Article published February 25, 2005
The right to die on one's own terms is the whole point
IT'S NOT at all about the right to die, and yet it's all about the right to die.
Bear with me here.
The legal machinations over the appropriateness of Oregon's Death with Dignity Act and the removal of Terri Schiavo's feeding tube are ostensibly about debating the right to die on one's own terms. But they are neither.
Legal challenges to both the will of state voters in the Oregon case and the will of Michael Schiavo to fulfill his wife's end-of-life preferences in Florida illustrate remarkable abuses of authority. And the courts have said as much.
Prolonging both cases with increasingly tedious litigation is really more about advancing political and philosophical agendas than about honoring the clear wishes of the electorate or those of a husband on behalf of his severely brain-damaged spouse.
When then Attorney General John Ashcroft, poster boy for the Bush Administration's fundamental demagogues, decided to dismantle an Oregon law based on moral objections, he got creative.Instead of addressing the merits of the state law twice affirmed by state voters, the Justice Department pulled federal rank on states by arguing that a federal law aimed at prohibiting illicit drug use, trafficking, and diversion, could also apply to doctors who write prescriptions for life-ending drugs.
The Bush Administration argues that the Controlled Substances Act authorizes the government to hold doctors criminally liable for prescribing overdoses under the nation's only assisted suicide law.
Never mind that the administration is distorting the singular intent of Congress in passing the law to prevent illegal drug trafficking to suit its own agenda of ending physician-assisted-suicides.
So far the scheme hasn't worked.
Lower courts have ruled repeatedly in favor of Oregon's right to permit the practice of allowing terminally ill patients to request a lethal dose of drugs they themselves choose to administer. Before the request is granted two doctors must confirm the patients are of sound mind and have less than six months to live.
The Supreme Court, upholding state bans on assisted suicide, rule in 1997 that individuals had no constitutional right to die. It also suggested individual states could make their own decisions on the matter.
Which is why Mr. Ashcroft went after the means physicians can use in assisted suicides as a way to federally ban a practice states might permit. By making the issue less about the right to die and more about the medical uses of federally controlled drugs the administration has convinced the Supreme Court to review a ruling by a federal appeals court in San Francisco that rightly said it had overstepped its authority.
In a two-to-one opinion, the Ninth U.S. Circuit Court of Appeals declared unlawful and unenforceable Mr. Ashcroft's 2001 directive to revoke the prescription-writing licenses of physicians who help terminally ill patients commit suicide.
"The attorney general's unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide," wrote Judge Richard Tallman.
So much for democracy on the march in America.
The Oregon challenge is the second right to die case to be considered by the Supreme Court this year.
The first should never have become part of the public domain.
It is a family tragedy that began 15 years ago when a young woman with an eating disorder collapsed in her Florida apartment and endured precious minutes without oxygen. The trauma left the now 41-year-old Terri Schiavo in what doctors call a persistent vegetative state, with her cerebral cortex all but gone.
A feeding tube is all that keeps the poor woman alive. While she left no written instructions in the event of such a predicament, she apparently expressed wishes not to be kept alive artificially and the courts have consistently upheld those sentiments as relayed repeatedly by her husband over a years-long emotional legal battle.
Her parents, who understandably can't let go, have fought to keep their daughter alive artificially and, in doing so, have drawn the attention of politicians eager to exploit a sad affair for partisan points. They have gone to extreme unconstitutional lengths to do so.
Gov. Jeb Bush, brother to the President and perhaps Oval Office occupant-in-waiting, actually pushed through custom- made legislation - dubbed "Terri's Law" - that allowed him to personally intervene in the case, reinsert a feeding tube, and blunt a husband's decision to let his wife die with dignity.
His action, and that of a compliant legislature, was ruled unconstitutional by the Florida Supreme Court.
The U.S. Supreme Court rejected legal challenges to "Terri's Law," but by now the case that has garnered international interest is too politically important to let die.
So while the vacant eyes of the dark-haired woman stare out at a prying world, new legal machinations are in the works to find a husband unfit to be her guardian, even though he became a nurse to care for her.
The right to die on one's own terms should be the issue here. It is not.
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