Attorney General Ashcroft has determined that doctors in Oregon may kill whomever they please, as long as they don´t use federally-regulated drugs to do it. If your reaction is, "which drugs aren't federally regulated?" you're on to something. But Ashcroft´s directive is more hands-washing than it is an effort to save people´s lives. If the administration were serious about the latter, it would expose the Oregon assisted suicide law as a bad law ripe with the potential for misuse, and would get behind an effort to get it declared unconstitutional.
Under Oregon´s unique (49 states prohibit assisted suicide) "Death With Dignity Act," terminally ill patients in Oregon who don´t really want to kill themselves, or who are suffering from a treatable clinical depression making suicide seem attractive, may die. The State, in the way it allows that to happen, is depriving its terminally ill citizens of their lives without due process of law.
This business was looked upon favorably by the Reno Justice Department. The president promised during his campaign to reverse the policy of Ashcroft´s predecessor, who instructed the DEA not to revoke the drug-dispensing licenses of doctors who prescribe drugs to kill people. The Attorney General has delivered on that promise. Now, the courts are involved, and Oregon may very well win (which would cause jubilation on the left: a Bush administration initiative defeated under a states' rights banner. There´ll be no living with these people if that happens).
Mr. President: if you don't want people getting killed, hiding Oregon´s chalk before class and giggling in the back of the room isn´t enough.
Oregon's Act provides that terminally-ill adults with fewer than six months to live may request and receive lethal drugs to kill themselves, provided they are of sound mind, make the request voluntarily, and are not under the influence of depression impairing their judgment. Reasonable threshold standards, if you can adequately guarantee they're met. The Act can't, and that's where it fails constitutionally.
Take the last first. The relationship between depressive disorder and a desire for death in terminal patients is well established. The American Journal of Psychiatry published a study in 1986 reporting that of 44 terminally ill patients studied, 34 had no desire to hasten death, three had been suicidal, and seven had "desired" early death. All ten of the latter were found to be suffering from clinical depressive illness.
An accurate diagnosis of depression is a complex undertaking. The Oregon law does not require that any possible depressive disorder be clinically ruled out, let alone by a competent doctor. It hardly needs reporting that terminal illness and excruciating pain make a patient susceptible to depression. It is just as plain (and supported by studies) that suicidal ideation and a desire for death are symptomatic of clinical depression in terminal patients. Happily, clinical depression is treatable by other than fatal measures.
For there not to be a requirement in the Act that clinical depression be established (and then treated) or ruled out by a physician competent to do so is an alarming defect. In addition, while not requiring affirmative inquiry into the presence or absence of clinical depression, the Act says that the treating physician -- who need not be expert, or even trained, in recognizing, diagnosing or treating depression --should make a "good faith" determination that the patient's judgment is not impaired by depression! "Good faith" meaning, specifically, that the next of kin can't sue him if he's wrong.
Depressed or not, a terminal patient may be unduly influenced into wanting to die, or may be convinced they want to die for other than "selfish" reasons. Under the Act, the lethal medication itself need not be administered by any physician, nor in the presence of a physician or any disinterested third party, and need not be taken at the time of prescription; it may be days, weeks or even months afterward. Whether the patient is suffering from undue influence at the time of the request to be killed is effectively irrelevant -- subject only to a "good faith" (again) "initial determination" by the prescribing doctor -- and there is no safeguard whatsoever against undue influence between the time of prescription and the taking of the drug.
Terminally ill patients, particularly elderly or impoverished ones, are without exception subject to feelings of fear, hopelessness and isolation. It is far too easy to imagine a person under those horrible circumstances choosing early death to spare her family financial and emotional cost. This even leaves to the side situations where family members may, overtly or more subtly, provide subpar or even hostile care, or even, God forbid, actively encourage early death, making suicide seem like an even more attractive alternative.
None of this has more than the slightest import under the Act. Upon a "good faith" "initial determination" of voluntariness, and a "good faith" determination that the decision is not influenced by judgment impaired by depression, a terminally ill patient may be allowed to kill himself in Oregon.
We give defendants in capital cases more of a chance to survive, even the convicted ones. When Timothy McVeigh decided to relinquish his right to further appeals of his federal death sentence, a judge conducted a hearing to evaluate both his competency and the voluntariness of his decision. He questioned McVeigh in open court, explored his motives and state of mind, and was empowered to order a psychiatric evaluation if he deemed it necessary or desirable. McVeigh was given a date certain by which to change his mind, and the judge went to great lengths to satisfy himself and posterity that McVeigh understood the implications of letting that date go by without a change of heart.
Andrea Yates, who confessed to drowning her five children in a bathtub, wanted, or may still want, to die (believing that she is Satan, and wanting Satan to die, granted). Before she could face trial for capital murder in Texas, a jury of twelve of her peers, after testimony and evidence in an adversarial hearing in a court of law, determined her to be competent. Experts and qualified examining physicians testified, their credibility and veracity were evaluated by the jury, both the State and Yates were allowed a full and fair hearing under the rules of evidence and procedure. She will be tried and the decision made whether to execute her or consign her to further treatment by another jury under similar conditions.
Ensuring adequate advocacy and procedural protection for capital defendants is a bedrock principle of criminal procedure and constitutional law. Evidently, in Oregon, the terminally ill do not merit similar measures.
What has the Supreme Court had to say about people killing themselves? In a welcome departure from its modus operandi of the last 30 years or so, the Court (by the kind of slim majority we've become accustomed to lately in matters of grave public concern) has determined that a right to die, with dignity or otherwise, is not a right guaranteed by the Constitution of the United States. It is tempting to conclude that the Court believes assisted suicide to be a matter for the states, and that Oregon can pass whatever odious assisted suicide laws it would like. That would be misleading, however. The Court has simply held that a state may prohibit assisted suicide -- not that it may allow it, nor has it passed on what process may be due a terminally ill person before the law can allow that person to be killed. It hasn't had occasion to consider any of that.
It should. No state may deprive any person of life, liberty or property without due process of law. It's right there in the Constitution where some people believe the "right to die" ought to be. Naturally, I can "deprive" myself of my property all I want. I can even commit myself to a psychiatric hospital, or turn myself in to the appropriate authorities when the jig is up, thereby depriving myself of liberty.
It doesn't follow though that I can choose to end my own life on the same basis, for two reasons. First, plain-vanilla suicide is against secular and canonical law almost anywhere you look, and no one's complained about it before now. Second, the constitutional checks on taking the life of a criminal defendant -- like Andrea Yates and Timothy McVeigh -- are far greater than the ones on taking his or her liberty. It only stands to reason the standards for taking one's own life would be more rigorous than forfeiting one's own liberty.
The State must satisfy itself that due process has been provided to the condemned. If this is true of convicts on death row, it ought to be true of the elderly, infirm and hopeless. Without reliable, impartial inquiry into the voluntariness of a terminally ill patient´s decision to die, and without requiring that treatable depressive disorder be clinically ruled out, the Act will kill people it shouldn´t.
If the Bush administration wants to save lives in Oregon, it shouldn't dink them with the Supremacy and Commerce Clauses, it should support an effort to challenge the law under the Due Process Clause. It's unconstitutional.
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