Alone among the American states, Oregon has legalized physician-assisted suicide. This step was thoroughly debated and solemnly taken by the voters of Oregon not once but twice. In 1994, a narrow majority approved the policy in a formal referendum, and a much larger majority rejected a repeal initiative three years later.
But now, in a ruling issued last November 9, Attorney General John Ashcroft has reversed a decision of his predecessor, Janet Reno, and decided that Oregon doctors may no longer use federally regulated drugs to assist their patients in committing suicide. This decision raises important and troubling questions. Although I support the goal of discouraging physician-assisted suicide, I also believe that Ashcroft is pursuing that goal in a way that may undermine a fundamental constitutional principle.
To see why the Attorney General’s approach to the problem is questionable, we need to begin with a closer look at the problem itself. In my view, the people of Oregon made a serious mistake in legalizing assisted suicide. Much of the current enthusiasm for this practice is driven by a perfectly understandable yearning for patient autonomy and by an equally understandable reluctance to let the frequently arrogant medical profession force us to endure degrading, technologically extended deaths. Unfortunately, the legalization of assisted suicide is also a big step down a road that will finally reduce patient autonomy rather than enhance it.
Doctors are uniquely empowered by their technical knowledge and by the nature of their work to kill their fellow citizens without getting caught. The principal check on that power has been the Hippocratic ethic, which forbids physicians from ever playing any part in deliberately hastening the death of any patient. In the movement for assisted suicide, that ethic is now under serious attack. It is under attack, moreover, at the very moment when strong new incentives have been created for doctors to step out of the narrow role of healers and to take on a political function for which they are eminently ill-suited.
This new function involves the allocation of scarce health-care resources, and it is one that has fallen to doctors as a direct result of our present crisis in health-care financing. The crisis itself has two main causes. First, scientific and technological advances have given doctors a huge new array of expensive tools for treating disease and prolonging life. Second, government policies have created a system of “third-party payers” in which patients and doctors alike have lost the incentive to conserve on expenditures, even when the cost of a treatment exceeds its expected benefits.
Inevitably, governments and insurance companies have been forced to seek new methods to prevent uncontrolled spending and waste. What we have gotten is “managed care,” a form of increasingly politicized rationing that replaces the market discipline under which patients themselves once decided how much of their own money to spend on which medical services.
Oregon itself offers an instructive example. Several years ago, the state adopted a Medicaid rationing plan that assigned a priority to each of hundreds of different medical treatments. Under this plan, funds for lower-ranking treatments would be withheld in order to conserve money for those needing a higher-ranking treatment. When the plan was first proposed, treatments for the late stages of AIDS were assigned a low ranking because they were expensive and largely unsuccessful. But the AIDS lobby campaigned to raise the priority of these treatments, and it succeeded. Meanwhile, patients in analogous situations—like very low-birth-weight babies and patients with advanced cancer—continued to have funds withheld for the simple reason that they were politically less powerful.1
Similar political forces will continue to push the health-care system to conserve resources by withholding care from the most expensive and politically least appealing patients. Whether it happens directly through law and regulation, or informally, very sick patients who are elderly or whose prospects for recovery are thought to be small are going to be prime targets for “hastened deaths.” And the neatest justification for a hastened death is that the patient himself asked for help in committing suicide.2
Family members and physicians have always faced special stresses in dealing with apparently doomed patients. Once physician-assisted suicide is legalized, there will be strong temptations to pressure such patients to accelerate the inevitable. This pressure will be especially effective with those who are clinically depressed. There will also be strong temptations for doctors and families to decide that some patients would want to die if only they could make a rational decision.
The Netherlands’ experience with assisted suicide shows that the slippery slope to euthanasia is no mere bugaboo. That nation has been running an experiment much like Oregon’s for almost three decades. By extremely conservative estimates, almost 1 percent of all deaths in the Netherlands result from euthanasia performed without the patient’s consent, including a large number of cases where the patient was totally competent. Nor are Dutch physicians who practice assisted suicide and euthanasia primarily concerned with their patients’ pain and suffering. Reasons more commonly cited are no expectation of improvement; low quality of life; futility of medical therapy; and the difficulty that relatives have in coping with their sick kin.
We need not go down this road. The fear that obsessive doctors will inflict a demeaning death by means of high-tech “heroic measures” is entirely legitimate, but no patient need consent to unwanted medical treatments, and directives given in advance can guard against their use on those who are unconscious. And if doctors are too often ignoring “do not resuscitate” orders, as they may be, the answer is hardly to give them a new power that can easily be used to substitute their judgment for their patients’ as to whether a life is worth living. Yet this is exactly the power that the people of Oregon have decided to give their physicians.
