiman on this:

"The regulations provide that physicians may prescribe drugs only for a "legitimate medical purpose." Could that rule be used to overrule the decision of the voters of Oregon, voting in a referendum, to allow physicians in that state to help badly suffering terminally ill patients put an end to their misery?

To Scalia, the answer is clear. “If the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death.”

Savor that "surely," if you will. Because Scalia finds assisted suicide morally offensive, it "surely" must be the case that relieving suffering by hastening death isn't a legitimate part of what a physician does."

Scalia's reading of the statute in question is, to me, tortured. His view of 'legitimate medical purpose' is bizarre, if (as it must) it excludes all those activities unrelated to curing or ameliorating medical problems and promoting health that states decide that doctors can lawfully use their skills to engage in. And it raises constitutional questions as well: on his reading, as I understand it, the Congress must have the power to convey to the Attorney General the right to criminalize physician assisted suicide, and I have no idea which of Congress's enumerated powers this might derive from.

To my mind, the dissents in this case are as pure a form of judicial activism as one is likely to find.

It's also worth noting one obvious similarity between Ashcroft's claim in this case and Bush's claims about the NSA wiretapping. In both cases, a huge claim of executive power is made; in both cases it relies on a tortured reading of a statute (the Controlled Substances Act, the Authorization of the Use of Military Force) that never grants, or even addresses, that power; and in both cases, that tortured reading relies on ignoring both the implausibility of the idea that Congress would have granted that power implicitly and the context of the part of the statute that allegedly grants it. (In the case of the CSA, the context is both the legislative history and the rest of the statute; in the case of the AUMF, it's the legislative history, and in particular the Congress's having rejected wording that would have explicitly granted powers similar to those Bush alleges they did grant.) Here's what the Supreme Court said about Ashcroft's claim:

"The idea that Congress gave the Attorney General such broad and unusual authority through an implicit delegation in the CSA’s registration provision is not sustainable. “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001); see FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000) (“[W]e are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion”)."

That line about elephants and mouseholes seems exactly right to me. I hope the Court bears it in mind when it considers the NSA surveillance program.

Comments

[Francis]

I very much look forward to the comments of those who believe that Justice Scalia has a consistent and normatively better theory of jurisprudence.

He is, as he has accused himself of being, nothing more than a faint-hearted conservative.

[Dantheman]

"Likewise, some conservatives who normally rail against judicial activism in the abstract are furious when the court strikes down laws banning things they happen not to like, regardless of whether or not the Congress had the right to enact those laws. "

I don't think you intended to write this sentence this way. Did you mean "pleased" instead of "furious"?

[CharleyCarp]

I'm not sure I find Justice Scalia's opinion bizarre:

Virtually every relevant source of authoritative meaning confirms that the phrase “legitimate medical purpose”4 does not include intentionally assisting suicide. “Medicine” refers to “[t]he science and art dealing with the prevention, cure, or alleviation of disease.” Webster’s Second 1527. The use of the word “legitimate” connotes an objective standard of “medicine,” and our presumption that the CSA creates a uniform federal law regulating the dispensation of controlled substances, see Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43 (1989), means that this objective standard must be a federal one. As recounted in detail in the memorandum for the Attorney General that is attached as an appendix to the Directive (OLC Memo), virtually every medical authority from Hippocrates to the current American Medical Association (AMA) confirms that assisting suicide has seldom or never been viewed as a form of “prevention, cure, or alleviation of disease,” and (even more so) that assisting suicide is not a “legitimate” branch of that “science and art.” See OLC Memo, App. to Pet. for Cert. 113a—130a. Indeed, the AMA has determined that “ ‘[p]hysician-assisted suicide is fundamentally incompatible with the physician’s role as a healer.’ ” Washington v. Glucksberg, 521 U.S. 702, 731 (1997). “[T]he overwhelming weight of authority in judicial decisions, the past and present policies of nearly all of the States and of the Federal Government, and the clear, firm and unequivocal views of the leading associations within the American medical and nursing professions, establish that assisting in suicide … is not a legitimate medical purpose.” OLC Memo, supra, at 129a. See also Glucksberg, supra, at 710, n. 8 (prohibitions or condemnations of assisted suicide in 50 jurisdictions, including 47 States, the District of Columbia, and 2 Territories).

(emphasis added).

My law practice is largely about Chevron, Skidmore, and Auer, and so I'm more interested in the method here than in the result (and hope this continues for many years to come). An interesting process, and I'd be interested in Francis' comments on it.

