The Right to Assisted Suicide?: Oregon Goes to the Supreme Court
Rayburn House Office Building
Oregon has twice, by ballot initiative, adopted a measure allowing for physician-assisted suicide. The measure, known as the “Death With Dignity Act,” raises serious moral and ethical questions, and was challenged by the U.S. Department of Justice. The Department contended that it had the right to invalidate the law, arguing that the federal Controlled Substances Act prohibited physicians from prescribing medications for assisted suicide on the grounds that such use would not constitute a “legitimate medical purpose.” Federal District and Circuit Courts sided with Oregon in the case, saying the Justice Department was reaching beyond the Controlled Substance Act’s intent. Shortly before the Supreme Court heard the case (Gonzalez v. Oregon), the Pew Forum, together with the Federalist Society and the Constitution Project, held an event to debate the broad ethical and moral issues, as well as the extent of federal authority to regulate state action.
Robert Raben, The Raben Group, LLC, and former Assistant U.S. Attorney General, Office of Legislative Affairs
M. Edward Whelan, President, Ethics and Public Policy Center
Michael Moreland, Associate, Williams & Connolly LLP
Survey from the Pew Research Center for the People & the Press:
Strong Public Support for Right to Die
DAVID RAY: On behalf of the Federalist Society, the Pew Forum and the American Constitution Society, I want to thank our panelists for participating in our debate this afternoon, and I want to thank all of you for joining us.
Our moderator today is Michael Moreland. He is at the law firm of Williams & Connolly. He has served as a law clerk for Judge Paul J. Kelly Jr. of the United States Court of Appeals for the Tenth Circuit. Mr. Moreland completed his bachelor’s at Notre Dame and has a master’s from Boston College. He earned his JD at the University of Michigan Law School. He is going to introduce our panelists today.
MICHAEL MORELAND: Good afternoon. As David said, my name is Michael Moreland. I am an attorney with Williams & Connolly here in Washington. It is my pleasure to welcome all of you here to this discussion of Gonzalez v. Oregon, scheduled to be heard next week by the U.S. Supreme Court.
In Washington v. Glucksberg and in a companion case decided the same day in 1997, Vacco v. Quill, the Supreme Court refused to recognize a constitutional right to physician-assisted suicide, whether based in substantive due process or equal protection. Now, almost a decade after Glucksberg and Quill, assisted suicide is once again before the court. Chief Justice Rehnquist, whose successor has been confirmed just within the past hour, writing for the Court in Glucksberg, 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.”
In 1994 the voters of Oregon passed by ballot initiative the Oregon Death with Dignity Act, becoming the first state to permit the prescribing of medication by a physician for the purpose of enabling terminally ill patients to commit suicide. In 2001, acting pursuant to an opinion from the Office of Legal Counsel at the Department of Justice, then-Attorney General John Ashcroft directed that prescribing medication to assist a suicide is not a “legitimate medical purpose” under the Controlled Substances Act, a federal statute enacted in 1970 to enhance federal drug enforcement power. Under Attorney General Ashcroft’s directive, prescribing, dispensing or administering federally controlled substances to assist suicide violates the Controlled Substances Act, and this applies – I’m quoting from the regulatory rule – “regardless of whether a state law authorizes or permits such conduct by medical practitioners.”
Oregon challenged the attorney general’s interpretation of the Controlled Substances Act and obtained an injunction in the federal district court. The ninth circuit affirmed, holding that the attorney general’s interpretation was invalid, absent an unmistakably clear indication of congressional intent to regulate physician-assisted suicide because the rule promulgated by the attorney general stretched the outer limits of Congress’ power by altering the usual constitutional balance between the states and the federal government. Out of necessity and due to time constraints, I have left out a number of nuances in this case, including the application of so-called Chevron deference to the attorney general’s ruling and competing interpretations of the language in the Controlled Substances Act.
Suffice it to say that few, if any, cases in the court’s current term present such an array of thorny and controversial questions. Issues of administrative law, agency deference, federalism, the scope of Congress’ power under the commerce clause, statutory construction and, of course, the underlying morality of physician-assisted suicide are all in play as the Court hears and decides this case. To give us insight into all these problems, we have two distinguished panelists.
Robert Raben is a principal in the Raben Group, a legislative consulting and lobbying practice that specializes in intellectual property and civil rights issues. He is a graduate of the Wharton School and the New York University School of Law. He practiced at Arnold and Porter here in Washington before joining the staff of Congressman Barney Frank and serving as democratic counsel on the House Judiciary Committee. In 1999, Mr. Raben was appointed principal deputy and then assistant attorney general in the Office of Legislative Affairs at the Department of Justice under President Clinton.
Ed Whelan is the president of the Ethics & Public Policy Center here in Washington, where he directs the Center’s program on the Constitution, the courts and American culture. A graduate of Harvard College and Harvard Law School, Mr. Whelan clerked for Judge Wallace of the U.S. Court of Appeals for the ninth circuit and for Associate Justice Antonin Scalia. A former chief counsel to the Senate Judiciary Committee, he was a principal deputy assistant attorney general for the office of legal counsel at the Department of Justice during the first term of President George W. Bush.
EDWARD WHELAN: Thanks, Michael. I’m going to try to make a few basic points in these first ten minutes. First, I wanted to just clarify that the OLC opinion that was rendered in this case was rendered before I joined the Office of Legal Counsel, so I am not here defending my own legal work. Let me make a few brief points.
First, I wanted to clarify that the policy – the regulation that is being defended here is not some unique creation of Attorney General Ashcroft’s. It indeed was a policy that the Drug Enforcement Administration has had in place for a long time. Under the Clinton administration, DEA specifically endorsed that same policy. Attorney General Reno rejected the view of her experts at DEA, and Attorney General Ashcroft reinstated the DEA view.
Now, one of the basic points I’d like to make is that the case pending before the Court, Gonzalez v. Oregon, is not a case in which federalism concerns have any proper role. Certainly, there are federalism concerns that weigh in on the broader question of how we ought to address end-of-life issues, but on the specific narrow, legal question before the court, I think federalism concerns do not have any weight. Let me explain a little bit why that’s the case. First of all, we need to clarify that federalism concerns can have either of two dimensions. You have constitutional concerns about the allocation of power between the federal government and the state government; I think no one contends that is at issue here. And you also have policy concerns that relate to traditional state prerogatives and what ought to be a hesitancy on the part of the federal government to override those.
Now, here this policy concern has long been settled by the Controlled Substances Act. Since 1970, the Controlled Substances Act, by its very nature, has displaced state authority over doctors insofar as controlled substances are involved. Indeed, the federal mandate on controlled substances goes back nearly a century. You have a comprehensive federal scheme that in order to be effective requires regulation of doctors. They register. They are subject to lots of rules. They have long been controlled in how they can use drugs in their medical practice. There is nothing new that this case presents, therefore, in terms of some special intrusion on states’ authority to define professional practice of doctors. That is something inherent in the very nature of the Controlled Substances Act.
