Death With Dignity - Relief & Concern

This week the Supreme Court turned aside the old Ashcroft challenge to Oregon's voters' initiative to allow doctors to prescribe lethal doses of medication to their patients who want to keep their options open for controlling their own deaths. I wrote with some concern about this in October when Miers was Bush's nominee to replace O'Connor. As I hoped at that time, Kennedy sided with Oregon which eliminated any temptation to defer the decision until O'Connor's replacement, since a 6-3 decision would not be affected by a change of one justice.

My relief of course stems from the decision, my concern from Roberts' siding with the dissenting opinion in this case.

Aside from my gross lack of legal qualifications, I could never be on the SCOTUS. I would always want to rule in favor of the most aggrieved party, precedent or Constitution be damned. I understand the importance of moving cautiously when precedent IS being set, but the Court does have an important function in setting boundaries based on common decency as well. I heard Breyer explain it very well one evening when describing what the job of the court really is. The legislative branch is charged with defining the particulars of law, and the Supreme Court must only set the parameters within which those laws should operate. If public opinion has overwhelmingly moved to find certain restrictions or lack thereof repugnant, then it is not outside the purview of the Court to limit what lawmakers can do, but they are still obliged to find some Constitutional basis for it.

Personally I find it repugnant that some folks believe that other suffering people should not be given a dignified manner of ending their own life - in ANY state. I may or may not be in the majority, but I'm certainly not in the overwhelming majority in that regard. The SCOTUS cannot properly mandate that states create Death with Dignity provisions, though the current court can see that Ashcroft was overreaching in claiming that the Oregon law violated Federal drug laws. If Congress writes a more specific law outlawing doctor assisted suicide, however, we may be forced to take a step back from compassion. I must remind myself though, that in the long arc we as a society have been moving toward compassion more than away from it, and with an engaged citizenry I must believe that such a general trend will continue in the long run.

Death With Dignity Before the Court

Chief Justice Roberts was immediately thrust into presiding over a highly controversial case today. The ability of doctors in Oregon to legally prescribe lethal doses of medication to terminally ill patients is being challenged by the U.S. Attorney General's office. In his very last day in office, Attorney General Ashcroft drew my ire by ruling that under the Controlled Substances Act, doctors' licenses to prescribe drugs could be revoked if they prescribed lethal doses for terminally ill patients meeting the qualifications of Oregon's Assisted Suicide Law, approved twice by Oregon voters, most recently by a wide margin.

The case is controversial, but it boggles my mind why it should be. Common decency and compassion dictate that patients enduring great pain, or facing terminal conditions should be able to obtain prescriptions making it possible for them to painlessly hasten their own passing. Assuming that we get past the current push toward theocracy in our country, one can easily imagine a day when people of the future will look back on this case as we currently look back on the Dred Scott decision. They (hopefully) will shake their heads in amazement and ask "You mean back then you could only get those prescriptions in Oregon?!"

Early indications are that Roberts is leaning toward ruling for the Attorney General's office. Supreme Court scholar, Jan Crawford Greenberg was quoted tonight on PBS' Newshour:

Chief Justice Roberts asked lawyers on both sides of this issue very aggressive questions; he saved most of his aggressive questions for the lawyer for the state of Oregon who was defending Oregon's law.

Souter, O'Connor, and Ginsberg were clearly more aggressive in questioning DOJ lawyer Paul Clement. But O'Connor may not get to rule in this case if her replacement is confirmed before a decision has been written, and previous precedent has been that such decisions are deferred in cases where the retiring justice would render a deciding vote.

Onlookers are split in reading how the court is likely to rule on this one, with Greenberg calling it too close to say, death with dignity activists Compassion & Choices writing "the Court is unlikely to uphold the Ashcroft Directive", and SCOTUSblog seeming to lean toward believing the feds will prevail. The calculus is that Souter, Ginsberg, and O'Connor will likely be joined by Stevens and/or Breyer, while Kennedy is more likely to join Thomas, Scalia, and Roberts in upholding the Attorney General's strictures against these prescriptions. Precedent would then hold the decision up until Miers joined the court, where immediately we would have a test of whether Bush has succeeded in tilting the court toward a ruling for the religious right. Perhaps Thomas or one of the conservatives could surprise us by allowing states' rights considerations to trump their cultural conservatism.

Compassion & Choices provides a full set of links at their summary page which goes on to say

The Justices appear reluctant to read the Controlled Substances so broadly. Several Justices repeatedly asked how Congress had empowered the Attorney General to preempt Oregon's law. With no sufficient answer, it seems clear the Attorney General exceeded his authority.

While I appreciate concerns for abuse of any death with dignity law, the Oregon law has multiple safeguards, and the history of its application bears out that it has not been abused, with those taking advantage of its provisions being exactly the sort of cases for whom it was designed. Concerns that it might be applied disproportionately among the poor or those whose primary motivation is to not be a burden on their families have not been borne out. It has also provided great comfort to many who know they have the means to choose for themselves when enough is enough.

