Death with dignity or criminal act?

THE TITLE of this article appeared as a headline over an article on ABCNews.com (1) during the first week in October. That week, the Supreme Court, under the guidance of newly appointed Chief Justice John Roberts, heard arguments in the matter of Gonzales v. Oregon. What the case involves differs greatly depending on who you ask about it, as the headline suggests. As with many other cases that reach the high court, perceptions about the "important" aspects of the dispute multiply far beyond the wording of Court briefs.

In 1994, in response to a referendum that passed 51% to 49%, Oregon enacted the Death with Dignity Law, which granted to terminally ill citizens the legal right to request a lethal prescription to hasten death. In 1997, the people of Oregon voted 60% to 40% to defeat a referendum seeking to repeal the law. After two court challenges failed, the law went into effect in late 1997 and remains in effect to this day.

On the face of it, Gonzales v. Oregon concerns a state's right to define appropriate medical practice. The actual legal matter presented to the court in October pits a state's right to regulate the practice of medicine against the federal government's right to regulate drugs. The federal side claims that because the drug used in Oregon to accomplish these deaths falls into the category of controlled substances, the federal government has final say over the legality of its use for this purpose. Oregon claims that the federal government can only address illegal uses of regulated drugs and that the doctor writing the prescription has the authority to prescribe the drug for medical purposes.

The controversy extends well beyond these specific legal definitions. This story comes complete with accusations of murder, religious persecution, class warfare, even eugenics.

The law contains meticulous and precise language designed to address and forestall every objection the legislators could imagine. For example:

* The patient must legally reside in Oregon.

* A doctor must find that the patient has a terminal illness with not more than an estimated six months to live.

* The patient must make three separate requests for the prescription, one in writing, with at least a two-week waiting period between the first and second requests.

* The written request requires the witness of at least one person not connected with the patient by blood, not a participant in the patient's health care, and not eligible to profit from the death.

* A second doctor must concur on the nature and likely course of the illness.

* The doctor can require an independent psychiatric review if the doctor has any doubts about the mental state of the patient.

* The doctor has an obligation to offer alternatives and to ensure that the patient has no financial or medical motivations for making the request (such as a fear of unpaid bills or inadequate pain treatment).

* The patient must self-administer the prescription (originally this meant eating a powder mixed with applesauce. Now the prescription comes in liquid form).

Statistics gathered in the past eight years show that very few Oregonians make use of this unique right. While over 37,000 Oregonians on average die in a given year, no more than 60 or 70 terminally ill patients request the prescription and fewer than 40 actually take it. Given the miniscule numbers affected--208 total in all the years since the law went into effect--one wonders why this law even reaches the awareness of most people outside the state.

Of course, that's where the multiordinality of such issues comes in.

For some, this law represents a unique and important example of personal freedom. After all, they say, if we can't control the circumstances and timing of our own deaths, what can we control?

To others, this qualifies as a terrible and insidious form of state-sponsored murder, along with abortion, cloning, stem-cell research, and euthanasia. After all, they say, if we let the state kill terminally ill people, what's to stop them from killing the handicapped, old, and mentally ill?

You can see where the headline came from now--dignity or crime?

On top of the basic disagreement about the right to die versus the right to life, several seemingly unrelated issues get drawn into the web of disagreement about this law.

Many concerned with the rights of disabled people view this law as a step down the infamous "slippery slope" toward euthanasia. They furthermore contend that its very existence challenges the idea that disabled people can lead happy and productive lives. They reason as follows:

* Terminally ill patients choose this option because they feel unable to face the last few weeks or months of physical or mental decline associated with their illness--the burden of their illness and infirmity seem unbearable.

* A disabled person faces infirmity and pain on a daily basis and may live many years with such problems.

* If we allow or even encourage the terminally ill to consider ending their lives rather than helping them to cope with their symptoms, we send a message to the disabled community that we consider their lives possibly unbearable as well.

* If we view the disabled as living unbearable lives, why would we not encourage them to end their lives as well?

This line of thinking glosses over the extreme specificity of Oregon's law, requiring as it does that the patient have mere weeks or months to live, with no hope of continuing any kind of life, much less a "normal" one. With a horizon of years instead of weeks, the disabled clearly have different needs for treatment and acceptance than do the terminally ill.

From yet another corner we hear the opinions of some who consider the matter one of religious freedom. These people contend that the objections to death with dignity spring from the belief that suicide qualifies as a sin. To prevent an individual from choosing the manner of their death amounts to imposing this religious view on all citizens, something our Constitution expressly prohibits. Some would argue that the urge to prevent any death emanates from simple concern for the general welfare, and that doctors should not have to face the decision to purposefully cause the death of a patient, even at that patient's request. Others would point out that doctors need to view the patient as an organism-as-a-whole-in-an-environment, which includes maturely accepting that some patients will die, and working to ease the process rather than pretending it won't happen.

Aside from all these somewhat related reasons for generating interest, this particular sitting of the Court attracted attention simply because of who would actually hear the case. The new Chief Justice, the first new appointee to the Court in 11 years, did a notable job of evading all attempts to elicit his views on such matters during his confirmation hearings before Congress. Court watchers from all possible angles hoped the Oregon pleadings would afford some insight into this enigmatic jurist. He didn't disappoint. Rather than treating the case as a learning opportunity, rather than deferring to his more experienced colleagues, Roberts took the lead unabashedly and participated fully in the brisk questioning. However, as with all such political "divinations," those who witnessed the proceedings came away with widely divergent views on which way both the man and his Court would turn on this case.

The headline on the ABCNews.com article referred to a specific instance where an Oregonian used the law to end his life weeks before he would likely have died from his terminal illness. The controversy will continue to swirl around this law and its implications, but that should not obscure the fact that at the heart of the storm stand a handful of individuals who face an incontrovertible death. Some will choose to wait for death to come to them, and for now, some will exercise their right to choose the time of their exit. Many of them will not likely live to see this court's decision, whenever if finally appears, and the decision, however it goes, will not likely end the battle.

NOTE

1. http://abcnews.go.com/Health/SupremeCourt/story?id=1170702&page=1.