Indeed, I would make the broader point that this issue in this case, which concerns DEA’s authority to promulgate and enforce its regulation, providing that a prescription for a controlled substance must be for a legitimate medical purpose, is indistinguishable legally and logically from the following scenario. Let’s say that a state, dominated by pro-drug legalization folks, passed a statute that authorized doctors to prescribe cocaine for the common cold – not, frankly, an incredibly far-fetched example. We have legalization advocates out there, and they are entitled to make their case in the public arena – to offer their views. I’m not debating that question here and now. What I am saying is that if DEA were somehow required to defer to and to build its framework on top of the state definition of legitimate medical purpose, something like that would entirely wipe out this comprehensive federal scheme for the regulation of cocaine. And I don’t think there is any way in which Oregon can logically distinguish, as a legal matter, DEA’s authority here from its authority in the example.
What are the legal issues in this case? Well, a lot of them are fairly obscure administrative law issues, and I don’t think Robert and I intend to debate Chevron deference and super-Chevron deference and some of the finer points that will certainly be argued before the Supreme Court. For my purposes, I am going to focus on one argument: that it is entirely reasonable for the DEA to determine that assisting suicide is not a legitimate medical purpose for purposes of the Controlled Substances Act. We have a long-established Western tradition that recognizes that assisting suicide is not part of the doctor’s role. We have 49 out of 50 states that recognize that. All the DEA needs to establish is that it’s reasonable to reach that conclusion – not that someone could not reasonably reach the contrary conclusion – but that in this context the conclusion it has reached is at least a reasonable one. Indeed, it is an interesting aspect of the Oregon law that shows that Oregon voters recognized exactly this same point, for the Oregon law does not permit doctors to administer controlled substances for the purpose of assisting suicide, but only to prescribe or dispense them. Indeed, Oregon argues in its brief that the doctors can’t get involved in physical assistance. And I think that shows that Oregon itself recognizes that there is a dangerous line that you cross if you have doctors, who are supposed to be caregivers, becoming complicit in killing.
That raises the broader ethical question signaled by this case, which I’ll address for a few minutes. Again, this case itself does not present these broader ethical issues squarely. I don’t think anyone should anticipate that the Supreme Court is going to be speaking to them directly. Nonetheless, they are urgently important issues – issues that I think will probably define a lot of public policy for the next 20 or 30 years. You’ve got a baby boom generation moving through the demographic charts. You’re soon going to have this huge number of folks who are facing end-of-life issues that are wrenching, difficult issues. They are issues that require us to think seriously about matters of public policy that we’d rather not think about – to think seriously about questions of death, about how we care for those we love and about how we would like to be cared for. In fact, Leon Kass, the president of the Chairman’s Council on Bioethics, had a piece in this morning’s Post discussing some of these issues. There is a report coming out today from the President’s Council on Bioethics that explores them, I’m sure with all the wisdom that Leon Kass brings to everything he does.
So we’re going to have these difficult, wrenching issues, and I would say that some bright lines can be drawn. And one bright line is this: no action should be taken with the purpose of ending someone’s life. And the second bright line is that doctors specifically should not become – should not be allowed to become – complicit in killing. Now, I want to emphasize, because often there can be confusion on some of these points, that there are all sorts of aggressive pain relief measures that I think all serious commentators recognize as perfectly proper, even if they have the foreseeable effect of shortening someone’s life. I don’t think there is anyone out there, at least on our side of the debate, who is arguing that there is some sort of duty to prolong one’s life at all costs. On the contrary, we’re trying to embrace a proper understanding of what a natural life is and what a natural death is. And so pain relief, refusing extraordinary measures – all of those are very difficult issues when you actually get into the facts of the case. They require a lot of careful attention. They are things that we ought to be thinking about for ourselves, for our loved ones, but you can address all of those without crossing the line into suicide and doctors assisting suicide.
I think the final point I’ll make concerns this dictum that Mike referred to from the Rehnquist opinion in the Glucksberg case. This is sort of the weakest form of dictum imaginable, I think. If anyone is trying to read from the statement by Rehnquist that this is something for the states to work out, some sort of signal that the Controlled Substances Act shouldn’t apply, I don’t think that’s a fair reading. That issue clearly wasn’t presented to the Court in that case, and, of course, there are plenty of respects in which assisted suicide can continue to go on in Oregon notwithstanding the Controlled Substances Act. Specifically, there are certain gases, as I understand it, that are not subject to the Controlled Substances Act – I think these are some of the gases that Dr. Kevorkian used – that Oregon doctors are entirely free to make available to their patients. I’m not advocating that. I’m simply pointing out that this highlights, I think, the fact that the Controlled Substances Act is not a total overlay over the state scheme. It says controlled substances are a federal subject matter. We have the authority to address that. Other means are for you, the state, to decide.
ROBERT RABEN: This is an incredibly important issue, and I am now an experienced lawyer – or at least I tell my clients – and I am absolutely capable, and will, in a second, speak in the dry terms of the law of statutory interpretation and federalism and original intent and Chevron deference – although hopefully not that piece of it – if we need to. But I want to take 30 seconds to remind us that in this particular case that is going before the Supreme Court on Wednesday, we are not talking about a hapless toad and whether or not that toad deserves protection from the federal government as opposed to the state government. We are not here talking about property rights, or who owns the crevasse after the evulsion or all the incredible things that the court deals with. We are here talking about how people live and die. We are here talking about an issue of monumental personal importance to 293 million registered Americans. It’s hard to imagine something more important, and we, as lawyers who adhere to the law and love the law, will make sure we get the letter of it right, and people will even differ about that. But I do want to remind people that what we are now talking about, ultimately, is the proper government role in determining how the last chapter of our lives will be written.
Said another way – because if I have a strong point I’ll make it 40 times – in virtually every aspect of our lives as Americans, we have unbelievable control over our liberty, where we travel, the privacy of our vote and what we may or may not do in our own homes. And you all have personal experience with how that works in your own lives. What we are talking about here is for the class of us who are dying, because this law applies only to the terminally ill, which is a legal term defined as six months or less with other criteria. We are now talking about who will decide the course of that last chapter and how that will go. I want to set that context for the side that I care deeply about.
There are several different frames, depending on who you are, for this case, and for what I think will be a matter that we’ll be talking about for decades. If you’re the Department of Justice, you’re pretty clear. It’s about who gets to decide. And for you, the Department of Justice, it’s a federal-or-state question, and it invokes federalism and it invokes the Commerce Clause. And the Department of Justice feels quite strongly that it, the Department of Justice – not HHS – it, the Department of Justice, has the authority to determine a legitimate medical practice for a particular drug.
The uniformity Mr. Whelan speaks about, and we will continue to speak about, is for the Controlled Substances Act – and certainly, national standards should be national – an act wholly about regulating drug abuse, drug trafficking and drug diversion, mitigating the possibility that pharmacists and doctors will be in the illicit drug trade. That is not a statute wholly about determining the right dosage of anesthesia for an operation I am going to have. “Dear Doctor in Topeka, mmm, did you do 40 milliliters? Lord, you know, I think we at the DEA, all the MDs at the DEA, think it should have been 28 milliliters.” And I’m being a little flip, but you know what, I’m not being a little flip. You’re going to hear over and over again from the people who support the interpretation of the Controlled Substances Act that the DEA determined – and it’s the DEA, the Drug Enforcement Administration, that has jurisdiction, because all doctors in this country have to have a DEA license – so you’re going to hear over and over again, “the DEA determined.” Well, there you have it. All the medical experts at the DEA determined this particular procedure, this particular dispensation. We are not here talking about a whole scheduling for a class of drugs. We are here talking about a particular use of a particular drug with a particular patient. So DOJ will tell you the issue is who decides – and, of course, they do.
