Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Tuesday, February 22, 2005

Right to Die

Today, the U.S. Supreme Court agreed to hear a case concerning Oregon's 1997 physician-assisted suicide law ("Death with Dignity" voter-approved referendum). Under Clinton, the Justice Dep't. did not fight it, but under Bush, Ashcroft has challenged it. The 9th Circuit upheld the law in a 2-1 decision, which has now been appealed to the Supreme Court.

At the same time, in Florida, a court has permitted a stay to expire that had prevented Michael Schiavo from having the feeding tubes removed from his brain-dead wife Terry Schiavo. Her parents, however, contend she that there is still brain function, and want her kept alive. The doctors say she is brain-dead, but the parents released a video showing what looked like Terry responding to conversation (but doctors say those were common reflexes in comatose patients). The battle has gone on for 15 years, and last year, Gov. Jeb Bush signed a law explicitly to save her life, which FL Supreme Court struck down as an unconstitutional violation of separation of powers.

So the "Right to Die" is very much in the news. Does a terminally ill patient have a right to choose to die? If so, do the States have the final say over whether assisted suicide is acceptable, or is it Federal jurisdiction? And then, within a state, can the governor or legislature overrule the courts? When the person in question is unable to communicate, and the husband (and court appointed legal guardian) contends that his wife would have wanted to die, but the parents disagree, whose wishes prevail? These are profound questions that are being tackled now by every part of government: courts, executive, legislature, state and federal levels, and the voters.

The case of Jack Kevorkian shows how the struggle between several of these branches has played out in one instance:

1990: Oakland County, MI. Charged in Michigan for murder for Oregon assisted suicide. Judge dismisses case, saying Michigan has no law against physician-assisted suicide.
1992-1996: Oakland County, MI. Judge dismisses 2 murder charges (same reason as above). Charges reinstated after Michigan bans assisted suicide. Acquitted by jury.
1993-1994: Wayne County, MI. Tried for Assisted Suicide again under new Michigan law. Acquitted by jury.
1993: Redford Township, MI. Judge throws out Michigan's ban on assisted suicide as unconstitutional.
1993: Ann Arbor, MI. Judge throws out Michigan's ban on assisted suicide as unconstitutional. Two more charges are later brought against him for other acts, but dropped after this ruling.
1996-97: Oakland County, MI. Arraigned on 10 cases of murder, but new District Atty takes over in 1997 and drops cases; he made a campaign pledge to do so and stop "wasting taxpayer money."
1997: U.S. Supreme Court rules that states may ban assisted suicide.
1998-present: Waterford Township. Arrested for 1st degree murder of Thomas Youk. Death was not by suicide machine, but direct act by Kevorkian. Convicted 1999. Serving 10-25 years. Appeals to Supreme Court have been denied.

Remarkably, Kevorkian was never convicted of the suicide-machine style assisted suicide by any jury, despite laws passed specifically to bar it. Moral generalizations regarding euthanasia fail when the specific facts of a case are known. This suggests that blanket laws are an unwise approach, but it does not suggest what would be wise.


Raised By Republicans said...

Ah, yes. Another aspect of the Bush/Christian Right "Culture of Life" shows itself.

This issue raises all kinds of constitutional problems - many of which have parrellels in the abortion debate. Fighting this is issues is part of the anti-abortion movement. Like the laws about double chraging people who murder pregnant women, this fight is about establish legal foundations for banning abortion.

To me, the issue puts religiously defined morality against individual liberty and liability. Guess where I think the issue should be decided.

I think this whole thing also raises a fundamental question about the nature of political conflict and compromise. How would one compromise on this kind of issue? From my point of view I can imagine any number of reasonable procedures to limit the choice/decision to die etc. But from the point of view of the "Culture of Life," this issue is black and white. You cannot subdivide a divinely imposed moral imperative. I think this kind of issue calls into question the "can't we all just get along" response to the heated partisan divisions in American society today.

Dr. Strangelove said...

RxR is right. When one party sees an issue as starkly black and white, they rule out compromise as an option. The trouble, I think, is that the issue is being discussed in the abstract. What many may oppose in the abstract looks quite different when an individual case is before them.

Until he started "pulling the trigger" himself, juries in Michigan refused to convict Kevorkian for assisting in suicides, despite laws passed specifically for that purpose. When a mentally sound person afflicted by a painful and soon-to-be terminal illness chooses to die rather than to endure, the vast majority of Americans cannot bring themselves to deny the person that right. When push comes to shove, Americans will not allow ideology to overrule their consciences.

This is why the choice--and it is a choice!--needs to be made on a case-by-case basis, by family and loved ones with plenty of medical advice, rather than by an abstract law.

I agree with RxR on his "Culture of Life" tie-in... the reason why we can't let the government dictate these kinds of moral choices is the same reason why pro-choice is the only sensible policy when it comes to abortion. Remember how many pro-life politicians were unwilling to say they would forbid their own daughters from getting an abortion? In their hearts, they know whose choice it really should be.

The Law Talking Guy said...

One issue the religious right never thinks about, because they are not bright enough to look past their own black and white rhetoric:

One of the judges I have appeared before several times was diagnosed with terminal cancer three weeks before Christmas. He shot his brains out. This rash act was prompted, in part, by what the judge knew too well: when he became too feeble to take his own life, nobody would be allowed to help him. Rather than risk never being able to make the choice, he took it. Death with dignity acts may prevent more suicides than they cause, giving (as they do) a dying patient the comfort of knowing that their fate will ultimately be in their hands. This is analogous to the proven fact that patients who are able to medicate themselves with painkillers generally use far less than those who cannot, because the sense of helplessness (you're in pain, you must ask the nurse, so take all you can get) is alleviated.

Raised By Republicans said...


I'd like to request a kind of legal scholar's primar on the legal strategy of the "Culture of Life" types. I'm particularly interested in their legal analogies over "Dred Scott."