The Death with Dignity Act
by Mark C. Siegal
“Everything dies.”
That was the first sentence of a law journal article I began writing
in 1996. I was a second-year law student, and I had chosen as my
topic a critical analysis of a new law that had passed in Oregon:
the Oregon Death with Dignity Act (ODDA). For the first time in the
history of the United States, a state had legalized a form of physician-assisted
suicide. In the decade that followed, the ODDA would be a touchstone
for both sides of the debate swirling around physician-assisted suicide;
a debate that continues even after a recent Supreme Court decision
blocked a federal attempt to dismantle the ODDA. That decision prompted
me to think about how my own views on the topic have changed over
time.
First, a little background
on the ODDA is in order. The ODDA enables terminally-ill individuals,
defined in statute as individuals with a permanent and irreversible
condition that is expected to result in death in six months or
less, to request a lethal dose of medication for the purposes of
ending his or her life in a “humane and
dignified manner.”
The statute contains
safeguards to ensure that only qualified individuals can receive
lethal doses of medication. A second physician must confirm the
individual’s terminal diagnosis. If either physician suspects
that the individual is suffering from depression or another psychiatric
illness, the physician must refer the individual to appropriate counseling.
No physician can actually administer the lethal dose of medication.
According to a 2004 annual report from the Oregon Department of Human
Services, approximately 208 individuals have committed physician-assisted
suicide since the ODDA’s enactment in 1997.
The ODDA has had a contentious
history since voters first approved it in 1994. After a series
of court injunctions, voters again approved the ODDA in a second
referendum in 1997. In 2001, Attorney General John Ashcroft issued
a directive stating that the federal Controlled Substances Act
vested the Justice Department with the authority to suspend the
license of any Oregon physician who prescribed lethal doses of
medication under the ODDA. Oregon challenged the Attorney General’s
action and the case ultimately went to the Supreme Court.
In a 6-3 decision issued
in January 2006, the Court ruled that Ashcroft could not prohibit
Oregon physicians from prescribing medication under the ODDA. The
Court went on to say that only the states have the power to determine
the scope of acceptable medical practice. While many media outlets
reported on this decision as a victory for those who favor legalized
physician-assisted suicide, the legal basis for the opinion is
actually quite narrow and technical. The Court did not rule on
the merits of the ODDA and drew no conclusions about the statute’s
constitutionality. In fact, the Supreme Court decided in 1997 that
there is no constitutionally-guaranteed right to die.
When I wrote
my article, I was firmly opposed to the ODDA. Like many disability
activists, I believed the ODDA was the first skid on a slippery
slope leading to the legalized euthanasia of people with disabilities.
A society that already devalued the lives of people with disabilities
would only be too eager to offer a quick and painless death to
not only terminally-ill individuals, but perhaps also to people
who depend on life-supporting technologies such as dialysis or
ventilators. I mingled with supporters of Not Dead Yet and other
disability organizations that opposed physician-assisted suicide.
I was part of a movement. I saw my article as a means to warn readers
about the perils that physician-assisted suicide presented to the
disability community.
But in the intervening
years, my beliefs shifted. I can’t
trace my change of heart to a specific moment or event. Perhaps I
became suspicious of the “slippery slope” argument when
I realized how few people were making use of the ODDA. Perhaps I
started to question those disability activists who, in opposing physician-assisted
suicide, seem to reinforce some of the more insidious stereotypes
of people with disabilities: that we are weak and defenseless and
incapable of rising above society’s low expectations for us.
Perhaps I began to see laws like the ODDA as a sensible option for
those individuals who are in the final chapter of life and wish to
exercise some control over how the last page is written. For these
reasons and others, I thought the Court’s decision in the Oregon
case was the right one.
The issue of physician-assisted suicide is fraught with questions
that force us to explore our own beliefs on life and death. The disability
community is a diverse one with a range of opinions on the matter,
despite the proclamations of some activists. But I have every confidence
in our ability to engage in a free and open discussion on the topic.
My exploration of the implications of physician-assisted suicide
led to a reexamination of my views, but each one of us must grapple
with the subject according to the dictates of our own conscience.
Mark Siegel is an attorney
who lives in Minneapolis. His personal blog can be found on the Web
at www.the19thfloor.net
