Sam Brownback's Death With Indignity Act

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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.

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  1. It’ll be interesting to see how this stacks up in light of the SCOTUS’ recent privacy jurisprudence.

    Brownback’s clearly never sat at the bedside of a loved one who’s dying in agony… but he presumes to impose his morality on us, and to “protect” us from seeking relief in such an instance.

  2. I wouldn’t be surprised if Brownback is perfectly cool with the “nod and a wink” phenomenon.

    These religious values/culture of life bills are largely about two things:

    1. Marking our nations laws as being the territory of conservative Christians;

    2. Producing symbolic “guardrails” which, even if violated on the margin, will still guide the general flow of culture and action.

    Any such ban would be violated many thousands of times every year, just like a ban on abortion. The people who support these laws are perfectly aware of this.

  3. I think everyone ought to take a long hard look at what is happening in the Netherlands before they jump on the death with dignity bandwagon. Death with dignity is sold as a way to help the truly terminal and suffering, a worthy cause. But at least in the Netherlands, it has quickly turned into an excuse to kill the sick and deformed in the name of compassion and of course saving money. Before we start authorizing euthanasia, how about this modest proposal; how about changing our bizarre attitudes towards the administering pain killers to the sick and dying before we start authorizing doctors to kill them? There is no reason in this day and age for someone to die in pain. To the extent that anyone does, is the result of our bizare adversion to painkillers and strange views on drugs in the medical profession.

  4. I dunno – the presence of a right to die may serve as a brake on the development of socialized medicine in this country — after all, it’s in socialized medicine regimes that we find rationing, and the Netherlands is touted as a paragon of nationalized health care.

  5. John,
    This isn’t about euthenasia. It’s about assisted suicide, where the doctor gives you a prescription for a large dose of barbiturates, and then you go home and, if you decide to, kill yourself with it. I don’t see how your slippery slope applies here, unless you’re afraid of someone going on a suicide spree.

  6. APL,.

    That is what is starts as and it soon turns into the doctor making the decision for people who can’t. Further, if it were just about that, there would be no point to it. Anyone can go down to Wall Mart and buy a shotgun and kill themselves or take the entire bottle of pain killers proscribed to them. My mother had terminal cancer and towards the end had an entire bottle of straight morphine pills in her cabinet. Had she wanted to, she could have taken the entire bottle and died. What is the point of authorizing people to take drugs home to kill themselves when they can do that now? Assisted suicide is the last thing this is about. It starts with that and it ends with doctors deciding who lives and who dies.

  7. Well,

    I believe there have been cases of people pressuring the elderly or the infirm to commit suicide to either free up inheritences or the free the younger set of the burdens of care.

    The problem is that if one applied the logic behind the law to “date” rape, then it would be like making it a felony under federal Law to go out on a date!

    Suicide is, or course, a basic human right, and the laws against it are profoundly immoral and hurtful. In the end, if one truly believes that human beings should be free, one must accept that people will choose to hurt or kill themselves and that laws against self harm or suicide are immoral and illadvised.

  8. That is what is starts as and it soon turns into the doctor making the decision for people who can’t.

    Quite a strech there. Would you care to explain how it would lead to “doctors making decisions for people who can’t” ? Last I checked, when people CAN’T make decisions, a family member or someone they have designated gets to make those decisions, not their doctor. So I don’t see why this assisted suicide would be any different than that.

    Had she wanted to, she could have taken the entire bottle and died. What is the point of authorizing people to take drugs home to kill themselves when they can do that now?

    And if she would have taken them, and you happened to walk in on on the floor and unconscious, would you let her die with dignity or would you call an ambulence and try and help / save her?

    What about people in nursing homes who don’t get to give themselves doses and instead get the pills administered by nurses?

    People could also just slit their wrists too — so there is no need for this law right?

    John, just because your narrow experiences have shown something is unnecessary to you and yours, doesn’t mean that they are unnecessary to everyone.

    Do I have a right to kill myself? If so, what would it matter if I enslist help from an expert to make sure it’s done right and I don’t wind up living with the consequences of a botched suicide

    Assisted suicide is the last thing this is about. It starts with that and it ends with doctors deciding who lives and who dies.

