Have We Found the 'Slippery Slope' to Euthanasia?

by Mike Manno

The recent U.S. Supreme Court decision, pitting Oregon's permissive suicide law against the federal government's attempt to ban the use of prescription drugs for self-murder, made headlines for a day. Most stories emphasized the fact that the newly seated chief justice sided with the minority in supporting the position of the Bush administration. But lost in the twaddle following the decision is the unmistakable fact that it may be the first icy step on the slippery slope to euthanasia.

At issue in the case, Gonzales v. Oregon, was whether former Attorney General John Ashcroft's interpretive rule implementing the Controlled Substances Act (CSA) went beyond the letter of the law. Under that law, in order to issue prescriptions for Schedule II drugs, physicians must obtain from the attorney general a registration and that registration may be denied or revoked if it is "inconsistent with the public interest."

The CSA was enacted in 1970. In 1971 the attorney general issued a regulation that required any prescription for a Schedule II drug "be issued for a legitimate medical purpose." In 1994 Oregon voters approved the "Death With Dignity Act," which authorized physicians to prescribe Schedule II drugs, under certain circumstances, to be used by patients to end their lives. (The act was not implemented until 1997 due to legal challenges.) In 2001, Attorney General Ashcroft issued a rule that said, in effect, that assisting a suicide was not a legitimate medical purpose within the meaning of the CSA.

That ruling was challenged by a consortium of "death with dignity" advocates and, after trekking through the lower courts, the issue finally reached the Supreme Court. In its ruling, the court majority used a constricted interpretation of both administrative review and statutory law to hold that Ashcroft's rule went beyond the letter of the CSA and was, therefore, void.

There — except for the babble about Chief Justice Roberts' dissent — is where the story ended for most commentators. But the story takes an unexpected and potentially tragic twist when seen in light of recent legal history.

In 1997 the Supreme Court reversed two federal appeals courts which had held that doctor-assisted suicide was a Constitutional right. Unlike the recent Gonzales case, these cases were cases brought asserting a federal constitutional claim. In both cases challenges were being made against state laws (Washington and New York) that made aiding a suicide a crime. The claim was that the "constitutional right to die" trumped the state statutes. In each case, the lower courts had found that neither state had provided a justifiable reason for preventing its licensed medical personnel from participating in a patient's death.

Those courts had justified their positions by comparing the fates of two patients. The first was stricken by a calamity which required life support. The second was being felled by an illness that required no life support. In the first example the law allowed the patient to reject medical treatment; he could order his physician to "pull the plug." The assumed result is that the patient will die.

In the second example the patient could not hasten his death by ordering his doctor to do anything. Therefore, the law treated these "similarly situated" persons differently; the person on life-support could hasten his death while the other could not. Thus, the assisted suicide bans were unconstitutional.

Of course, these courts made no moral, ethical, or legal distinction between the act of withdrawing artificial life support to allow the natural dying process to conclude and an act that was committed to hasten death. In the Oregon case, Judge Stephen Reinhardt, writing for the notorious Ninth Circuit Court of Appeals, bluntly stated his belief that it was "the end and not the means" that defined the legal rights involved, and that the distinction between withdrawing life support and administering a life-ending drug was an "illusory distinction."

What about safeguards against the abuse of assisted suicide? Reinhardt said, "Finally, although life and death decisions are of the gravest order, should an error actually occur it is likely to benefit the individual by permitting a victim of unmanageable pain and suffering to end his life peacefully and with dignity at the time he deems most desirable."

And if the patient is too ill to take the drugs himself? That's easy, according to Reinhardt: "We recognize that in some instances, the patient may be unable to self-administer the drugs and that administration by the physician, or a person acting under his direction or control, may be the only way the patient may be able to receive them."

Of course Reinhardt had the answer to those with concerns about the slippery slope to euthanasia. He defined euthanasia as "the act or practice of painlessly putting to death persons suffering from incurable and distressing disease, as an act of mercy, but not at the person's request," then he added in a footnote, "[W]e should make it clear that a decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself."

Translated: The benefit of a mistake belongs to the dead patient since he has now died with dignity; doctors may be required to actually administer death-dealing drugs; and finally, and most important for the future, it may be legal for a guardian, family member, or person holding a medical power of attorney to order the patient killed, which, according to Reinhardt, would not be euthanasia because that would be considered an act of the patient himself!

It, of course, should be pointed out that this is the same Judge Reinhardt who authored the now infamous decision in the Palmdale school case holding that parents had no right of control over the sexual information a public school imparted to their children. (See The Wanderer, November 24, 2005, "It's Not Just About The Courts.") It's also interesting to note that in his suicide opinion, Reinhardt gave a brief historical analysis of attitudes toward suicide and opined in another footnote that Judas Iscariot's suicide was not a sin but an "act of repentance."

Showing some sanity, the Supreme Court reversed both cases, holding that there was no constitutional right to die; but it left the door open for state legislative action and, conceivably, the use of Reinhardt's twisted logic in a state statutory scheme. In Gonzales we have now seen how the court has ruled in the face of one state's assisted suicide legislation.

This leaves a very compelling and disturbing question: Does this open the door for a ruling that under state law a medical surrogate can now lawfully order the death of his ward? Despite what Judge Reinhardt says, that is euthanasia and a court calling it something else will not change that fact.

More bizarre questions are sure to follow: Will surrogate appointments be required for health insurance policies so to allow insurers the ability to order the demise of policyholders whose "qualities of life" are being exceeded by their medical costs? What about the physician who refuses to kill patients, will he be liable for medical malpractice? If you think that sounds far-fetched, remember that there already have been suits against doctors for "wrongful births."

Once there is any legal toehold toward suicide and euthanasia, there may be no end to the parade of legal horribles that can result.

There is a remedy, however, given to us by that modern legal scholar, Barney Fife: "Nip it! Nip it in the bud."

Let's hope that Sam Alito's journey to the U.S. Supreme Court took him through Mayberry.

(Mike Manno is an attorney practicing in Iowa; he belongs to Lawyers for Life.)

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