Still, whether they were right or wrong to do so was not the question before Attorney General Ashcroft. He was charged with determining whether federal law requires or permits him to undermine the policy adopted, wisely or not, by Oregon’s voters.
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Physicians who decide to help their patients kill themselves typically employ a lethal combination of prescription drugs whose use is regulated by federal law under a framework that began to develop as long ago as 1914. The regulatory statutes have been repeatedly altered, and they have by now become quite detailed and complex. Nevertheless, and despite all the details, certain key provisions are surprisingly vague: in particular, Congress has never said whether or not physicians may use regulated drugs to help their patients commit suicide. After the voters of Oregon emphatically reaffirmed their decision to allow assisted suicide in 1997, Attorney General Reno found nothing in the law to forbid the use of prescription drugs for this purpose.
In reversing the Reno position in November, Ashcroft relied on a lengthy legal opinion from the Justice Department. In order to understand its strengths and weaknesses, we need to begin with a brief summary of the law.
If a physician is licensed by a state to dispense prescription drugs, he must also be given a permit to do so under federal law—unless the Attorney General, which in practice usually means the Drug Enforcement Administration (DEA), determines that granting such a permit “would be inconsistent with the public interest.” The statute Congress wrote, however, says nothing at all about what constitutes proper or improper use of these drugs by a physician who has a permit to dispense them.
In 1975, a doctor tried to use this statutory silence to defend himself when he was prosecuted for operating as a drug dealer. The Supreme Court rejected his defense on the ground that the statute implicitly requires doctors to act “within accepted limits.” This meant, the Court concluded, that a doctor must act “as a physician,” dispensing drugs only “in the course of professional practice or research.”
We are left with the following question: given the Supreme Court’s interpretation of the statute’s intent, did Congress mean the “accepted limits” of professional practice to be defined separately by each state’s law or by a national consensus? Because state laws seldom conflict in any relevant respect, it would usually make no difference. In the 1975 case, for example, the defendant gave inadequate physical examinations or none at all, ignored the results of the few tests he performed, prescribed whatever amount of drugs the “patient” asked for, and graduated his fee according to the number of tablets prescribed. No state authorizes doctors to behave in this manner.
In 1984, Congress amended the statute to allow the Attorney General to revoke a doctor’s federal license for acts inconsistent with the “public interest.” (This amendment was apparently triggered by a concern that some states were not being sufficiently vigorous in yanking licenses from physicians who dispensed drugs in an abusive manner.) The Justice Department opinion assumes that this “public-interest” standard must be uniform throughout the nation. It then goes on to show, quite convincingly, that the legitimacy of physician-assisted suicide has been rejected by almost all of the state governments that have considered the issue, by all of the major organizations of the medical profession, and in various ways by the federal government itself. If the “accepted limits” of medical practice must be established by finding a national consensus, Oregon clearly is a deviant jurisdiction that has departed from the consensus view.
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Plausible as the Justice Department’s conclusion may seem, its argument is not quite persuasive. Physician-assisted suicide may well be inconsistent with what the Attorney General and I believe is in the public interest, but it does not constitute the obvious abandonment of the physician’s role that occurs when a doctor starts selling addictive drugs at a fixed price to anyone who asks. Moreover, the Supreme Court’s sensible conclusion that Congress did not mean to authorize individual doctors to set their own professional standards does not imply that Congress forbade state governments from experimenting with nontraditional standards of medical practice. Finally, there is a real difference between lax enforcement of agreed-upon standards by some states (the apparent concern of Congress in 1984) and Oregon’s deliberate adoption of a different standard altogether. Congress could decide to override such experiments with a uniform national standard, but it has never done so expressly or by clear implication.
Nor has this congressional inaction resulted from inattentiveness to the Oregon law. After that state’s voters first approved assisted suicide, Congress took note of it in a new statute that prohibited any use of federal funds for this practice. The Justice Department’s opinion cites that statute as evidence of congressional disagreement with Oregon’s decision, which is fair enough, but the statute also stopped far short of forbidding Oregon physicians to use federally regulated drugs in a manner permitted by state law. The failure of Congress to go farther than it did actually reinforces the conclusion that Congress has not decided to use federal law to interfere with Oregon’s new policy. On the contrary, when Congress decided to restrict the use of federal funds, it also decided not to impose additional restrictions.
