Winter 2003 Vol. 10, Issue 1
By Alan Meisel, JD
Professor of Law
Dickie, McCamey and Chilcote Professor of Bioethics
University of Pittsburgh
Physician assisted suicide may have come out of the closet thanks to Jack Kevorkian's macabre antics, but it is now a topic of serious public discourse. Throughout the 1990s and into the new millennium, various attempts have been made to legalize physician assisted suicide through legislative and judicial activities. All but one have failed, and now the Bush administration is intent on burying that one too.
The first effort to legalize physician assisted suicide to come to a vote actually predated Kevorkian's activities. It was a failed referendum in California in 1988. The second failed referendum was in Washington state in 1991, which led the supporters of legalization to commence a lawsuit to declare unconstitutional the state's law making assisted suicide a crime. In this lawsuit, several terminally ill individuals and their physicians sued the state claiming that the law making it a crime to aid suicide violated their rights under the U.S. Constitution's guarantee of due process of law and the equal protection of the laws. In 1994 a federal trial court judge in Seattle upheld their claims and declared the law unconstitutional as applied to competent, terminally ill patients seeking assistance in ending their lives from a licensed physician. The state of Washington appealed the case to the U.S. Court of Appeals for the 9th Circuit, which also held the Washington prohibition on assisted suicide unconstitutional.
At about the same time, a lawsuit was brought in the federal courts in New York, making similar claims about a New York statute that also made aiding suicide a crime. The result at first, however, was different. The federal trial court judge ruled that the New York statute did not violate the U.S. Constitution. Then the petitioners - again, terminally ill patients and their physicians - appealed the decision, and the U.S. Court of Appeals for the 2nd Circuit reversed the trial court decision. It held that the New York law violated the constitutional guarantee of equal protection because terminally ill patients who were being kept alive by life support could obtain assistance in ending their lives by having a physician, at their request, withdraw lifesustaining treatment, but terminally ill patients who were living without life support - but suffering greatly - were prohibited from obtaining assistance in ending their lives. These two lawsuits (Washington v. Glucksberg and Vacco v. Quill) were appealed to the U.S. Supreme Court, which decided them both in June 1997.
In the meantime, other highly significant events were taking place in Oregon. In 1994 voters in that state were the first to approve a referendum to legalize physician assisted suicide. A lawsuit to invalidate this new law was quickly filed, and, as a result, the law did not go into effect. Eventually, the U.S. Court of Appeals for the 9th Circuit - the same court that had struck down the Washington law making assisted suicide a crime - reversed this decision, but the reversal was put on hold (consequently, Oregon law legalizing physician assisted suicide was also on hold) pending appeal to the U.S. Supreme Court.
Thus, when the Washington and New York cases came before the Supreme Court, physician assisted suicide had already been legalized in one state. The Supreme Court unanimously ruled that the U. S. Constitution did not guarantee terminally ill citizens of all states the right to physician assisted suicide, thereby reversing the decisions of the lower federal courts in Washington and New York. However, the Court's opinions did not prohibit states from legalizing physician assisted suicide if they wished to do so. It merely held that the U.S. Constitution did not guarantee such a right. And when the lawsuit challenging the Oregon referendum legalizing physician assisted suicide finally reached the U.S. Supreme Court several months later, the Court refused to consider it. This had the effect, some three years after its initial passage, of finally putting the Oregon law into effect. And it has been in effect ever since, with 91 patients having used it between 1998 and the end of December 2001. 1,2
Shortly after the Oregon law went into effect, the director of the federal Drug Enforcement Administration (DEA) issued a directive ruling that it would be a violation of the federal Controlled Substances Act for any physician, including those in Oregon, to dispense controlled substances for the purpose of aiding a patient in ending his own life. However, the DEA director neglected to consult with his boss, Attorney General Reno, who commenced a study of the action and concluded that the DEA director had not acted in keeping with the Congressional purpose in enacting the Controlled Substances Act - namely, to prevent trafficking in illegal drugs and abuse of legitimate drugs. Reno concluded that the Controlled Substances Act did not support the ban on the use of legitimate drugs for an approved medical purpose.
During both the Clinton and Bush administrations, Congress attempted to overturn Reno's ruling but failed to do so, in part, because of concerns that such a law would also thwart use of medications needed to relieve pain in the terminally ill. However, now that the Attorney General's office is in the hands of a dyed in-the-wool opponent of physician assisted suicide - John Ashcroft - the Bush Administration has taken a new tack in thwarting Oregon's efforts to maintain legalized physician assisted suicide by once again issuing a directive that the prescription by physicians of medications to aid a patient in ending his or her life violates federal law and is grounds for withdrawal of the physician's authorization to prescribe controlled substances.
This directive has renewed the argument that blocking physician assisted suicide in this way will threaten palliative care. It is contended by some - including some who oppose Oregon's legalization of physician assisted suicide - that Ashcroft's order will make doctors wary of prescribing adequate controlled substances for palliative care out of fear that they will be charged with violations of the Controlled Substances Act if the patient inadvertently dies as a result of the medications that were intended merely to be palliative.
Where this will all go, no one knows. The Ashcroft directive was challenged in federal court, and in April 2002, a federal judge in Portland, in an opinion that was unusually critical of a high federal official, held that the Attorney General acted without legal authority in issuing this directive. For now, at least, that means that the physician assisted suicide is alive and well in Oregon. However, the federal government might appeal this ruling, and if it does, it might ultimately wind up before the U.S. Supreme Court.
There is good reason to believe that the Ashcroft directive violates the Supreme Court decisions about physician assisted suicide in at least two ways. First, the Supreme Court permitted states to legalize physician assisted suicide if they chose to do so, and that is exactly what the voters of Oregon chose. Second, a majority of the nine Supreme Court justices made clear that terminally ill patients had a right to adequate palliative care and, if it was not made available, they would be inclined to revisit their ruling that there was no constitutional right to physician assisted suicide.
It is ironic that a "states' rights" administration would attempt to thwart a Supreme Court ruling giving each state the right either to legalize physician assisted suicide or not legalize it as its citizens wish. It would be tragic if the same administration were permitted to adopt a ruling that imposed suffering on terminally ill patients by restricting access to adequate palliative care thereby making a mockery of the sanctity of life it is ostensibly seeking to promote.
Footnotes
1 Hedberg K. Fourth Annual Report on Oregon's Death with Dignity Act. Portland: Oregon Department of Human Services, 2001. http://www.ohd.hr.state.or.us/chs/pas/ar-index.htm.
2 Hedberg K, Hopkins D, Southwick K. Legalized physician assisted suicide in Oregon, 2001. N Engl J Med 2002;346:450-2.
in collaboration with
Dartmouth-Hitchcock Medical Center
The opinions expressed in the journal, Lahey Clinic Medical Ethics,
belong to the individual contributors and do not represent the institutional position
of Lahey Clinic on any subject matters discussed.