And there's a line from Justice Kennedy that I hope to read in an AUMF/FISA case: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions–it does not, one might say, hide elephants in mouseholes.” (quoting Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001).

[CharleyCarp]

And Dan's too, of course . . .

[liberal japonicus]

With Scalia arguing that the AMA is against assisted suicide, I would be interested to know how it is decided. Googling turns up a few articles

une 20, 2003--CMA physicians helped rebuff a move by delegates from the Wisconsin AMA that would have supported assisted suicides in Oregon. During the national AMA convention in Chicago, June 14-19, 2003, the Wisconsin delegates presented a resolution opposing the U.S. Attorney General's right to prevent doctors from using federally controlled drugs to assist in patients' suicides.

Instead, the AMA House of Delegates adopted a substitute resolution that excised all reference to the Attorney General's directive and simply reaffirmed that the "legitimate medical practice" standard of the Controlled Substances Act regulations should not be used to restrict the appropriate use of opioids for pain management. Even the title of the resolution was changed to remove broader references to "end of life" drug use and refer only to pain management. As Richard Doerflinger of the U.S. Conference of Catholic Bishops observed, the resolution is "consistent with the Ashcroft directive, as it does not increase government scrutiny of physicians' pain management practices (and does not even affect opioids, since the controlled substances used for all reported assisted suicides in Oregon are barbiturates). This resolution leaves the AMA leadership free to file a brief in support of the Ashcroft directive if it concludes that the directive does not adversely affect legitimate pain management. Efforts should surely continue to persuade the AMA that this is the right thing to do."

Other physicians' groups fighting to prevent the Wisconsin motion from passing included the Catholic Medical Association and Physicians for Compassionate Care.

In December 2002, after meeting with fierce opposition from regional and national American Medical Association (AMA) members, the California Medical Association ditched a similar plan to challenge the U.S. Justice Department with a resolution at the American Medical Association interim meeting in New Orleans December 7-11.

link

CMA is the Christian Medical Association and the site has some other eye opening info, including this article on how the results of the Schiavo autopsy were subjective.

One also has to wonder how much this stance depends on the potential for assisted suicide to impact the bottom line for the industry.

[Sebastian Holsclaw]

I am generally against officially legalizing assisted suicide for much the same reason I don't like to even approach the idea of legalizing torture. Both might be used in really extreme circumstances, but since humans always push a little past the line, I don't like to set the line right on the very edge of acceptable behaviour. That said, the Supreme Court decision is correct under my understanding of federalism. However, I am almost convinced by Scalia's argument.

(On this issue I have at least two other hands).

[hilzoy]

Sebastian: have you read the Oregon law? Because I think if it as a model of careful drafting: they really did build in an awful lot of safeguards against abuse. I linked to it (I think) in the original post.

[blogbudsman]

I applaud the decision, which is essentially that the Federal Government needs to stay out of a State's right to legislate its medical community. Further, however, I truly believe that life can become so painfully unlivable as a result of terminal illness that an individual should have some choice over whether to live or not. I fully realize that road is wrought with dangers. Having lived in Oregon for several years, I believe the good citizens there have put much thought into the process and deserve support for tackling such a passionate issue.

[Jay C]

Just to be thorough, hilzoy: a (much) easier-to-understand exposition of Oregon's Death With Dignity Act can be found here .

While Sebastian's position is understandable - if debatable - I agree with you that the operations of the Oregon law (which I am not sure many of the blog-commenters who have been opining on it understand) is designed to put as much of the decision (and responsibility) as possible on the patient; and safeguard both patient and physician against possible problems arising from the terminal patient's choice. Indeed, I have heard the argument advanced that the DwDA merely provides a legal shield from prosecution or liability for a practice which had been, has been (and certainly will be) carried on for a long time. I would hazard a guess that many of us have, sadly, had some sort of experience with a dying relative or friend "accidentally" overdosing on medication: what the Oregon DwD Act does is simply bring the practice out into the open.
And, as you say: PAS is not all that common: about 30 cases a year in Oregon, as your link shows.
JFTR: does anyone know if there have been any legal challenges/objections in any of the 208 PAS cases (thru 2004) in Oregon? Or has the system "worked"?

[cleek]

i believe this will be the only time i agree with blogbudsman.

[Dantheman]

Charley,

This isn't my area of expertise, so I have little additional light to shed, other than to point out that this case, like Kelo last year, shows that many of the most vocal conservatives don't oppose judicial activism, only judicial activism when it reaches a result they deem liberal.

