Death with Dignity or Criminal Act
ABC News: Death with Dignity or Criminal Act?
Supreme Court Considers Case Against Oregon Assisted Suicide Law
By ADRIENNE MAND LEWIN
Oct. 5, 2005 — - It had been more than seven months since Rick Miller was
diagnosed with small-cell lung cancer, which had spread to his bones, kidneys
and brain. He had lost his voice, endured frequent headaches and pain in his
legs and he was beginning to lose the ability to clearly communicate. His doctor
said he had only a few weeks to live.
"Rick basically just said, 'I want to be able to control this process, and I
want to be conscious and not a burden to my family at the end, and I can't face
the pain and the degradation,'" said Nora Miller, his wife of 31 years.
So late one night, with Nora, their son, Nathan, and Nathan's fiancée beside him
at home, the Portland, Ore., resident ate some applesauce mixed with a lethal
dose of Seconal prescribed by his doctor and soon fell into a deep sleep as they
held his hands.
"It was very peaceful," Miller recalled. "It was really like his body was ready
to go. There wasn't much fight left."
Rick Miller died early on Nov. 10, 1999. He was 52.
He was one of more than 200 people since 1997 who have used Oregon's Death with
Dignity law, which allows physician-assisted suicide for some terminally ill
patients. The future of the law -- the only one of its kind in the country -- is
in question as the Bush administration seeks to overturn it, arguing before the
Supreme Court today that physicians who help speed a patient's death violate
federal drug laws by improperly using medication.
Jay Sekulow, chief counsel at the American Center for Law and Justice, a group
founded by evangelist Pat Robertson, said today that he believes the court
ultimately will decide to overturn the Oregon law. The center filed an amicus
brief in the case siding with the U.S. government.
President Bush has nominated Harriet Miers to replace O'Connor, who is retiring
and may be replaced before the decision. If so, the case may be reargued at a
future date.
"I think the case is close," Sekulow told reporters after this morning's
hearing. "This is literally a life-and-death case. And at the end of the day,
the question is, does the federal government have regulatory authority to engage
in these life-and-death decisions. And I think the answer in the end will be
yes, but it may be yes delayed."
However, Kathryn Tucker, director of legal affairs with Compassion and Choices,
which supports physician-assisted suicide and represents the plaintiff-patients
in the case, told reporters after the hearing she is disturbed the government
might close the door to what she says may be the most humane options for
terminally ill patients to take their lives.
"There was a very perverse argument made by the federal government that patients
should somehow be relegated to bring about death without the use of controlled
substances, meaning by means that are not humane, are not certain, are not
peaceful," Tucker said. "And that's a perverse position for our federal
government to take." Tucker also said she believes the decision will be in her
favor due to the question of states' rights.
Long Debate Continues
The road to Gonzales v. Oregon was a long one. The law has been challenged since
Oregon voters approved it by a 51 percent to 49 percent margin in 1994 and voted
by a 60 percent to 40 percent margin against a proposal to repeal it in 1997 --
a few weeks after it went into effect following a previous injunction.
After other legal challenges and a failed measure in Congress to overturn the
law, the current case stems from former Attorney General John Ashcroft's 2001
directive that doctors who prescribe the lethal drugs would be prosecuted under
the Controlled Substances Act. An injunction was issued to prevent that, and the
law was eventually upheld last year by a federal appeals court.
Strong opposition remains among critics -- including some doctors, religious
groups and people with disabilities -- for what one physician says is a simple
reason. "It's not what doctors do," said Dr. Kenneth Stevens, a radiation
oncologist from Portland, Ore., and one of the founders of Physicians for
Compassionate Care, which opposes the law. "Basically, it turns medicine upside
down."
Among other concerns, Stevens said his group is particularly worried that once a
patient has been given a prescription for lethal medicine there is less
incentive for doctors to provide palliative care, and the law can be used as a
quick fix economically. He also said depressed patients are not always given
psychological consideration in their request for assisted suicide, despite
provisions to prevent that from happening.
He cited the death of Michael P. Freeland, a lung cancer patient whose case was
presented at a 2004 meeting of the American Psychiatric Association. According
to records, Freeland, who had been hospitalized for depression, was released
despite the knowledge that he possessed a prescription from his doctor for a
lethal dose of medicine, which critics say he should not have received in the
first place due to his mental state. He later died from lung cancer.
A representative from the state's Department of Human Services said in published
reports that the law should not be negated because it relies on physicians to
make determinations about whether patients are appropriate candidates for
assisted suicide, and Freeland's two doctors had not voiced concerns.
But others contend the law provides peace of mind to very ill patients and their
families, and that it can protect against abuse. "I think the safeguards work
very well," said Dr. Peter Rasmussen, a medical oncologist specializing in
hospice and palliative medicine from Salem, Ore. He is a respondent in the
Gonzales case.
