Ashcroft's War

Should physicians be permitted to assist a terminally ill and mentally competent patient in committing suicide? This highly contentious issue has been working its way through our courts and legislatures, and it's about to come to a head.

In 1997, the U.S. Supreme Court ruled 9-0 that there is no constitutional right to physician-assisted suicide, meaning laws could be passed banning the practice. But the court left open the possibility that states could pass laws permitting it.

That same year, Oregon voters overwhelmingly approved the Death With Dignity Act. Oregon is the only state where physicians may prescribe a lethal dose of medicine for a patient to self-administer; two doctors must first confirm both that the patient has less than six months to live and is mentally competent to make that request.

Soon after the Oregon measure was approved, Sen. John Ashcroft (R-Mo.) tried to block the Oregon law but was rebuffed by then-Attorney General Janet Reno.

When Ashcroft got Reno's job in 2001 after losing his reelection bid, he decreed that assisting suicide is not a "legitimate medical purpose" for dispensing drugs. The Justice Department threatened to revoke medical licenses of physicians who assisted in a suicide.
But the federal courts blocked Ashcroft, saying he had exceeded his authority because the regulation of medical licenses is a state matter. 

Undeterred, Ashcroft late last year directed the Justice Department to appeal to the Supreme Court as one of his final acts before resigning.

If the Supreme Court sides with Oregon against the Justice Department, advocates say they will try to enact more Oregon-style laws, state by state, through referenda or the legislatures. But if the Justice Department prevails, it would end legal acceptance of physician-assisted suicide, if not the act itself.

About 6 percent of U.S. physicians have assisted terminally ill patients in ending their lives, according to a survey published in 1998 by the New England Journal of Medicine -- that's well over 15,000 physician-assisted suicides.

It's no secret that some physicians prescribe large doses of pain medicine for patients, knowing -- hoping -- that as they near the very end of their lives, it will accelerate death. Should this under-the-table approach be the extent to which physicians may end the suffering of terminally ill patients? 

The question is obscuring the traditional liberal v. conservative alliances.

Proponents --  many liberals, "small government" conservatives, and libertarians -- contend that it is cruel and inhumane to block terminally ill patients --  especially those in great pain --  from ending their lives peacefully and with dignity. They argue that the Oregon experiment proves that with physicians in charge, assisted suicide will remain rare: since the law took effect eight years ago, there have been only 171 reported physician-assisted suicides.

Physicians, because of their ability to judge the totality of the circumstances -- a patient's medical and mental condition, the quality of the remainder of his life -- are best suited to take on this role, sometimes permitting it, and other times not.

Opponents -- some liberals and "social" conservatives -- say that many terminally ill patients suffer unnecessarily because they receive inadequate medication for pain and the depression that often accompanies the diagnosis of a terminal illness. Government should foster proper medical treatment --  including enhanced use of medicine -- rather than encourage physician-assisted suicide.

Opponents also fear that legalized physician-assisted suicide will create a climate where the elderly, poor, and other vulnerable people will feel pressured to accelerate the end of their lives so as not to be "a burden" on their loved ones. They also wonder, if physician-assisted suicide is OK for terminally ill patients with six months to live, what about patients with two years --  or five?

What's unacceptable today could become the norm tomorrow.
Each side heartily believes in the rightness of its cause. As the issue is debated, the views and experiences of physicians with practical, real-world experience outside the beltway of Washington, D.C., must be heard.

Whatever the outcome, the "nod and wink" method of ending life will certainly continue. But in a way that seems terribly wrong: it means physicians risk the loss of their medical licenses, and the ability to practice.

That's not fair to families, patients, or physicians. 
 
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This article originally appeared in the March 2005 issue of Physicians Practice.