In 1994, Oregon voters were presented with a referendum, denoted Ballot Measure 16, that proposed to create a statutory right for a mentally competent adult to terminate his or her life with the assistance of physician- prescribed medicine should that adult become terminally ill. The proposal won the vote of a narrow majority of Oregonians that year (51.43 to 48.7 percent), and began a national odyssey, as Oregon became the first state to legalize physician-assisted suicide in the United States. The act was known as the Oregon Death with Dignity Act (ODWDA), and more than a decade after its passage, other states are beginning to explore the possibility of following Oregon’s example (most notably, California, as of 2005).
Controversial from its beginnings, Oregon’s legislative assembly attempted to repeal the act in 1997 with another referendum—Ballot Measure 51—which was defeated by an even greater margin than the original vote to establish the act (roughly 59.9 to 40.0 percent). On October 27, 1997, the act finally went into effect, and has been legal and valid in Oregon since that time, despite numerous state and federal challenges both in legislatures and in courts.
The statute contains many requirements and checks upon the use of the ‘‘right’’ conferred, meant to deter the possibility of abuse and to avoid giving the impression that the state was encouraging elder suicide in any way. First, the statute creates a right only for use by a mentally capable adult who voluntarily expresses his or her wish to die. Second, an attending physician must confirm that the adult patient has an incurable and irreversible disease and will die within a six-month period, and this medical opinion must then be confirmed by a different consulting physician. These two physicians must also separately evaluate and establish the mental competence of the adult patient, and either physician may demand an evaluation by a psychiatrist if she or he is unsure. Third, two witnesses who are not the aforementioned physicians must be present at the drafting of the written request for life-ending medication by the adult patient. Fourth, the attending physician is required to inform the adult patient upon his or her request for the medication of its likely consequences, and of the availability of alternative treatments and hospice and comfort care, along with a host of other information required to be provided to the patient. Fifth, there are two mandatory waiting periods: one between the initial oral request and the writing of the prescription (fifteen days), and another between the time of the adult patient’s witnessed written request, and the writing of the prescription (forty-eight hours). Sixth, at any time the adult patient may rescind his or her request for the medication, without restriction. There are many other safeguards and requirements listed in Oregon Statutes 127.800–897, but these are the most pertinent for evaluating the procedures built into the act.
The Moral and Political Debate over Physician-Assisted Suicide
There is considerable disagreement in moral philosophy over whether human beings have a right to kill themselves, and how this may or may not differ from the long-established common law right to refuse treatment for medical conditions. Religion offers no refuge from the debate, with some traditions supporting the Oregon Act, while many religious traditions oppose physician-assisted suicide on the ground that suicide is forbidden by their religious texts or authorities.
Overlapping the moral and philosophical debates, there is also a vibrant national political debate over physician-assisted suicide. The passage of the ODWDA came at a time of a growing national debate over whether physician-assisted suicide should be supported by the state or criminalized, with many diverse viewpoints on the subject. When social conservatives argued primarily against the establishment of regimes such as Oregon’s, they often infused their arguments with statements deriving from the ‘‘pro-life’’ movement, which was concerned with criminalizing abortion throughout the nation. Their criticisms focused on the effect that Oregon’s statute might have on devaluing respect for life itself both in law and policy, and took a stand against the very notion of what they saw as state-sanctioned murder. American social liberals and libertarians typically supported the passage of acts similar to Oregon’s, arguing for a commitment to personal autonomy and the right to decide the course of the end of one’s life without criminalization.
More pragmatically, issue has been taken over whether statutes such as Oregon’s would lead to rampant elder suicides, abuse by physicians who conceivably might care less about a terminal patient who has the alternative of suicide, and the corresponding deterioration of care and respect for those who are terminally ill.
However, publicly available studies by the Oregon government and other nonpartisan institutions show that the act has apparently increased the quality of care for the terminally ill, and has brought new saliency to issues of elder care in the state. To date, records do not show that the act has been found to have been used in any improper way. Pursuant to the text of the statute, records of the activities under its provisions are permanently recorded and issued in annual reports by the Oregon government, and made available to the general public on the Internet.
From the time of its passage to the present day, socially conservative politicians have sought to use federal power to prohibit Oregon from enforcing the ODWDA. In both 1998 and 1999, pending legislation in Congress would have preempted the law federally and eliminated its validity. These laws either never made it to the House or Senate floor (in the former instance), or passed the House but never made it to the Senate floor (in the latter instance).
In 1996, Senator Orrin Hatch of Utah and Representative Henry Hyde of Missouri, along with many other federal lawmakers, wrote to the Drug Enforcement Agency requesting that the U.S. Department of Justice bar enforcement of the ODWDA, threatening to take away the medical license of Oregon doctors who continued to write prescriptions under the act. They cited the Controlled Substances Act (CSA) as being the federal statute potentially violated by the doctors. This tactic flowed from the provisions of the ODWDA requiring the use of prescribed medicine to hasten the death of the patient, which Hatch and Hyde argued was an illegitimate reason for prescribing otherwise controlled medications. Attorney General Janet Reno denied the request, stating in a memorandum in June 1998 that Oregon and the rest of the states were entitled to write their own laws regarding end-of-life options for the terminally ill. Reno’s decision came on the heels of the U.S. Supreme Court decision in Washington v. Glucksberg (1997), which held, among other things, that the states were the appropriate levels of government for such experimental legislative enactments.
During the first term of Republican President George W. Bush in 2001, Attorney General John Ashcroft renewed the attempts to stymie the Oregon Act, reversing Attorney General Reno’s previous decision. On November 9, 2001, Ashcroft issued a memorandum generally referred to as the ‘‘Ashcroft directive’’ that essentially threatened to strip doctors of their licenses if they acted under the color of the ODWDA, and labeled the Oregon law itself as violating the CSA.
These threats were halted by Judge Robert E. Jones of the U.S. District Court for the District of Oregon, pursuant to a lawsuit filed by the State of Oregon, and various physicians and patients against Attorney General Ashcroft. Judge Jones enjoined enforcement of the Ashcroft directive against Oregon physicians, ruling that the Ashcroft directive exceeded the scope of the CSA as it was drafted by Congress. Judge Jones’s reasoning and decision were affirmed by the U.S. Court of Appeals for the Ninth Circuit on appeal, and was subsequently appealed to the U.S. Supreme Court, which heard oral argument in the case on October 5, 2005. The Ninth Circuit affirmed on the ground that there was no sign of an ‘‘unmistakably clear’’ intent behind the CSA to abrogate the traditional state-level regulation of medical practice. At the time of this writing, the outcome of the case in the Supreme Court appeared to be in limbo. Retiring Justice Sandra Day O’Connor was considered a swing vote on end-of-life issues such as this one; her replacement Samuel Alito, a conservative, is less likely to be a swing vote on such issues.
MITCHELL A. MOSVICK
References and Further Reading
Cases and Statutes Cited
See also Assisted Suicide; Washington v. Glucksberg, 521 U.S. 702 (1997)