Oregon’s position is, “Could the Department of Justice have done what it did – the Ashcroft directive?” That is a drier question of statutory interpretation, and whether the Controlled Substances Act, similar to what I just said, delegates to the Department the authority to do what it did. For Oregon, I don’t think the question is, “Could Congress regulate the practice of medicine?” That’s a separate question of Commerce Clause and federalism, and I’m sure we would have strong views about that, and we could talk about that. For Oregon, in this case involving the Controlled Substances Act, it’s “Did Congress intend to regulate the practice of medicine in this way?”
The term “assisted suicide” is not a term of art, and it’s a phrase that I will not use except to say opponents like to call it assisted suicide. But supports of the Oregon law like to refer to what I would call either hastening the death of the terminally ill or, more accurately, the decision not to extend a dying process. Opponents like to call it assisted suicide for a reason. There isn’t a rational individual, including me, who supports suicide. Suicide is wrong. Suicide is a bad decision. And so the desire to call it assisted suicide is meant to communicate from the beginning that this is a bad decision that you’re helping in. I don’t know what your personal experience is. My guess is, you have or you will in the course of your life be directly involved with somebody whose dying process is extraordinary, excruciating, painful, undignified. There is the ventilator. There is the respirator. There is the defibrillator. There is, there is, there is, there is, there is, there is, there is. This is frequently the period of life that we are talking about. Opponents are concerned that you will make a decision about that last chapter of your life that they think is wrong.
Supporters break into two categories. The first includes people as judgmental as opponents who have a particular point of view about how you ought to die and are fairly aggressive about it. They have some moral choices that are quite, quite strict, and they think this is the way it ought to be. The other camp of supporters includes what we have come to call in this country “people who support choice.” My choice is my choice. Your choice is your choice. Mom’s choice is her choice. Of all the people making this decision, very low on my list in participating would be the Department of Justice or the Senate, right? I’ve got the Lord whom I rely on for hard decisions, I’ve got my family and, because we are only talking about people mentally competent to make the decision, myself. We’ll get out the other points in our conversation, but I thank you for having me. I look forward to learning more of what’s on your mind and having a good conversation.
MR. MORELAND: Thank you. Before we open the floor for questions, I’ll invite Mr. Whelan, then if you like, Mr. Raben, to say some words in brief rebuttal.
MR. WHELAN: I’d like to make three points in rebuttal. First, I call it assisted suicide because it is. I don’t resort to euphemisms that obscure what is really at stake. I’m delighted to hear Mr. Raben say, as I’ve heard him say before, that suicide is wrong, because that proposition decides this case. I have in front of me the text of the Oregon Death with Dignity Act. There is nothing in here that talks about extending a dying process. Indeed, the form that is attached to this as part of the act – “Request for Medication to End My Life” – has the person signing it say, “I expect to die when I take the medication to be prescribed. I further understand that although most deaths occur within three hours, my death may take longer.” This is not aggressive pain relief that might shorten someone’s life span from nine months to six. This is killing, and nothing should obscure that.
Second point: The DEA is not fine tuning how much anesthesia you get. That is not what we’re talking about here. If that were ever to happen, you can be sure that the Congress would step in and take away that authority. The DEA is making a very simple judgment embraced throughout Western history, embraced by 49 out of our 50 states, that assisting suicide is not legitimate medical practice. That, incidentally, is a position that the medical associations throughout the country have taken, so this is not the DEA overriding medical judgment.
Third, Mr. Raben has set forth a regime of radical autonomy or choice where we each individually ought to be entitled to make these choices, as though these choices do not have serious effects on our society as a whole. You cannot have a regime in this country in which suicide is just another option – you can have a yellow car or you can commit suicide – without that having tremendous consequences on how we view each other, how we view the disabled and how doctors view the disabled, a dramatic transformation of who we are and how we understand ourselves as a people. It’s that understanding that underlies the millennia-old wisdom that doctors should not cross the line from being caregivers into taking part in killing.
MR. MORELAND: Mr. Raben?
MR. RABEN: Thank you very much. He made three points, and they’re good points. Obviously, I don’t subscribe to any of them. But the first point is, if you’re terminally ill, and if you decide in Oregon – as you’re permitted to if you’re mentally competent and jump through the pretty significant hoops and safeguards – to get a dispensing from your doctor that can hasten your death, then that is killing. And I guess it’s killing because the patient hasn’t died when Ed and people he speaks with thinks the patient should have died. And I’m afraid of that because it proves too much. It also argues against people deciding that they don’t want treatment. If you’re dying and you’re terminally ill and you’ve got lymphoma and you’ve been given four weeks and they say, “We could do another round of chemo and I think it might give you six more weeks,” and you say “No,” I’m afraid Ed and others might think that was wrong because you didn’t live as long as medicine could have let you live. This is where I get confused. I don’t know if the end point of life is how long medicine can keep you alive or how long God can keep you alive. And if it’s how long God can keep you alive, it’s frequently shorter than how long medicine can keep you alive. So I get confused about what is the right time to die.
Two, he says DEA won’t be making these decisions. Gosh, I think they will. I think if you’ve got a criminal law that rests on whether or not the doctor intended something, i.e., a certain use of a barbital for something the DEA doesn’t agree with, then I guess you go through an administrative proceeding, and then if you’re unlucky, you go through a criminal proceeding in a trial court where there is an investigation on what you intended, and the interpretation of what you intended is certainly going to be influenced by the milliliters. So at some point, the DEA experts are going to be telling us what they would have done with this particular patient. I’m not opposed to doctors being regulated, but I don’t think it’s a particularly good regime to have the DEA doing it.
And the third point is always my favorite when I talk with people who are conservatives. They remind us that the choice has consequences. I really do challenge them to say, consequences to whom? I think they mean the choice is contrary to a moral code in which they’d like to exist and live and walk the earth. And then, I have to ask, do they really believe, as true conservatives, that the moral atmosphere – how it affects how we think of each other, whether or not we live correctly – is a variable that the conservatives really want to have on the table when the government is operating? And I’m always interested in the answer to that question.
MR. WHELAN: I’d like to offer a few quick rejoinders. First, I do not have any personal view as to the time when someone should die. I am not seeking to enforce that view on anyone. I am opposed to assisted suicide and to suicide. I made clear that there are a broad range of aggressive pain relief measures that people can reasonably resort to. People can reasonably decide to forego certain treatments. So those are difficult, interesting, wrenching questions to which I think there is no bright line answer. But I think on the question of assisted suicide and suicide, there is a bright line answer.
Second, I just think it’s not plausible that the scenario that Mr. Raben has painted about the DEA engaging in prosecutions in which DEA is going to be testifying about what is proper pain relief is ever going to take place. You have doctors out there who engage in pain relief all the time. This pain relief does not end someone’s life within three hours. Again, there is a very, very clear bright line here. Is it possible that somewhere down the road, in theory, if certain people got in charge, this scenario could happen? Sure, that’s possible, and we would deal with that abuse if and when it became imminent. But we have a very real abuse that needs to be dealt with here and now, and the prospect of some hypothetical and, in my view, far-fetched abuse shouldn’t deter us from taking steps now.
