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Argument: Prescribing lethal drugs is violation of the doctor's healing role

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Revision as of 17:21, 13 July 2009

The rights and choices of terminally ill patients across the nation are now in the hands of the U.S. Supreme Court as it considers whether doctors may prescribe lethal doses of medications to those patients who wish to end their lives.

In a landmark case, and one of the first major tests for newly appointed Chief Justice John G. Roberts Jr., the Bush administration is challenging Oregon's controversial law allowing physician-assisted dying, claiming it violates federal laws governing drug use. The justices heard oral arguments last month, and a ruling is expected by July.

Their deliberations come at a time when opinion surveys show rising support for patient control over end-of-life care. A comprehensive poll conducted by Harris Interactive in April found that 70 percent of Americans believe "the law should allow doctors to comply with the wishes of a dying patient in severe distress who asks to have his or her life ended." In 1982 just 53 percent of Americans agreed with that statement.

"Oregon's law is about individual freedom to determine the time and circumstances of one's own death when death is inevitable in the near future," says Marcia Angell, M.D., former editor in chief of the New England Journal of Medicine. "What could be a more fundamental right than that? Why should government, or a doctor, have the right to make that very private decision for anyone?"

But the law, enabling 208 patients so far to end their lives, is ardently opposed by conservative religious groups, some disability rights organizations and others who see it as a "slippery slope" leading to forced euthanasia.

"Assisted suicide is the opening wedge in the more general argument for our culture to move on to the euthanasia of people whose lives are regarded as being of minimal value," says Gilbert Meilaender, a member of the President's Council on Bioethics and professor of Christian ethics at Indiana's Valparaiso University.

Many Americans—67 percent in the Harris poll—say they would favor a law like Oregon's Death With Dignity Act in their state. California and Vermont legislators have introduced such legislation, and the high court's decision will likely have a major impact in those states and other parts of the country where the "right to die" is a hotly debated cultural and political issue.

The Oregon law, ratified by voters in 1994 and again in 1997, has strict conditions. It requires that:

   * two doctors certify that the patient has no more than six months to live;
   * patients make three requests to the doctor for a lethal dose of medication — twice orally and once in writing;
   * the prescription be filled only after a 15-day waiting period;
   * patients take the drug themselves — the prescribing doctor may not administer the drug. Most of the deaths take place at home, usually with the family and a health care worker present.

In 2001 then-U.S. Attorney General John Ashcroft threatened to prosecute any Oregon doctor who prescribed drugs to cause death, but the U.S. Court of Appeals for the 9th Circuit overruled him. The Justice Department appealed to the Supreme Court, and last month administration lawyers argued that helping a patient die involves the improper use of medications, a violation of the U.S. Controlled Substances Act.

Oregon Attorney General Hardy Myers said Congress never intended the 1970 federal law to apply to drugs used for legitimate medical purposes. Oregon has maintained that regulating medical practices is up to states.

While the legal battle in court focuses on federal vs. state rights, at the heart of the clash over helping a terminally ill person die are fervent, strongly held personal beliefs about religion, morality, individual autonomy and medical ethics. Even the language used to describe Oregon's law is itself highly contentious. "Physician-assisted suicide" is the phrase commonly used by the media, but advocates of the law strongly object to that description.

"I think of this as 'doctor-aided dying' or 'compassionate aid in dying,' " says Charlene Andrews, 68, a retired teacher from Salem, Ore., who was diagnosed with advanced breast cancer in 2000. "That may be less catchy in headlines than 'doctor-assisted suicide,' but it's much more truthful. I am still fighting to live with every available medical tool, but I am going to die of this disease anyway.

"The only question is whether I will be able to say goodbye to my family while I'm still myself," says Andrews, whose cancer has spread and who is still undergoing chemotherapy. She summoned the energy to attend the Supreme Court hearing and speak to the National Press Club in Washington on the misuse of the word "suicide." "This has nothing to do with suicide in the traditional sense," she says flatly.

Doctors themselves are divided on the issue. The American Medical Association, which represents about a third of the nation's physicians, strongly opposes assisted dying. Kenneth R. Stevens Jr., M.D., a radiation oncologist in Portland, Ore., and vice president of the Physicians for Compassionate Care Education Foundation, agrees with the AMA and regards assisted suicide as a violation of the doctor's healing role. "I did not become a doctor to write a prescription to end a patient's life," he says.

Stevens notes that in research reports doctors describe their patients who seek assisted death as "controlling," an attribute he says harms society as a whole. "If a person needs money," he says, "we don't say it's all right for them to go and rob a bank."

But to advocates of the law—including some prominent physicians—"controlling" doctors are the issue. Marcia Angell says the Oregon law may actually set such a high barrier that too few patients are using it. "Why should there be a stigma attached to a dying patient's desire to exert control over the circumstances of his or her own death?" she asks. "Why should the doctor be the one to decide what the patient must endure?"

Such philosophical questions were not raised before the Supreme Court as lawyers and the justices zeroed in on the narrower legal issues. "This case has to be argued on the legal issues of federalism and states' rights," acknowledges Kathryn Tucker, legal director of Compassion and Choices, a Denver-based organization that assists patients who want to take advantage of Oregon's law. "But obviously, the personal experiences and convictions of each justice are going to factor into the final decision."

Three justices—Sandra Day O'Connor, Ruth Bader Ginsburg and John Paul Stevens—are cancer survivors, and Justice Stephen G. Breyer's wife counsels young cancer patients. One wild card is O'Connor's impending retirement and the uncertain status of President Bush's court nominee Harriet Miers. If O'Connor is no longer on the bench at the time of the decision, she cannot vote—but Miers would not be able to vote either because she did not hear the oral arguments. A 4-4 tie would leave the Oregon law in place, but the court could schedule a reargument so that Miers could vote.

Delaying the decision would not please those patients who favor Oregon's policy. "I have peace of mind because my state respects my own judgment about my own life and death," Charlene Andrews says. "I'm hoping the court will send a clear message that will give other Americans the same chance—to decide for themselves when enough is enough."

Susan Jacoby, a journalist based in New York, writes about health and ethics.

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