The Supreme Court and Physician-Assisted Suicide

The good news is that the Supreme Court just ruled 6-3 that the U.S. Attorney General has no business trying to prevent Oregon from implementing its physician-assisted suicide law (Linda Greenhouse, “Justices Reject U.S. Bid to Block Assisted Suicide,” NY Times, 1/18/062006;). Regardless of what you think about the appropriateness of physician-assisted suicide—and I think there are better ways to address end-of-life suffering—you should be glad that the Court has upheld Oregon’s law. The Supreme Court already concluded 8 years ago that there is no constitutional right to physician-assisted suicide, but neither is there any constitutional prohibition of the practice. States were held to be free to pass legislation legalizing physician-assisted suicide if they wished.

State legislatures haven’t exactly jumped at the opportunity to pass such legislation. To date, only Oregon has a “death with dignity” law. And very few individuals have taken the steps outlined by the law to obtain prescriptions for medication they could use to end their lives (only 326 people between 1997 and 2004). Even fewer actually took the medication (only 208)—most died of their underlying disease and just wanted the medication as an insurance policy. There are even some suggestions that the availability of physician assisted suicide in Oregon led to improved palliative care and more referrals to hospice as physicians developed a heightened awareness of the inadequacies of end-of-life care. Instead of choosing to end their lives as a response to their physical or psychic distress, patients have enhanced access to programs that ameliorate symptoms and provide support to both patients and families.

Former Attorney General Ashcroft did not approve of physician assisted suicide and tried various strategies to declare Oregon’s law unconstitutional. The most recent was the argument that physicians who prescribed medication that could enable a patient to end his life violated the Controlled Substances Act of 1970. These physicians, he believed, should have their federal prescribing privileges revoked and be prosecuted. Such measures would potentially have dire effects on physician prescribing sufficient pain medication for dying patients (see T. Quill and D. Meier, “The Big Chill: Inserting the DEA into End-of-Life care,” New England Journal of Medicine 2006;354: 1-3;). The Controlled Substances Act was intended to prevent the use of addictive medication as recreational drugs. Invoking it to prevent dying patients from exercising control over their deaths is sheer trickery, attempted sleight-of-hand to interfere with a medical practice of which the Administration disapproved. Fortunately, the trick failed and physicians can continue to prescribe opioids (which, parenthetically, are not typically the medications prescribed to aid in suicide) and other controlled substances to treat pain, shortness of breath, and additional symptoms near the end of life without fear they will be punished.

The bad news is that Chief Justice Roberts joined the predictable duo of Scalia and Thomas in dissenting from the majority opinion. We can anticipate that Judge Alito, when he is confirmed as the next member of the Supreme Court, which appears almost certain, will join with his ideologically motivated colleagues in interpreting the law so as to support his moral and political views. That still leaves a majority of justices, some of whom are considered liberal and others of whom are considered conservative, without these unfortunate biases. But it’s a tenuous majority, composed of Justice John Paul Stevens (age 85), Ruth Bader Ginsburg (age 72), Anthony Kennedy (age 69), David Souter (66) and Stephen Breyer (67). On the other hand, we have Justice Antonin Scalia (69), Clarence Thomas (57), John Roberts (50), and probably soon will have Samuel Alito (55). My geriatric word of the day is the fervent hope that Justice Stevens remains healthy for at least the next 2 years.