Third, on the consequences: I identified, perhaps somewhat elliptically, the consequences that this regime of radical autonomy could have for the disabled. For the poor, for people whose lives are, in the views of many of us, hardly worth living, well, you can be sure that when there are budget pressures on doctors and you need to get your report on emptying beds, you could have all sorts of very dangerous incentives. Now, there is not a single conservative approach to issues like this. I know there are libertarians who are going to be much more aligned with your view. But the strand of conservatism that I would promote is one that recognizes that we, as a society, have obligations to each other. It’s one rooted in a Judeo-Christian moral tradition, and it recognizes that you cannot have people just making all these choices without transforming who we are as a people, and we ought to think about the guardrails we set up to make sure that we remain a sane society.
MR. MORELAND: We’ll open it up now for questions. We’d ask you to step to the microphone that is in the middle of the room. I would like to start by asking both of you if you could just put on your forecasting hats and if you’re willing and able to offer a prediction about how you think the Court will ultimately resolve this issue and the case it’s going to hear next week, and what you think will be the central basis for that holding?
MR. RABEN: No. (Chuckles.) I hate doing that. I am a terrible predictor of how eight or nine very smart people are going to frame a question. I appreciate the question, and I tried to do that in my opening by laying out the different ways to frame it. I think that it’s a good quandary for the conservatives who have a little bit of tension between their probable moral or personal concern with some of these decisions and where it probably puts them on statutory interpretation and federalism. So I think that will be an interesting tension to watch.
If you’re a pretty strong states righter and a pretty strong clear statement person or constructionist on statutory interpretation, you’re going to tend toward saying this isn’t what the Controlled Substances Act was intended to do, plus we had a chance to really opine on this and it’s a little more than dicta. There was a lot of dicta from a lot of people saying, “Okay, there’s not a liberty right. There is not a general constitutional right to hasten your death.” But states are free to look at this and do it. I don’t know – I think the Supreme Court justices are pretty bright folks. I’m a little surprised in 1997 that they would write that and not think about the next step. “Well, you can do it, but there isn’t really a mechanism to do it.” I don’t think that’s what they intended. So I’m optimistic that the conservatives will resolve their tension on the side of a clear interpretation of what the Controlled Substances Act says and uphold the rhetoric that they circle around, which is kind of erring on the side of not federally pre-empting things. But who knows.
MR. WHELAN: I don’t want to offer any predictions in this case or any other as to what the court might do. It seems to me that there is a good shot for a lopsided majority for the Department of Justice, but it seems to me possible too that it could be a very closely divided case. And a lot may turn on some of the more intricate administrative law issues that we haven’t discussed here. And I think at bottom, once you work your way through the issues, it’s a fairly straightforward case. But I’ve thought that a number of times before and had a number of justices go the other way on me.
QUESTION:* This is a question basically for Ed. You briefly touched on the Tenth Amendment and Commerce Clause issues, and one of the principal tenets of the Federalist Society and Justice Scalia is that you definitely have those spheres of influence. And when the Supreme Court struck down Lopez and also Morrison, the Violence against Women Act and the Gun-Free School Zones Act, they basically said that you have to look at whether the specific activity is having that substantial impact on interstate commerce. When a doctor is prescribing this end-of-life medication – as opposed to just doctors dealing with controlled substances – how does that specific activity have a significant impact on interstate commerce if you just have 1,000, 10,000, 20,000 seniors who are asking their doctors for that prescription for additional morphine to basically end their breathing or whatever the prescription is – where is the substantial impact on interstate commerce?
MR. WHELAN: Well, let me try to answer that in a couple of ways. I guess, first, I don’t expect the Commerce Clause to play a significant role in this case. I don’t expect that largely because of the Supreme Court’s decision last term in Gonzales v. Raich, which presented a much tougher Commerce Clause question than we have here. In that case, and anyone here who has a better understanding of it can correct me if I misspeak, but the court held 5-4, with Justice Scalia incidentally in the majority, that the Commerce Clause enabled the federal government to reach homegrown marijuana for personal consumption. Now, that is basically about as close as you could get to Wickard v. Fillburn, I think, in the Controlled Substances Act context. This case is far removed from that. You’re talking about controlled substances that move in interstate commerce. You’re talking about doctors who are registered as part of this broader scheme, so I think that there will not be a hurdle at all on Commerce Clause grounds, nor do I think that there should be. This is, again for the reasons I just mentioned, the drugs moving in interstate commerce, the doctors who have voluntarily enlisted to become part of this scheme. There is clearly a federal interest here and I don’t think that any justice would find otherwise.
MR. RABEN: I agree with the first part. It’s not a good sign if it gets to the Commerce Clause.
QUESTION: This is just a general question on culture. In some cultures it is culturally acceptable, if not preached, I guess, that suicide is acceptable and methods of suicide are acceptable. For instance in Southeast Asian cultures, suicide is accepted. Would you care to comment on how culture figures into this?
MR. RABEN: Well, first of all, it’s not suicide so we’ll talk about that again, and we will talk about that for the next 40 years. I am certain that the desire to call it suicide is a results-oriented approach. I don’t know anything about you; I’ve never met you, so I’m not saying anything about how you frame the issue. But for people who are terminally ill and have gone through the hoops that Oregon puts them through – two doctors, a psychiatrist, a waiting period and taking the dosage yourself – that is a categorically different question than the depression, the pressure, the mental imbalance, the fear of coming out, all of the reasons that people are found to commit suicide. It is categorically different, and it is not suicide.
Two, I would hope – I don’t know. It’s a wonderful question, what’s the role of culture? Here’s the beautiful fault line that I think your question raises. Oregon is the only state in the country to – in my opinion – step up to the plate and provide a transparent, regulated regime for how these decisions are made.
It’s interesting to me that the Right focuses on Oregon. You have got 49 states, the District of Columbia, Puerto Rico, Guam, the Mariana Islands and some other territories I may not remember, where every single day, the identical set of decisions is being made by families, by hospice care workers, by registered nurses, by doctors, by HMOs, if you are worried about them. The overwhelming majority of Americans die. And each of us is faced with the identical issues that happen in Oregon.
So the difference in Oregon is that they decided to make it above board and provide safeguards so that there wouldn’t be abuse and pressure and the concerns that are being raised. Now, if you believe the abuses you’re worried about – and when I say you I don’t mean you, Ed; I mean, the people whom I oppose on this issue – if they believed what they were concerned about, there would be massive numbers of lawyers and missionary workers and people out in the field worried about how these decisions were made. Because my guess is people are deciding every day that the next three weeks of the distress that they are in is not a quality of life or a dignified end that they are going to abide by, and their families agree with them, and their doctors administer sufficient morphine or seconal, or whatever it is such that it is an ambiguous question whether you were alleviating pain and/or hastening death. And if you were worried about those decisions, I would encourage you to have DEA agents and police officers and investigative analysts, and an entire administrative law apparatus in every hospital room, hospice, nursing home and family room in this country because Americans are faced with this decision.
