Judge Jeremy Fogel bought it and demanded that California adjust its procedures by either having an anesthesiologist administer the drugs or using only barbiturates and not the other drugs to execute the criminal. California opted to seek the services of anesthesiologists but ran into a brick wall. The doctors insisted that their Hippocratic Oath forbade them to participate in taking life under any circumstances. National Public Radio quoted Dr. Priscilla Ray, chair of the American Medical Association's Council on Ethical and Judicial Affairs, who declared, "Our belief [that doctors should not participate in executions] is based on the fundamental ethical precept of medicine is that we first do no harm." And Dr. Jeffrey Apfelbaum, an anesthesiologist at the University of Chicago Hospitals, told the Chicago Tribune, "We are dedicated to preserving life whenever there's hope to do so. To take away life, or contribute to that, runs completely contrary to what we dedicate our lives to do." That's very gratifying to hear, if a little hollow in 2006. Does the American Medical Association take the same view of abortion? How about the University of Chicago?
But surely what we have here is yet another case -- they seem to happen every day -- of a federal judge arrogating to himself the right and responsibility to make sensitive moral and ethical judgments that are outside his province. Legislatures in 38 states have chosen to execute certain kinds of criminals. They chose the method they found least inhumane. It was their decision to make.
I don't disagree with the death penalty opponents that execution is an unpleasant business. I'm even happy to go with the Los Angeles Times's sarcastic suggestion that "we just shoot Michael Morales." But what I and most Americans find intolerable is the description of what happened when Morales heard that, once again, his lawyers had wrested a delay from the legal system. "He smiled."