Of Life And Death

JMO - I have had personal experience with this sort of thing, I think that people should be allowed to end their own lives If they so choose to do so, but not for silly reasons, If afflicted with a terminal illness is the MOST valid reason. I would welcome comments on this...

By Liz Halloran
Sat Oct 1, 5:02 PM ET

'I know I'm ready," Rick Miller told his doctor over the phone. "I've had Phase 1, and I'm ready for Phase 2." Within two hours, Miller, 52, suffering from terminal cancer, was dead. A bowl of barbiturate-laced applesauce had eased him into a deep and final sleep. Miller's wife of 31 years and their son, Nathan, were at his bedside, holding his hands. His hospice nurse waited outside in the November night. "The last thing he saw was us smiling at him, and he was smiling at us," says Nora Miller, who had watched her husband's lung cancer spread to tumors that riddled his body and eventually confined him to the hospital bed in their Portland, Ore., living room. Days earlier, she had driven to the pharmacy to fill her husband's prescription for 50 Seconal capsules. "He wanted to be able to go," she says, "when he was ready to go."

The dose of barbiturates was not only fatal--it was also legal, prescribed by Miller's doctor and dispensed by a pharmacist under Oregon's 1994 Death With Dignity Act, a unique and fiercely debated experiment in state-sanctioned, physician-assisted suicide. But the act, blocked by lower courts until 1997, has been under aggressive attack by the Bush administration and is now in legal limbo, its future in the hands of the U.S. Supreme Court. This week, with John G. Roberts sitting in the chief's chair, the court opens its new term with arguments in Gonzales v. Oregon.

Balance of power. The central legal question in the case is fairly straightforward: Can a federal official charged with enforcing drug laws disregard the will of Oregon voters and bar physicians from prescribing lethal doses of controlled substances? But the overheated cultural and political environment in which the arguments will play out--stoked by the battle earlier this year over Terri Schiavo, the Florida woman in a persistent vegetative state who died after her husband maintained his right to remove her feeding tube--has made this case about much more than just the federal Controlled Substances Act. However the court rules, it is bound to have a profound effect on the balance of power between the states and the federal government and set a new course in the debate over the legality and morality of ending human life with the blessing of the state and the aid of a physician.

Gonzales v. Oregon will be this term's "premier federalism case," says Jonathan Adler, a Case Western Reserve University School of Law associate professor. But it's not the only important case that will test the judicial philosophy of the high court and its changing cast of players. With Roberts sworn in last week after being confirmed by the Senate 78 to 22, President Bush is expected to name a replacement for Justice Sandra Day O'Connor any day now. O'Connor will serve until a new justice is confirmed, a process that will take at least several months. Whatever its makeup, the court faces a full plate of controversial issues. Abortion, the religious use of drugs, and military recruiting on campuses are all on the court's new docket, which also includes a dash of B-list celebrity--a dispute over former Playboy Playmate Anna Nicole Smith's claim to part of her late and very rich husband's estate.

End of life. As for the Oregon case, its roots go back to 1993. Eli Stutsman was a young lawyer interested in the issues associated with the end of life and began meeting with a small group of like-minded reformers to plot strategy for getting a physician-assisted suicide proposal before voters. "This was an earlier time, when the right-to-die movement was riding the crest of a wave," Stutsman said. "The climate was different." Jack Kervorkian had already embarked on his macabre career assisting suicides in Michigan, a practice that landed him in prison, where he remains. In 1976, judges on the New Jersey Supreme Court had allowed the parents of Karen Ann Quinlan, who was in a persistent vegetative state, to take her off a respirator, although Quinlan, breathing on her own, lived until 1985. In 1990, the U.S. Supreme Court denied the family of accident victim Nancy Cruzan, also in a vegetative state, permission to remove her feeding tube. She died later that year, when a lower court allowed the tube to be removed after it reviewed new evidence about Cruzan's wishes.

The Oregon measure, the Death With Dignity Act, was placed on the ballot in 1994 and passed with 51 percent of the vote. The law allows adults of sound mind suffering from terminal illnesses to request from their doctor prescriptions for lethal doses of medications. The act requires a second oral request at least 15 days later and an additional written request prepared and signed in the presence of two witnesses. Doctors may prescribe but not administer the drugs.

