The Death with Dignity Act

That was the first sentence of a law journal article I began writing in 1996. I was a second-year law student, and I had chosen as my topic a critical analysis of a new law that had passed in Oregon: the Oregon Death with Dignity Act (ODDA). For the first time in the history of the United States, a state had legalized a form of physician-assisted suicide. In the decade that followed, the ODDA would be a touchstone for both sides of the debate swirling around physician-assisted suicide; a debate that continues even after a recent Supreme Court decision blocked a federal attempt to dismantle the ODDA. That decision prompted me to think about how my own views on the topic have changed over time.

First, a little background on the ODDA is in order. The ODDA enables terminally-ill individuals, defined in statute as individuals with a permanent and irreversible condition that is expected to result in death in six months or less, to request a lethal dose of medication for the purposes of ending his or her life in a “humane and dignified manner.”

The statute contains safeguards to ensure that only qualified individuals can receive lethal doses of medication. A second physician must confirm the individual’s terminal diagnosis. If either physician suspects that the individual is suffering from depression or another psychiatric illness, the physician must refer the individual to appropriate counseling. No physician can actually administer the lethal dose of medication. According to a 2004 annual report from the Oregon Department of Human Services, approximately 208 individuals have committed physician-assisted suicide since the ODDA’s enactment in 1997.

The ODDA has had a contentious history since voters first approved it in 1994. After a series of court injunctions, voters again approved the ODDA in a second referendum in 1997. In 2001, Attorney General John Ashcroft issued a directive stating that the federal Controlled Substances Act vested the Justice Department with the authority to suspend the license of any Oregon physician who prescribed lethal doses of medication under the ODDA. Oregon challenged the Attorney General’s action and the case ultimately went to the Supreme Court.

In a 6-3 decision issued in January 2006, the Court ruled that Ashcroft could not prohibit Oregon physicians from prescribing medication under the ODDA. The Court went on to say that only the states have the power to determine the scope of acceptable medical practice. While many media outlets reported on this decision as a victory for those who favor legalized physician-assisted suicide, the legal basis for the opinion is actually quite narrow and technical. The Court did not rule on the merits of the ODDA and drew no conclusions about the statute’s constitutionality. In fact, the Supreme Court decided in 1997 that there is no constitutionally-guaranteed right to die.

When I wrote my article, I was firmly opposed to the ODDA. Like many disability activists, I believed the ODDA was the first skid on a slippery slope leading to the legalized euthanasia of people with disabilities. A society that already devalued the lives of people with disabilities would only be too eager to offer a quick and painless death to not only terminally-ill individuals, but perhaps also to people who depend on life-supporting technologies such as dialysis or ventilators. I mingled with supporters of Not Dead Yet and other disability organizations that opposed physician-assisted suicide. I was part of a movement. I saw my article as a means to warn readers about the perils that physician-assisted suicide presented to the disability community.

But in the intervening years, my beliefs shifted. I can’t trace my change of heart to a specific moment or event. Perhaps I became suspicious of the “slippery slope” argument when I realized how few people were making use of the ODDA. Perhaps I started to question those disability activists who, in opposing physician-assisted suicide, seem to reinforce some of the more insidious stereotypes of people with disabilities: that we are weak and defenseless and incapable of rising above society’s low expectations for us. Perhaps I began to see laws like the ODDA as a sensible option for those individuals who are in the final chapter of life and wish to exercise some control over how the last page is written. For these reasons and others, I thought the Court’s decision in the Oregon case was the right one.

The issue of physician-assisted suicide is fraught with questions that force us to explore our own beliefs on life and death. The disability community is a diverse one with a range of opinions on the matter, despite the proclamations of some activists. But I have every confidence in our ability to engage in a free and open discussion on the topic. My exploration of the implications of physician-assisted suicide led to a reexamination of my views, but each one of us must grapple with the subject according to the dictates of our own conscience.

Mark Siegel is an attorney who lives in Minneapolis. His personal blog can be found on the Web at www.the19thfloor.net