New Supreme Court Judge Gets to Really Go At Bioethics

Washington Post reports on the new justice's power on assisted suicide:

In October, physician-assisted suicide will be before the court in Gonzales v. Oregon, No. 04-623. The administration has appealed a lower court's order barring the Justice Department from taking away the prescribing rights of Oregon doctors who prescribe lethal doses of drugs to terminally ill patients who have chosen to die under that state's 11-year-old Death With Dignity Act.

Assisted suicide is an intensely emotiona l issue, both for advocates of a "right to die," who see it as many people's only means of a dignified death, and for conservative Christians, who see it as a form of murder.

Opposition to laws such as Oregon's was a favorite cause of former attorney general John D. Ashcroft, who issued a November 2001 directive determining that assisting suicide is not a "legitimate medical purpose" under federal drug-control law -- and that the Drug Enforcement Administration could act against any physician who authorized drugs to help someone die.

The directive overturned a 1998 decision by President Bill Clinton's attorney general, Janet Reno, that permitted Oregon doctors to assist in suicides.

Strictly speaking, the case does not involve any assertion of a constitutionally protected right to die. The court unanimously refused to recognize such a right in 1997, ruling that it should be left to the states to determine wh ether legalized assisted suicide is wise policy.

Rather, the case is framed by the parties as a clash between federal power to regulate drugs and states' power to regulate the practice of medicine.

But the practical effect of the Ashcroft directive is to make Oregon's law a dead letter -- and O'Connor might have been sympathetic to Oregon. She vigorously dissented from the court's 6 to 3 ruling last month in which it upheld a federal override of California's medical marijuana law. In the 1997 case, Washington v. Glucksberg, the court was ruling on state bans on assisted suicide. O'Connor was one of five justices who wrote or signed concurring opinions implying that they might not strike down a state law such as the Oregon one that permits assisted suicide.

"Death will be different for each of us," she wrote. "For many the last days will be spent in physic al pain . . . some will seek medication to alleviate that pain and other symptoms."

posted Jul 5, 2005 | link | jump to the comments (15)

comments

Though I wouldn't expect a supreme court justice to grasp it (after all, it seems most bioethicists don't), there's a difference between assisted suicide (AS) and physician-assisted suicide (PAS). (But, interestingly, the Swiss seem to "get it.") Legalizing PAS empowers physicians -- it removes a legal barrier to their acting in a way that remains criminal for the rest of us. Decriminalizing AS empowers everybody.
Oh, and while I disagree with Ashcroft about the morality of AS, he's spot on about it not representing a "legitimate medical purpose."

- by Bob Koepp on Jul 6, 2005 at 2:44 PM | link

As someone who has worked with the domestic violence community since the '70's, I don't see assisted suicide as empowering anyone.
BTW, all the publicity about advanced directives and the purposeful withholding of fluid and nutrition both by natural and medical means prompted me to add a little note to my own AD. I ask that I not have a feeding tube permanently placed and that no IV's or other invasive feedings be used if I'm terminal. But, I wrote that I *do* want ice chips and perhaps a little chocolate syrup on my lips.

- by Beverly on Jul 7, 2005 at 3:41 AM | link

Beverly - Ummm..., it wasn't suggested that assisted suicide empowers anyone. Legalizing or decriminalizing assisted suicide, on the other hand, definitely empowers someone, since a legal barrier to action is removed. You might object to the sort of power in question, of course, but that it is a sort of power is hardly questionable.
Sometimes our moral convictions interfere with our clarity of mind, as you have demonstrated. Perhaps those same moral convictions interfere with the clarity of mind needed for sound moral deliberation. Do I waste bandwidth (my metaphorical breath)?

- by Bob Koepp on Jul 7, 2005 at 1:19 PM | link

You're begging the question, here, Bob.
I believe that you will have to discuss both clarity of mind and moral convictions that you perceive as interfering with my clarity of mind.
Why would there be a call to legalize an action if that legalization does not empower some person or person to act? How would you differentiate between empowering someone to act and empowering them to act without legal barriers?
In real life, the legal barriers to family violence serve as a deterent. (Study out of Minnesota, if I remember correctly, done in 1996). Removing the legal barrier to assisted suicide, in light of my experience with, and studies on, families in times of stress due to illness, mental and physical incompetence of one or both partners and complex psychosocial interactions - including abusive relationships - would increase the likelihood that batterers and abusers - or those who feel that they can not cope any longer - would kill.

- by Beverly on Jul 7, 2005 at 2:55 PM | link

That should be "person or persons."
Another non-subjective example that removal of legal barriers to assisted suicide increases killing - is the history of voluntary and involuntary euthanasia in the Netherlands.

- by Beverly on Jul 7, 2005 at 2:58 PM | link

I'm not sure what question it is that I've begged. But if you're denying that removing legal barriers to action empowers those whose actions would otherwise be barred, my point about mental clarity stands.
Also, decriminalizing assisted suicide is not the same as decriminalizing battery, abuse, etc. The sort of mental clarity I've alluded to is evidenced by sensitivity to such distinctions.

