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September 30, 2005


PAUL GIGOT: Welcome to THE JOURNAL EDITORIAL REPORT. Shortly after it opens its new term next week, the Supreme Court, led by its new Chief Justice, John Roberts, will hear arguments on whether doctors should be able to help terminally ill patients end their lives. The Bush Administration is challenging Oregon's Death With Dignity Act, the only state law in the country that authorizes physician-assisted suicide. With me to join the national debate on this issue are Dan Henninger, columnist and deputy editor of THE WALL STREET JOURNAL editorial page, Kim Strassel, a senior writer for the page, and Brian Carney, a member of the editorial board. Let's begin with a report on the case before the Supreme Court from correspondent Barry Serafin.

BARRY SERAFIN: For Don James, every day is a struggle.

DON JAMES: I have a tremendous will to live. But right now I say six months is -- is what the deal is.

BARRY SERAFIN: James is a 79-year-old retired school administrator who has advanced prostate cancer, which has spread to other parts of his body. But because he lives in Oregon, he can decide how he will die.

DON JAMES: If I'm in the position where unbearable pain, and sense that I will lose the ability to communicate, to read, to understand, and so on, I would just rather check out. I'm not rushing to death. But if -- the kind of living I've described is not really living.

BARRY SERAFIN (V/O): James and his wife Claire have been married nearly 60 years.

BARRY SERAFIN: Do you think he's making the right decision?

CLAIRE JAMES: It's a personal decision. It's not for everybody. But for him? Yes.

BARRY SERAFIN: Since the Assisted Suicide Law was enacted in 1997, only 208 Oregonians have ended their lives that way -- most of them highly-educated. College graduates have been eight times more likely than those with high school diplomas to die by doctor-assisted suicide.

DON COLBURN [REPORTER, OREGONIAN]: The early fears that depressed, uninsured, poor people would somehow be preyed upon by this law, that particular fear has not come to pass.

BARRY SERAFIN: Before a patient can get the lethal dose of drugs, he or she must make two oral requests and one written request, signed by witnesses. Two doctors must determine that the patient is mentally competent and has less than six months to live. But despite those safeguards, the issue that is still being debated here is whether assisted suicide is a proper role for doctors. Dr. Kenneth Stevens, an oncologist and founder of the Oregon group called Physicians for Compassionate Care, says "no."

DR. STEVENS: I consider that assisted suicide is contrary, and really incompatible with the doctor's role of -- of really taking care of a patient. That's not what doctors are trained for, it's not what doctors are trained to do. It's just medically wrong. It's -- it's not medicine.

BARBARA COOMBS LEE: I think that doctors' duty is to comfort.

BARRY SERAFIN: Barbara Coombs Lee, a lawyer and former nurse practitioner, is head of Compassion and Choices, an organization that assists terminally ill patients to navigate the complex legal requirements.

BARBARA COOMBS LEE: I wouldn't say that any physician should violate his or her own beliefs and values. But nor should they stand in the way of their colleagues -- for whom it is absolutely consistent with their ethical framework and their moral construct -- to provide this kind of assistance for their patients.

BARRY SERAFIN: Hasn't this gone on quietly without being discussed a lot of places for a long time?

BARBARA COMBS LEE: It has gone on and it does go on. Doctors out of their compassion do often provide medications that can be used for a peaceful death. Data indicates that aid in dying might be as high as one in 250 deaths throughout the nation. Well in Oregon it's one in 2,000.

BARRY SERAFIN: Oregon's Death with Dignity Act already has survived two legal challenges by former U.S. Attorney General John Ashcroft, who contended that prescribing lethal drugs to terminally ill patients was a violation of the Federal Controlled Substances Act. Now his successor, Alberto Gonzales, will take the case before the U.S. Supreme Court.

Oregon's argument before the Supreme Court will be a simple one -- that this is a case of state's rights and the federal government has no business meddling in medical practices.

DON JAMES: And the feds just ought to leave us alone. You know, people can still take their lives. I used to laugh about how I could create an Ashcroft kit, a strong plastic bag, and some duct tape. But that's not -- that's not the proper way to do it.

BARRY SERAFIN: When the terminal patients such as Don James are ready to take the final life-ending step, there is one more condition in the law...

BARBARA COOMBS LEE: The patient has to self administer the medication and injections are specifically prohibited.

GEORGE EIGHMEY: The person drinks the medicine and within a few minutes is into a deep coma.

BARRY SERAFIN: George Eighmey is head of a group called Compassion in Dying of Oregon. He has assisted and observed more than two dozen such suicides.

GEORGE EIGHMEY: It's very peaceful. There's no pain. It's simply a very peaceful way to go to sleep. And generally they die shortly thereafter.

BARRY SERAFIN: Do they want anything besides family?

GEORGE EIGHMEY: No. Most of these people have, like I say, detached from the physical. It's not things any more. It's people. It's their loved ones. That's what they want around them.

BARRY SERAFIN V/O: For patients such as Don James, it's about their right to intensely personal decisions. It's about options.

BARRY SERAFIN: You haven't decided yet whether you would actually use it?

DON JAMES: No, I haven't. I just want the comfort of having it. I'm not afraid to use it, if the circumstances are those I described.

BARRY SERAFIN: Why is that important to you, to have that choice?

DON JAMES: Well it -- I feel empowered. I don't want to be in a helpless state. I wouldn't want someone patting my cheek 15 years later saying, "well you're still with us dear."

BARRY SERAFIN: Your husband says this decision will bring him some comfort, just knowing he has that option.


BARRY SERAFIN: Is it comforting to you? Or not?

CLAIRE JAMES: I really hope it doesn't come to that. But, yes, if he -- if he feels that this is what he needs, then I can live with that.