The Justice Department’s legal opinion also seeks support in a 2001 Supreme Court ruling that effectively nullified a California law authorizing the use of marijuana for medical purposes. This decision certainly does confirm that state law cannot immunize a physician from the requirements of federal drug laws. In the medical-marijuana case, however, an outright conflict between state and federal laws was undeniably present—the federal statute specifically listed marijuana as a substance that Congress had determined has no legitimate medical uses. Since no such explicit congressional decision exists in the context of physician-assisted suicide, the Court’s 2001 decision cannot properly be invoked to support interfering with the operation of Oregon’s new law.
The medical-marijuana decision highlights an additional problem with the Justice Department position. A standard rule requires courts to resolve statutory ambiguities in a way that avoids raising serious constitutional questions. That rule did not apply in the medical-marijuana case because the statute was completely unambiguous. With respect to assisted suicide, however, the federal statute is ambiguous at best.
And the Justice Department’s position does raise constitutional questions. In the marijuana case, the Court pointedly noted that it was not deciding “the underlying constitutional issues,” which included the question of whether the federal drug-control statute “exceeds Congress’s power under the commerce clause.” Until a few years ago, such a cautionary note would never have appeared in a Supreme Court opinion: for more than a half-century, the Court had effectively taken the position that virtually any federal regulation Congress saw fit to enact would be upheld as an exercise of its power to regulate interstate commerce. In a recent series of decisions, however, the Court has begun to define or restore some constitutional limits on Congress’s regulatory authority.
Although there is little reason to think that the current Court would find the drug laws in general to be unconstitutional, the principles that have been revived in recent decisions might well support a narrower attack on the Attorney General’s effort to frustrate Oregon’s experiment with physician-assisted suicide. Indeed, a federal court has already suspended the enforcement of Ashcroft’s policy, and an initial decision on the merits of this challenge is expected in the spring. The case may eventually reach the Supreme Court, and a victory for Ashcroft’s position is by no means certain.
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Rather than guess just where the Supreme Court will go, however, it may be more useful to ask whether the Attorney General’s decision—which at the very least was not compelled by anything in the statute itself—is consistent with the proper division of responsibilities between the state and federal governments.
Some of the deepest and most intractable questions in the design of representative government have to do with the appropriate size of a political jurisdiction. James Madison offered a quick summary of the American answer:
It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.
Madison might have added that this “happy combination” is easier to describe in words than to maintain in practice. Writing almost a half-century later, Alexis de Tocqueville was impressed with how stable the combination had remained. This he attributed in large measure (though by no means exclusively) to what he saw as a genuinely novel device in our Constitution. When the thirteen original states created the federal system, they gave to the new government the power not only to make laws but to administer them directly, without intermediation by the constitutive states. This idea, which seems obvious to us today, was so remarkable that Tocqueville was able to say there was still no word for the resulting form of government, even several decades after it had been put into place. He himself described what we had in the United States not as a federal government but as an “incomplete national government.”
Three principal benefits arise from leaving the states to deal with local concerns. First, a multiplicity of jurisdictions creates choices that enable citizens to achieve the mix of policies that most closely satisfies their individual wants and needs. Second, and closely related, federalism promotes competition among jurisdictions: state governments that commit serious errors in satisfying their residents’ preferences incur the costs of emigration (and immigration forgone) by the taxpayers who make government possible. Finally, the allocation of political power to the state level inhibits the ability of national government to shift costs and benefits from one place to another, and thus to create incentives for pork-barrel policies whose costs exceed their benefits. (Agricultural subsidies and Western water projects are familiar products of such perverse incentives.)
Competition among jurisdictions, however, is not an unmixed blessing. Although it is true, for example, that the national government is sometimes responsible for an inefficient redistribution of costs and benefits, it is also true that the national government can prevent inefficiencies that would otherwise occur. Standard examples include national defense and water pollution. If each state were left free to decide what contribution it would volunteer to the defense of the nation, it might become enormously difficult to achieve an adequate national defense in the first place; similarly, upstream jurisdictions have incentives to overpollute interstate rivers when they can thereby shift part of the costs of the pollution to their downstream neighbors.
Moreover, for every easy example of a function that is more appropriately performed at either the national or the local level, there are other examples where the appropriate allocation is fairly debatable. And even the easy examples have often been politically difficult to resolve correctly: when it comes to agricultural subsidies, for example, proponents can argue that the nation as a whole is better off when the food supply is less dependent on “unreliable foreign sources,” or that market failures require the national government to prevent “ruinous competition” among farmers. More commonly, any time a problem is regarded as really serious, it will be said that the failure of the state governments to solve the problem demonstrates the need for national action.