So that is the cultural answer. I hate this part of my professional representation; I hate what I’m about to say because nobody likes to hear it. Everybody needs to get a little more realistic about the role that our dying plays in our life. And I have learned in my three years of representing this movement that, while I thought sex was the number one thing that we were disinclined to talk publicly and honestly about, it turns out that death is the number one thing. We do not have rational conversations among adults about what our options are, how we die, who is going to do the living will, what is the medical power of attorney. Grownups – and I mean scores of them – grownups who have lived independent lives cannot have a conversation with their adult children about what their wishes are. My jaw drops. You know, I can’t talk to my daughter about my advanced directive. I really don’t want any heroic efforts taken. I don’t want any medical intervention. And she starts crying.
So I have learned a lot. And I have encouraged other people to have more honest conversations about death. But the point that you have allowed me to go on and on about is the role of culture. The Oregon debate, and Terri Schiavo, and how Congress decided that that was a medical decision it should make – these issues allow us all to have more honest conversations about how we’re going to die and what our options are. And I’m really looking forward to that national conversation because it’s going to help a lot of people.
MR. WHELAN: This last point that Robert makes is one that I very much agree with. That is, I think there is an unwillingness to face the basic fact of death and to discuss it. I guess my daughter is a little different than yours, at least one of mine is. The other day at dinner, another one of my daughters said, “Oh, if I don’t get dessert I’m going to die.” To which my three-year-old responded, “Well, if you do get dessert, you’re going to die too.” (Laughter.)
MR. RABEN: She didn’t say, “If you die, can I have your dessert?” (Laughter.)
MR. WHELAN: On the point you raised that, gosh, if we’re really so concerned about this, we ought to have an army of people out there and since we don’t, we ought to change the laws. Well, you could say the same thing about evil. You could say the same thing about child abuse. “Well, gosh, if we’re really concerned about child abuse, we would have an army of people out there.” We don’t. Well, why don’t we just undo our laws against child abuse?
I do need to go back to the definitional question of suicide. Suicide is the deliberate taking of one’s life. I’m not sure what definition Mr. Raben is using. I will point out, though, that Oregon, in its Supreme Court brief, essentially concedes the point and tries to dance around it. I’m going to quote extensively from footnote two on page two.
It says, “The DWDA” – the Death With Dignity Act – “has been described as authorizing ‘physician-assisted suicide.’ That description is potentially misleading” – this is its first point – “inasmuch as neither of the physicians who prescribe nor the pharmacists who dispense drugs under the DWDA may provide physical assistance to their patient” – that proves my point earlier about how even Oregon voters recognize that there is a line across which physicians shouldn’t go. The brief continues: “The term may be overbroad in another sense. To the extent that the dictionary describes ‘suicide’ as taking one’s own life, it might technically be accurate as applied to the DWDA.”
Well, that is about as much of a concession as you’re ever going to get from an attorney in a brief. It is accurate in that sense. But it goes on to say it’s available to only a small subset of those –
MR. RABEN: Can I ask you a question? I am constitutionally permitted to withdraw nutrition when I’m terminally ill, right?
MR. WHELAN: That I think has been misunderstood as a settled question. But go ahead.
MR. RABEN: Well, then I ask you as a policy question. Do you think if I’m terminally ill, I should be permitted to decline hydration or the defibrillator or the next round of chemo?
MR. WHELAN: There are all sorts of distinctions that I am not in a position to address. I think there are all sorts of extraordinary care that of course you should be permitted to decline. We can have an interesting public policy argument on that. I’d rather not –
MR. RABEN: Well, but it wasn’t a public policy argument I was making. I was going toward your framing of killing or a suicide as participating in this decision. And I’m just curious if that extends to the doctor or priest who abides by your decision not to have another round of chemo or not to be hydrated, which I believe Cruzan tells us we have a constitutional right to refuse. So if I make that decision, are the people around me who pull the plug or don’t inject another round of liquid radiation, are they killing me?
MR. WHELAN: Well, first of all, Cruzan assumes, arguendo, what you described there rather than holding that. I’m not ready to, but we could spend a lot of time discussing passive versus active distinctions, all sorts of other things that serious moral philosophers have understood to come into play in this context. My immediate point is the definition of suicide – and we can then get to the question of whether the physicians are assisting or not. But I understand you to be saying that this isn’t suicide. I don’t think that proposition comports with the English language. And in ordinary usage there is a stigma that properly attaches to “suicide” that I think your usage is trying to escape.
MR. RABEN: Yes, you’re right.
MR. WHELAN: On the broader point about culture, I don’t know a lot about East Asian attitudes toward death. I’ll take your description as accurate. I’m not sure that I have much to say about this except that the narrow question in this case is whether it’s reasonable for the federal government to determine that assisting suicide is not a legitimate medical purpose. And for the reasons I have referred to before, I think there is ample support for that proposition.
KEN THOMAS: My name is Ken Thomas, and I work here on Capitol Hill. I would just like to ask whether you think that the Controlled Substances Act, which is really at issue here, is actually the proper place for what ultimately is a discussion about a broader philosophical topic. And I was intrigued by your first example of the question of, well, what if cocaine was being used for colds? Or let’s go with the example that was just up, what if marijuana is used for medical purposes? Does the state have the ability to make that decision regardless of the federal government?
And what I thought was interesting about that is how far can that go? Could the federal government decide they have a problem with palliative care that shortens somebody’s life, so no barbiturates are allowed if they’re likely to depress your respiratory system and cause a premature death? I would certainly like to hear your opinion on that, but I assume there would be a little more problem with eliminating palliative care. The medical marijuana I can kind of see.
The question that is before the court here is not a problem with diversion; it’s not a problem of recreational use of drugs. This is a problem that the drugs are being used for something in a medical context that seems a little out of sorts with traditional medicine. I guess the real question is, is the Controlled Substances Act really the place that we should be making those policy decisions, or should the act be left for recreational drug division and this issue be left for the Congress to decide?
MR. WHELAN: That’s a very interesting question, if I may make a stab first, Robert. I think we find ourselves in agreement on a lot of this. There are all sorts of issues involving end-of-life care, end-of-life decisions that cannot possibly be sensibly addressed through the Controlled Substances Act. So we certainly should not use the act as the primary vehicle for addressing these questions.
Now, I do think that the Controlled Substances Act necessarily has impact on some of these questions. And I think, as I made clear, that its application in this context is consistent with federal law. I think it’s perfectly appropriate. Obviously Congress can address whether the Controlled Substances Act should be modified in certain respects. And I suppose some folks will try to do that if the decision comes down in a way that upholds the Department of Justice.
But most of the issues here need to be decided outside a governmental framework. I think there are basic lines the government can draw, and I have outlined some of them. But beyond those principles, you’re going to find that how those principles apply in this fact-intensive context requires the careful judgment of loved ones and the patient. And I certainly have no illusions that government can or should dictate a series of rules to apply in a broad range of circumstances.
MR. RABEN: I don’t have anything to add to what I said.
QUESTION: I would like to make a brief comment and then ask a question primarily of Mr. Raben. We’ve typically heard the Supreme Court referred to as nine old men. Right now it’s six old men, one young man, and two old women. But that is still enough that the old category is going to influence how they see this case, because unlike perhaps abortion, I think that they all have friends and relatives – and maybe even their own situation – that cause them to think very seriously about this. So I think they will be realistic in discussing this topic.