Oregonians are an independent and sometimes cantankerous bunch, says Robert Kenneth of Portland-based Death With Dignity, which helped secure the act's passage. They believe, he says, that "if no one tells us how to live, no one should tell us how to die." But opponents, including antiabortion organizations, blocked the law in court until 1997, when the Ninth Circuit Court lifted a lower court's injunction. That same year, 60 percent of Oregon voters rejected an attempt by opponents to repeal the law, turning aside arguments that it crossed an ethical line and could cause ill and disabled people to be coerced into suicide.

"The real effect of this law is that it has triggered a huge awareness of end-of-life options, including palliative care, hospice, and living wills," says Oregon's Sen. Ron Wyden (news, bio, voting record), who does not embrace assisted suicide but supports the will of his constituents. "It's led to a marked increase in terminally ill people spending their last days at home." Last year, Oregon physicians wrote 60 prescriptions for lethal doses of medication, according to the state's Department of Human Services, and 37 terminally ill residents died of physician-assisted suicide. Its data show that through the end of 2004, 208 patients took lethal, legal doses of drugs, though critics question the number because the state relies on voluntary reporting.

In a friend-of-the-court brief filed in support of Oregon's case, Wyden and other members of the state's congressional delegation argue that the regulation of the practice of medicine has historically been the purview of the state. The administration, they argue, should back off. "I think it's astounding--all over this administration there are people saying they believe in state's rights," Wyden says. "I guess they believe in state's rights if they think the state is right."

The Bush administration began its battle in 2001 with the "Ashcroft Directive," then Attorney General John Ashcroft's finding that controlled substances under law must be prescribed and dispensed for "legitimate medical purpose" only. Assisting in suicide does not qualify, he said, and physicians who wrote such prescriptions would lose their federal registration to prescribe drugs that fall under the federal Controlled Substances Act. The directive was shot down in U.S. District Court and the Ninth Circuit Court by judges who said the Department of Justice lacked the authority to overturn the Oregon law.

But in the administration's appeal to the Supreme Court, Solicitor General Paul Clement will argue that general principles of federalism support the Justice Department's authority to maintain a uniform national interpretation of the Controlled Substances Act, and that in this case--as in the recently decided U.S. Supreme Court decision that invalidated California's endorsement of the medical use and possession of marijuana--it is not obligated to bend to the wishes of individual states. Oregon lawyers, however, will argue that in the California case, the court deferred to the will of Congress, which they contend has not provided a clear statement of intent on whether the Justice Department can supersede the state law.

Slippery slope? A recent Gallup Poll shows that 58 percent of Americans agree that physicians should be allowed to help patients with incurable illnesses and suffering acute pain to commit suicide. The administration asserts that because Oregon is the only state to have legalized physician-assisted suicide, there is a broad consensus against it. Among those supporting the administration's argument is Diane Coleman, founder of Not Dead Yet, an advocacy group for people with disabilities. The law, Coleman says, is a form of discrimination against people who are disabled--and she includes the terminally ill in that group--and she calls it a slippery slope that could lead to medical care being withheld from the acutely ill if it is deemed too expensive. "People already have the ability to commit suicide by one means or another," she says. "Making it part of our healthcare system, making it nice, neat, acceptable, and routine will so greatly endanger those who really need our support. When they legalize assisted suicide for everybody, we might change our mind."

Not Dead Yet, along with the United States Conference of Catholic Bishops, antiabortion groups, and lawyer-evangelist Jay Sekulow, who has played a key role in helping the administration appoint conservative jurists to the bench, has filed a friend of the court brief supporting the administration.

Despite the enormous social debate surrounding physician-assisted suicide, the justices no doubt will stick to the strict legal issue of whether the attorney general has the authority to essentially nullify the Death With Dignity Act or whether they should be wary of prohibiting a singular experiment approved overwhelmingly by voters.

Since her husband's death in 1999, Nora Miller, now 55, has moved to Tucson, Ariz. She still supports the Oregon law that allowed her husband to end his life, however, and is speaking out for the rights of the terminally ill and their families to set their own course for their final days. "So many people seem like they're alone in this experience, and that's why I'm talking about it," she says. "No one has the right to accuse me of being heartless by letting my husband choose how to die."

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