The frustrating result is that everybody can genuflect to federalism as a matter of general principle without thereby committing himself to much of anything as a practical matter. Some sort of rationale is always available when federal jurisdiction would serve one’s personal, political, or ideological interest, and the same goes for arguments in favor of protecting state autonomy. Still, having said all that, I believe that the question of physician-assisted suicide is a pretty easy case.
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People can and do have different preferences about this issue, which are presumably based on their differing assessments of the risks and benefits to themselves and those they care about. Convinced though I am that the risks of allowing physician-assisted suicide outweigh the benefits, it would be silly to pretend that no benefits exist, and presumptuous to suppose that I might not be wrong. Nor is it easy to see why Oregon and other state governments should be considered less capable than the federal government of settling on appropriate policies in the light of new experience and information, including new developments in medicine and the medical profession.
When the Supreme Court wisely declined to create a constitutional right to assisted suicide, Justice Sandra Day O’Connor pointed out that in this area there was no obvious need for judicial intrusion:
Every one of us at some point may be affected by our own or a family member’s terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the state’s interests in protecting those who might seek to end life mistakenly or under pressure.
For the very same reason, there is no obvious need for the federal government to interfere with Oregon’s experiment.
That is hardly to say there will be no bad effects from Oregon’s new policy. To the contrary, vulnerable people will likely be pressured to end their lives prematurely; others will become more distrustful of doctors, and perhaps less willing to submit to treatment. Some physicians will take another big step away from their proper role as healers and comforters, and will become increasingly corrupted by the very different role of deciding whose lives are worth living. Euthanasia of nonconsenting victims is also entirely possible.
As bad as these effects may be, however, they will be visited almost entirely on Oregonians, and will not threaten the citizens of other states. Nor will Oregon’s policy necessarily spread to other states. Every state in the union remains free to outlaw physician-assisted suicide and to enforce its laws as vigorously as it sees fit. Oregon’s practice can spread only if the people of other states conclude that the experiment has turned out to be a success.
Besides, even a skeptic like me has to admit the very real possibility that Oregon’s approach is not the worst imaginable. If, for example, the political and economic pressures for health-care rationing become significantly more intense, we may see a much more widespread denial of medical care to very feeble patients, including the withholding of food and water. If the alternative to a miserable death by dehydration turns out to be physician-assisted suicide or euthanasia, Oregon’s approach may begin to look a lot less bad than it does today.
In any event, the possibility of persuasion by example does not justify federal interference with Oregon’s decision. Rather, it provides a reason for federal restraint. As we have seen, Congress itself has exercised just such restraint, for it has not outlawed physician-assisted suicide or expressly forbidden the use of federally controlled drugs in carrying out this practice.
Perhaps the strongest argument for federal preemption of Oregon’s policy is that it may lead to murder—and no state, certainly, should be free to ignore the most fundamental norms of civilized society. But this sounds more persuasive than it really is. For one thing, the Attorney General’s decision forbids only the use of certain drugs, thus leaving doctors free to use other suicide techniques, as Jack Kevorkian did before he finally managed to get himself imprisoned. For another, every state (indeed, every government) does less than it could do to prevent murder, largely because preventative measures are subject to the law of diminishing returns. Oregon has not actually condoned murder, and its adoption of a new policy that may increase the number of murders is analytically similar to a decision to cut back on police services in order to free up funds for other pressing uses. One or the other may be a bad idea, but neither one amounts to a descent into barbarism.
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In short, the Attorney General was not compelled to accept, and should have resisted, what is at best a strained interpretation of the law. Precisely because the courts are generally deferential to the executive’s interpretation of regulatory statutes, and precisely because the courts have been highly reluctant to find that Congress has exceeded the limits of its authority to regulate interstate commerce, the Attorney General has a special responsibility to respect the principles of federalism in doubtful cases.
By making it more difficult for Oregon doctors to help their patients kill themselves, Attorney General Ashcroft’s decision will probably have some salutary short-term effects. It will do so, unfortunately, only at the price of compromising a political principle with greater and historically demonstrated benefits to us all.
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1 For a more detailed analysis of the relation between assisted suicide and health-care financing, see Nelson Lund, “Two Precipices, One Chasm: The Economics of Physician-Assisted Suicide and Euthanasia,” Hastings Constitutional Law Quarterly, Summer 1997.
2 See Leon R. Kass and Nelson Lund, “Courting Death: Assisted Suicide, Doctors, and the Law,” COMMENTARY, December 1996.
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