- by Bob Koepp on Jul 7, 2005 at 4:34 PM | link

You raise the issue of moral convictions where I did not, assume that my conclusions are based on those moral convictions which thus far only exist in your imagination, and cast aspersions on my mental clarity. Such indicates more about your own ideology and mental clarity than mine.
The rationale given for my position was not ideological, but experience. As a Family Physician with 25+ years of volunteer and professional work within the domestic violence community, I cited published data on domestic violence, and the recent and current history of assisted deaths in the Netherlands.

- by Beverly on Jul 7, 2005 at 7:50 PM | link

Beverly - I wish that people would include reliable contact information so extended exchanges could be taken off-blog. But until that becomes a possibility ...
Your experience in the domestic violence community and published data no doubt do support your position that legal barriers to domestic violence serve as a deterent to such violence and, by extension, I don't doubt that legal barriers to AS deter some who would otherwise provide such assistance. On this much, we seem to be in agreement.
I think it is not only in my imagination, however, that you are morally opposed to assisted suicide. It might well be only in my imagination, though, that your remarks assumed that empowerment is a moral good. Still, I might have been hasty in thinking that combination was behind your suggestion that AS doesn't empower anyone. Unless you _intended_ to make a vacuous claim, I assume you meant that legalizing or decriminalizing AS doesn't empower anyone, which I think is patently absurd, and thus clear evidence of unclear thinking.
So please explain to me what is the connection between a likely increase in the incidence of AS (if legal barriers are removed) and your suggestion that removing legal barriers to AS doesn't empower anyone. I await your instruction and the clarity it will provide.

- by Bob Koepp on Jul 7, 2005 at 10:12 PM | link

I prefer not to begin a correspondence off-blog. My intention was to express an opinion, not to instruct anyone.
My experience in the domestic violence community leads me to see a connection between what is legal and accepted and the harm of weaker members in relationships. That's also one influence that makes me believe that empowerment is a moral good to the benefit of and for the protection of the individual/patient/client. Most of us here know that the history of legalized AS is that the deaths and categories allowed increase. Empowering a second or third party to cause death isn't consistent with these influences and the premise of non-maleficence.

- by Beverly on Jul 8, 2005 at 2:52 AM | link

In other words, my assumptions about your "reasoning" were on the mark, and your views about empowerment are, if not outright inconsistent, in need of disambiguation. And please note, I would be compelled to this conclusion even if I agreed completely with your moral opposition to AS.

- by Bob Koepp on Jul 8, 2005 at 11:32 AM | link

All I see are your opinions about my opinions. How are my views on empowerment inconsistent, given the background from which they arose?
(I would ask the same question if I agreed completely with *your* moral support of AS.)

- by Beverly on Jul 8, 2005 at 5:52 PM | link

You flat out denied that removing legal barriers to AS is empowering(as I reconstructed your "argument," because you assumed empowerment is good while also assuming that AS is bad) but then went on to object to empowering would be assisters. Something's gotta give.
My moral "support" only goes as far as recognizing the moral permissibility of AS in some circumstances -- but that says nothing about whether I actually appprove of it, even in those circumstances where I think it is permissible.

- by Bob Koepp on Jul 9, 2005 at 12:08 AM | link

Again, just a clash of differing opinions.
I admitted conclusions based on experience, at the beginning.
We disagree on the "good" of AS. We have different connotations for the word "empowerment." I have given my references and discussed the data and experiences which are influences.
It is consistent to hold that AS is "bad," that empowerment is "good" under the definition of personal power of the individual per the '70's domestic violence community, and to therefore assert that the legalization or decriminalization of actions by a second party allowing AS is not good.
I'll be traveling the next few days.

- by Beverly on Jul 9, 2005 at 3:35 AM | link

Bob,
Beverly's absolutely right. If you want to read an analysis of assisted suicide that debunks the "empowerment" angle from a secular, libertarian angle, try reading Thomas Szasz.
This 2002 essay on Kevorkian and assisted suicide is a good start:
http://www.szasz.com/detroitfreepress.html
His book "Fatal Freedom" contains a great analysis of the assisted suicide issue - and much more thoughtful than you're likely to find in any bioethics texts.

- by Stephen Drake on Jul 9, 2005 at 8:06 PM | link

Stephen -
If you read my remarks with some care, you will note that what I claimed is that legalizing or decriminalizing AS empowers those who would be providing the assistance. Beverly objects to empowering would be assisters, and seems to think this undermines the notion that anybody whould be empowered were AS legalized/decriminalized.
I'm quite familiar with Szasz's views about physician assisted suicide, and actually agree that legalizing PAS (or even decriminalizing AS -- my preferred alternative) is not generally empowering for the individual seeking such assistance. Indeed, the very fact that they seek assistance (and would continue to do so...) testifies to their condition of dependency.
Legalizing/decriminalizing AS is not about making it possible for people to seek assistance in dying -- they can already do that without breaking any laws. Legalizing/decriminalizing AS _is_ about removing legal barriers to the provision of assistance. Big difference. Legalizing PAS would empower physicians to provide assistance. Decriminalizing AS would empower all of us to do so. Whether, or in what circumstances any of us shoud exercise that power is a separate issue. And, obviously, being empowered to assist another person in dying should not be confused with being empowered to brutalize, manipulate, ngeglect, or otherwise abuse anybody.
And again, none of this bears directly on the moral permissibility of AS.

- by Bob Koepp on Jul 10, 2005 at 2:29 AM | link