An early indication that the Bush administration would be flexible on conservative principles it found inconvenient came when then-Attorney General John Ashcroft sought to kill Oregon’s Death With Dignity Act.
That law, twice approved by Oregon voters, clearly fell within the rights the Constitution left to the states, but there was the GOP’s “base” to be appeased. So Ashcroft threatened to use federal anti-drug laws to take away the prescription-writing authority of any physician who prescribed a lethal dose of drugs.
What Oregon had done in 1994 was to allow doctors to prescribe, but not administer, a life-ending “cocktail” to a patient who requested it, had been determined to be terminally ill, and found by a psychiatrist to be mentally competent.
Through 2004, prescriptions were issued to 325 people, but only 208 had taken them, pointing up a curious phenomenon — that many did not take the cocktail but took comfort in knowing they could if their terminal illness became unbearable.
In a 6-3 decision affirming rulings by two lower courts, the Supreme Court properly found that the attorney general had overreached and that Ashcroft’s loose reading of the Controlled Substance Act would effectively put final say over general standards of medical practice in the hands of the Justice Department.
Justice Anthony Kennedy hinted at the political motivation behind the attempt to override the Oregon law by noting that Ashcroft’s action was “beyond his expertise” and taken “without consulting Oregon or apparently anyone outside his department.” Moreover, nowhere had Congress said physician-assisted suicide was a crime.
In a dissent, Justice Clarence Thomas said that the ruling was inconsistent with the court decision last year upholding a federal override of California’s medical-marijuana law. Perhaps so, but the Bush administration should have stayed out of that one, too.
Foreshortening a life made unbearable by pain is an uncomfortable issue for many, and there seems no immediate likelihood of a rush of similar laws now that Oregon’s has stood. But with advances in life-extending medical technology and the aging of baby boomers, the legislatures and the courts will be increasingly called on to deal with end-of-life issues.