Mary X. Wants to Save Her Right to Die

Mary X. describes herself as a fighter. And that's why she wants the right to end her life on her own terms, with drugs prescribed by her physician.

Mary, an Oregon woman who asked that her real name not be used because her grandchildren have not been informed of her decision to take advantage of the state's Death With Dignity Act, received a prescription for a lethal dose of pentobarbital from her doctor, though she says she has no immediate plans to take it.

"I want the option, not knowing what is down the road," she said. "I'm one of those people who like to be in control. I'm a fighter."

Mary doesn't know what's down the road not only because she is battling ovarian cancer, but because Oregon's Death With Dignity Act, which allows doctors to prescribe lethal doses of drugs to terminally ill patients who request them, has been challenged by U.S. Attorney General John Ashcroft.

In November, Ashcroft reversed an earlier U.S. Department of Justice decision that Oregon's law did not conflict with the federal Controlled Substances Act, and ordered the Drug Enforcement Administration to begin pursuing legal action against doctors in the state who prescribe potentially fatal doses of drugs for their patients.

Oregon Attorney General Hardy Myers filed suit challenging Ashcroft's decision, and after Ashcroft asked a U.S. District Court judge to dismiss the suit, the judge granted Oregon's request for a temporary restraining order until he rules on the case. Arguments are scheduled to begin on March 22 in the case, which is unlikely to be resolved before the appeals process is exhausted.

Doctors say that since the Bush administration's challenge of the law, there has been an increase in the number of requests they have received for suicide assistance.

Preying on the Weak?

Ashcroft's effort to end the law, which was twice approved by Oregon voters and has allowed 91 people to end their lives with doctor-prescribed drugs since it went into effect in October 1997, pleased opponents of the act, who say it encourages the notion that the lives of people with terminal illnesses are not worth as much as the lives of healthy people.

They say it preys on terminal patients' depression, fear of pain and concerns about becoming a burden on others — none of which, they say, should be a reason for people to end their lives.

Mary, who is still alive nearly a year after doctors told her she would be dead in less than six months of ovarian cancer, does not give the impression of the kind of person who opponents of the Death With Dignity Act say will become its victims — those battling depression, their will and reason softened by constant doses of painkillers.

When asked, as delicately as possible, about how she outlived her prognosis, she laughed and said in her clear, strong voice, "Oh yeah, I'm still here. I'm a fighter."

Allowing doctors to prescribe lethal doses of drugs to terminally ill patients who say they want them strips those people of their dignity, rather than providing them with a dignified option for ending their lives, opponents of the law say.

A Change of Terms

The issue is not whether people should have the right to end their lives — which is provided under Oregon law — but whether physicians should be allowed to take part in the act, according to Dr. Gregory Hamilton, a spokesman for Physicians for Compassionate Care.

"It changes the decision from 'How can we care for you?' to 'Are we or are we not going to kill you?' That's not right," Hamilton said.

"You don't give all people [who suffer depression] a choice," Hamilton said. "People who are stigmatized by the term 'terminally ill' have their suicidal despair responded to differently than everyone else."

But supporters of the law say that it gives the terminally ill a reason to talk to professionals about their feelings, opening the door for the very treatment the act's opponents say they should get. Without the law, people suffering despair over their illness might decide to act on their own to take their lives, without first trying to get help.

"If a patient does try to end his life, it is often violent and it's often not successful," said Dr. Peter Rasmussen, a Salem, Ore., oncologist who is one of the plaintiffs in the case against the U.S. Justice Department. "That's a horrible thing for families to live with and think about.

"The reason I think it is valid to give patients assistance is that in this system we can do it in a humane fashion and not force people to do something risky," he said. "It also gives us the option to intervene. When people ask about assisted suicide we can set them straight about what the future holds, get them the counseling they might need."

After a study of 998 terminally ill patients that was released a year ago, Dr. Ezekeal Emanuel of the U.S. Department of Health and Human Services' National Institutes of Health said that it was crucial that doctors find a way to open lines of communication with their patients so they can deal with their concerns and fears.

The study found that 60 percent of the patients believed that doctor-assisted suicide should be an available option, though in the first phase of the study only 10.6 percent of the people said they had considered it for themselves, and two months later half of them said they were no longer considering it. However, another 29 patients who hadn't said they were considering it when they were first asked said they began to entertain the idea.

The study also found that only 1.6 percent of the patients discussed the assisted suicide with their doctors, but 2.5 percent of them hoarded painkillers in case they decided they wanted to end their own lives.

'Life Is So Precious'

The law, which was originally passed in 1994 but did not go into effect until October 1997 because of a series of legal challenges, requires that a person who wants to have a lethal dose of drugs prescribed must ask three times — once in writing and twice verbally, with at least 15 days between the two verbal requests.

