Wednesday, July 14, 2004

Assisted suicide and Ashcroft.

As previously noted here, John Ashcroft has tried to halt Oregon's "Death With Dignity" experiment by threatening action against any physician who participates in assisted suicide by writing a prescription for a drug that appears on the federal government's list of controlled substances. His legal theory appears to be that the exception allowing physicians to prescribe controlled substances within the practice of medicine allows the Attorney General to determine what constitutes the practice of medicine, and physician-assisted suicide doesn't fit his definition. A federal appeals court recently ruled that what constitutes "the practice of medicine" is something for the states to decide, not the Attorney General, and if Oregon says it includes PAS, then that's the end of the matter.

On Monday, Ashcroft's Justice Department sought reconsideration by the appellate court, which prompted a thoughtful op-ed piece by Nicholas D. Kristof in today's N.Y. Times. Even if you (like me) thought the Oregon law was a bad idea, this is worth reading. I admit that I've come around on this subject because of the Oregon experiment, and Kristof highlights important aspects of that experience quite well.

3 comments:

Jordan said...

Prof. Mayo,

In my opinion, Kristof does highlight the experiment well, but I still think he fails to justify allowing autonomy to outweigh the state's concern in protecting life. The "death with dignity" experiment may well be "successful" in allowing people to escape a long and painful death, but that begs the question of whether allowing autonomy to override this important state interest is right or justified.

If the purpose is to alleviate suffering, that could be accomplished by allowing the patient to use pain killers in non-lethal portions. If the purpose is to be more "dignified" by not being hooked up to machines for the final days of life, that could be accomplished by allowing a patient to exercise autonomy to refuse or discontinue life support.

Both could be accomplished at once by a combination of these measures, without severely overriding the state's interest in protecting life.

Tom Mayo said...

I don't disagree, at all. The experience in Oregon seems to suggest that the patients who avail themselves of this option do so NOT because of pain issues, and NOT because they are stuck on unwanted life-sustaining interventions, but because of a desire to retain control over the circumstances of their death. Oregon doesn't require that the patients be experiencing unrelievable pain or other suffering, so the most compelling argument for PAS is not required by law and has apparently not been a major issue in the lives of those who have opted for PAS. "Control" (perhaps as a synonym for "autonomy") without any other motivations or justifications for PAS strikes me as a slim basis for altering the traditional stance against killing, and that's why I was against legalizing PAS in Oregon. The only sense in which I've "come around" on the issue is that there is no evidence the PAS option is being over-used, nor is there evidence (yet) that the safeguards in the law are being ignored or that patients are being pushed toward the PAS option. I still think it's a crummy public-health choice for a state. As for the state's tradition interest in portecting life, I guess that isn't as strong an interest in Oregon as it might be in other states.

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