DON JAMES: We all still want to live as long as we can. Well, that's paramount. But -- but if certain circumstances of pain, I'll open the cabinet, gather the people around, put on some good music, and maybe a glass of wine, and -- and do her.

PAUL GIGOT: Dan, conservatives have long believed in states rights when it comes to these fundamental questions, moral questions, regulatory questions. Why is the Bush Administration, the federal government, getting into it, in this case to overturn a law?

DAN HENNINGER: Well, this really does show just how blurred the line is becoming between what conservatives supposedly believe and what liberals are said to believe in. Nominally, this is indeed about assisted suicide. The Bush administration, and in the person of then Attorney General John Ashcroft, are simply against assisted suicide no matter where it occurs. And then Attorney General Ashcroft decided that the way he would stop Oregon's law is by citing the Federal Controlled Substances Act, and claimed that the barbiturates that the patient uses out there is drug abuse, essentially, and therefore the federal law pre-empts the State of Oregon's law. And he's asking the Supreme Court to sign onto that interpretation of that act. So essentially, if the Supreme Court, or when the Supreme Court rules, it will say a lot more about where we stand now on the division between federal power and state power. And the irony here is that this is presumably a liberal law that Oregon has passed, that the feds are going to overturn.

PAUL GIGOT: Well, and conservatives would say, when it comes to abortion and Roe v. Wade, that the Supreme Court should not have overturned 50 state laws on abortion. And here, the table is turned, Kim.

KIM STRASSEL: Yeah, no, I mean the liberals have long been the one that have asked judges and courts to come up with reasons why federal law or the Constitution should trump states rights. And guess what? A lot of social conservatives said hey, that works really well for them. Maybe we'll try it, too. And so what you have had is that a lot of the things that liberals would be most behind this idea of states as being laboratories of innovation for new laws, they are now the ones that find these laws that they are passing at risk of the same sort of, in a way, judicial activism but this time from conservatives.

PAUL GIGOT: It's liberal social policy in this case, or what we would think of as liberal social policy, assisted suicide, and in California the use of medical marijuana. This year, the Supreme Court in the Raich case said the commerce clause of the Constitution allowed the federal government to overturn another state law that implemented liberal social policy.

BRIAN CARNEY: That's exactly right. And that's one of the things that's going to make this case so interesting to watch, Paul, is that in the Raich case we had a drug use law, and you had conservatives split on the law. Scalia went with the majority in overturning the medical marijuana law, where you had Thomas, who's normally considered to be Scalia's bosom buddy, along with O'Connor and Rehnquist, in the dissent -- that is, in favor of California's right to allow medical marijuana use. And so we have the stated ideals of federalism coming up against people's preferred social policies. And I think it's hard to know which way the court is going to go on this.

KIM STRASSEL: And this is a pretty straightforward states rights case, too. Remember, Oregon voters voted for this law in the first case. They also voted down a proposed repeal of this act. And the other thing, too, is that medical regulation has usually always been the province of the states.

PAUL GIGOT: Well, that's right. Would they have to overturn the Controlled Substances Act, though? Would the court have to do that in order to ...

BRIAN CARNEY: It didn't have to overturn the whole act. It would simply have to hold that the Attorney General -- then John Ashcroft, now Alberto Gonzales -- had overstepped his bounds in interpreting the law, and they could do that on the basis of Congressional intent, saying that the law was never passed, that the intention of preventing the use of barbiturates for assisted suicide. It probably wasn't contemplated either way, so that's an argument that could be used.

PAUL GIGOT: There's another precedent here, Dan. It's the Glucksberg case in 1997, a unanimous Supreme Court decision which said that there was no constitutional right to assisted suicide in the U.S. Constitution, and therefore states could ban it. But there was also something in that decision that may bear on this.

DAN HENNINGER: And that decision was written by Chief Justice Rehnquist, and in the final paragraph of his decision he said that while assisted suicide had been banned in almost every state in our tradition and in our history, that it was nonetheless a legitimate issue for the states to take up inside their political system, and decide whether they wanted to pass such a law. Again, that was a nine to nothing decision. So there is a tendency inside the court to take an issue like this and respect it, as Justice O'Connor said, something appropriate for the laboratory of democracy.

BRIAN CARNEY: At the end of that Glucksberg case, Rehnquist said that this would allow the democratic debate to continue on the subject of assisted suicide. And this is a point that is often made against Roe v. Wade, that it cut off the debate and led to very high stakes, judicial fights and fights over nominees and fights over the Supreme Court. Whereas, if you had allowed states to vote, you'd probably end up with a basically liberal regime, but people wouldn't get so worked up about it because there would be a kind of democratic outlet.

PAUL GIGOT: This tells us, I think, that for a lot of conservatives, social conservatives, just as for a lot of liberals, what matters when it comes to these judicial decisions isn't the process, isn't the constitutional balance -- it's outcomes. It's let's get to our result, and if we can use the courts to do it, so be it.

KIM STRASSEL: And that's why there's going to be a big tension when this goes in front of the courts, especially now with Roberts as the chief justice, because you do have the 1997 case that says this is a legitimate state interest. Yet more recently, you do have the Raich, the medical marijuana case, where people said no, the federal government has the right to interfere in states issues.

BRIAN CARNEY: And when Roberts was interviewed in 1997 about the Glucksberg case, he said at the time that for him it wasn't a moral question, it was a question of deference to the states. But I think it's much easier to say that when the substance of the decision comports with your moral values in the first place.

PAUL GIGOT: I suspect that Justice Roberts, Chief Justice Roberts, who is, I think, a traditional judicial conservative, is going to come out on this exactly where Chief Justice Rehnquist would have come out, which is siding with the state of Oregon and saying, this is up to them. I get the last word this week. Thanks. Next subject.