Posted by The Supreme Court heard oral arguments in Gonzales v Oregon a couple days ago, a case where the federal government is asserting that the Controlled Substances Act (CSA) – or at least this administration’s interpretation of it – trumps the Oregon assisted suicide law, which was passed by popular referendum not once but twice (and remember, this is the same administration that screams bloody murder about those “unelected judges” subverting the “will of the people” whenever they rule in a way they don’t like). John Ashcroft, then a Senator from Missouri, was furious and attempted to pass a Federal law overriding Oregon’s new law; that attempt failed. Unable to get his fellow Senators to vote with him, he waited until he was named Attorney General (after losing his reelection attempt to a dead man) and then unilaterally decided that Federal law already made Oregon’s law null and void. He took the position that administering otherwise legal drugs for this particular purpose was counter to their medical purpose and therefore such prescriptions would violate the already-existing CSA.
On the surface, it seems similar to last term’s Raich decision because both dealt with state referendums in conflict with federal law and the question of which level of government held ultimate constitutional authority. But there are important differences. First, the Oregon case does not involve a challenge to the claimed authority for the CSA, the interstate commerce clause of the constitution. Second, it’s much more a question of interpretation of the CSA and how much latitude is given to the executive branch in reinterpreting the purpose and scope of that act.
How far may the executive branch go in taking legislation that was passed for one purpose and using it for another? The clearly stated purpose of the CSA was to combat drug abuse, but Ashcroft wants to apply it here, arguing that while it is legal to prescribe such drugs to improve someone’s health or reduce pain, if they are used to hasten death then this is using them for a different purpose and therefore the CSA is triggered. But as Justice O’Connor pointed out, the government itself uses the same drugs for that same purpose when it delivers a lethal injection as capital punishment. If Ashcroft’s reasoning is correct, then every state that uses lethal injections for capital punishment also violates the CSA.
Meanwhile, Radley Balko has a compelling post on the subject in which he points out that this is not just an academic exercise. This involves real people in real circumstances:
“Death with dignity” isn’t some touch-feely euphemism. The last days of life can be horrifying. Terminal cancer patients typically lose control of their bladder and bowels. More likely, narcotic pain relievers constipate them, requiring enemas or manual cleansing of the colon. They vomit and bleed. They periodically stop breathing, and gasp and convulse for air. Some become delusional. Some slip into a drug-induced haze, far off from friends and family. The overwhelming majority die in hospitals, not at home. Death can come subtly, or it can come violently. It can come with family all around, or it can come unexpectedly, when few are around.
Contrast that to barbituate cocktail used in assisted suicide, which puts patients to sleep, then guides them into a coma, and then, finally, to death. More than 80 percent of the cases so far in Oregon were done at home, surrounded by friends and family. Patients were lucid, and able to say goodbye.
I have personally been involved in three cases of de facto assisted suicide – my grandmother, my uncle and my mother. It goes on all the time, in hospitals and private homes. A compassionate doctor simply leaves behind a sizable amount of morphine, with instructions on how much to administer as a normal dose and what will happen if more than the normal dosage is given. Morphine hastens the shutdown of the organs and allows the patient to die peacefully, without pain or awareness.
In my grandmother’s case, it was administered by family members. She was 80 years old, her body riddled with cancer. She’d had multiple surgeries and months of treatment and the doctors finally told her that it wasn’t working, that the cancer was continuing to spread throughout her body and there was nothing that could be done. She told us that she wanted to go home. She didn’t want to die in a hospital, she wanted to die in her home. She had the chance to say goodbye to all of her family, to tell us all that she loved us and that she was ready to go. She didn’t want to suffer the slow and painful deterioration, however, she just wanted to go to sleep and have it be over with. Her doctor, who had taken care of her for 40 years, left behind morphine and we made sure she got enough of it to slip away quietly and with peace and dignity.
In my uncle’s case, he was dying of AIDS. There is no more brutal way to die. He had told us several times that the end was near, that he wanted to go, before slipping into dementia. His kidneys were shutting down, he had no control of his bodily functions, and he would lay in bed all day long, his body convulsing as he moaned painfully. At the end, he couldn’t communicate at all. My father, my stepmother and I stood at his bed holding his hands and wiping his brow as his body shook violently. We talked to him and told him it was okay to go, that we loved him and that he had fought so bravely against his disease (for the story of how he responded to AIDS and how he helped so many others with that horrible disease, including many who had been disowned by their own families, see here). In this case, it was the hospice nurse who administered the morphine that allowed him to die in peace.
As for my mother, you may have read that story already. She fought a rare lung disease for 4 years, getting a lung transplant and never really recovering from the surgery. She had done into serious rejection and the doctors said there was little hope of reversing it. She was so tired, so very tired, and she said time and again that she wished she could just go to sleep and be gone. After a minor surgery to put a stent in the new lung, she went into cardiac arrest in the recovery room before she had even woken up from the anesthesia. It was 9 minutes before she was revived and she was in a coma, with enormous brain damage. The doctors told us that they could probably keep her technically alive on a ventilator indefinitely, but that she would never recover. She had made it very, very clear that she did not want to stay alive that way. Two days later, as all of her children and her two dearest friends gathered around her bed holding hands, the doctors shut off the machines and we watched her heartbeat slowly go down on the heart monitor until she was gone. They didn’t say this, but I know that the doctors had put large doses of morphine into her IV so that she would die peacefully, without any convulsions or gasping. As I said, this sort of thing goes on all the time even if in many places it is technically illegal.
Do I regret any of those situations? No way. What we did was compassionate and loving. To do otherwise, to allow them to go on suffering day after day against their own clearly expressed wishes, would have been cruel and inhumane. We owed them the opportunity to die peacefully and with dignity, not pain and misery, for all that they had done for us. I can only hope that if I am ever in that situation, my family will do the same for me. Perhaps by then we will not be ruled by moral cretins like John Ashcroft, who cares more about satisfying his own warped sense of moral purity than in reducing real human suffering.
October 7, 2005
October 7, 2005
October 7, 2005