THE BATTLE AGAINST ASSISTED SUICIDE

By Wesley J. Smith

The struggle to prevent assisted suicide from becoming perceived as a legitimate, not to say legal medical treatment increased in intensity in the year 2002. Like most moral crises facing us, it looks to become even more pronounced in the coming years.

There was good and bad news last year: In the United States, the effort to legalize killing as an answer to human suffering gained not one inch in law. However, internationally the euthanasia winds increased to gale force as two nations - - the Netherlands and Belgium - - explicitly legalized euthanasia. This development kept euthanasia forces energized and hungry for more. Thus, if their dark agenda is going to be kept from spreading to our shores beyond its current foothold in Oregon, there is much work to be done.

To understand the extent of the existing euthanasia threat, we need only look at two major domestic battles of 2002. First, the near legalization of assisted suicide in Hawaii. Second, the ongoing lawsuit by the State of Oregon against Attorney General John Ashcroft that resulted in a ridiculous trial court decision ruling that as a matter of law the states rather than the federal government, have the power to determine what constitutes legitimate medical uses of federally controlled substances under the Controlled Substances Act.

Near Miss in Hawaii

The primary political tool utilized by euthanasia advocates has been the voter initiative. However, unlike the years 1988, 1991, 1992, 1994, 1998, and 2000, 2002 was a year of respite on this front. But culture of death activists were far from quiescent. In fact, pushed by a radically pro-euthanasia governor, Democrat Benjamin J. Cayetano, the Hawaiian House of Representatives passed a bill patterned on Oregon's assisted suicide law, the first time an assisted suicide bill had passed a legislative house.

The bill next moved to the Senate, where, thanks to the courage and commitment of Health Committee Chair Sen. David M. Matsuura, a pro-life Democrat, it was not expected to emerge. But then, unexpectedly, assisted suicide proponents successfully moved the bill to the Senate floor. In a late-night session, the legislation quickly passed by 13-12. With the governor eager to sign the bill, the outlook suddenly appeared very bleak.

But a never-say-die, intense lobbying campaign by the entire anti-assisted suicide coalition - - ranging from Hawaii Right to Life, National Right to Life, the Respect Life Office of the Diocese of Hawaii, and the Hawaii Partnership for Appropriate Compassionate Care, to medical professionals, to disability rights advocates - - managed to turn the tide. When the final Senate vote was held, it failed by a too-thin, but just good enough, 14-11 margin.

Assisted suicide opponents can take great satisfaction in this outcome, but can't sit on their laurels. Assisted suicide advocates, encouraged by how close they came to a triumphant legislative victory, will bring their bill back this year. Once again, the vote will probably be very close. To prevail, pro-life advocates must pull out all of the stops.

This time, at least, euthanasia opponents won't be caught by surprise. Active preparations are already ongoing to defeat the bill when it is reintroduced. International experts, such as Dr. Herbert Hendin, author of the powerful expose against Dutch euthanasia, Seduced by Death, have recently traveled to Hawaii to explain to the media and community gatherings why assisted suicide is not only bad medicine but worse public policy. National and local pro-life and disability rights activists are deeply engaged and ready to work hard to defeat a new bill.

As things now stand, there is reason for guarded optimism. Thanks to term limits, Gov. Cayetano has left the scene, depriving euthanasia enthusiasts of much political muscle and energy. Better yet, he was replaced by Linda Lingle, the first Republican governor Hawaii has seen in many years who has stated that she is against assisted suicide.

John Ashcroft Under Fire

When Oregon voters legalized assisted suicide in 1994, state regulators wanted to authorize doctors to prescribe barbiturates or other opioids (narcotics) as killing agents. But the federal government regulates the use of these drugs under the Controlled Substances Act (CSA) and federal law requires that controlled substances be used only for a "legitimate medical purpose."

Not surprisingly, the Drug Enforcement Administration (DEA) reacted negatively to Oregon doctors prescribing controlled substances in doses to kill instead of care. Because the wording of the regulations under the CSA do not mention assisted suicide, the DEA issued a regulatory "interpretation" informing doctors that prescribing federally regulated substances to assist suicides would not be a "legitimate medical purpose" under federal law. (An administrative interpretation establishes official policy for enforcing government regulations when the words of a pertinent regulation are unspecific or vague about the matter being interpreted.)

But then-Attorney General Janet Reno disagreed with the DEA. She pulled rank, writing a letter to Representative Henry Hyde in which she issued a new and different regulatory interpretation. Under Reno's policy, a doctor who prescribed controlled substances to facilitate a suicide in a state that had "not authorized the practice," would remain subject to federal sanction under the CSA - - just as the DEA had stated. However, Reno permitted states to opt their doctors out of the federal approach by expressly legalizing assisted suicide.

The problem of the CSA safely behind them, assisted suicide proceeded in Oregon. To date, more than 100 Oregon patients have committed suicide using controlled substances prescribed by doctors.

What a difference an election can make! With the ascendancy of George W. Bush to the presidency, Janet Reno was replaced by John Ashcroft as Attorney General of the United States. In November 2001, Ashcroft reversed the Reno directive, publishing a new regulatory interpretation in the Federal Register, stating that assisted suicide is not a "legitimate medical purpose" for the use of federally controlled substances. Further, he stated that henceforth, any physician prescribing controlled substances (such as barbiturates or morphine) for the purpose of causing death - - rather than for legitimate medical purposes such as aiding sleep or controlling pain - - would face federal administrative penalties, including loss of the federal privilege to prescribe controlled substances.

