Keep alive the right to die

ON WEDNESDAY, the U.S. Supreme Court will hear the case of Gonzales vs. Oregon, the culmination of the Bush administration’s long fight to overturn Oregon’s popular Death With Dignity Act. The outcome will have far-reaching effects, particularly for Californians.

The Oregon law, like a bill before the California Assembly, permits doctors to write prescriptions for a lethal dose of sleeping pills or similar drugs that dying patients can take if they find their suffering unbearable. It has been in effect for nearly eight years, and there is ample evidence that it is working exactly as intended. Only about 30 patients per year use it, but many more say they find peace of mind in having the option to do so if they choose. Oregon is the only state with such a law.

The Bush administration argues that Oregon doctors writing such prescriptions are violating the federal Controlled Substances Act -- legislation enacted in 1970 to try to stop prescription medicines from being diverted to street use. Oregon counters that its law has nothing to do with drug trafficking; it’s about medical care, and states, not the federal government, regulate the practice of medicine. There is nothing in the Controlled Substances Act that speaks to what is or isn’t an appropriate medical use of drugs, because that wasn’t its intent.

Oregon is right. The Bush administration is seizing on an irrelevant federal law as an excuse to overturn a state law, even though the move flies in the face of Republican rhetoric about states’ rights and federalism. It also puts the administration at odds with the libertarian wing of the Republican Party, which believes the government should stay out of the private lives of individuals.

Why is the administration fighting such an odd battle? Physician-assisted suicide is one of the religious right’s signature issues, used mainly as a wedge in the battle against abortion rights. It lets foes of abortion claim that their commitment to life is absolute and has nothing to do with women’s rights. The administration is quite willing to throw over Republican principles about federalism and individual freedom to appease the religious right.

The Oregon law is very much about individual freedom. No patient is required to use it, nor must doctors be involved if they don’t wish to be. It is an individual choice. At the beginning, there were concerns that dying patients, particularly the poor and vulnerable, might feel pressured to end their lives. Those concerns now appear to have been groundless: The number of patients who request prescriptions under the law remains small, and they tend to be more affluent and better educated -- that is, less vulnerable -- than average.

Pain is not the usual reason patients give for wanting to end their lives; more common are symptoms that are harder to relieve, such as weakness and loss of control over bodily functions. In states that have no right-to-die law, such patients are sometimes sedated to the point of unconsciousness, then allowed to die of dehydration, or encouraged to stop eating and drinking to hasten death. But there is something disturbing, even bullying, about forcing people to bring about their deaths in slow motion instead of giving them the means to do so quickly. One would be hard put to find a moral distinction.

Opponents of physician-assisted suicide argue that it could be a distraction from good palliative or hospice care, which, they believe, can nearly always provide adequate relief. But far from being a distraction, the availability of physician-assisted suicide in Oregon has led to better palliative care. In what can only be considered a win-win competition, both proponents and opponents of the law are working to make assisted suicide rare by promoting the aggressive treatment of the symptoms of dying. As a result, the state is widely regarded as having the best end-of-life care in the country. Still, there will always be some whose suffering can’t be relieved and who desperately want a quicker, more humane death.

If the Supreme Court decides in Oregon’s favor, it is likely that physician-assisted suicide will gradually become widely available, state by state. This is exactly what Justice Sandra Day O’Connor envisioned in an earlier decision in two unrelated cases. In 1997, she suggested that although the Constitution does not itself embody a right to assisted suicide for terminally ill patients, the states may make it legal through their legislative processes.

If Oregon prevails and other states follow, that does not mean physician-assisted suicide will become common. It will probably be rare, as it is in Oregon. But there is no way to exaggerate the comfort provided to patients and their families by knowing that if suffering becomes unbearable, there is a way out.

That is why all Americans should be rooting for Oregon.