Nonetheless, I think the burden is on Mr. Raben because I think he is the one who wants to, as a matter of practical necessity, change the status quo. You may say that involving the Controlled Substances Act in this case is changing the status quo, but I don’t think so. The status quo as practical matter has been that whether we like it or not, society works passively on this issue: we don’t do much about suicide. People are dead; you don’t prosecute them. And it’s certainly not routine to prosecute people for attempted suicide.
On the other hand, this changes the status quo by putting an active participant in the mix. So I think the questions that the court is going to get are fantastically interesting ones, and I don’t think they easily divide along conservative and liberal or Democratic and Republican lines. I lived in Oregon for quite a while, and so I recognize it tends to be out on the fringe and wants to push issues that are useful to discuss.
But I still think you’re going to have to explain why Oregon chose six months, because we have a bright line now that has to do with active and passive. For instance, people who want to commit suicide can jump off a bridge, but you shouldn’t be there pushing them off the bridge even if they are begging you to. I think people are going to want to know why they chose six months. That is sort of an odd rule. How is that a rational scheme? I could be wrong, but I don’t think most hospice situations take you in with six months to go. I would have been happier if they took a time period that hospice will generally accept, like two months before or six weeks – whatever the hospice –
MEMBER OF AUDIENCE: Six months is the hospice rule. The ones with the Medicare will provide six months.
QUESTION: Okay, well, that is more interesting. But what I’m wondering is if Oregon decides that they see a lot of patients – the doctors and the citizens say, well, you know, we see an awful lot of patients who are declared terminally ill with cancer – and patients have gone through the two doctors and all that, but they are one year out from the date of supposed death, or they are five years out, and Oregon changes that time limit, how does that affect whether we should accept the law? That’s one point that troubles me a lot, that this time limit is pretty far out from when something happens.
The second thing that I think the court is going to ask you has to do with the scheme being different. Say Oregon decides that they don’t want to involve the doctor because that law gets struck down, so they pass a law saying you have the right now to go into a gun dealer in Oregon and buy a pistol and one bullet. We’re still going to involve the federal scheme because we regulate handgun sales. And some of those people may be felons who are federally barred from buying handguns. And of course there is a whole list of reasons why you can’t buy weapons. Is that going to be a legitimate scheme as well? In other words, you want to change your balance and step over the line. The point was made by Mr. Whelan before that he has got a bright line now. You want to change that status quo. So how are you going to explain where the new “bright line” is going to be?
MR. RABEN: You raise a dozen interesting points. And so I’m not going to start in any particular order. I’ll just address them as I remember them. None of those questions will probably be asked in the court. The substance of the Oregon law and the parameters and standards and all of that is not really before the court. What’s before the court is an intersection of the Controlled Substances Act and the use of the Oregon law and whether or not the fed’s interpretation of that is in play. But all of the incredibly appropriate and right questions you ask are questions that all of the states are going to ask over the next 100 years or more. This is a conversation that will not stop.
I resist the characterization – although I’m not sure it’s worth going back and forth because it’s not your central point – but I resist the characterization that we’re trying to change the framework. I’m going to repeat something I said, which is that what Oregon has done is stepped up to the plate and said, “We’re prepared to talk about this in a public way.” Every other state, every other county, every other medical society, every doctor is having this conversation with families constantly. This is a part of people’s lives. And what Oregon did is say, “Let’s have a regulatory framework for it that is transparent and reviewable.” There is an administrative claims procedure if people felt that they were under-treated for pain, which goes on in epidemic proportions in this country. So Oregon is only saying, “This is how we think people are doing it, and this is what we think is appropriate.” And then the Right comes in and attacks it.
And I tell you, I see some very interesting similarities in my life. I am a gay man. And everything is fine until I say that to the Right. “Just go ahead and be a gay man. What difference does it make? We don’t discriminate.” Yet the minute I say it, and you then have to respond to it, I get people asking, Why did you have to raise that? It’s very similar. African Americans and Hispanics feel like there is discrimination going on and they talk about it. And then people say, “Why are you playing the race card?” God, the whole deck is filled with race cards from their perspective and some white people’s perspective.
So I’m saying it doesn’t cause a problem, except to the Right, who doesn’t want to hear it. And I feel that is the case here in Oregon, that Oregon went through the hoops by referenda twice – this is not legislative fiat – and said, “These are the lines; these are the safeguards.” I absolutely submit to what I think was your point – Why six months? It’s a line that is drawn. It is a line that is drawn. There are people who are more aggressive than I’ll ever be who don’t want to deal with the terminally ill. They say it should apply to the “hopelessly ill,” to the “intolerably suffering,” terms that don’t have a conventional understanding and could be subject to all kinds of conflicting interpretations. So I agree with you that line drawing is line drawing.
I’m going to stop by resisting your characterization that passive-active is a clear line, but six months isn’t. Passive-active isn’t a clear line. You can come up with examples that are clear – jumping off a bridge as opposed to being pushed off a bridge is a clear demarcation. If I am dying, literally dying in the ICU, and I have some choices about some more treatments that may or may not work – an experimental drug, and an injection, and an epidural, and we’re going to do a spinal tap and what is the prognosis?
And if I say, “I would like you to turn the drip off,” do the RN and the doctor and the nursing assistant and whoever turned the drip off play an “active” role, or is that “passive”? People will have strong opinions on which is which, but I think if you surveyed 100 knowledgeable people, you would get 92 opinions on what is the moral, legal take on that equation.
So I want to resist the notion that we already have clear lines in some aspects of this and we’re trying to create some unclear lines over here.
MR. WHELAN: If I could just address a couple of related points. First, Mr. Raben says that Oregon stepped up to the plate. Well, every other state has stepped up to the plate too and has expressed its opposition to assisted suicide. Indeed, since the Glucksberg case was decided, according to footnote eight in the government’s brief, six states have reiterated – unnecessarily since it was already on the books – their opposition to this. So Oregon doesn’t deserve, in my judgment, any particular credit.
Second, I want to point out something about the six-month rule, specifically the statute that the Death with so-called Dignity Act states, that a doctor has to determine within reasonable medical judgment that a terminal disease will produce death within six months. There is a lot of leeway afforded here. My guess, sir, is that you’re never going to see that six months go to 12 or 18 because you’re always going to be able to find the doctors who say, gosh, in my good-faith judgment, you’re going to die within six months.
So I think it will probably stay right there, but you’re going to hear all sorts of accounts from doctors. Predicting death is a difficult thing. I think there is an awful lot of leeway here and we shouldn’t treat this as though it’s tight.
QUESTION: The discussion of dignity is one thing that concerns me because people’s idea of dignity is full of all kinds of socially constructed, easily manipulated ideas that may not have to do with people making rational decisions at extreme points in their life, like whether their children see them incontinent and undressed in a hotel room or hospital room. We can assume that our own ideas of dignity may be affecting these situations in ways that are troubling.