Oregon and others sued, a decision much applauded by the media. Even though the CSA is a federal law, a federal judge ruled that states have the sole authority to regulate medical practice within their borders, including what constitutes a legitimate medical use of federally controlled substances. Ashcroft was enjoined from enforcing a federal interpretation over a federal law that differed with the State of Oregon.

The federal government appealed. But now, because of the radical ruling by the trial court, Oregon v. Ashcroft has become about much more than physician-assisted suicide. If the trial court ruling is upheld on appeal, the power to determine what constitutes a "legitimate medical purpose" for the use of federally controlled substances will be stripped from the federal government and handed to each of the 50 states. It could mean the effective end of federal drug enforcement, since the ruling would not be limited to using controlled substances for assisted suicide. That makes Oregon v. Ashcroft one of the most important public policy cases in recent years.

Meeting the Challenge

How should the pro-life movement react to these events and engage in this struggle that will continue for the foreseeable future? I humbly suggest the following:

Continue to work in coalition with other opponents of assisted suicide. In 1997, Oregon voters reaffirmed by a 60-40% vote their 1994 51-49% decision to legalize assisted suicide. Yet, only one year later, Michigan voters stopped the assisted suicide juggernaut cold by rejecting assisted suicide by an overwhelming vote of 71-29%. Why the vast difference?

Part of it had to do with differing demographics between the two states, but it must also be remembered that Michigan was the state that refused to stop Jack Kevorkian for nine years. The more fundamental reason for success in Michigan, in my opinion, was the diverse alliance that came together to defeat assisted suicide. It consisted of pro-lifers, the Catholic Church and other religious communities, and others who may not be pro-life, such as medical, nursing, and hospice professional associations, advocates for the poor, and most especially, the disability rights movement.

In 2000, Maine provided a second successful test of this coalition strategy. If any state in the union mimics the demographics of Oregon, it is Maine. Highly secular, politically moderate or liberal, small enough for limited campaign dollars to go a long way, advocates of assisted suicide confidently predicted that they would repeat their Oregon success in Maine in the 2000 election.

Instead, even though early polls showed that assisted suicide would pass by a comfortable margin, the exact reverse happened. Instead of winning by 51-49 percent, as had occurred in Oregon in 1994, assisted suicide lost by 51-49 percent. This, despite opponents of assisted suicide being far outspent by euthanasia enthusiasts.

Why the better outcome? Again, I chalk it up to the willingness of people who may disagree about other issues to put those very real differences aside when struggling against assisted suicide. This wide-ranging coalition provided the margin of victory.

The tremendously successful outcome in Michigan and Maine showed that coalition politics is an important way to future electoral and legislative success against assisted suicide.

In appealing to the culture at large, pro-lifers must be able to argue the case against assisted suicide fluently and convincingly. Here's how:

Learn the facts. Proponents of assisted suicide often argue that the only bases for opposing their death agenda are religious. This is false. The secular case against assisted suicide and euthanasia is utterly overwhelming. But it takes time and effort to learn enough facts to convincingly "connect the dots."

There are a lot of places to learn these facts and secular arguments against legalizing assisted suicide. Several books have been written on the subject, including National Right to Life's Western Director Brian Johnston's easy-to-understand book Death as a Salesman, my Forced Exit: The Slippery Slope from Assisted Suicide to Legalized Murder, and most recently, The Case Against Assisted Suicide, edited by Kathleen Foley, M.D., and Herbert Hendin, M.D.

Give greater priority to opposing assisted suicide. The struggle over assisted suicide has not galvanized the nation. Large numbers of people are not marching in the street on either side. Indeed, it is a subject that most people avoid the way they do writing a will or planning their own funeral. This is not cause for complacency, however. As we saw in Hawaii, pro-assisted suicide forces, while relatively small in numbers, are energetic and indomitable.

But in a cultural and political milieu in which most people are generally indifferent to the outcome, the side with the most energy will likely win. That means all of us who are part of the anti-assisted suicide alliance will have to redouble our efforts in the coming years just to stay in place, while actually rolling back the culture of death will take a heroic effort.

Proponents of assisted suicide believe ardently that they represent the future. I am convinced that they are wrong. They must be. Assisted suicide is bad medicine and even worse public policy. But nay-saying alone is not enough. It is the moral responsibility of each and every one of us who know why that is true to work energetically to convince the rest of the country.

This is no small task. It is not a message people necessarily want to hear. But the stakes could not be higher. The manner in which the nation ultimately decides this crucial legal and moral issue will tell much of the tale about our culture's remaining commitment to the sanctity/equality of life ethic; will define for our posterity society's cultural attitudes toward elderly, disabled, and dying people; and will determine the continuing commitment of medicine to the do no harm ethical ideal embodied in the Hippocratic Oath. Indeed, it is not an overstatement to assert that assisted suicide is a most important cultural bellwether issue. Win this struggle and our nation will be headed sharply away from the medical culture of death. Lose, and we will likely be engulfed by it.

Author Wesley J. Smith is a senior fellow at the Discovery Institute. He is the author of Culture of Death: The Assault on Medical Ethics in America and co-author of Power Over Pain: How to Get the Pain Control You Need.