    Assisted suicide is the ONLY thing this is about. Its the moralists who want to make inane slippery slope arguments about death doctors and the like.

  9. 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.

    In addition to being prosecuted for distribution of drugs, or “overprescribing” that is.

  10. Chicago Tom,

    That is exactly what they said in the Netherlands and it didn’t work out that way. Like I said above, you need to look at what is happening there.

    “What about people in nursing homes who don’t get to give themselves doses and instead get the pills administered by nurses?”

    You answer your own question. What about them? Those people can’t act or decide for themselves, so they get to have people like you decide for them. It starts with someone making the conscious decision to end their life and ends with a sick person in a nursing home who can’t speak or act for themselves being murdered by a doctor who decides they are terminal and need to die with dignity. Hell, you almost got to that in your post without even realizing it.

  11. John

    I wonder if you have any more evidence to back up your claim than Barry McCaffrey did when he claimed that the Netherlands had a higher murder rate than the US because they had legalized pot.

  12. You answer your own question. What about them? Those people can’t act or decide for themselves, so they get to have people like you decide for them.

    John, seriously, what are you talking about?

    Yet again, you argue based on stereotypes and preconceived notions in your head, rather than from reality.

    My grandfather-in-law was in a nursing home, not because he couldn’t make medical decisions or was senile, but because his prostate cancer came back again, and coupled with his colostomy bag, required a nurse’s care and having a nurse come to his house was too expensive. So he and his daughter (my mother in law) decided a nursing home was the best option they had. He was coherent and very able to make all of his own decisions. Being in a nursing home doesn’t inherently mean you can’t make your own medical decisions. Everytime we talked to him, he made it very clear he was finished. He was done fighting, he was done living, he had lived a full life and he was ready to die (Looking forward to it actually — I had never seen him in such bad spirits as all the times we visited him in his nursing home). He refused any more operations that would have slightly prolonged his life. He just had to wait for it to occur “naturally” (and painfully) because he couldn’t do it quickly and painlessly because of a lack of death with dignity laws. (Sadly, the poor man had to suffer through another year or so while his condition deteriorated before he was granted the death he so desired)

    Maybe you should talk to people like him and tell them that they don’t know any better and they shouldn’t be allowed to die because of some slippery slope about death doctors. See how well that goes over.

    The only thing that sets you apart from the “statists” and the crazy “lefties” you love to demagogue is the areas of people’s lives (and deaths) which you want the state to regulate and control.

  13. http://www.minbuza.nl/

    Netherlands info. (search in English or Dutch)

  14. Anyone can go down to Wall Mart and buy a shotgun and kill themselves or take the entire bottle of pain killers proscribed to them.

    Or, I suppose, they could drink lye, or cut their stomachs open with a butcher knife. But why should they have to go horrifically? You have to realize that a lot of people don’t know how to kill themselves. They put the gun in their mouth, and then aim to far back, and end up drowning on their own blood. Or they aim to far up, and survive with their face blown off. Or they go for the heart, miss, and end up thrashing around with a lot of repeated shooting. And when they do get the brain, it’s still pretty horrific for the family who has to clean pieces of them off of the walls. If somone has a right to kill themselves, then why not permit them access to the means to do it cleanly and painlessly?

    Secondly, the “slippery slope” is a logical fallacy. A way of arguing “A then B” without having to argue explicitly how one necessarily leads to the other. I might just as well state capital punishment leads inevitably to euthenasia, or abortion for that matter.

    It starts with that and it ends with doctors deciding who lives and who dies.

    So, you oppose doctors deciding that you have to live? I thought you were against assisted suicide?

  15. APL and Tom,

    If things are so wonderful with assisted suicide, why did things turn out so badly in the Netherlands? It is one thing to talk about a theoretical slippery slope, it is another thing to actually see it in action. Are the Dutch just more evil than Americans and unable to resist temptations that Americans can? Why would the American medical establishment act any differently than Dutch medical establishment if given the power of assisted suicide?

    This doesn’t sound like a place I want to go.

