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.

Gonzales may be worse than Ashcroft

John Ashcroft was indeed an ideologue, but at core he had integrity, albeit to values often at odds with my own. I don't see the same integrity in Alberto Gonzales who "participated in a dramatic weakening of U.S. commitments to the Geneva Conventions and against torture" and was willing to justify doing so. Hence I have written to my own two Senators:

Senator Murray [or Cantwell],

I am deeply troubled by the appointment of Alberto Gonzales as the top law enforcement officer of the United States, when he has shown a callous disregard for the rule of reasonable international law vis-a-vis the Geneva Conventions in recent history.

Please ask TOUGH questions at the confirmation hearings. Also please urge your fellow Senators to vote against his confirmation if they cannot in good conscience see his selection as Attorney General to be supported on it merits. While I am not in favor of a filibuster in this case, or dragging it out beyond the asking of reasonable questions, I believe it is a case which calls for a large minority of our senators to dissent. Getting our more reasoned Republicans such as McCain, Collins, Hagel, and Snowe to oppose his nomination could make it an historically close vote for a confirmation and send a message to the Administration to avoid the nomination of contentious ideologues to such important positions.

So please vote for cloture, but against confirmation, and urge your fellows to do the same.

Sincerely yours,
Walker Willingham

I think that my Senators will be hearing a lot from me over the next four years.

[UPDATE: Senator Cantwell (or more likely her office's sophisticated email response robot) responded very quickly. She (it) assured me that the Senator took her role of confirming nominees very seriously, and that she did "intend to carefully review and observe the confirmation hearings and study Gonzales record as Judge before" arriving at a decision. No vote is expected until later this month. The hot air coming out of the White House did little to assuage me that it was anything much better than "tortured logic" that led to his confirmation.]

Ugh!

Can you say disproportionate? Thanks to NPR for this story.

Hemnauth Mohabir ... in the spring of 2002, returned to Guyana to visit his mother, who was ill. On his way back to New York that April, an immigration agent at Kennedy International Airport noticed Mohabir had a criminal record: Six years earlier, he'd been convicted of possessing about $5 worth of drugs. The judge fined him $250 for a misdemeanor and let him go.

Because of that past conviction, Mohabir was deported to Guyana and banned from ever coming back to the United States. But before returning to his native country, Mohabir was detained for almost two years at New Jersey's Passaic County Jail, where he alleges that guards taunted and beat detainees and terrorized them with dogs.

So how does Gonzales replacing Ashcroft help us?
Read Mohabir's own story in the Detainee Newsletter.

Attorney General Ashcroft

I have little doubt that John Ashcroft is well-intentioned, and sincerely believes that he acts on profoundly moral principles, but unless he quickly comes to understand that many other profoundly moral individuals are being profoundly screwed by policies that he has engineered, his remaining in power creates a danger to the foundation of our Democracy.

It is a sufficient indictment of his policies to show that many entirely innocent people are being hurt by them, but I am especially looking for compelling stories of people whose good works are being stopped or interrupted by legal or other action from this justice department. Send me some links! [End of Post]