"Any patient who early in the process wants to end his life would be
disqualified," Rasmussen said. "I and other doctors I don't think would
participate in anything like that. The people who use the law are people who are
close to death. It's true they probably die days or even weeks earlier than they
would have, but that's often the point."
Limited Cases
A limited number of people have actually used the Death with Dignity law to end
their lives. According to a report released in March by Oregon's Department of
Human Services, about one of every 800 deaths in Oregon last year resulted from
physician-assisted suicide, and 208 people had used the law overall through the
end of last year.
Oregon residents 18 or older with terminal illnesses must voluntarily request
physician-assisted suicide. The person must state his intentions -- once in
writing and twice verbally -- and must be determined to be fully competent and
certified by two physicians to have six months or less to live. He or she also
must be made aware of other treatment options.
Doctors must report all prescriptions for the medications to the Department of
Human Services. They and their patients are protected from prosecution, and the
decision does not affect patients' health or life insurance policies. Doctors
can prescribe the drugs but cannot administer them.
According to the report, 37 people in 2004 ingested medications prescribed under
provisions of the law -- five fewer than in 2003, though the numbers have
increased since legalization.
In addition, the report found that 40 physicians wrote a total of 60
prescriptions for lethal doses last year, the first decrease in the annual total
of prescriptions written under the law. Thirty-five of the prescription
recipients died after ingesting the medication, and of the 25 who did not ingest
it, 13 died from their illnesses and 12 were alive at the end of the year. The
other two people who died had received prescriptions in 2003.
Rasmussen said "a small number of people" ask him about assisted suicide -- 150
of his patients have seriously inquired over the years, and he estimates more
than a dozen have carried out their suicides.
Arguments Center on Legal Issues, Not Moral
The question before the court is whether the attorney general has "permissibly
construed" the Controlled Substances Act and its regulations to prohibit the
distribution of federally controlled substances to facilitate an individual's
suicide, regardless of the state law allowing it.
As opening arguments begin today, people on both sides said much is at stake,
beyond just the ethics of the law.
Eli D. Stutsman, a Portland lawyer representing the physician and pharmacist in
the case, said Attorney General Alberto Gonzales does not have the right under
the Controlled Substances Act to criminally prosecute doctors because, unlike in
medical marijuana cases, the drugs are not federally banned outright, though
they are controlled.
"In Oregon, we're not using illegal substances," Stutsman said. "We're using
lawful substances, and what he's doing is disagreeing with the practice of
medicine."
The barbiturates prescribed for assisted suicide are considered "Schedule II"
drugs under the Controlled Substances Act, which recognizes that they have
accepted medical use but requires that their distribution be closely monitored
by the Drug Enforcement Administration due to their high potential for abuse.
Stutsman said the attorney general's office has no history of opposing the use
of these drugs. "In all other cases, the attorney general is regulating drugs
because of the nature of the drug itself," he said.
But Greg Lynch, a lawyer from Bend, Ore., who wrote briefs on behalf of
Physicians for Compassionate Care, said the attorney general's position is
correct.
"The physician has always been seen as a healer," Lynch said, "so the attorney
general said that that is not a legitimate medical purpose."
Lynch also opposes the law's provision that doctors can prescribe the medication
if they are acting in "good faith," arguing that assisted suicide does not fall
under the acceptable standards of care. Good faith is subjective, he said, and
the provision exempts them from being prosecuted, sued or censured, which goes
against medical standards.
"Good faith is a term unknown in a medical sense," he said.
'The American Way'
Supporters of physician-assisted suicide say allowing the prosecution of doctors
would open a door for further government involvement in the practice of
medicine.
"Inserting the federal government between a patient and a doctor is really
dangerous," said Peggy Sandeen, executive director of the Death with Dignity
National Center, which is representing the physicians and paying for the legal
defense.
"Physicians need to be responsible for being able to give good pain management.
They're educated, they know the patient's medical history," Sandeen added. "And
we don't want doctors to fear DEA agents. We want them to be able to practice
medicine."
Stevens, from the physicians' group opposing the law, said that federal laws
already apply to doctors. "I think it deals specifically with federally
controlled substances. Certainly we have a lot of federal control," he said,
noting that a federal registration is required to prescribe medications. "We
can't have each state exempting itself from a national standard for substances."
From Miller's standpoint, the issue is about families helping their loved ones.
"The value of this law lies in the way it makes room for individual choices,"
she said. "Not everyone would or should do what Rick did. Everyone has a
different way of approaching their own demise, and I wouldn't expect everyone
else to do this.
"On the other hand, for people like Rick, it really matters that they have
control over this one last part of their lives," she added. "It doesn't hurt
anyone. It doesn't change how anyone would deal with their individual choices …
to me, that's what the American way is all about."
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