Dispatches from the Creation Wars

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.

Comments

  1. #1 Dave S.
    October 7, 2005

    Thanks for writing this Ed.

    At the moment I and the rest of my family are going through much the same thing.

    My dad was diagnosed with terminal cancer (starting in the bowel and spreading from there) several months ago. At this point he is bed-ridden and his medications are being administered mainly by my mother. The doctors and home care nurses simply draw her up a batch of syringes every few days containing Haldol, Saline and Morphine (that has since been changed to Oxycontin) and instructed her how to inject them. She was told to use the medicines as she saw fit, to give more or less, whatever it takes to make dad comforable.

    We’ve seen it all, the loss of bodily function, the inability to even turn over in bed to avoid a soreness, the halluncinations (we had to remove the ceiling fan because it terrified him). But there have also been many moments of lucidity, of sharing a beer (even though I don’t drink) or a laugh, or watching the nature shows on TV we both enjoy.

    When the end finally comes, will it be the disease, the medication protocols or a combination of both that brings it to a conclusion? Who knows, but is it really important? He’s where he wants to be, at home, surrounded by family, and that is where he is staying. We have done everything we could to make that possible and as comfortable as can be for both he and mom, including moving a hospital bed into his room and cutting down trees outside his window so he can have a better view.

    I’m grateful for the opportunity.

  2. #2 flatlander100
    October 7, 2005

    Thanks, Ed. The DNR agreements in hospitals are important, and I’m glad they are available, but as your post makes painfully clear they are not enough. Not nearly enough. You were fortunate to find doctors and others who enabled your family to do what the dying desperately wanted done. Think how much suffering and anxiety would be relieved, how much better for the aflicted the last few weeks or months of ‘good’ time would be if they knew they had the option to end it all, peacefully, painlessly, when the time came. If they didn’t have to worry about whether they would be forced to endure a lingering, humiliating, painful, extended end-game or not.

    Now, any predictions on how the decision will come down?

  3. #3 spyder
    October 7, 2005

    Our nation is on life support– dying from the cancer of these constant attacks on our cognitive and personal liberties. For whatever misguided and delusional premises, we are forced to endure as law after law, court ruling after court ruling, school board edict after school board edict to: give up control over our own bodies, abrogate any remaining cognitive liberies, and conform to agendas within which there exists no compassion to alleviate the suffering of our fellow humans. Thank you Ed for sharing your personal stories in demonstrating the foolishness of a shrill yet powerful minority.

    I am at that age when i am losing my peers and friends to the ravages of diseases, esp cancers. Three in the last two weeks, one of whom begged us to support his need to be brought out to the west coast(away from Florida) so that he could pass on with dignity with his family and friends and have his ashes scattered in the ocean off the back of our old lifeguard boat. We of course obliged, but to think that, given the argument of the Solicitor General, we might have aided and abetted a criminal activity just sticks terribly in my craw.

  4. #4 Matthew
    October 7, 2005

    What is immoral about suicide anyways?

  5. #5 Lynn
    October 7, 2005

    Honey, I don’t have to tell you what my feelings are in regards to this. I assisted in the deaths of 34 persons with AIDs. As president of an AIDs support group I tried to abide by each persons requests. I have no regrets.

  6. #6 Lynn
    October 7, 2005

    And, by the way that includes my own dear brother.

  7. #7 Ed Brayton
    October 7, 2005

    It’s easy to talk about slippery slopes in the abstract. But when you’re faced with someone you love who is suffering, it becomes crystal clear what is the moral thing to do. It becomes completely obvious that to do otherwise would be incredibly cruel.

  8. #8 raj
    October 8, 2005

    I haven’t read the entire post, but I would just want to point out there would be no federal issue ecept for the fact that federal government appears to claim regulation over the distribution of some drugs.

    If the Feds would do away with regulation over the requisite drugs here, there would be no issue. No “assistance” would be required. It is only because the physicians are needed to prescribe the necessary drugs. If the drugs were available without prescription, it would be unnecessary for a physician to be involved.

  9. #9 deignan
    October 8, 2005

    What you are proposing, while compassionate in one sense, does devalue the life of the victims and ultimately all people. We are more than what can be measured about us. Yes or no? Do we have autonomy? Where does that come from?

