James J. Kilpatrick

The Supreme Court's 6-3 decision last week in the case of Oregon's Death with Dignity act was a double disappointment. Justice Anthony Kennedy's opinion for the majority was unpersuasive. Justice Antonin Scalia's opinion for the dissenters was unconvincing. And no one even mentioned the 10th Amendment! It makes you wonder what the world is coming to.

In 1994 Oregon voters approved their unique and euphemistic law. The legislation might have been identified more candidly as Oregon's Right to Assisted Suicide Act. It is based upon this unstated but plausible premise: An individual's right to live his own life embraces a right voluntarily to end it. The same proposition was advanced most eloquently by Prince Hamlet a long time ago.

In his famed soliloquy the melancholy Dane thought of using an old-fashioned dagger to end his miseries. The Oregon law is more humane and less messy. It begins by authorizing Oregon physicians to certify that a given patient, a state resident, is suffering from "an incurable and irreversible disease" that is likely to result in death within six months.

Justice Kennedy explained: "Attending physicians must also determine whether a patient has made a voluntary request, ensure a patient's choice is informed, and refer patients to counseling if they might be suffering from a psychological disorder or depression causing impaired judgment." A second physician must examine the patient and concur. (If Oregon physicians are as busy as physicians in Washington, D.C., the six-month requirement will often defeat the law's purpose. Before they can get an appointment, ailing Hamlets will long since have shuffled off this mortal coil.)

Once the law's safeguards have been met, attending doctors may prescribe, but not themselves administer, a fatal drug. Under federal law, such drugs are "controlled substances." They may be prescribed only for "a legitimate medical purpose." Since the act became effective 11 years ago, Oregon doctors have written several hundred prescriptions for suicidal patients. No one seems to know how many prescriptions actually have been filled and put to deadly use.

In 2002, Attorney General John Ashcroft threatened to revoke the drug-prescribing privileges of any doctor who assists a suicide. A group of doctors, pharmacists and terminally ill patients sought an injunction to nullify his asserted authority. In May 2004, a panel of the 9th Circuit ruled 2-1 that his directive was unauthorized and unenforceable. He had encroached upon Oregon's power to regulate medical care within its borders. He had claimed "extraordinary authority" to criminalize conduct he deemed illegitimate.


James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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