[Charles Bird]

Upending the centuries-old Hippocratic Oath is a decidedly unconservative thing, Hil. Whether the ruling is conservative or not I guess depends on your definitions of legitimate and medical. If anything, the ruling is disjointed and hypocritical. In Raich, the USSC ruled that the federal government can preempt a state law that allowed doctors to alleviate suffering by prescribing marijuana. In Oregon, the USSC ruled that the federal government cannot preempt a state law that allowed doctors to alleviate life by prescribing drugs that caused death. If states do indeed have the primary power to regulate the medical profession, then Raich should have been upheld just as Oregon was.

[rilkefan]

I'm pleased with this decision, but let me remind people of Rivka's opposition to PAS.

[rilkefan]

CB: "the millennia-old Hippocratic Oath", you could say, at least if you're a worshipper of Apollo like me. And I believe that suicide was both considered noble and commonly assisted by physicians back in the day, and that the oaths administered today usually omit the "euthanasia" part.

And sure, it's widely thought in stuff I read that Raich was wrongly, partisanly decided.

[Francis]

i'm generally in favor of individual autonomy. so i support the Oregon statute and i disapprove of torture.

i'm honestly surprised that this case even got three votes. The CSA limits the rulemaking authority of the AG and the AG, imho, grossly exceeded the scope of his rulemaking authority. end of case. there are some interesting parallels, that I have not seen in my quick review of the opinions, to the tobacco regulation case, i.e., a federal agency (there, the FDA) cannot simply adopt radical new regulatory authority, especially where Congress has been petitioned and acted / failed to act in that area.

on the political question, the key sentence from the majority's opinion is: "The structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the States' police powers."

If so, then Oregon, not the feds, decide what is a legitimate medical purpose. Since as best as anyone knows, every human who has ever been born either is already dead or will die, I see no reason to disapprove of the decision of oregonians to include pain-free death as part of the practice of medicine.

the weirdest sentence from the dissent is: "the court confuses the normative inquiry of what the boundaries of medicine should be -- which it is laudably hesitant to undertake -- whith the objective inquiry of what the accepted definition of medicine is."

hmmm. shouldn't there be just a smidge of deference to the desire of the people of oregon?

[Francis]

CB, Raich was a straightforward constitutional challenge to the CSA. I thought that the plaintiffs had the better of the argument, but I was wrong.

Gonzalez was a challenge to the rule-making authority of the AG. Given that the AG was exercising his rule-making authority (a) in a way never done before and (b) in order to interfere with a state's decision on a hotly contested issue, i'm not surprised that the court found against the AG.

i see no inconsistency.

[matttbastard]

I applaud the decision, which is essentially that the Federal Government needs to stay out of a State's right to legislate its medical community. Further, however, I truly believe that life can become so painfully unlivable as a result of terminal illness that an individual should have some choice over whether to live or not. I fully realize that road is wrought with dangers. Having lived in Oregon for several years, I believe the good citizens there have put much thought into the process and deserve support for tackling such a passionate issue.

Nothing to add - just felt this comment deserved to be singled out. Well said, blogbudsman.

[Slartibartfast]

To put my two frothing right-wing bits in:

I'm neither dismayed nor undismayed. Given that this whole issue is still a bit question mark with me, and given that IANAL and haven't read the Oregon statute regarding PAS, I'm Swiss.

Given my druthers, I'd prefer to have those who truly wish to shuffle off be given the means to do so, without an overage of encouragement from the various heirs and such.

Let 'em froth for a bit longer, then toss some baking soda on 'em.

[hilzoy]

Charles: As I understand it, the difference between this case and Raich is that the Congress plainly did assert the power to control the recreational use of drugs, and the courts had upheld this as related to interstate commerce. Raich concerned an aspect of this, whereas the current case concerned construing the CSA as asserting the Congress' right to govern medicine more generally, and to delegate that power to the Attorney General, which it seems pretty clear they did not intend to do.

As for the Hippocratic Oath: have you ever actually read it? Here it is, in all its glory:

"I swear by Apollo Physician and Asclepius and Hygieia and Panaceia and all the gods and goddesses, making them my witnesses, that I will fulfil according to my ability and judgment this oath and this covenant:

To hold him who has taught me this art as equal to my parents and to live my life in partnership with him, and if he is in need of money to give him a share of mine, and to regard his offspring as equal to my brothers in male lineage and to teach them this art - if they desire to learn it - without fee and covenant; to give a share of precepts and oral instruction and all the other learning to my sons and to the sons of him who has instructed me and to pupils who have signed the covenant and have taken an oath according to the medical law, but no one else.

