Oregon Lets Dying Choose a Gentle Exit

Today, terminally ill citizens of Oregon � but no other state � are statutorily entitled to end their suffering on their own terms. But if the federal government has its way in Gonzales v. Oregon, the Supreme Court will strip Oregon of the ability to provide even this modest relief to its residents.

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Today, terminally ill citizens of Oregon — but no other state — are statutorily entitled to end their suffering on their own terms. Oregon’s Death with Dignity Act — a narrowly drawn statute that contains numerous safeguards against abuse — permits mentally competent, terminally ill patients with less than six months to live to request a prescription for a lethal dose of medication. But if the federal government has its way in Gonzales v. Oregon, the Supreme Court will strip Oregon of the ability to provide even this modest relief to its residents. The question before the Court in oral argument this Wednesday is whether the U.S. attorney general has the authority to interpret the Controlled Substances Act, a federal statute designed to prevent drug abuse and trafficking, so as to nullify Oregon’s law. The issue arises because many physicians consider a large dose of barbiturates to be the safest and most effective way for a person to end her life. The federal drug law, however, classifies barbiturates as a “Schedule II” drug, meaning that the drugs are not available without a prescription and that a physician may prescribe them only for a “legitimate medical purpose.” In November 2001, then-Attorney General John Ashcroft set forth a directive stating that using Schedule II drugs to hasten death was not a “legitimate medical purpose.” Attorney General Alberto Gonzales has not changed or repealed the rule. As a result, if Oregon physicians — following their patients’ clear wishes, their own medical judgment, and the strict requirements of the Oregon law — write prescriptions to end their patients’ suffering, the federal government may suspend them from prescribing medications. Worse, it also may prosecute them under federal criminal law. RETURN TO GLUCKSBERG In purely legal terms, Gonzales v. Oregon involves a clash between state and federal law over the extent to which a state may exercise its traditional power to regulate the practice of medicine within its borders. But there is no avoiding the vexing moral question beneath the legalities: Do people with terminal illnesses have the right to control the time and manner of their death? Eight years ago, in Washington v. Glucksberg, the Supreme Court held that the Constitution’s guarantees of liberty and privacy do not include a general right to physician-assisted suicide. But Glucksberg explicitly did not exclude the possibility that certain terminally ill individuals might have such a right. The small group of patients that the Oregon law defines as eligible for physician-assisted suicide should meet the Glucksberg test. The limited scope of Oregon’s law is clear, both in the statute’s express terms and in the state’s experiences over the eight years that the statute has been in effect. Only terminally ill Oregon residents who have a life expectancy of less than six months, and who are capable of making and communicating health care decisions, are covered by the law. Two physicians must confirm the patient’s diagnosis and prognosis as well as the patient’s mental competence. And the law requires that, before receiving a prescription for life-ending drugs, a patient must make two oral requests to her physician, separated by at least 15 days. The patient must also provide a written request signed in the presence of two witnesses, who attest that the patient is competent and acting voluntarily. The physician must inform the patient of available alternatives to hastening death, such as hospice care, and if the physician has any doubts about the patient’s mental state, she must refer the patient for a psychiatric evaluation. Then, after the patient makes the written request, another 48-hour waiting period must pass before the physician may actually write the prescription. The spirit of restraint manifest in the language of the law is equally evident in the statute’s actual effect. No parade of horribles — forced euthanasia, coercion of vulnerable individuals, or decline in end-of-life pain management — has occurred. And contrary to early fears, the Oregon law has not become the “preferred” treatment for terminally ill individuals with no other options. In fact, 99 percent of patients who have used the law had some form of health insurance at the time of their death, and 86 percent were receiving hospice care. In addition, since the law’s passage, Oregon physicians have, in fact, increased their referrals of patients to hospice care. But what Oregon’s experience most tellingly reveals is that while Gonzales v. Oregon involves the push and pull of power between states and the federal government, what is really at stake are the liberty and privacy interests of terminally ill individuals to choose a gentle exit on their own terms. Indeed, a solid majority of Oregonians who have used the law said they were doing so to maintain their autonomy and dignity in their final days. In short, although Gonzales v. Oregon does not directly ask the compelling questions left open by Glucksberg, it might nevertheless provide needed answers to them.
Kristina Silja Bennard is an associate in the D.C. office of Mayer, Brown, Rowe & Maw. She is an author of an amicus brief on behalf of the American Civil Liberties Union filed in support of Oregon in Gonzales v. Oregon . The views expressed here are her own.

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