    The Dutch Way of Death
    Socialized medicine helped turn doctors into killers.

    BY RICHARD MINITER
    Saturday, April 28, 2001 12:01 a.m. EDT

    AMSTERDAM–Seven years ago, Dr. Niko Wolswinkel was asked to kill someone.

    On a Monday morning that he will never forget, the Dutch physician’s patient, a 77-year old woman dying from cancer, asked him to kill her.

    As a purely legal matter, he knew he could do it. While euthanasia had not yet been officially decriminalized in the Netherlands–that happened earlier this month–in practice, it had. A string of high-profile court rulings in the 1980s made it nearly impossible for prosecutors to win euthanasia cases, and in the few instances in which doctors were convicted, their sentences were suspended. The Royal Dutch Medical Association had publicly approved of euthanasia, which was common even then. All that stood between euthanasia and his patient, Dr. Wolswinkel knew, was his own willingness to comply.

    On that day, he searched his conscience. “It is very hard to speak of these things,” Dr. Wolswinkel said, with a quiet sadness in his voice. “Thirty years ago, this was something that people didn’t ask for.”

    He couldn’t bring himself to kill his patient; doctors are supposed to be healers, not killers. And, as a Christian, he believed it was wrong to take into his hands the power of God. A few days later, his patient died naturally.

    Most Dutchmen have come to a different conclusion; more than 80% favor “voluntary euthanasia,” according to recent polls. The Dutch Parliament recently passed a measure completely decriminalizing euthanasia and doctor-assisted suicide. The Netherlands is now the first democratic nation on earth to permit, under law, doctors to kill their patients.
    And they may be accustomed to doing so. Of the 130,000 Dutchmen who died in 1990, some 11,800 were killed or helped to die by their doctors, according to a 1991 report by the attorney general of the High Council of the Netherlands. (The 1991 report is the only complete report on euthanasia practices by the Dutch government.)

    Some of these deaths are the classic cases cited by right-to-die advocates: A terminally ill patient, in agony, demanding to “die with dignity.” But many are not. An estimated 5,981 people–an average of 16 per day–were killed by their doctors without their consent, according to the Dutch government report.

    And these numbers do not measure several other groups that are put to death involuntarily: disabled infants, terminally ill children and mental patients. Some 8% of all infants who die in the Netherlands are killed by their doctors, according to a 1997 study published in the Lancet, a British medical journal. Consider the case of Dr. Henk Prins, who killed–with her parents’ consent–a three-day old girl with spina bifida and an open wound at the base of her spine. Dr. Prins never made any attempt to treat the wound, according to Wesley J. Smith, author of the book “Culture of Death.” The treatment was death. Euthanasia critics have talked about the “slippery slope” as a possibility; in the Netherlands, it is a fact.

    Many old people now fear Dutch hospitals. More than 10% of senior citizens who responded to a recent survey, which did not mention euthanasia, volunteered that they feared being killed by their doctors without their consent. One senior-citizen group printed up wallet cards that tell doctors that the cardholder opposes euthanasia.

    What makes the Dutch comfortable with euthanasia? One factor is that their doctors became comfortable with it. “The Dutch have got so far so fast because right from the beginning, they have had the medical profession on their side,” Derek Humphrey, founder of the Hemlock Society, told the Toronto Globe and Mail last September. “Until we get a significant part of the medical profession on our side, we won’t get very far.”

    Some suggest that Dutch doctors are naturally more inclined toward euthanasia. That seems unlikely. In contrast to the physicians of every other Nazi-occupied country, Dutch doctors never recommended or participated in a single euthanasia during World War II, according to a 1949 New England Journal of Medicine article. Even Nazi orders not to treat the old or those with little chance of recovery were disobeyed. It only took a generation, essayist Malcolm Muggeridge noted, “to transform a war crime into an act of compassion.”