I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice.

I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.

I will not use the knife, not even on sufferers from stone, but will withdraw in favor of such men as are engaged in this work.

Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves.

What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about.

If I fulfil this oath and do not violate it, may it be granted to me to enjoy life and art, being honored with fame among all men for all time to come; if I transgress it and swear falsely, may the opposite of all this be my lot.

Translation from the Greek by Ludwig Edelstein. From The Hippocratic Oath: Text, Translation, and Interpretation, by Ludwig Edelstein. Baltimore: Johns Hopkins Press, 1943."

Not only do people who swear this oath have to believe in Apollo, as rilkefan notes; they also have to vow never to perform surgery ("I will not use the knife, not even on sufferers from stone...") and promise to teach the sons of their teachers without charge. We have upended the oath a long time ago.

Note that it does not say: 'first, do no harm', contrary to popular belief.

[Katherine]

Charles: like hil said, I don't they ruled that the federal government couldn't, I think they ruled that Congress hadn't. It isn't the same thing.

[liberal japonicus]

The NOVA program had an interesting take on the Oath here

With all this in mind, some doctors see oath-taking as little more than a pro-forma ritual with little value beyond that of upholding tradition. "The original oath is redolent of a convenant, a solemn and binding treaty," writes Dr. David Graham in JAMA, the Journal of the American Medical Association (12/13/00). "By contrast, many modern oaths have a bland, generalized air of 'best wishes' about them, being near-meaningless formalities devoid of any influence on how medicine is truly practiced." Some physicians claim what they call the "Hypocritic Oath" should be radically modified or abandoned altogether.

and btw, props to bbm.

[McDuff]

Sebastian

I am generally against officially legalizing assisted suicide for much the same reason I don't like to even approach the idea of legalizing torture. Both might be used in really extreme circumstances, but since humans always push a little past the line, I don't like to set the line right on the very edge of acceptable behaviour.

I disagree with this because I do not see the end of a human life as being an "exceptional circumstance." Every day, people die of cancer, of AIDS, of debilitating diseases which rob them of faculty and dignity before they rob them of life. Added to this the additional complication that, as medical technology advances further, we have the capacity to keep human beings alive well beyond the natural boundaries of life. We cannot deny or dispute that there is a natural point at which a life should end, that some diseases remain incurable and that the body itself eventually gives up the ghost.

If it is within a physician's capacity to grant relief, dignity and self-reliance to someone on the cusp between life and death, if the choice is not not to save or take a life, but to allow it to exit on its own ugly terms or on the terms of the one who owns it, I have serious problems with conceiving that it is within the capacity of any government to completely outlaw that practice. It is not, after all, illegal to slit one's own throat or overdose on asprin.

It is, as noted, a prickly row to hoe, but I think one can do as much harm by erring too far one way as another.

Charles

Upending the centuries-old Hippocratic Oath is a decidedly unconservative thing, Hil. Whether the ruling is conservative or not I guess depends on your definitions of legitimate and medical.

The old version of the Hippocratic Oath has been upended long ago, mainly because it bans invasive surgery. There is a modern version which is taken by many, but not all, physicians. This particular oath mentions specifically that circumstances exist in which a doctor may, in fact, end a life.

[Charles Bird]

I was thinking of this version of the Hippocratic Oath, which honors the classical principles but recognizes that technology has changed somewhat in the last couple of millienium (on hitting "preview", it looks like LJ beat me to the link).

Hippocrates did write this: "As to diseases, make a habit of two things—to help, or at least to do no harm." But it's all Greek to me.

Just to be clear, Scalia's "legitimate medical purpose" language is compelling but I think the USSC made the right call on Oregon, and the wrong call on Raich.

[22Tom]

Charles says:

, Just to be clear, Scalia's "legitimate medical purpose" language is compelling but I think the USSC made the right call on Oregon, and the wrong call on Raich.

I don't see how you can think that because Hilzoy says:

I suspect that this is one of those decisions that will outrage a lot of conservatives, despite the fact that it is, at bottom, a very conservative opinion....

That means that aleast you and I aren't outraged. I didn't hear about all the conservative outrage on T.V. today. So what is going on? Could this mean that the low blow Hilzoy tries to get in at the beginning of her post is most likely is a crock? I wonder if she knows she has gone off the deep end and lacks a rational perspective of conservatives?