The patient must be at least 18 years old, an Oregon resident, and must be "capable" — defined as being able to "make and communicate health care decisions." The patient must have been diagnosed with a terminal illness and have been determined to have less than six months to live.

Two doctors must confirm the diagnosis and the prognosis, and both must agree that the patient is not "impaired by a psychiatric or psychological disorder." The prescribing doctor must also make sure that the patient is aware of the care options available to them, including hospices and the range of painkillers.

The patient's physician can prescribe the drugs, but is forbidden from administering the lethal dose.

In order to qualify for the so-called "safe harbor" provisions of the law, which protect doctors who prescribe lethal dose of drugs, a physician has to file a report on the case with the Oregon Department of Human Services division of Public Health Services, which has released annual reports on patients who have ended their lives through assisted suicide.

Opponents of the law say none of that is enough to prevent it from being abused.

"There is really nothing in the law that protects the depressed," Hamilton said. "We know from study after study that the vast number of patients who go for assisted suicide suffer depression."

On one level, the debate seems to come down to a fundamental difference of opinion about the relationship of a person to their own life: Is it possible for a person to say, "This kind of life is not worth living," and still be in their right mind?

"The vast majority of people that ask their doctors to prescribe these drugs for them don't use them," Rasmussen said. "Life is so precious that most people choose to live, even under the most extreme circumstances."

A Cheaper Way of Death?

Financial matters also play into the debate. Some opponents of the law say that it is supported by health insurance providers looking to cut costs and that people facing difficult financial situations might be inclined to cut their lives short to save their familes money.

"That's a hot button issue — it is for me," Rasmussen said. "The idea of people ending their lives to save a few bucks, that's really disturbing to me. That's where we've gotten social workers in there to talk to them and counselors to try to resolve these kinds of concerns."

He admitted, though, that the cost of their care is a "very common" concern of terminally ill patients, and said that one-third of the people he has treated who died of cancer "go into poverty and drag their family into poverty with them."

He dismissed the idea that HMOs might try to push the assisted suicide option on their doctors, pointing to a study done by Emanuel that showed the savings to insurers from the law have been minimal.

"I think it's a valid question to raise, but when you look at it, it becomes kind of moot," Rasmussen said.

'An Unprecedented Federal Intrusion'

The running fight between Oregon and the federal government since the state's voters first approved the act in 1994 has been a backdrop for the moral debate, and has been cast by some as a conflict between a state whose residents are known for their independence and a presidential administration that pledged to support states' rights but now seems to be attacking them.

The conflict seemed to be at an end in June 1998, when then Attorney General Janet Reno issued a statement saying a Justice Department review of the federal Controlled Substances Act found that there was nothing in it that "authorizes adverse action against a physician who prescribes a controlled substance to assist in a suicide in compliance with Oregon's 'Death With Dignity Act.'"

However, two years later, President Bush, who otherwise campaigned on the proposition that states know better how to govern themselves than Washington does, vowed that if he was elected his administration would overturn the Oregon law.

Ashcroft took the first step in the effort to make good on that vow on Nov. 6, 2001, when he issued a statement saying that assisting suicide is not a "legitimate medical purpose," and therefore doctors who prescribe federally controlled substances to do so could have their licenses suspended or revoked.

"The U.S. Department of Justice decision will deprive terminally ill Oregonians of a crucially important choice in how they manage their final days," Oregon Gov. John Kitzhaber said in response to Ashcroft's decision. "Oregonians are satisfied that we can responsibly implement physician aid in dying and this is an unprecedented federal intrusion on Oregon's ability to regulate the practice of medicine."

Oregon voters have twice approved the Death With Dignity Act — initially by a 51-49 percent margin in 1994, and then again in 1997, by a broader margin when the legislature put a proposition on the ballot to give the state's voters the chance to reject the measure.

Broader Implications?

No other state has legalized assisted suicide, but on March 7, the Hawaii House passed two measures similar to Oregon's Death With Dignity Act. One approved a constitutional amendment to allow doctor-assisted suicide, and the other laid out the terms under which the law would be implemented.

The state Senate, however seems unlikely to follow suit. Despite support from Gov. Ben Cayetano for the bills, Senate Health Committee Chairman David Matsuura said he would not schedule any hearings on the bills.

Ashcroft's action in November also drew an angry response from Sen. Ron Wyden, D-Ore., who said the attorney general's decision could also threaten doctors' ability to prescribe strong pain killers, such as morphine.

Opponents of assisted suicide in Oregon dismissed Wyden's claim, pointing out that in his statement, Ashcroft specifically stated that the issue was not pain killers, but the prescribing of drugs for suicide.

One member of the Supreme Court has already weighed in on the issue, though the fight has not reached the justices yet. During an appearance at Lewis and Clark College in Portland this year, Justice Antonin Scalia said Oregonians should have the right to decide the issue, not the federal government.

The issue is now in the hands of a federal court judge.