    From the moment we are conceived only one thing is certain, death. A life without pain is not a better life than a comfortable life. Struggle is not meaningless. Mindless comfort offers little to justify our lives as worthwhile at all.

    On the other hand, torture is also an assault against life and omission can be just as much a source of guilt as commission of an act.

    Each person will need to make their own decisions, but responsibility for the act and for life are inescapible. In the end, we are making a statement on what we believe this gift of life is worth to us by these actions which cannot be separated from the trancendental context.

    In short, you judge yourself.

  10. #10 Ed Brayton
    October 8, 2005

    deignan wrote:

    What you are proposing, while compassionate in one sense, does devalue the life of the victims and ultimately all people.

    Utter nonsense. There are no victims here. On the other hand, there clearly are victims to not allowing people the right to die when they face nothing but pain and misery. The victims are those who are forced to endure nearly endless suffering against their will.

    The rest of your comment is quite incoherent. The bottom line is that the only person who should decide when they’ve had enough is the individual. No one else should make that decision for them. To force your judgement upon them and decide for them that their life is worth living, that devalues their life because it takes away the self-determination that is at the core of a free human being. You have reduced them to meat puppets to be kept alive at our pleasure, regardless of how much pain and suffering it causes them.

  11. #11 deignan
    October 8, 2005

    Ed,

    Are you autonomous?

    Are you aware that it makes absolutely no sense in the physical world for you to be autonomous unless there is an extradimensionality inherent in your existence?

    Do you have any idea what that implies?

  12. #12 JusticeForAll
    October 8, 2005

    “Do you have any idea what that implies?”

    I have absolutely no idea what you are talking about. Please explain.

    I have had some experience with this and as hard as I try to see the other side, I can’t.

  13. #13 deignan
    October 8, 2005

    Ed,

    We agree that we have control over our actions, i.e. that we are somewhat deterministic. However, we cannot predict evenour own actions much in advance. Our intent to act precede the action.

    How do we form this intent to act? Much of the input comes from our surrounding, but not all. We process a portion of this information and make decisions. Some decisions (the important ones) are conscious. That is whatwe mean by autonomous. We chose to act.

    It is impossible for this choice to be not entirely determined by the environment over time unless there is some extradimensional aspect to our nature beyond the dimensions of interaction that we experience. (Free will implies trancendentalism of the human existence).

    Trancendentalism imples that there is another realm of consideration besides deterministic pain/death processes in the life of the individual. Our decision must also be consistent with these dimensions that we cannot measure for our life to be something more than “noise”.

    So it depends on how we understand our life. If we simply confine our understanding to the measureable dimensions, then we are no more than our environment and cannot say that we actually mean anything unique in and of ourselves. We are lint. If everyone is lint, then there is reason to condemn whatever abuse including torture–it just happens.

    So the very fact that we can decide is the reason that we ought to make whatever affirmation of the value of life that we can. We have to make these decisions ourselves. However, we should be aware that when we are too quick to eradicate pain, we are also eradicating from society the idea that life is more than lint.

  14. #14 Ed Brayton
    October 8, 2005

    deignan-

    This irrelevant babbling is nonsense on roller skates. This discussion is not about the philosophical issue of free will vs determinism, it’s about political freedom, the right to be free from the arbitrary rule of others. Even if you were right (and you’re not; the notion that materialism means we’re “lint” is just plain bullshit), it has no bearing on my argument at all.

  15. #15 deignan
    October 8, 2005

    Ed,

    Every read the preamble of the constitution?

    Some pretty no nonsense fellows wrote that. Unfortunately, my ideas are not so original as their’s.

  16. #16 Ed Brayton
    October 9, 2005

    deignan wrote:

    Every read the preamble of the constitution?

    I’ll leave it to you to read the tens of thousands of words I’ve written about constitutional interpretation on this blog and then decide for yourself whether I’ve read the preamble to the constitution. Now, is your plan just to continue to be this obtuse or do you intend to actually make an argument engaging mine at some point?

  17. #17 spyder
    October 9, 2005

    I suspect deignan has been reading the same preamble that Karen Hughes was reciting to those who were “listening” to her “lectures” in the Middle East. You know the one that says “under god” in it??