MR. RABEN: Yes, dignity is a subjective thing, I agree. And dignity is not an operative legal term. It’s the title of the bill. Ed is increasingly a good friend and we’re going to spend more time together and socialize together. But I just have to object to his term a minute ago – “so-called dignity.” And earlier he referred to what these people are deciding to do as evil when he was equating it with the ability to regulate child abuse. And I just – I don’t mean to patronize you. I’m sure you heard it –
MR. WHELAN: I don’t think I heard myself use that word, and my point related to child abuse was to make a logical analogy to the point you’re making, not to compare the decision to child abuse.
MR. RABEN: When I asked the question, What is the moral choice that is in the air that the people have standing to regulate?, that was the question that I posed and you referred to it as an evil.
MR. WHELAN: Fine, I will embrace the proposition that suicide is evil, yes, objectively. I’m not making a judgment about the moral capacity, the decision-making capability of the people who make that decision. That requires facts that I don’t have, but objectively, yes.
MR. RABEN: Suicide is evil. I will go so far as to say suicide is wrong and society should be doing much more to educate and prevent and help against it. I have never heard of a suicide that in my opinion was justified. I think it is wrong. It is wrong by my standards. But “evil” is an entirely different thing.
And I am not a legal historian, but I know enough to know every state in this country made suicide a crime, notwithstanding the administrative difficulty of prosecuting it. And every state has abolished suicide as a crime. I assumed suicide was made a crime to underscore the fact that states agreed that it was evil. It’s not deterrence to make it a crime. I don’t imagine another rationale for it being a criminal law other than to express moral opprobrium. We have tried very hard in this country to abandon moral opprobrium as a rational basis for regulating behavior, or in this case disapproval of behavior.
So no state has suicide as a crime, although assisted suicide is a crime because people thought it was evil. And I just –
MR. WHELAN: I think we are perhaps speaking out of different dictionaries again. When you refer to something as a “moral wrong,” that is what I understand “evil” to be. Perhaps you think that evil is a super, super, super, super, super moral wrong – some sort of super-duper precedent – but I mean “evil” to mean “moral wrong.” So I think we’re saying the same thing, though you don’t like certain terms that I use because you think they connote –
MR. RABEN: Yeah, I don’t know that I am going to add the word “moral.”
MR. WHELAN: You did.
MR. RABEN: I didn’t say that a person’s decision to commit suicide, which I think is not justified, is an immoral act or an evil. I think it’s a bad decision.
MR. WHELAN: Well, then maybe we can get to the ultimate question, Robert, that we’re not going to address here – is there such a thing as good and evil? Perhaps you answer that no, and I answer it yes, and that is –
MR. MORELAND: That would be the next panel. Father, go ahead.
FR. GIACOMO CAPOVERDI: Hi, I’m Father Giacomo Capoverdi. I’m a priest with the group Priests for Life. And of course I find this conversation very fascinating considering the fact that Priests for Life and the director of Priests for Life, Father Frank Pavone, played such a vital role in the whole situation that happened with Terri Schiavo. I think the problem that we’re coming upon here, and the difficulty we’re having, is distinguishing and determining if our laws should support the taking of innocent life. And that is really, I think, where this debate can lead us to.
And as far as the Catholic Church is concerned, and as far as the moral code of what we believe and what Christianity teaches, it’s always wrong to take an innocent life. In the Old Testament God tells Moses that “Thou shalt not kill” is one of the commandments, yet you see in the Old Testament the Jews would kill their opponents in battle. So certainly God didn’t mean “thou shalt not kill under any circumstances,” but what he meant specifically and what our culture has come to embrace very rightly is “thou shalt not take innocent life.”
So that is why when we broaden the parameters of whose life isn’t worthy, or whose life legally can be taken, we find ourselves in very dangerous territory, which is what Edward was describing. And this issue then determines a whole broad range of other issues like the abortion issue. Can an innocent life be taken if it’s in the womb, if it has a heartbeat, if it can feel pain and brainwaves, if it has fingerprints? This is an innocent life, and yet the laws right now determine that it can be taken.
And so if someone is vulnerable in a situation, like they’re dying, can that life be taken away from them? And we need to realize that in all cases it’s wrong to take an innocent life, and certainly that includes the life of someone who is dying. You know, we make the distinction between whether or not morally you stop something, you stop treatment or you aggressively do something that is going to cause that person to die. Like in Terri Schiavo’s case, she was in a hospice and she wasn’t dying. There was no reason for her to be in a hospice. Her husband decided to put her there, but she wasn’t dying. Father Pavone testifies that when he went to see her and spoke to her, she looked at him very intently. When he prayed she closed her yes. She followed him as he walked around the room. And yet sustenance was called a medical treatment, and it was removed from her, considering it was a medical treatment. But you and I, we just had lunch and we wouldn’t consider this a medical treatment. We would consider this just sustenance that we received to keep us alive.
And so I think she is a good example of how, with a loss such as this, that could pass as assisted suicide – it already is leading to blurring that line about who is worthy to live and who should be killed because maybe they are unproductive in society or because maybe they are considered to be in a quote, unquote, “vegetative state.”
MR. RABEN: I don’t get paid enough to take that on. (Laughter.) Thank you very much. I both respect everything you have said and I hear it a lot. I’ll say a couple of things in response. I not only deeply respect your view and your education about what you would do and what you counsel people to do. I fully support and will work seven days a week – which I already do at my firm – I will fully support your right to implement your views and to define your life and the lives of those who agree with you in the way you see fit. And so there is nothing about anything I’m doing or advocating that has anything to do with how you implement your choices about how you live your life and how you die. Nothing.
I guess the fundamental question I would ask is how your deeply held views about life translate into the standing of the government to make the same decisions for other adults who are competent to so make them. And that is where I think we’re going to not only disagree, but disagree for several generations. I love the Lord. I pray every day. I’m a member of synagogues. I try to abide by the law. I have very strong personal views that are infused with my relationship with God about how to die and how to live my life.
Those views don’t inform anything about you and what decision you should make when you’re in the hospital room with your mom. Nothing. I have no standing through my government to exhort you that this is innocent, this isn’t innocent, this is a course of treatment that is appropriate, this isn’t appropriate. And I would ask the same of you.
I have got a lot of other thoughts about innocent life. And one of the things I love about the Catholic Church and really appreciate is that their defense of life is significantly broader than what you just said. They don’t limit it to innocent life. The Catholic Church is opposed to the death penalty.
FR. CAPOVERDI: But it’s not an intrinsic evil.
MR. RABEN: The Catholic Church is opposed to the death penalty.
MR. WHELAN: Father is pointing out – and I think we need to make sure that the Catholic teaching is not misrepresented – that there is a fundamental distinction between Catholic teaching on things like abortion and euthanasia, and the Catholic teaching, which is essentially prudential, on the status of capital punishment.
FR. CAPOVERDI: You can be an orthodox Catholic and raised in the church’s teaching and believe in the death penalty, but you can’t be an orthodox Catholic embracing the church’s teaching and believe in abortion or assisted suicide because one is an intrinsic evil, and the other is wrong, but not always wrong.
