A number of religious and conservative organizations have filed friend-of-the-court briefs in support of the U.S. Department of Justice’s challenge of Oregon’s first-in-the-nation assisted-suicide law. It followed the U.S. Supreme Court’s decision to hear the challenge to Oregon’s Death With Dignity Act, which allows for physician-assisted suicide. The law covers mentally competent, terminally ill patients who are within six months of dying.
The statute became effective in 1997 and was not challenged by the Clinton administration. It was challenged early on in the Bush administration by then Attorney General John Ashcroft.
Ashcroft interpreted the federal Controlled Substances Act to prohibit physicians from prescribing controlled substances for assisted-suicide. In November, 2001, Ashcroft sought to sanction Oregon doctors who prescribed lethal doses of medication for terminally ill patients. Doctors who violated his directive would have their right to prescribe medicine suspended or revoked.
However, several patients, doctors and Oregon state lawyers immediately challenged Ashcroft’s order, and a federal judge in Portland blocked it from taking effect. And last year, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that Ashcroft had exceeded his authority.
Prior to leaving office last November, Ashcroft asked the U.S. Supreme Court to reverse the federal appellate court’s decision. The high court recently agreed to hear the case this fall, which was renamed Gonzales vs. Oregon, now that Alberto Gonzales is the new Attorney General. A decision from the Supreme Court is not likely until early next year.
One brief filed in support of the DOJ challenge was by the U.S. Conference of Catholic Bishops, of which the Lutheran Church-Missouri Synod was a signatory.
The brief stated, “The Attorney General’s conclusion that there is a difference between assisting suicide and managing pain, and that the former is not a legitimate medical purpose within the meaning of the Controlled Substances Act...while the latter is, is not only eminently reasonable but also supported by longstanding medical practice and past interpretation of the Act.
Enforcing the distinction leads to improvements in patient care. Blurring the distinction has been harmful to patients and jeopardized their care. Government does not serve the public interest or the common good by facilitating the killing of innocent people, regardless of their medical condition.”
The brief also noted that medicine by its very definition aims to prevent illness, to heal and to alleviate pain. “Taking a human life accomplishes none of these objectives. To say that it does creates an inherent contradiction, like saying that the legitimate practice of law includes helping clients break the law.”
“What virtually every state regards as a crime, indeed as a form of homicide, does not become ‘medicine’ simply because the perpetrator is a doctor, the patient is terminally ill, or one state has decided to rescind its own criminal penalties for the act,” the brief concluded.
In a separate brief, Jay Sekulow, chief counsel of the American Center for Law and Justice, said Ashcroft’s original directive is both legally sound and constitutional.
“The Attorney General clearly has the authority to use a federal statute to take action against doctors who assist terminally ill patients commit suicide. This critically important case raises a key question: should the federal government be permitted to legally prohibit physicians from prescribing life-ending federally controlled drugs to assist patients commit suicide? We are hopeful the Supreme Court will conclude that the federal government has the authority to act and that federal drug laws must take precedence over the state’s decision to experiment with legalized assisted suicide,” Sekulow wrote.
Liberty Counsel, in its brief, argued that the Attorney General properly exercised his role as protector of the inalienable right to life.
“This right to life is manifested in the Declaration of Independence which states: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.’”
Liberty Counsel President and General Counsel, Mathew Staver, noted, “When a physician participates in a person’s suicide by administering controlled substances, the line between healer and executioner is blurred, and the sanctity of life is lost. America should not become like Sweden, where patients wonder whether a physician with a syringe brings life or death.”
The Christian Medical Association, the nation’s largest faith-based association of physicians, with 17,000 members, said that in deciding to consider the nation’s only assisted-suicide law, the Supreme Court “has an opportunity to protect patients, preserve physicians’ role as healers and send a life-honoring message to the culture.”
CMA Executive Director, Dr. David Stevens, said, the reason physicians have taken the Hippocratic Oath for centuries, is to “preserve their patients’ rights and the healing authority” of the medical profession.
