Academic journal article Journal of Law and Health

Beyond Washington V. Glucksberg: Oregon's Death with Dignity Act Analyzed from Medical and Constitutional Perspectives

Academic journal article Journal of Law and Health

Beyond Washington V. Glucksberg: Oregon's Death with Dignity Act Analyzed from Medical and Constitutional Perspectives

Article excerpt


Physician-assisted suicide. An oxymoron. The concept goes against the grain. It runs counter to thousands of years of understanding of the physician's role, embodied in the timeless credo: "Do no harm."(2) It runs counter to themes that pervade western philosophy and literature. As Alexander Pope said in 1733: "Hope springs eternal in the human breast."(3) Somewhat more recently, Yogi Berra expressed the same sentiment in equally timeless fashion with the remark: "It ain't over til it's over."(4)

Yet, as medicine and technology continue to advance, public debate increasingly focuses on whether in some hopeless situations, there comes a time to acknowledge that "it's over."(5) Between eighteen to thirty percent of physicians report that they have received requests from patients for help in dying.(6) Thirty-six percent of physicians indicate that they would assist terminally ill suffering patients in ending their lives were it legal to render such aid.(7)

Currently, Oregon stands alone in allowing patient and physician to openly carry out such end-of-life decisions. The Oregon Death with Dignity Act (DWDA),(8) passed by voter referendum in 1994 and re-approved in 1997, is the only American law that authorizes a physician to aid a terminally ill, competent patient in committing suicide.(9) A similar referendum was defeated by Michigan voters in November 1999.(10) At the national level, Congress is considering legislation to bar physicians from prescribing medication for the purpose of hastening a patient's demise. (11)

While physician-assisted suicide (PAS) is thus being debated in the legislature and in the polling booth, it is also being debated in the courtroom. Laws legalizing PAS and those prohibiting it have been the subject of disputes. Courts have therefore considered the rights at issue from opposite vantage points. For example, in Lee v. Oregon,(12) a challenge to the DWDA that ultimately failed because the plaintiffs lacked standing, the question was whether a law allowing PAS infringes the constitutional rights of vulnerable individuals who might need protection from having assisted suicide imposed on them.(13) However, in Washington v. Glucksberg and Vacco v. Quill, the question was whether laws prohibiting assisted suicide violate the constitutional rights of terminally ill individuals seeking assistance in ending their lives.(14)

This Article examines several aspects of the medical and legal debate on physician-assisted suicide. Part I describes the Oregon Death with Dignity Act, the only existing American law legalizing physician assisted suicide. Understanding the provisions of the DWDA provides a concrete, practical framework for discussing the medical and constitutional issues central to the PAS debate.

Part II considers the wisdom of the DWDA in light of current medical knowledge and practice. The law allows a patient, with only a few months to live, a humane end to intolerable suffering under controlled conditions. It is carefully crafted to ensure that patient and physician deliberate about the decision over at least a fifteen-day period, thereby discouraging impulsive behavior. It renders unnecessary the occasional practice of using high doses of sedating medications putatively for palliative purposes, but with the covert, inadequately discussed purpose of hastening the patient's death.(15) However, the DWDA does not sufficiently account for the complex motivations of patients requesting suicide. In addition, the statute does not fully consider the subtleties involved in differentiating clinical depression from expected sadness in terminally ill patients. In order to address these problems, the Oregon legislature should amend the DWDA to mandate that a psychiatrist must evaluate every patient who requests assistance to end his life.

Part III of this Article examines whether the DWDA passes constitutional muster in light of the Supreme Court's recent landmark decisions in Glucksberg and Vacco. …

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