MR. RABEN: I withdraw a proposition I didn’t even make, which is that I have any standing to explain Catholic doctrine. Okay, I don’t know where that came from, but believe me, believe me, I have zero ability to explain or defend, but –
MR. WHELAN: Robert, can I jump in to offer my answer to the question you posed? The question as I understand it is, What standing do you have to try to impose through the democratic process your views on this? It’s a very important and interesting question. I think the answer at bottom lies in a distinction between what we Catholics would call natural law, on the one hand – reasoning that is not at its core sectarian but attempts to appeal to the human mind (which isn’t to say that some won’t reject it) – and sectarian teaching on the other. And I supposed the very belief in this distinction may turn on the broader distinction between good and evil that I was maintaining before and that I think you, whether it’s semantics or not, were rejecting.
So I think that those of us who are religious believers, as you are, need to understand that we’re not trying to get people to embrace our understanding of the Trinity or not eat meat on Fridays or do other things that might be seen as sectarian or specific to a particular denomination, but that we instead are challenging an opposing view. Our tradition doesn’t require that we acquiesce in this regime of radical autonomy, a regime that was unheard of essentially at the time of the framing.
We understand, based on the Judeo-Christian moral tradition, that individuals are vested with basic rights. And the Declaration of Independence says that these rights are unalienable. That means that the possessor of those rights themselves cannot alienate them. You cannot sell yourself into slavery; the Thirteenth Amendment makes that clear. You may not, under the principles of the Declaration of Independence and under Western law, commit suicide. Now, of course the question of punishing those who do it is a different one. But we have this tradition that says suicide is wrong, suicide is evil, and we as a society are going to make that clear.
MR. RABEN: You’re beginning to scare me. I hear you and I know the tradition about which you speak. But when we start talking about natural law and your respect for sectarian differences, which is gracious of you to draw that line, that is when my hair starts to sprout, which – keep going. (Laughter.) I don’t know what to do with that. I guess I’m Judeo-Christian, but I’m not sure what that means anymore. Most of the time when I see that buttressing something, we are generally in a category of regulation where reasonable Judeo-Christians disagree. And so the expression that “it’s rooted in the Judeo-Christian ethic” always gets my already sharp tongue a little sharper.
MR. WHELAN: But, Robert, the difference, if I may, between your position and mine is you are saying that there is something wrong with my advocating my public-policy position in the public square. I’m saying you advocate yours; I’m going to counter with mine and I sure I hope win. You are saying there is something illegitimate, there is something tainted –
MR. RABEN: I didn’t say that. I didn’t say that you advocating in the public square is wrong. As I said, your reliance on the government – and I did I apologize. No, we all –
MR. WHELAN: Isn’t that your whole question? “What standing do you have, religious believers, to make this argument?” You are certainly calling into question the basic right that we have –
MR. RABEN: I didn’t realize I was as inarticulate as you now make me sound. I, in 100 years, wouldn’t interfere with open dialogue in the public square. In fact, I love vibrant and honest debate. That is a great thing. I’m here doing it. And I’m deeply interested in what the father and everybody else has to say. I am resisting the notion that the government – and now we are talking about the DEA or the Supreme Court – can rest on the rhetoric that you’re resting on, which is natural law and Judeo-Christian vibrancy and no culture accepts it and life is innocent –
MR. WHELAN: Our murder laws are based on that. That is what it came from. You can try to justify them on different grounds, but the laws that we take for granted every day –
MR. RABEN: I’m sorry, why aren’t we stoning people who wear mixed fibers? (Scattered laughter.) I mean, I had shellfish the other night and I hope nobody finds out. I appreciate that religion has played a terrific role in our lives for millennia and will continue to do so. It certainly plays an important role in my life. But it’s hardly an adequate justification in this country for the regulation of laws that “religion finds it so.”
MR. WHELAN: What you were just describing – mixed fibers and the like – are not propositions that any natural law thinkers ever said flow from the natural law. So I –
MR. MORELAND: We’ll have one more question here from David Ray.
MR. RAY: I’m David Ray of the Federalist Society. I hope you have time to deal with my question. Mr. Whelan touched on this in his intro. Father ever so slightly tangentially touched on it as well. But maybe this might be something that Mr. Raben feels he can handle more loosely in the administrative world.
As Mr. Whelan did mention, from time to time in this country, and certainly at the state level, we run into budgetary crunches that states face. We are constantly being told about the coming ballooning of Medicare and Medicaid in the future, particularly Medicare, as more and more of the baby boomers get to that stage of life.
I’m interested in safeguards – and this is not intended necessarily to be a softball question. Are you not concerned that someday there will indeed be budgetary pressures where people say, you know, after someone turns 90 years old, if he gets a little bit sick, maybe feels that this life is not necessarily likely to be productive and so on, that there would be pressures to suspend that type of medical treatment? And will there not be a slippery slope that first you start with people who are absolutely identifiable as terminal, which you say this turns on, that there would be a slippery slope to expand that?
MR. RABEN: I think it’s a perfect question. And I think it’s a question that proves too much. That if you are legitimately concerned about that, your problem isn’t Oregon, which, as I said, is the only state in the nation that creates an administrative procedure, a transparent process for regulation and review, administrative claim if you think it isn’t being handled right. If a family member disagrees with the decision, they can make some noise. I don’t know that they would necessarily be found to have standing, but they can make some noise to slow it down.
In every other state, if you’re worried about what you’re worried about, there is a crisis out there. HMOs and hospitals and families are making decisions about the value of people’s lives and the worth of people’s lives based on variables that you may not approve of, i.e., budget crunches, in a spectacle that I don’t even need to use rhetoric about. Didn’t we just see that at St. Rita’s Nursing Home in Louisiana where we lost a lot of elderly people because – and I don’t obviously – I haven’t read the interrogatory and the response, but wasn’t there perhaps an economic element to that decision – you know, it’s a little expensive. Maybe – I don’t know, I don’t know.
So if you’re worried about what you’re worried about – and you are and so am I – Oregon is a solution, it’s not a problem. The problem is out there in every hospital corridor right now, in every hospice, in every living room, in every sick room, in every church-visiting nursing route – lots of people are making decisions about the value of the next couple weeks of somebody’s life, and I would encourage you to get out there as the Federalist Society and worry about it and bring causes of action on under-treatment of pain, bring causes of action when HMOs say, gee, I don’t know; you have reached up against your limit.
And I would really encourage you – people who love life and love the Lord and love the value of life – to use the courts; get out there and help people. Make sure they have pain management. Make sure families aren’t coercing them. The disabled need your help. They are totally vulnerable. So get out there, get your armies of volunteers to help them. The Oregon law is the only safeguard I have seen.
MR. WHELAN: Two very brief responses, and then I apologize, I need to run. I would love to talk with those of you who are interested, but I just can’t. I am not an expert on this, but I think if you’ll do some research on the Internet, you’ll discover that Oregon is not the paradise that is being depicted here, that indeed there has been all sorts of rationing in ways that do discriminate against the old and the vulnerable. That is my strong impression. I don’t have the facts on my fingertips but please look it up.
Second, on the slippery slope, I think you’re very right about that slippery slope. I would only say that I wouldn’t totally agree with that argument because I think it’s enough that Oregon would take us off the cliff. There is not much of a slope to slide down at that point.
MR. MORELAND: Please join me in thanking our two panelists for their thoughtful remarks. And thank you to the sponsors, the American Constitution Society, the Pew Forum and the Federalist Society for this event. Thank you for coming.
*Many questioners declined to identify themselves.