Tuesday, January 31, 2006

The Oregon Right-to-Die Case Is Not About Suicide

January 31, 2006

As many of you have no doubt heard, the Oregon Death With Dignity Act recently withstood a legal assault at the Supreme Court. The ODWDA immunizes physicians who prescribe lethal overdoses of drugs to terminally ill patients from both civil and criminal suits, but only in cases where two doctors agree that the person contemplating ending his or her life is mentally fit to make the decision and will likely die of an incurable disease within six months. The attending physician can prescribe the drug, but they are barred from actually administering it.

The case was prosecuted under the 1970 Controlled Substances Act, which regulates everything from Tylenol to heroin by placing it in one of five “schedules.” The drugs used by doctors to end terminal patients’ lives are almost entirely Schedule II drugs like morphine, which means that under the CSA, they must be prescribed by an attending physician for a “legitimate medical purpose.”

The case was initiated by former Attorney General Ashcroft in 2001 and was picked up by Alberto Gonzales’ Justice Department when he took office early last year, becoming Gonzales v. Oregon. The law was not challenged on any Constitutional basis; in fact, it wasn’t challenged on the basis of any law at all. Instead, Ashcroft issued an “Interpretive Rule” which brought physician-assisted suicide under the purview of the Act, simply declaring by fiat that physician assisted suicide is not a “legitimate medical purpose.” Then he filed his complaint. Make no mistake, that means exactly what it sounds like: the Attorney General made it illegal and then he took it to court.

Janet Reno was asked by several members of Congress to do the exact same thing in 1997, but she declined on the grounds that the CSA didn’t allow the federal government to substitute its judgment for that of the states when it comes to regulating the medical profession or determining what constitutes legitimate use. The ODWDA was passed in 1994 and actually survived an Oregon ballot measure seeking to have it rescinded in 1997, no doubt instigating the Congressional effort to overturn it at the federal level. There was even a bill introduced into the House in 1998 seeking to amend the CSA to explicitly prohibit physician-assisted suicide, but it failed!

Unsurprisingly, the case came down 6-3, with Chief Justice Roberts joining Justices Thomas and Scalia in opposition to the ODWDA and the rest of the court solidly in favor of Oregon. Given the absence of clear Congressional intent to exercise its power in the matter, the Supreme Court declined to invalidate the law, and rightly so. The Attorney General is simply not allowed to steamroll a democratically selected state statute which does not contravene federal law by “reinterpreting” federal law. The ODWDA has been in place for nearly 12 years and has survived several legitimate attempts at its removal. Once again, Bush is testing the limits of Executive power to overcome the democratic process and remake the law in the guise of interpretation, but this round, at least, goes to the People.

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