A federal judge recently told the U.S. Department of Justice that it was not authorized to define the legitimate practice of medicine. Assistant Attorney General Robert McCallum kept trying anyway.
"Medicine is the art of preserving health, treating disease, or relieving pain," McCallum said. "Assisting suicide is not medicine."
He's right. The Oregon Death With Dignity Act, the law that Attorney General John Ashcroft unsuccessfully tried to override, disguises a basic moral choice as a diagnosis.
The law–which was approved by initiative in 1994 and took effect three years later, after surviving several attempts to repeal or overturn it–lets terminally ill patients seek permission to end their lives. If two physicians agree that a patient is mentally competent and has less than six months to live, the patient may request a prescription for a lethal drug, which he can receive after a 15-day waiting period.
In other words, a desperate, suffering person who decides that his life is not worth living must have that judgment ratified by government-sanctioned experts, who will give him access to the means of suicide only if they agree that he has made a rational choice for officially recognized reasons. This is called "death with dignity."
As the iconoclastic psychiatrist Thomas Szasz has observed, physician-assisted suicide is simultaneously a power grab and an evasion of moral responsibility. Doctors assert their authority over the fundamental question of existence, while patients and their families banish doubt by trusting the experts.
"The physician who performs physician-assisted suicide does not merely render a clinical judgment and perform a medical intervention; he also renders a moral judgment and performs a social ritual," Szasz writes in his 1999 book Fatal Freedom: The Ethics and Politics of Suicide. "He legitimizes [physician-assisted suicide] as not irrational and therefore not wrong…and he defines prescribing a lethal drug as a therapeutic response to a medical crisis rather than as a pseudomedical evasion of drug prohibition."
The drug laws reinforce the idea that suicide is a medical issue because they grant physicians exclusive access to the substances that offer a relatively easy and painless way to die. If people could buy barbiturates over the counter, they would not have to beg doctors for a prescription, and the Death With Dignity Act never would have been proposed.
Yet drug regulation is also the pretext for Ashcroft's assault on the Oregon law. Last November he issued a directive declaring that assisting suicide is not a "legitimate medical purpose" under the Controlled Substances Act. This interpretation meant that Oregon doctors who helped patients die could lose the federal registration that allows them to prescribe controlled substances.
But in an April 17 decision, U.S. District Judge Robert E. Jones ruled that federal law "does not prohibit practitioners from prescribing and dispensing controlled substances in compliance with a carefully worded state legislative act." He said Congress never authorized the Justice Department or the Drug Enforcement Administration to "act as a national medical board."
Jones did not address the question of whether Congress could ban physician-assisted suicide. Although the House has voted twice to nix Oregon's law, it's hard to find authority for such nullification in the Constitution.
Then again, the Constitution does not give Congress the power to regulate intrastate sale or possession of drugs, and the courts have upheld such laws anyway. Enforcing them has led the DEA to "act as a national medical board," whether or not that was the intent of Congress.
The DEA tells doctors not to prescribe marijuana, for example, even though the drug is legally approved for medical use in nine states. It looks over their shoulders as they dole out painkillers, second-guessing their decisions about which patients to trust and how much to prescribe.
It's hardly surprising, then, that federal regulators would look askance at doctors who prescribe drugs for the avowed purpose of killing people, a practice that's expressly prohibited by the Hippocratic Oath. Yet the government itself has encouraged this dodge by interfering in a quintessentially private matter that should be left to each individual's conscience. "Dying voluntarily is a choice intrinsic to human existence," writes Szasz. "It is our ultimate, fatal freedom….If we delegate responsibility for making these choices to medical professionals, we take a giant step toward forfeiting our basic freedoms."
Suicide does lie outside the proper realm of medicine. It also lies outside the proper realm of government.