[Slartibartfast]

Posting rules, 22Tom. If you don't know what they are, read them.

[hilzoy]

22Tom: I tried to make it clear that I think that both liberals and conservatives have a tendency to evaluate SC decisions by outcome, not by legal principle. If I'm wrong about either group, I'm glad to hear it.

(I'm speaking as someone who recalls the howls of outrage from the left in the 90s, when the SC began to suggest that maybe, just maybe, the interstate commerce clause didn't give the congress the power to do literally anything it wanted, and disagreed. Fwiw, I put those howls down not to a love of judicial activism, but to what I just mentioned: the failure to think that one's favorite outcome is not always the right outcome in legal cases.)

[Slartibartfast]

Oh, and I'd gladly sink to hilzoy's level of irrationality. Just as I aspire to Feynman's utter lack of understanding of how things work.

[felixrayman]

I didn't hear about all the conservative outrage on T.V. today. So what is going on? Could this mean that the low blow Hilzoy tries to get in at the beginning of her post is most likely is a crock? I wonder if she knows she has gone off the deep end and lacks a rational perspective of conservatives?

In the hours after the court’s ruling Tuesday, some social conservatives urged Congress to act: “It is entirely appropriate for Congress to revise the Controlled Substances Act to make clear that federally-regulated drugs may not be used to facilitate state-sanctioned assisted suicide,” said Tony Perkins, president of the Family Research Council, a social conservative group with clout in Republican ranks.

...

The National Catholic Bioethics Center wishes to express its profound disappointment with the Court's decision to allow physicians in Oregon to abuse their healing art and construe the deliberate administration of a lethal dose of a drug as a "legitimate medical purpose." In the words of Justice Antonin Scalia's dissent, "if the term ‘legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death."

...

The White House says today's Supreme Court ruling in favor of Oregon's assisted suicide law is disappointing. ... Spokesman Scott McClellan says President Bush is "fully committeed to building a culture of life."

...

The Rev. Jerry Falwell and Liberty Counsel President Mat Staver on Tuesday lashed out at a U.S. Supreme Court ruling that supports Oregon’s physician- assisted suicide law.

...

The U.S. Supreme Court's decision to uphold Oregon's physician-assisted suicide law could have grave ramifications for the rest of the country, the leader of a Christian doctors' organization said Tuesday. ... The court ruled in a 6-3 vote that a 1997 law used to end the lives of more than 200 seriously ill people trumped the federal government's authority to regulate doctors' ability to dispense controlled substances. ... "This is not about a patient's right to commit suicide. They can do that now, although we certainly don't recommend it," said Dr. David Stevens, executive director of the Christian Medical and Dental Associations, based in Bristol. ... "This is about a doctor's right to kill," he said. "It is going to be hard for a patient to trust a doctor when (doctors) have all the power."

...

The Supreme Court today did not uphold assisted suicide," said Austin Ruse, President of the Culture of Life Foundation. "The Supreme Court's decision today speaks narrowly to an interpretation of federal statutes, specifically whether Oregon may carve out its own exceptions to the Controlled Substances Act. The Supreme Court has never and did not today speak to the merits of assisted suicide. We believe today's ruling was wrong because federally controlled drugs should be used to heal comfort and never to kill."

Perhaps Tom may wish to put some of his outrage on the market in order to obtain funds with which to purchase a clue.

[felixrayman]

Just as I aspire to Feynman's utter lack of understanding of how things work.

Piss off, jackass.

[liberal japonicus]

Could this mean that the low blow Hilzoy tries to get in at the beginning of her post is most likely is a crock?

using Google's blog search for assisted+suicide+conservative, we have the blog Too Conservative
Supreme Court Upholds Assisted Suicide Law

The Supreme Court still lacks a "Culture of Life" majority. Today's 6-3 decision upholding Oregon's assisted suicide law is prime evidence of that. Even if Alito were already occupying O'Connor's seat and he had voted along with Roberts, Scalia and Thomas, the decision would still have been 5-4.

and the 7C Worldwide blog

Story: Supreme Court Backs Oregon Assisted-Suicide Law

...yet another step in the wrong direction in our culture of death.

Despite my disagreements with Charles, I respect him enough to ask you to stop trying to sneak in behind him to take a shot at Hilzoy. It's that sort of thing that gives conservatives a bad name.

[liberal japonicus]

Just as FRM is striving to do the same for liberals. Why don't you two start a Point-Counterpoint blog?