In my view, concern for the patient should trump all other considerations in determining medical care. When the patient cannot be made comfortable and is expected to die within six months, it strikes me as the height of audacity and hypocrisy for anyone else to shake their finger at the sufferer and tell them they have no right to hasten their own death. If an animal is suffering we consider it an act of kindness to put them out of their misery. How much clearer it is in the case of a human being who can cogently express their desire to hasten their death, to allow them a dignified and painless method of doing so.

Doctors opposing this law point to their oath "to do no harm." If they cannot save the patient or alleviate their suffering, then they ARE doing harm by denying the patient a painless way out.

Conserving Energy for Important Battles

I hadn't really planned to write about the Roberts nomination to the Supreme Court once I found out a bit about the nominee. I think David Remer sums it up pretty well. But I find my friends asking for my spin, and have gotten several emails about it, the most disappointing coming from MoveOn.org, who are clearly trying to organize to block the nomination. Sure the Senate should do their due diligence on the nominee, but it's pretty clear any objection to Roberts would fall outside the scope of the "comity compromise", so it seems a waste of effort to spend energy to block this nominee. Most telling for me, though, is the radio interviews I've heard with liberal legal professionals who know Roberts personally and can vouch for his decency. I'd rather have a Supreme Court Justice of sound temperament with whom I disagree, than one who might be more likely to make a ruling or two that I'd be happier with, but who has shown clear unsound judgment in matters of law in the past, especially given the lifetime nature of these appointments. That's why I'm much happier with Roberts than Gonzales, even if it does increase slightly the fragility of Roe v. Wade for instance. There will undoubtedly be some 5-4 decisions going in what I consider the wrong direction due to Roberts' appointment, but I'd rather save our energy for a principled fight against a potential fire breather on the court.

Let's hope that Stevens, Ginsburg, Breyer, Kennedy, and Souter hold out until we get a moderate with some intellect in the White House.

Proportionality is the Point

Thanks to Justice Anthony Kennedy for his role in bending the arc of the moral universe toward justice.

... and the Court's own determination in the exercise of its independent judgment, demonstrate that the death penalty is a disproportionate punishment for juveniles.

Significantly, Kennedy was chosen to write for the majority in the recent 5-4 Supreme Court decision which had the immediate effect of removing 72 individuals from death row who were convicted of crimes they committed when they were 16 or 17 years old. Kennedy had cast a deciding vote for the opposite position 16 years ago, which resulted in a 5-4 decision to retain executions of that same class of juvenile offenders.

While a lot of focus has been on the international trend away from allowing the death penalty in general, and for younger offenders even more broadly, the point of changing this isn't that times have changed, but that it's the right thing to do.

Drew Eldredge-Martin posts additional evidence that Kennedy's personal moral arc is swinging toward compassion, as has been a pattern for at least forty and possibly more years on the court if one follows individual careers. It makes sense to me that individuals, who persistently confront as part of their life work so many heady issues of great moral significance, would naturally as they gain wisdom and insight in that process move toward less doctrinal and more humane stances. It may be too much to hope for such a transition in the future of Justices Scalia or Thomas, but one can never know for sure.

By all means we should also thank Justice Stevens who voted for the moral position in both decisions, as well as Justices Souter, Ginsberg, and Breyer of the current court and the now deceased Justices Blackmun, Marshall, and Brennan of the 1989 court.

This court ruling, hereafter known as Roper v Simmons 2005, had three pieces to it: the first a constitutional one relating its relevancy to the Eighth Amendment; the third related to the movement of international opinion; but the meat of the decision for me is the second part of the ruling:

Rejection of the imposition of the death penalty on juvenile offenders under 18 is required by the Eighth Amendment. Capital punishment must be limited to those offenders who commit "a narrow category of the most serious crimes" and whose extreme culpability makes them "the most deserving of execution." (Atkins, 536 U. S. at 319). Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. Juveniles' susceptibility to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult." (Thompson v. Oklahoma, 487 U. S. 815, 835). Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. (See Stanford, supra, at 395). The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. The Thompson plurality recognized the import of these characteristics with respect to juveniles under 16. (487 U. S., at 833-838). The same reasoning applies to all juvenile offenders under 18. Once juveniles' diminished culpability is recognized, it is evident that neither of the two penological justifications for the death penalty--retribution and deterrence of capital crimes by prospective offenders, (e.g., Atkins, 536 U. S., at 319)--provides adequate justification for imposing that penalty on juveniles. Although the Court cannot deny or overlook the brutal crimes too many juvenile offenders have committed, it disagrees with petitioner's contention that, given the Court's own insistence on individualized consideration in capital sentencing, it is arbitrary and unnecessary to adopt a categorical rule barring imposition of the death penalty on an offender under 18. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. When a juvenile commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. While drawing the line at 18 is subject to the objections always raised against categorical rules, that is the point where society draws the line for many purposes between childhood and adulthood and the age at which the line for death eligibility ought to rest.

Proportionality is the point!