Death with Dignity

Yesterday’s U. S. Supreme Court ruling upholding the Oregon voter approved Death with Dignity law and striking down efforts by the Bush administra-
tion to negate it has some interesting aspects.

Though the Court has previously ruled there is no constitutional right to die, the Oregon case indicates the Court is indeed open to letting the States determine to what extent they want to allow doctors and patients to decide when a terminal illness might warrant facilitating euthanasia [the word comes from the Greek words for “happy death”].

I tried to read the Court opinions and quickly discovered they contain no profound philosophizing on the concepts of life and death. Instead, the opinions discuss the application of technical rules of statutory construction and the application of principles of rule making delegation within the executive branch of government. Ashcroft the Zealot had pronounced a rule declaring that the drug laws passed by Congress make the medical practice of euthanasia illegal even if a State chooses to permit it. The Court said the Attorney General was out of his turf in making rules regulating the practice of medicine, especially since he gathered no medical evidence in support of his rule and the Secretary of Health and Human Services would be the appropriate official to make such a rule. The Court further indicated such a rule goes beyond what Congress intended to cover under the existing drug laws and questioned whether such a broad Federal rule on medical practice might violate some constitutional principles of the balace of power between the Federal government and the States.

Not without expectation, Scalia and Thomas dissented from the majority, opining that Ashcroft should be allowed to ban euthanasia nationwide. Unfortunately, the new Chief, Roberts, joined the dissent, perhaps verifying his conservatism. The majority opinion was written by Justice Kennedy, who has been considered a moderate conservative, along with Sandra O’Connor. In fact, except perhaps on abortion related issues, I think O’Connor has been more conservative than Kennedy. Hopefully, Kennedy writing this opinion is a harbinger of his movement to be less conservative as a balance to the new Chief and probably to Alito when he is confirmed.

Congress could try to re-write the drug laws to outlaw euthanasia, but the Democratic Senator from Oregon has said he would filibuster any such attempt. The Republican Senator from Oregon issued a brief statement saying the ruling of the Court upholding what the voters of Oregon overwhelmingly approved should be left alone. Oregon has a tradition of independence which is often manifested in its politicians. Wayne Morse of Oregon was one of the first Republican Senators to challenge the legitimacy of the Vietnam War.

There will be no rush of States to pass Death with Dignity laws in the wake of the Court opinion. Nor will there be a significant attempt by conservatives to make the case a campaign issue, with the Terry Schiavo experience showing the public thinks politicians should not use terminal patients for political purposes. The medical community nationwide, in the seven years since initial approval of euthanasia by Oregon voters, has paid more attention to the need to freely medicate terminal patients to relieve pain and has become more supportive of the hospice movement. In fact, in those seven years, only about 230 Oregonians took advantage of the law to end their lives.