Sam Brownback's Death With Indignity Act

Yesterday Sen. Sam Brownback (R-Kan.) introduced a bill that would ban physician-assisted suicide, overriding state laws that permit it. Oregon, which lets doctors prescribe fatal doses of controlled substances to terminally ill patients who want to kill themselves, is the only state with such a law so far. In January the U.S. Supreme Court rejected the Justice Department's argument that Oregon's Death With Dignity Act conflicts with the federal Controlled Substances Act. The decision hinged on statutory interpretation, only tangentially raising the issue of whether the Constitution permits Congress to dictate policy in this area. In his majority opinion, Justice Anthony Kennedy cited federalism concerns as one reason to be cautious about reading that intent into the CSA. Browback's bill, the Assisted Suicide Prevention Act, makes the intent clear, directly raising the question of whether the power to regulate interstate commerce includes the power to stop a doctor from prescribing barbiturates to a dying patient. As Justice Clarence Thomas noted in his dissent in the Oregon case, it's hard to see how the Court could say no, since it has already decided that the Commerce Clause covers a marijuana plant on a cancer patient's windowsill.

Although Brownback is not worried about the lack of constitutional authority for a federal ban on physician-assisted suicide, he does respond to the concern that such a law would discourage adequate pain treatment, since opioids can suppress respiration. "By only penalizing doctors for using a federally-controlled substance for the stated or undisputed purpose of assisted suicide, and by placing the burden of proof on the Attorney General," he claims, "the bill does not constrain doctors from offering palliative care that brings pain relief to patients, even if such treatments could hasten death." The text of the bill does not seem to be available online yet. But if the protection for pain treatment is as strong as Brownback implies, the ban would have little effect, since doctors could always prescribe large doses of narcotics with a wink and a nod to patients who wanted to kill themselves. If the law is broad enough to reach such cases, doctors who prescribe narcotics for pain relief would still have to worry that they might be prosecuted for assisting suicide.