Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.
“Oregon’s Assisted Suicide Act withholds from terminally ill citizens the same protections from suicide the majority enjoys. In the process, it has lowered standards and reduced protections to a degree that there is little assurance that only competent terminally ill persons will voluntarily die. The majority has not accepted this situation for themselves, and there is no rational basis for imposing it on the terminally ill.”
Lee v. State of Oregon, U.S. District Court,
Aug. 3, 1995.
Oregon’s Suicide Law
In November of 1994, Oregon voters narrowly approved a statewide referendum that permitted a “terminally ill: adult to obtain from the attending physician a fatal dose of a lethal drug for the express purpose of committing suicide. The Oregon measure became the nation’s first physician-assisted suicide law, and its passage was hailed a great victory by “death with dignity” and “right to die” zealots across the country.
However, prior to its effective date on January 1, 1995, opponents of the controversial law filed suit in the Oregon federal court to have the measure declared unconstitutional. The federal court immediately delayed the effective date of the Act pending the litigation, and in August of 1995 issued an opinion striking down the law as violative of the Equal Protection Clause of the 14th Amendment.
The law permits an attending physician to comply with a patient’s written request for a fatal drug prescription where a “competent” patient is suffering from a fatal terminal disease” (defined as an incurable disease producing death within six months). The law permits the suicide to occur without notification of spouse, family, or next of kin, apparently concerned only that the patient “end his or her life in a humane and dignified manner….”
The law incorporated several “safeguards,” including the attending physician’s determination that the terminally ill patient was “capable,” that the death request was “voluntary,” and that there be a 15-day waiting period “between the patient’s initial oral request and the writing of the prescription.”
The federal court, after conceding that a majority of Oregon citizens apparently desired such a suicide law, nevertheless ruled that “the judiciary cannot simply defer to state legislative processes when presented with a law which may not provide adequate constitutional guidance to its citizens.” The court then noted that the state of Oregon has numerous laws that clearly express a state interest to prevent suicide (e.g., recklessly or intentionally causing or aiding another to commit suicide is defined in Oregon as manslaughter; another Oregon law provides that a person may use physical force to thwart an attempted suicide, etc.)
The court then concluded that Oregon’s historical state interest in preserving life and outlawing the suicide assistance was “arbitrarily and irrationally abrogated” by the law passed by a majority of Oregon’s voters. The judge held that these older laws protect vulnerable people “who might otherwise seek suicide in response to treatable depression, mental illness or coercion,” noting a majority of states have similar laws imposing criminal penalties on one who assists suicide. The state’s interest underlying these statutes, the court said, include preservation of life and protection against suicide.
Reading the new voter-approved assisted-suicide law in this context of the state’s interest to preserve life, the court found several fatal flaws in the new measure. First, the court ruled that the alleged “safeguards” in the measure were not sufficiently designed to differentiate between competent and incompetent persons. The court took judicial notice that one of the leading factors that motivates suicide is depression, and the new law does not provide for sufficient mental evaluation of the terminally ill. Secondly, the court complained that the definition of “terminal disease” is woefully imprecise, resulting in a category that is inherently unstable. Thirdly, the new law requires only that the physician assisting in the suicide act “in good faith.” The court saw this to be a subjective standard, allowing physicians even to act negligently, so long as they did so in “good faith.”
Equal Protection Denied
The court concluded its opinion by declaring that the new law was constitutionally deficient because it created a legal disparity between Oregon’s treatment of terminally ill persons and those who are not terminally ill. The legislation withheld from terminally ill citizens, declared the court, the same protections from suicide the majority enjoys. The measure reduced protections to a degree that there was little assurance that only competent terminally ill persons will voluntarily die. Since the majority did not lower these suicide protections for themselves, there was no rational basis for imposing it on terminally ill persons.
This disparity between the protection of the majority of Oregon citizens from suicide and the consequent lack of protection for terminally ill persons was, in the court’s view, a violation of the Equal Protection Clause of the 14th Amendment, which commands that no state shall” deny to any person within its jurisdiction the equal protection of the laws.”
The careful reader of the Lee opinion receives the impression, however, that Judge Hogan may have used the “equal protection” argument to strike down the questionable law while he actually entertained more fundamental (objections to state-sanctioned suicide. After all, the equal protection objections could possibly be remedied by additional safeguards incorporated into the Act by the suicide activists.
But what about the basic concept of the legislation itself – that government sanctions physicians assisting their patients to take their own life. In a somewhat obscure footnote, Judge Hogan finally broaches the rudimentary problem with the new law (which perhaps penetrates deeper than the “equal protection” defect):
Certain of the defendants would limit the court’s analysis of the constitutional issues to the context of the terminally ill class as defined by the new law and the court has so limited its analysis. Nonetheless, the candor of the defendants boldly presents the underlying issue: what are the boundary lines, if any, to state-sanctioned suicide? While a diagnosis of terminal illness with less than six months to live may be a persuasive rational basis for some to choose suicide, there is little limit to the justifications which can be advanced for state-sanctioned suicide. Where in the constitution do we find distinctions between the terminally ill with six months to live, the terminally ill with one year to live, paraplegics; the disabled, or any category of people who have their own reasons for not wanting to continue living?
In two hundred and five years of our existence no constitutional right to aid in killing oneself has ever been asserted and upheld by a court of final jurisdiction. Unless the federal judiciary is to be a floating constitutional convention, a federal court should not invent a constitutional right unknown to the past and antithetical to the defense of human life that has been a chief responsibility of our constitutional government.
We have not heard the last of the Lee case, since the Judge Hogan’s decision released in August of 1995 has been appealed to the U.S. Court of Appeals and may indeed end up before the U.S. Supreme Court. In any event, Reformed Christians would hope that Oregon’s suicide law will not survive constitutional scrutiny. But one would also hope that the higher courts strike down the controversial law for reasons much more fundamental than the “equal protection” objections which may be circumvented by clever amendments to the challenged legislation.