Going Gentle

Oregon's suicide law faces its final hurdle


Euthanasia had a good night at the Oscars this weekend. Clint Eastwood's Million Dollar Baby and Alejandro Amenábar's The Sea Inside—both sympathetic portrayals of quadriplegics determined to end their lives at a time and in a manner of their choosing—took home awards for best picture and best foreign film respectively.

The timing is apt. This fall, the right to die will face a tribunal even more important than the Academy, when the Supreme Court hears a final challenge to Oregon's controversial "Death With Dignity" law.

Passed in 1994 and reaffirmed by Oregon's voters in the face of a ballot initiative that would have repealed it, the law permits physicians to prescribe lethal medication to terminally ill patients, subject to safeguards intended to prevent impulsive suicides. Former Attorney General John Ashcroft later sought to overrule Oregonians by means of the federal Controlled Substances Act, declaring that ending life was not part of legitimate medical practice and threatening physicians with career-destroying revocation of their federal prescription licenses if they helped patients to die. But the Court of Appeals for the 9th Circuit ruled that Ashcroft had overstepped his authority, and now the case is headed for the Supremes.

Though it has excited the passions—and amicus briefs—of those on both sides of the right-to-die debate, the case is really about the scope of federalism. The Court has already held, in Washington v. Glucksberg, that there is no constitutional right to assist a suicide, though its earlier ruling in the Cruzan case affirmed an individual right to refuse lifesaving medical treatment. At issue here, however, is not the wisdom of assisted suicide but the federal power to outlaw it. So the most relevant recent case to the question at hand may not be either of the above, but rather the still-undecided Raich v. Ashcroft, in which the Court must determine whether federal drug laws trump California's desire to make medical marijuana available to patients.

While the tenor of the questioning during oral arguments in Raich supplies little reason for optimism about a favorable decision for state autonomy there, it also, perhaps counterintuitively, suggests that the Court will be more deferential to Oregon's prerogatives. Consider this pointed question from Justice Sandra Day O'Connor:

As I understand it, if California's law applies, then none of this home-grown or medical-use marijuana will be on any interstate market. And it is in the area of something traditionally regulated by states. So how do you distinguish [this from other cases recognizing limits to federal power]?

What's interesting about the discussion that follows is that it focuses quite single-mindedly on the problem (or "problem," for those less worried by the prospect) of diversion of purportedly medical marijuana into the illegal interstate market. The government does not cavil that federal authority trumps a state's presumptive power to determine good medical practice within its boundaries.

It's just this sort of argument, however, that we find Wesley J. Smith making at National Review Online. Smith frets over the "chaotic possibilities": Some states ban assisted suicide, others allow it only for the terminally ill, still others recognize a broader right to determine when one's life has run its course. But that's the kind of chaos we tolerate readily enough when it comes to, say, malpractice law and medical licensing, and its hard to see what "federalism" can mean except that the government must sometimes tolerate the (apparently terrifying) prospect of dealing with 50 different policies. Smith ham-handedly attempts to associate defenders of Oregon's prerogatives with "John Calhoun's long-discredited doctrine of state nullification" without even touching on the distinction between the regulation of particular drugs, which flow in interstate commerce (or, under our strained Commerce Clause jurisprudence, affect prices in a national drug market) and the permissible use of those drugs within a state's boundaries. Nullification, then, is a red herring: The question is not whether a state may ignore legitimate federal regulations, but whether federal regulatory authority extends to questions of this sort at all.

Fine points of law aside, though, Reason's Jacob Sullum has rightly argued that the core error in the government's actions here is the attempt to disguise a fundamentally moral question as one about the scope of "legitimate" medical practice, as though it were a dispute about whether a certain treatment were a reasonable means to some agreed-upon end.

The legal mistake can be criticized on its own terms, but it rests upon a further moral mistake. We're used to assuming that the purpose of medicine is to prolong life. So, for example, we find David Stevens, Executive Director of the Christian Medical Association and an opponent of assisted suicide, arguing that "the time-tested Hippocratic oath asserts, the role of a physican is to 'use treatment to help the sick according to my ability and judgment, but never to injure or wrong them.'"

But there are often, for example, conflicts between quality and quantity of life, as when a patient undergoes a risky operation for the sake of a chance at regaining function in a paralyzed limb. The recognition that only the judgement of the patient can properly weigh those competing risks undermines the notion of some objectively correct medical practice that promotes some objective value of health.

We're fond of saying, as a convenient shorthand, that human life is supremely valuable. But when we take that shorthand and crudely embed it in our conception of what constitutes good medicine, we succumb to a kind of linguistic hypnosis. Taken literally, the idea that "human life has intrinsic value" is a kind of nonsense that no reasonable person should be able to take seriously. Many of us say we believe something like this, but on reflection, very few of us do.

When we consider what it is about people that makes them deserving of respect, that makes a murder tragic, we almost never cite the chemical differences that separate our DNA from a chimp's or the processes that suggest biological "life." Rather, it's our plans and perspectives, our ways of seeing the world, that make us each unique and wonderful and irreplaceable. It is, in other words, the thoughts and choices that constitute each distinct person. A notion of "good medicine" that subordinates the will of the person to mere biological life gets things preposterously backwards.