“You only have to look at abuses patients have suffered in financially driven healthcare systems to understand what can happen when cheap assisted suicide is offered as an alternative to true comfort care. Do you think the state of Oregon might have a financial interest in choosing cheap suicides for citizens whose care would otherwise be paid for through Medicaid? Do you think third-party healthcare payers might compare ledger sheets with cost estimates for lethal injections of Phenobarbitalversus long-term palliative care?
What message do we want to send about suicide to our young people, the disabled community, our aging parents and grandparents? Do we really want the government condoning and promoting suicide? Do we want to reinforce the fear that the infirm are no more than a burden on the healthy?
We need to send a message that even in our darkest hours, life is still worth living, that loved ones will come alongside to help, and that doctors will treat pain effectively and compassionately–not with lethal prescriptions,” Stevens said.
Katherine Tucker is a lawyer for Compassion & Choices, a group that provides emotional and legal support to individuals and families facing end-of-life decisions, and which represents the Oregon patients. The organization was formerly known as the Hemlock Society USA. Tucker said, the question is about the “scope” of the Controlled Substances Act.
“The act was designed to prevent the diversion of controlled substances into the black market or into the hands of those who would use them to abuse substances. It has nothing to do with the Death With Dignity Act.
It’s not drug abuse to consume medicine to have a peaceful death. Drug abuse is the use of drugs to get a high or to sustain addiction. This is not what’s happening when patients are trying to have a peaceful death,” Tucker said.
Eli Stutsman, an attorney who represented physicians who challenged Ashcroft’s directive, also helped draft the Oregon law.
“The Controlled Substances Act and narcotics law is not an all-powerful policy pronouncement to usurp states’ rights or practice of medicine,” he said.
In March, a new state report said, 37 Oregonians committed doctor assisted suicide in 2004. That was a slight decrease from 42 the previous year. Over the last seven years since its inception, Oregon’s Death With Dignity Act accounted for 208 deaths.
Two surveys were taken to gauge both doctors’ and the public’s views on assisted suicide after the Supreme Court agreed to consider the Oregon case.
A survey of 1,000 physicians commissioned by the Louis Finklestein Institute for Social and Religious Research found that 57 percent of the respondents said that they support assisting a patient who has made the decision to die, based on unbearable suffering. In addition, 41 percent of those questioned said they endorse the legalization of doctor-assisted suicide.
However, 46 percent said that they personally would not take part in ending a patient’s life for any reason, while 34 percent said, they would assist a patient in some cases, and 20 percent said, they would participate in a variety of situations.
A Harris Poll of just over 1,000 adults found that 67 percent of those surveyed said, they would like their states to allow doctor-assisted suicide as it is currently allowed in Oregon. Also, 72 percent of the respondents said that if they were unconscious and unlikely to recover, they should not be placed on life support, and food and water should be withdrawn. Regardless of the polls, it’s been acknowledged that not all of the assisted-suicide cases in Oregon went smoothly. In March, it was learned that one terminally ill man awoke three days after he took what was supposed to have been a lethal dose of pills.
Upon waking up from a coma, David Prueitt of Estacada, Oregon, asked his wife, “What...happened? Why am I not dead?” Prueitt later died of natural causes.
There were two previous cases, including one in 1999, in which a man told the Oregonian he felt compelled to “help” his brother-in-law end his life when the drugs presented a problem. The man was not more specific. In the other case, in 2000, a man began to have some “physical symptoms”that his wife found to be unbearable. The man wound up being taken to a Portland hospital, where he was revived and later transferred to a nursing facility.
In reacting to Prueitt’s failed assisted suicide, Dr. Kenneth Stephens, vice president of Physicians for Compassionate Care and chairman of the radiation oncology department at Oregon Health and Science University, noted, “We’ve always been concerned that the dose would not always be lethal and that there would be complications. In this situation, living is considered a complication.”
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