How We Got From There to Here

July/August 1999 The conflict between the rights of the dying and the rights of those treating them is age-old. In the Hippocratic oath, physicians were forbidden to "give a deadly drug to anybody if asked for it, nor make a suggestion to this effect."[1] The issue did not die with the encoding of this prohibition at the dawn of Western medicine. In the 1870s the United States experienced its first major national debate concerning the right to die or, more aptly, the right to be killed.[2] The interest in legalizing euthanasia culminated in proposed legislation in Ohio in 1906.[3] After a heated debate, which included national coverage in the New York Times and in the medical journals of the time, the bill to legalize euthanasia was soundly voted down by the Ohio legislature.[4]

But the United States is again grinding through the agonizing process of balancing the pros and cons of legalizing physician-assisted suicide. This time it is legislation in Oregon, which has become the center of the debate, and this time proponents of physician-assisted dying have two other countries that they look to as examples of "enlightened" postmodern medical ethics: the Netherlands and Australia. The Netherlands has not legalized physician-assisted suicide, but in 1981 Dutch prosecutors entered into an agreement with the Royal Dutch Medical Society that euthanasia can be practiced without prosecution as long as the physician follows an agreed upon set of guidelines. In Australia a nation that has a somewhat similar system of the separation of state and federal power to that of the U.S., the territory of Northern Australia voted to legalize euthanasia, only to have its law overturned by the Australian Senate nine months later. With the debate heating across the Western world during the end of the 20th century, many physicians wonder if the new millennium will dawn with the normalizing of physician-assisted dying through legislation permitting its practice, and if so, how would such legislation affect the medical community and its rights to practice medicine according to its individual members' consciences?

The U.S. is positioned on the edge of an expansion into the realms of physician-assisted dying. The Supreme Court recently ruled that there is no constitutional right to physician-assisted dying. Of course this does not mean that a legislative right cannot be created either at the state or federal level, and neither does it mean that a constitutional right to physician-assisted dying may not be found under any one of the 50 state constitutions. More important than its finding that there is no federal constitutional right, is that the Supreme Court appeared to indicate it would tolerate state experimentation in the legalization of physician-assisted dying.[5] In November 1997 Oregon's voters confirmed their desire to implement their state's Death With Dignity Act. Hours after the vote, Oregon's deputy attorney general declared the law "is now operational."[6]

The deputy attorney general of Oregon's statement may be premature. There are a number of legal challenges concerning the implementation of the law, not the least of these challenges being the Drug Enforcement Agency's investigation. The DEA has recommended to the U.S. attorney general that the Federal Controlled Substances Act make it illegal to use the drugs in question for the purpose of physician-assisted suicide. It remains uncertain whether Ms. Reno will accept this recommendation. If she does, this will likely stop any implementation of the Oregon law.


ENDNOTES

[1]. Ezekiel Emanuel, "Whose Right to Die?" Atlantic Monthly, March 1997, pp. 73, 74.
[2]. Ibid.
[3]. Ibid.
[4]. Ibid.
[5]. Ibid., p. 1528.
[6]. Patricia C. Roberts, "Doctor-Assisted Suicide Stirs Physicians' Fears," Christianity Today, December 8, 1997, p. 64.

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