In his majority opinion, Chief Justice William H. Rehnquist wrote that affirming a constitutional right to die would require the court to reverse centuries of legal doctrine and practice and strike down the considered policy choice of almost every state.
In the closing sentence of his opinion, however, the Chief Justice said: Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.
The debate has indeed continued and has been driven by the horrifying predicament of some terminally ill patients. Although medical technology cannot cure them, it can prolong their painful dyingcan, so to say, rob them of their death. So far, however, Oregon is the only state that has reversed what Chief Justice Rehnquist called this nation’s consistent and almost universal tradition opposing assisted suicide. Oregon’s legislature passed an act, the Death With Dignity Act, that was twice ratified in a referendum and took effect in 1997.
The Oregon law allows physicians to help people end their lives so long as specific guidelines are followed. For instance, the patients must be terminally ill and judged mentally competent when they request lethal drugs. Doctors may prescribe, but may not administer these drugs. As of last year, 326 patients had received such prescriptions, and 208 had actually used them.
When John D. Ashcroft served as attorney general in the first Bush administration, he tried to block the practice of assisted suicide in Oregon. He was convinced that the 1971 Controlled Substance Act gave the attorney general the power to penalize physicians who prescribed death-dealing drugs for would-be suicides. Last year, however, a federal appeals court ruled that Congress, in passing the 1971 act, did not intend to authorize the penalties Mr. Ashcroft threatened. The case has now been appealed to the Supreme Court, where it was argued on Oct. 5.
At a time of international and national calamities, the case of Gonzalez v. Oregon seems relatively minor. It does not deal with a major ethical or constitutional issue but only with the extent of the federal attorney general’s jurisdiction in the regulation of drugs. Nevertheless, the case is significant because it crystallizes the complex and anguishing question of assisted suicide and prompts us to ask ourselves what we owe the dying.
For many Americans the strongest argument against suicide is their belief that, as the 1992 Catechism of the Catholic Church puts it: We are stewards, not owners, of the life God has entrusted to us (No. 2280). The states cannot legislate on the basis of this religious faith, but they can legislate on ethical grounds. They may reasonably conclude that the legalization of assisted suicide would dangerously corrode society’s moral fabric.
In the 1997 case, both Chief Justice Rehnquist and Associate Justice Stephen G. Breyer pointed to the importance of the distinction between physician-assisted suicide and a justified withdrawal of life support. Defenders of euthanasia mock that distinction, but it is valid and indispensable. The catechism puts it clearly: Discontinuing medical procedures that are burdensome, dangerous, extraordinary, or disproportionate to the expected outcome can be legitimate; it is the refusal of overzealous’ treatment. Here one does not will to cause death; one’s inability to impede it is merely accepted (No. 2278).
That does not mean that physicians, families and friends can do nothing to help the dying as the end nears. While Catholic teaching does not oblige caregivers to provide more than palliative care to the dying, the catechism calls palliative care a special form of charity that should be encouraged (No. 2279). Moreover, as Archbishop John J. Myers of Newark wrote in a wise pastoral letter on death issued two months ago, there is a final kindness to offer. Those standing by can keep vigil with the dying as they pass from this world to the life in which all tears shall be wiped away (Rev 21:3).