[Slartibartfast]

felix has earned himself at least a temporary ban.

I feel as if I ought to have enjoyed that, but I didn't.

[matttbastard]

slarti: I swear, that 22Tom guy has attacked hilzoy on several other posts of hers, using the handles creek/credence/Windle and several others which I can't recall. I can't say for certain that it's coming from the same person, but all the aforementioned handles have a yahoo.com email domain, and share similar prose style (along with a singular obsession with vicously smearing Hilzoy and/or 'leftists/liberals'.)

I fear the last thing he's interested in is abiding by the posting rules, let alone having a meaningful, honest discussion.

[liberal japonicus]

I feel as if I ought to have enjoyed that, but I didn't.

Then let one of us do it...

[Slartibartfast]

Not to reveal too much of what's behind the curtain, matttb, but creek posts from a quite different IP, which is also different from that of credence and that of Windle. Either they're all different people, or it's one person with far too much spare time.

And, hey, I use a yahoo.com email as well. Given that I'm a troll, tho, probably apropos.

[Slartibartfast]

along with a singular obsession with vicously smearing Hilzoy and/or 'leftists/liberals'

Not to do a spelling flame, but you misspelled 'vacuous'.

[Slartibartfast]

Dang, now I'm doing it. My excuse: I thought it was a drive-by.

[matttbastard]

Slarti:

Touché.

I've hesitated on commenting thusfar, precisely because I'm not convinced it's the same person. I'm not g33ky enough to do any proper investigation.

Just seems odd, that's all...

and no, it was not meant as a vacuous drive-by.

[Charles Bird]

Could this mean that the low blow Hilzoy tries to get in at the beginning of her post is most likely is a crock?

I wouldn't characterize what she wrote as a low blow or a crock, 22, but more as a needling on the hypocrisy of conservatives. Quite frankly, I thought the needle poked a little more sharply to the right than the left, but there was at least some attempt to point out a shortcoming from the left-of-center perspective. In addition, I'd rather she wrote "some conservatives" rather than "a lot of conservatives" since a perusal through Memeorandum would show many (if not most) right-of-center blogs grudgingly in favor of the ruling. Bench Memos at National Review are a split ticket on the ruling, for example. I wouldn't call it a "lack of rational perspective".

[rilkefan]

Could it be frm mistook "Feynman" for his handle, or conceivably his actual name? And didn't get the reference to one of the great physicists of last century, a man of often magical insight into reality?

[hilzoy]

Charles: I was writing before a lot of conservative blogs (that I checked, at least, and it wasn't an exhaustive search) had weighed in. But, as I said, I'm glad to be wrong. I meant, in general, to be criticizing a tendency, among non-lawyers on both sides, to assume that a court decision whose result they don't like is a bad decision. If I overestimated this response, as I said, I'm glad.

Although a lot of the blogs written by lawyers who are conservatives first -- Instapundit, Powerline, Hewitt -- have yet to comment.

[Sebastian Holsclaw]

As far as such laws go, Oregon's appears to be pretty good, but my objection to it remains the same. For a vast majority of even very very sick people, killing yourself is something you can pull off without a doctor's help. I would prefer that doctors maintain their role as healers.

But that is a policy judgment. As a Constitutional matter I think it is fairly clear that such things belong to the states. I would go further than the current majority and say that Congress shouldn't have the power to restrict the ability of doctors to assist suicide if their respective states allow it.

[liberal japonicus]

Charles,
Just an observation, but couldn't it be possible that conservatives are keeping mum about this because of the fact that Alito is about to be confirmed? I'm really struck by the apparent absence of any comment from the usual suspects that hilzoy mentioned. I'm also struck by the relative silence from the Volokh crew, with the exception of a very wry post by Orin Kerr

[Slartibartfast]

Could it be frm mistook "Feynman" for his handle, or conceivably his actual name? And didn't get the reference to one of the great physicists of last century, a man of often magical insight into reality?

Dunno; my entire point was that calling hilzoy irrational is a bit like thinking of Richard Feynman as having a poor understanding of physics. Either way, though, his response was unjustified. He's been warned repeatedly, and the combination of this and this after the repeated warnings were ample grounds for banninng.

He's more than welcome to appeal to the kitty, and likely will be welcomed back after cooling off for a couple of days. Neodude also got himself banned last night for the same sort of behavior, and he too has been warned, repeatedly. We may have to conference a bit offline to decide where we go from here, and what constitutes unacceptable behavior.

