Elusive Death
Who should decide? Washington or Salem?

November 9, 2001 3:45 p.m.

have a letter, and my guess is that you have one like it. Mine is from a middle-aged woman who brings me news of her father, an old friend retired in Arizona who slipped out of sight a few years ago. His daughter writes now to inform me of her own daughter's college plans and of her father's inability to help. "I never anticipated that dad would be in a nursing home, a virtual infant and not even know who I was much less [his granddaughter]. Alzheimer's Disease has to be one of the most horrible diseases there is today. I pray every day that he will die. And that is something that I have told very few people. My family is suffering terribly from what is happening with dad every day."

That doesn't sound quite right, does it — to pray that someone living should die? But though the sentiment is furtive, it has to be the wholesome sentiment of those who care deeply and experience intimately the plight of loved ones whose survival is only a technical biological finding. In rhetoric, the denial of the opposite (a litotes) is the gentler way of saying it, as in, "I am hardly praying that Ronald Reagan should live another eight years . . ." Directly said, that would translate into: I hope he will cease to suffer, and cause others to suffer.

Now that is not quite the question posed by the Oregon imbroglio. There you had a plebiscite pass, called an assisted-suicide law. It is very specific legislation. It authorizes a physician to prescribe a terminal medicine (morphine, the layman assumes) to a patient in pain who in the judgment of that physician and one more doctor, will not live another six months, and, being mentally competent, communicates to his doctor the desire to expedite death. An interesting nod to tradition: The physician may prescribe the death potion, but not administer it.

In the four years since the plebiscite was activated, 70 residents of Oregon have taken advantage of its provisions. Now John Ashcroft, as Attorney General, comes on the scene with an injunction forbidding the practice. More exactly, he advises doctors in Oregon that in prescribing the fatal substances, they are deploying something that is regulated under federal law. And federal law views such substances as designed as therapeutic, not mortal provender. The Attorney General threatened to withdraw the license to prescribe drugs from any doctor who used his authority to prescribe them intending that they be used to facilitate assisted suicide.

Oregon's own attorney general howled, his position being that which laws govern the administration of medicine in the state of Oregon are the business of the people of the state of Oregon. Enter, on Thursday, a federal judge in the District Court who stayed the order of the Attorney General of the United States. The order gives the higher court a November 20 deadline if it elects to overrule and reimpose the federal ban. Judge Robert Jones said that pending a broader judicial hearing, "there is no showing that the U.S. would be irreparably impaired by a temporary stay of the attorney general's action." That has to mean that if the 71st petitioner for the terminal prescription of morphine is given it, and dies before November 20, the Ashcroft cause is not irreparably damaged; though to be sure, the patient will be dead.

Now as with the fight over the marijuana laws in California, there is in Oregon a constitutional contention: Who should decide such matters? Washington or Salem? But again, as with the marijuana laws, there is a third presence, which asserts, or tries to do so, a transcendent point. In California, it was: Nobody should go to jail for smoking pot. In Oregon it is: Nobody should intervene between a patient and his doctor. "Helping nature take its course is not criminal and it should be outside governmental regulation," writes Jerome Groopman, professor of medicine at Harvard.

Now the Oregon imbroglio, constitutional and ethical, is a distance removed from the plight of my friend in Arizona who is dying, but not fast enough to appease undeniable demands of mercy. That is the major ethical question to be faced in a world whose scientists struggle so successfully to prolong life, and whose moralists are retrograde in formulating correlative codes that confront the raw message of the time: In 1960, the percentage of those in America alive at 75 or over was 3.1. In the year 2000, the percentage is 6. That is, in general, wonderful news for a great many people. But for a few, it is bad news. And these present us with the problem.