San Antonio Express-News
October 11, 2005

Assisted Suicide before Supreme Court

copyright 2005, Paul Premack

There are both legal and moral implications in the argument over assisted suicide. The current argument before the Supreme Court deals with the Oregon statute.

In 1994 Oregon became the only state to legalize assisted suicide. Its law was immediately challenged and in 1997 the US Supreme Court declined to review the case. The court had heard two other cases in 1997 in which it decided that although there was no constitutional right to assisted suicide the states were free to determine their own policies on the issue.

Later that year, Oregon’s citizens voted to keep the assisted suicide statute. Several efforts in Congress to overrule Oregon failed to pass. A few years later, US Attorney General John Ashcroft (who had, as a Senator, sponsored the efforts in Congress to ban assisted suicide) announced that his interpretation of the federal Controlled Substances Act (CSA) made it illegal for doctors to use federally controlled drugs to assist suicide. This was exactly the opposite of prior existing federal policy determined by Attorney General Janet Reno – that Congress had not given the Attorney General any power in this area.

Oregon sued Attorney General Ashcroft to stop his interference. In 2002, Oregon won in federal district court, and in 2004 Oregon won in the federal appeals court. The appeals court determined that Ashcroft’s interpretation violated "the plain language of the CSA, contravenes Congress’ express legislative intent, and oversteps the bounds of the Attorney General’s statutory authority."

The Justice Department appealed again, spending more taxpayer dollars on a moral battle disguised as an administrative law issue. Argument was heard by the Roberts Court last week. A decision will not be announced for several months at least. However, Texas law on assisted suicide is unlikely to be changed by the decision.

Texas law makes it a crime to intentionally aid or attempt to aid another person to commit or attempt to commit suicide in Texas. Punishment ranges from misdemeanor treatment to time in the state penitentiary, depending on whether the attempted suicide causes bodily harm.

On the other hand, well settled Texas law allows any competent patient (or the legally appointed representative) to decline medical treatments even when the refusal may result in death. Even though the Texas Advance Directives Act "does not condone, authorize, or approve mercy killing or permit an affirmative or deliberate act or omission to end life except to permit the natural process of dying…" the same law allows withholding or withdrawing life support under a Directive to Physicians and allows honoring a do-not-resuscitate order.

The difference is passive withdrawal of support versus active intervention to hasten death. It is legal in Texas to get medical interventions out of the way so that nature takes its course. It is illegal in Texas to use medical interventions to bring death sooner than it would have naturally occurred.