    How did Dutch doctors change their thinking so dramatically in the space of one lifetime?
    The path to the death culture began when doctors learned to think like accountants. As the cost of socialized medicine in the Netherlands grew, doctors were lectured about the importance of keeping expenses down. In many hospitals, signs were posted indicating how much old-age treatments cost taxpayers. The result was a growing “social pressure” from doctors and others, says Arno Heltzel, a spokesman for the Catholic Union of the Elderly, the largest Dutch senior-citizen group, which favors voluntary euthanasia. “Old people have to excuse themselves for living. When they say that all of their friends are dead, people say, ‘Maybe it is time for you to go too,’ rather than, ‘You need to find new friends.’ ”

    With such pressure, even the “voluntary” euthanasia cases may not be truly consensual. Add to that the remarkable 33% drop in elderly suicides with an almost equal rise in euthanasia in the same age group over the past two decades. What Dr. Herbert Hendin, a euthanasia opponent, calls “the Dutch cure for suicide” may simply be evidence of untreated depression. But treatment is costly.

    Professional restrictions against euthanasia were cast aside. The Hippocratic Oath, a 2,500-year old credo meant to curb ancient temptations, includes the pledge: “I will not give a fatal draught to anyone if I am asked, nor will I suggest any such thing.” Few medical schools in any developed nation require the oath. Other professional codes have been rewritten to be neutral or supportive of euthanasia.

    Medical school curricula and professional standards were changed, too. Nearly every major medical school offers a bioethics class in which euthanasia is considered, at least, an open question. Euthanasia is now an option, not a taboo. The Dutch Pediatric Society issued guidelines for killing infants in 1993; the Royal Dutch Society of Pharmacology sends a book to all new doctors that includes formulas for euthanasia-inducing poisons.

    Then came the bogus ethicists. Many of these “medical ethics experts” are drawn from or influenced by the global pro-death subculture–the World Federation of Right-to-Die Societies lists 36 groups in 21 countries–that stretches from Australia’s Dr. Philip Nitschke (“Dr. Death”) to Princeton University’s Peter Singer. Many of them are doctors. “They can be very charming,” said Rita L. Marker, executive director of the International Anti-Euthanasia Task Force. They can also be very influential; they seemed to have shaped the thinking of the Dutch health minister, Els Borst. Ms. Borst, who is 69, recently called for a suicide pill for healthy but “bored” old people.

    Over time, euthanasia came to be seen as normal. When I phoned Amsterdam’s Academic Medical Center, a spokeswoman told me that she approved of involuntary euthanasia for disabled infants: “It is the same in all the hospitals in the world; we are just more open about it.” Most hospitals try heroically to save disabled children, but the contrary view seems to be widely held among the Dutch.

    Finally, the feckless politicians enter the frame. There is no major party unequivocally opposed to euthanasia in principle, not even the right-of-center Christian Democrats, who have shared power for most of the postwar period. “There is no broad opposition to euthanasia, even in Christian circles,” laments Kars Veling, a member of Parliament who will lead the Christian Union party next year.

    After speaking to a packed party meeting in Spakenburg, Mr. Veling soberly talks about watching his father die. The old man was suffering terribly. “We prayed for the Lord to take him,” he said. The doctor offered a lethal injection. It was hard to say no, he said, but his father had never asked for death and such an end would have been contrary to the values by which he lived.

    Dutch doctors are free to make such fatal offers. Every legal and professional barrier to euthanasia has been demolished, often by doctors themselves. Euthanasia began with doctors, and only an awakening of their conscience can stop it now.

    Mr. Miniter is an editorial page writer at The Wall Street Journal Europe.

  16. John,

    Do you have any evidence supporting your claim that doctors are engaged in a killing spree in the Netherlands? Did you hear about this on Savage, Rush or Hannity?

    The possibility of medical professionals killing patients without their consent is not the real concern for people opposed to assisted suicide, it is just the veneer they lay on top of opposition that is based on a religious belief that suicide is wrong. Since passing a law preventing assisted suicide because “god said so” would be impossible due to the 1st Amendment, conservatives offer feeble excuses about malicious doctors killing patients instead. If Brownback and other religious freaks want to live their last days in agonizing pain waiting for Jesus to take them away, that is fine. Making it illegal for me to choose to end my life a different way is not.

