Let the public decide about assisted suicide

April 24, 2002

WHEN FEDERAL Judge Robert Jones blocked the U.S. Justice Department's effort to overturn an Oregon law allowing physician-assisted suicide last week, he not only protected the ability of terminally ill Oregonians to make a careful decision to hasten their deaths but blocked a remarkable and troubling power grab by U.S. Attorney General John Ashcroft.

Arguing that physician-assisted suicide is not a "legitimate medical purpose," Mr. Ashcroft decreed on Nov. 6 that doctors who prescribed drugs for that purpose under Oregon's Death With Dignity Act would be punished under the federal Controlled Substances Act.

But the language, legislative history and enforcement of that law focus on regulating the trade in and use of illegal drugs, not medical practices. In recent years, two bills in Congress have sought to amend the law to prevent the use of drugs to hasten death. Mr. Ashcroft, who strongly opposes the right to die, supported both bills as a U.S. senator. But neither one became law.

Regulating medical practices has always been a state function. No law gives Mr. Ashcroft the authority to decide what treatments are acceptable or to overturn a state law allowing assisted suicide.

Mr. Ashcroft attempted, as one lawyer for the dying put it, to "do by executive fiat what he had not been able to do as a U.S. senator." Judge Jones rightly refused to authorize "such a remarkable grant of power."

The judge's narrow decision did not address whether a so-called right to die exists or the merits of assisted suicide. But it did protect the right of states to craft laws that attempt to navigate this tricky terrain.

And Oregon's law, endorsed twice by voters, is a very careful statute. It does not make it legal to jump off a bridge or for a sick person to commit suicide on a whim.

The law requires two doctors to certify that a patient has less than six months to live and is mentally competent to decide to end his or her life. Those who want to die must make a written request. If it is approved, they must wait 15 days and then submit another request. Only then can a doctor issue a life-ending prescription.

Critics of assisted suicide raise serious concerns about the prospect of ailing, indigent patients whose command of their faculties is suspect being pressured into premature death to save their family, or insurance company, money and trauma.

But the safeguards built into Oregon's law have prevented such horror stories from coming true, and the state has not become a mecca for the suicidal. Just 146 people have applied for lethal pills and 91 have brought their lives to a close. All were certified as competent, and most were prosperous, had health insurance and were receiving hospice care.

In a pair of 1997 decisions, the Supreme Court refused to recognize a right to die, but encouraged states to experiment in that area. As Justice Sandra Day O'Connor wrote: "There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals ... and the state's interests in protecting those who might seek to end life mistakenly or under pressure."

Oregon's law strikes just such a balance. Other states may strike a different one. But it would be wrong to let a court or an attorney general take that decision away from them.

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