If on the other hand Feynman is FRM's actual surname, I may have to do a partial retraction.

[liberal japonicus]

2 yen here,
Even though I'm obstensibly from the same side as him, if he's reading so fast that he sees Feynman and reads it as Felixrayman, he needs a bit of cooling off, if only to rest his eyes.

[cleek]

OT:

lib. japon., i take it you're familiar with Japan ?

[Sebastian Holsclaw]

"Just an observation, but couldn't it be possible that conservatives are keeping mum about this because of the fact that Alito is about to be confirmed? I'm really struck by the apparent absence of any comment from the usual suspects that hilzoy mentioned. I'm also struck by the relative silence from the Volokh crew, with the exception of a very wry post by Orin Kerr."

It is possible, but at least equally possible is the fact that conservatives actually see something in the principle of federalism that they like even when the policy-level of the decision doesn't go their way. If anything, that seems to be the majority response at the moment. If you want, you can believe that we are all faking it. You can pretty much always win an argument that way.

I think you are reading way too much into the Volokh conspiracy posts and/or lack of posts. Often, though not always, one doesn't address an issue if another member already has (unless they disagree).

[liberal japonicus]

Cleek,
well I live here (or there, deixis is always a problem on lists like this), but it's hard for me to say it's 'different' here because it just seems like home, having been here for 16 years now.

Sebastian, as I said, it was just an observation, and I didn't accuse you or anyone else of 'faking it'. I merely suggested that they were holding their tongue. Perhaps they see something they like, but they are still awfully quiet (not a peep from Redstate, for example, as well as the big three run by lawyers).

As far as Volokh, that's possible, but I recall Eugene writing some shorter posts questioning assisted suicide, so I just found the silence striking, especially with Orin's post casting it as an executive power decision and then basically saying 'just kidding'

But honestly, Sebastian, what gives? Why so defensive? I really don't see anything in my post that could trigger such a reaction, unless you are assuming that I am just faking when I say it's an observation. As you say, you can pretty much always win an argument that way, right?

[Jackmormon]

Great catch with "drapetomania," hilzoy. I've always enjoyed "nympholepsy," but yours is the more vivid teaching example. (Oh, and I'm very happy the Oregon law was upheld. A bit sad to see Roberts's dissent, though.)

[cleek]

OT:
Cleek, well I live here ..

hope you don't mind if i ask a question: my wife and i are going to Japan for our 10th anniversary, but we don't have many specific things lined up. so, if you had, say, 10 days, what things would you say are must-see/do (or must-avoid) ?

--

nympholepsy... what a great word.

[liberal japonicus]

cleek,
drop me a line at the gmail address listed here and I'll give you some suggestions. I checked at your blog, but didn't see an email address. A lot of it depends on timing and what you are interested in.

[cleek]

lj, thanks. it's on its way.

[Simp]

The view from here (Portland) is, in general, that the law is an overwhelming success. The Oregonian has done quite a few pieces on it, including some in-depth profiles of people who have used the law (don't bother looking through their website, it is atrocious; though if there is interest I can pull up some archival articles from the Multnomah county library website). Some of the stories are painful to read, some joyful, and most involve immediate family.

The opposition claims of rampant abuse haven't come to fruition. The predicted influx of people migrating here to die hasn't happened, though I'm sure there have been a few at least.

The one interesting aspect is that even though it has only been used about 120 times, there are many more that have gone through the process and have the prescription (as well as a pharmicist willing to dispense the drugs) ready to go. Obviously the fear of dying in pain is larger than the the fear of dying. Just having the prescription has given peace of mind many many more than have actually used it.

[Jay C]

Simp:
Just FYI, according to the NYTimes, there have been 325 DwDA prescriptions written in the seven years to 2004, resulting in 208 actual suicides, or an average of 64% of terminal patients who actually went through with it. The State reported that of the 60 lethal-dose prescriptions written in 2004, 35 patients self-terminated with them (a 61% rate); the remainder either died "naturally" or were still alive as of year-end.
So, it seems, as a general rule, that fully one-third of terminal patients in Oregon who request lethal dosages under the DwDA decide, in the end, NOT to use them.
Also, according to the State, those 208 PAS deaths 1998-2004 compared to 64,706 deaths overall in the same period: a rate of 0.0032%.
Scarcely an orgy of self-destruction: it's no wonder Oregonians look on this law as a success.