    If you can’t trust doctors and patients to make this type of decision, who can you trust. Congress? Brownback? Frist? I personally do not want me or any member of my family to endure needless suffering in order to further a Christian right wing pro life agenda. The right wing abused Terri Schiavo promoting their stupid “culture of life” and now Brownback & Co. want to take away the rights of every person to choose the time and manner of their own death.

  17. John,

    The problem is the socialized medicine and not the permission for doctors to act as agents of suicidal people

    The answer to the problems created by government oppression (socialized medicine) is not to engage in more oppression (prevent people from hiring someone to help them commit suicide).

  18. Scott,

    I think that UN human rights report would count as evidence, at least in my world. In addition the WSJ is hardly Rush. Amazingly not everyone who disagrees with you can be written off as a Rush follower. Read the U.N report before you so blythly dismiss it as part of the vast right wing conspiracy.

    Tarran,

    It wasn’t just socialized medicine driving it. First, with regard to the ederly, we basically have socialized medicine in this country through medicare. Second, what makes you think that insurance companies are any better than bureaucrats? Third, the problem wasn’t so much socialized medicine as a culture that views death as a viable and attractive option for treating the sick. That is what assisted suicide creates. It is not just a hypothetical slipery slope. Ignore the Netherlands at your own peril.

  19. The Netherlands situation is completely irrelevant to this case as there are way too many complicating variables due to the socialized medicine system.

    We have an American example of legalized assisted suicide in Oregon that was first approved in 1994. If you can’t show any evidence of that system being abused, then you have nothing to add to this debate.

  20. Or, I could say it, hundreds of Oregonians with terminal illnesses have decided to end their lives painlessly and on their terms without any evidence of abuse. Ignore Oregon at your own peril.

    (PS this highlights the beauty of federalism. States can try different laws under the American framework. The federal government has no business getting involved.)

  21. Wait a minute — is this bill supposed to encourage the use of narcotics for pain rx? Then even if it outlaws assisted suicide using them, it’s a very good bargain! Undertreatment of pain is a big deal, partly though not entirely because of legal concerns, and patient advocates say suicide is rarely sought in cases where pain is adequately treated. The part about putting the burden of proof on the att’y gen’l looks like exactly what’s needed to get pain rx on track.

  22. John,

    I honestly don’t care what happened in the netherlands. The right to kill one’s self is a basic human right. Period.

    Just as the fact that people use firearms to commit crimes in no way justifies infringing on the right of individuals to own and use firearms.

  23. John – if a doctor makes the decision for a patient to die, that’s not suicide.

  24. I think Clarence Thomas is wrong.

    It is entirely possible to conclude that the sale and use of marijuana falls under the rubric of “interstate commerce,” while the provision of drugs for suicide by doctors to their patients via prescriptions falls under a different rubric called “medicine.”

    If you assume that medical treatment is distinct from commerce, and that the involvement of physicians following accepted medical protocols, distinguishes the practice of medicine from commerce, then the involvement of medical professionals, acting according to standards of practice developed by the medical profession, makes the delivery of death-inducing medicines in a medical setting easily distinguishable from growing some kind bud on your window sill.

    I realize that libertarians reject the two necessary assumptions, prefering to believe that a guy being taken to the hospital is pretty much the equivalent of a guy driving to the mall, and that acquiring and taking drugs gains no additional value or legitimacy from having that course evaluated and recommended by “the white coat mafia.”

    But most people do distinguish between a patient and a customer, and between following a doctor’s orders vs. doing your own thing.

  25. What the Sup. Ct. ruled in the case cited by Thomas had to do with the growing of cannabis to be an “economic activity” (by virtue of being a form of production) that was sufficiently related to commerce to be subject to regulation. I think they’d think the same of the practice of medicine, it being the provision of a service.

    I think they’d’ve ruled differently in a pure possession case, but such a case would not have been prosecuted in that climate.

    However, the bill in question would not be construed as a regulation of the practice of medicine, but as a regulation of commerce in drugs. No matter what the bill does, doctors or anyone else will still be free to prescribe any drug, because that’s just an exercise of freedom of speech. Dispensing the drugs themselves is a different matter!

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