October 13, 2005,
The Supreme Court gave visitors a chance to ogle in action the new chief justice. The arguments being heard had to do with Oregon’s assisted-suicide law. The law was established by referendum in 1997. In an earlier referendum voters had marginally approved the practice; the second time they did so overwhelmingly (60–40). But the federal government, after observing the law’s itinerary in lesser courts, intervened. It said to Oregon: “You can’t do that! We feds passed 35 years ago the Controlled Substances Act, and that means that only we, the feds, can authorize what your assisted-suicide law would permit.”
The argument everybody is interested in lay deep in the thicket of laws and regulations and constitutional interpretations being touched on. Judge Roberts raised his voice for the very first time in his capacity as chief justice. He asked the U.S. solicitor general, who was arguing to invalidate the Oregon law, for one example of the attorney general’s overriding state medical practices. The solicitor general replied with an example involving the Food and Drug Administration. Roberts snapped, “That’s the FDA.”
Justice Roberts was endeavoring to unearth precedents that would illuminate the possibility of federal intervention in the Oregon case. The Controlled Substances Act gives the federal government authority to govern traffic in listed drugs, overriding state authority. Lame duck Justice Sandra Day O’Connor asked the solicitor general teasingly whether the Controlled Substances Act could be used to prevent lethal injections in capital punishment. . . . How about allowing states to use steroids for bodybuilding?
And so it went. What engaged listeners wanted to hear about was assisted suicide.
Is it permissible to stand by while suicides are expedited by members of the medical profession?
If the practice is hypothetically legal, can individual states Oregon authorize it?
It is interesting that the Oregon law is no longer a hot political issue within Oregon. When the second referendum in 1997 heavily registered popular sentiment in favor, skeptics tended to drop the subject. So the practice exists, but it is invoked minimally. The fear that thousands would have recourse to it to put an end to great pain proved groundless.
The practice in the Netherlands is constantly examined. There, for 20 years, assisted suicide has been routine, though critics point to evidence of its abuse. One begins with the basic question: Did the patient who asked the doctor to administer a mortal dose really wish to die? Did he/she wish to die because of insufficient awareness of alternative, palliative measures? Did the suicide-bent have as much information as was available about hospice care, which might have affected the despairing call for a death-doctor? Critics observe that only 50 percent of assisted suicides record doctors’ explanations of what exactly had been done, what counsel had been given, what alternatives were contemplated.
The haunting fear, of course, is that the sheer convenience of accelerating death can marginally influence medical counsel and medical action. A mortal dose of the right medicine, records indicate, costs $35 to $50. The contrast with the huge cost of institutional care is vivid. And then, if the Supreme Court rules that Washington does not have the authority under existing legislation to interfere with the judgment of the voters of individual states, will this precipitate similar action in other states? California, which is deliberating assisted suicide, is watching keenly the Supreme Court deliberations.
What is absent from administrative contentions is, of course, clear moral mandates. Most religious faiths proscribe intervention designed to bring on or even to hasten death. Most “early” deaths, observers point out, are effected by declining treatment. To refuse bread and water, which is an act of suicide, is proscribed; to refuse radiation is not. To invoke professional help in accelerating the advent of death is the line the Oregon voters have attempted to take. Next spring we will learn whether the Supreme Court permits this license to state voters.