[hilzoy]

If we're totting up the benefits of the law (and this is also a partial answer to Sebastian), I think we should also consider the people who want to kill themselves before they degenerate to a point they find unendurable (which, as far as I can tell, is more likely to involve unendurable lack of autonomy than unendurable pain), and would otherwise have to figure out how to do it myself.

Having watched a close relative to whom I was completely devoted get ALS, for instance, I think that if I had ALS, there's a point where I would really rather kill myself. (ALS is complicated by the fact that at a certain point you can't do it -- e.g., when you can't swallow. But leave that aside for now.) My relative, as it happens, got pneumonia and declined treatment for it and died that way. But if I had ALS and no fortunate pneumonia came along, I can definitely see wanting, at a certain point, to kill myself before things got worse.

Now: I am not, shall we say, one of those people all of whose interactions with the physical world go effortlessly right. I am absolutely the sort of person who would spend a lot of time figuring out how to kill myself, and then fail. Then someone would have to find me, and I'd wake up in the hospital, etc., etc. Complete nightmare. Or, worse, I would pick some way that would leave me in a relatively find-able state (I thought), but something would go horribly wrong and whoever found me would find me all contorted and blue, or with the side of my face blown off, or whatever.

And would I tell people in advance? Does that open them up to some sort of liability? If not, do I have to somehow wish the ghastly surprise of dead me on them?

I would much, much rather get advice from someone who knew what they were talking about, and better yet, a prescription for a drug that would, at the appropriate point, put me to sleep, surrounded by the people I love. And this is mostly not for me, but for them. I don't want to "surprise" anyone with my corpse; I don't want to fail in some horrible way; and I would imagine most people who would think of PAS feel similarly.

[Slartibartfast]

a rate of 0.0032%

Math flame: that's 0.32%.

[Jesurgislac]

Hilzoy, you're probably already familiar with Charlotte Perkins Gilman's suicide note (1935): "Human life consists in mutual service. No grief, pain, misfortune, or 'broken heart', is excuse for cutting off one's life while any power of service remains. But when all usefulness is over, when one is assured of an unavoidable and imminent death, it is the simplest of human rights to choose a quick and easy death in place of a slow and horrible one. I have preferred chloroform to cancer."

Which is to say, yes, I agree with you.

In the UK, anyone who assists someone to commit suicide may be charged with the crime of manslaughter, though where it is clear that the deceased wanted to die (or, in some cases, where the court concluded that the deceased would have wanted to die) they usually get nominal sentences, if they are convicted. A physician must appear before the BMA: PAS is explicitly not allowed.

There was a case a few years ago where a woman wanted her husband to get permission in advance to be able to assist her to commit suicide, because she could not bear the thought of him being charged with the crime of killing her, even though circumstances made it practically certain he wouldn't be penalized and he was prepared to take that risk. Permission was not given. I didn't try to find out what happened to her, or to her husband.

[McDuff]

Datapoint

Doctors in the UK were responsible for the deaths, through euthanasia, of nearly 3,000 people last year, it was revealed yesterday in the first authoritative study of the decisions they take when faced with terminally-ill patients. More than 170,000 patients, almost a third of all deaths, had treatment withdrawn or withheld which would have hastened their demise.

The figures, extrapolated from the study, show rates of euthanasia and doctor-assisted suicide which are significantly lower than anywhere else in Europe, Australia and New Zealand, where similar studies have been done. The numbers immediately provoked controversy.

[bob mcmanus]

Scalia Scuttles Federalism Bainbridge

Bainbridge:"There is much to be admired about Scalia. It no longer seems possible, however, to believe that he is developing a coherent conservative jurisprudence. Nor, insofar as results are concerned, that he can be expected to bring back the Constitution from the exile to which Wickard assigned it."

Below, Bainbridge (in comments) gives a nuanced, slightly technically uncertain, approval to Gonzales.

[rilkefan]

bob, got some spam the other day:

Good day, commander,
Mcmanus
Good Bye

Mcmanus
Mcmanus
Mcmanus
...

[dutchmarbel]

Further, however, I truly believe that life can become so painfully unlivable as a result of terminal illness that an individual should have some choice over whether to live or not.

Well put BBM and I fully agree.

Sebastian: our research so far does not show signs of a slippery slope.

[Aady]

I am generally against formally legalizing assisted suicide for much the same reason I do not like to even access the idea of legalizing torture. Both might be used in really extreme considerations, but since humans always push a little past the line, I do not like to set the line right on the very edge of satisfactory behavior.
______________-
aady
Addiction Recovery Oregon