Judicial Notebook

In 1994, the state of Oregon enacted by ballot measure the country's first law authorizing physician-assisted suicide, the Death With Dignity Act. The act authorizes physicians to prescribe lethal doses of controlled substances to terminally ill Oregon residents suffering from incurable diseases likely to result in death within six months.

The patient must be an adult, two independent physicians must confirm the diagnosis, and the patient must sign a written request in the presence of two witnesses attesting that the patient is competent and acting voluntarily. If there is any question as to the patient's mental state, the physician may require counseling. By February 2003, at least 171 people had hastened their deaths since the law took effect in 1997 (Kristof, 2004).

Under the federal Controlled Substances Act (CSA), it is unlawful to prescribe or dispense controlled substances without a federal registration. In 1984, Congress amended the CSA to authorize the U.S. attorney general to revoke a physician's prescription privileges for committing acts "inconsistent with the public interest."

In making that decision, the attorney general is to consider five factors: state board recommendations, the physician's expertise, the physician's conviction record, compliance with laws governing controlled substances and other conduct that threatens public health. According to the congressional record of the amendment, Congress intended the factors to be considered together, continuing "to give deference to the opinions of State licensing authorities."

In 2001, Attorney General John Ashcroft issued a directive under the CSA proclaiming that physician assisted suicide serves no "legitimate medical purpose." The directive provided for possible suspension, revocation of license or even criminal charges against the physician "regardless of whether state law authorizes or permits such conduct."

Oregon v. Ashcroft

The directive was challenged by the state of Oregon on behalf of a doctor, a pharmacist and several terminally ill patients. In May 2004, a three-judge panel for the Ninth Circuit Court of Appeals issued a 2-1 decision affirming the lower court's injunction of the regulation. The court found that the directive exercised control over an area of law traditionally reserved for state authority and that the attorney general had failed to consider all five factors enumerated in the CSA, ignoring, in particular, the opinions of the state licensing authorities.

Accordingly, the court held that the directive is "unlawful and unenforceable because it violates the plain language of the CSA, contravenes Congress's express legislative intent, and oversteps the bounds of the attorney general's statutory authority."

The court took "no position on the merits or morality of physician assisted suicide," ruling instead on the question of "who gets to decide."

The court based its ruling on several prior rulings. For example, the U.S. Supreme Court has stated as early as 1925 that "Obviously, direct control of medical practice in the states is beyond the power of the federal government" (Linder v. United States). As recently as 2002, the Ninth Circuit reiterated that state lawmakers are "the primary regulators of professional [medical] conduct" (Conant v. Walters).

Moreover, state regulation of physician-assisted suicide was specifically addressed by the U.S. Supreme Court in 1997 when it instructed that the "earnest and profound debate about physician-assisted suicide" belongs among state lawmakers (Washington v. Glucksberg).

The role of psychology

As an increasing number of states grapple with whether to authorize physician-assisted suicide and, if so, how to craft the implementing regulations, psychology will play a prominent role.

In recent years, psychologists have begun to study the processes involved in end-of-life decision-making (for a review, see "Assisted Suicide and the Right to Die," by Barry Rosenfeld, PhD, [APA, 2004]). Essential areas for continued research include the effects of the availability of physician-assisted suicide on patient well-being and on physician behavior, the reasons patients request physician-assisted suicide, the relationship of pain to the desire for hastened death, the effect of depression on the decision-making process and how factors such as functional ability, symptom distress, hopelessness and social support play a role in the decision-making process. Such research will be fundamental in developing a unified theory of the influence of these factors and their interplay.

The findings of such research will also inform debates over the implementation of policies and safeguards for physician-assisted suicide. States allowing physician-assisted suicide will have to consider policies related to the evaluation of the decision-making abilities of those requesting physician-assisted suicide, screening processes that identify and treat depression in those with terminal illnesses, counseling services for the terminally ill who wish to hasten their death, and palliative care. Empirical psychological research will play an integral role in the process of crafting these policies.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).