WASHINGTON — The Supreme Court split along conservative-liberal lines in upholding Oregon’s assisted suicide law by a 6-3 vote Jan. 17. Activists on either side of the issue were divided on whether the ruling would encourage “right-to-die” movements in other states.

Three Catholic justices, Antonin Scalia, Clarence Thomas and new Chief Justice John Roberts, comprised the minority, while another, Anthony Kennedy, sided with the majority.

The case, Gonzales v. Oregon, did not rest on whether assisted suicide is right or wrong but on the federal government’s action against the use of pharmaceuticals for assisted suicides that would effectively thwart Oregon’s Death with Dignity Act.

“This by no means settles the legal or moral issues regarding assisted suicide,” stated Richard Doerflinger, deputy director of the U.S. Conference of Catholic Bishops’ pro-life secretariat in a press release, “but only changes the forum in which these must be addressed. …Congress now has an obligation to reaffirm that fact.”

In the same release, Doerflinger cited a 1991 statement from the bishops on assisted suicide: “To destroy the boundary between healing and killing would mark a radical departure from longstanding legal and medical traditions of our country, posing a threat of unforeseeable magnitude to vulnerable members of our society.”

Wesley Smith, spokesman for the International Anti-Euthanasia Task Force, told the Register the ruling “was not as bad as assisted suicide opponents feared,” because it “was not a sweeping endorsement of assisted suicide.” Rather it focused on a narrow and “arcane” issue of regulatory power.

David Fidanque, executive director of the American Civil Liberties Union of Oregon, agreed.

“It is a relatively narrow ruling” that supported the suit against the federal government, he said. However, he believes the ruling will encourage right to die groups in other states.

“People have been waiting,” he said. Without a victory in Gonzales v. Oregon, “there would not have been any point going ahead,” with legislation in other states.

In 2001, Attorney General John Ashcroft declared that the Controlled Substances Act of 1970 empowered him to prosecute doctors prescribing drugs such as morphine in assisted suicide cases for the misuse of federally controlled drugs. The Supreme Court decision, written by Justice Kennedy, stated that while Ashcroft was “reasonable” in finding assisted suicide to be outside “medicine’s boundaries,” the Justice Department did not possess the authority under the law to make such a ruling. However, Congress itself did possess such authority.

Smith commented, “I thought at the time [2001] that Ashcroft was going about it in the wrong way. He was doing it on the cheap.”

Smith contends that had Ashcroft followed the formal “rule-making” process involving public hearings from opponents and supporters of assisted suicide, he would have been able to better defend his decision.

Despite the narrow scope of the ruling, Smith believes that the Court majority’s purpose was not to restrict federal powers but to support assisted suicide in principle.

“This decision makes no sense otherwise,” Smith said. “As Thomas pointed out in a dissenting opinion, it contradicts another ruling the Supreme Court made in the Raich case seven months ago.”

Common Good

In that decision, Gonzalez v. Raich, the court supported the federal government’s power to ban the medical use of marijuana.

“This appears to have been a results-based ruling,” Smith said. “The courts tend to reflect liberal elite opinions on cultural issues, and assisted suicide is primarily a liberal elite policy.”

Smith doubts the decision will have much impact. “Attempts to put this into law have failed everywhere else,” he said, adding, “People are not exactly marching in the streets demanding the right to receive lethal prescriptions.”

On the other hand, assisted suicide is clearly safe in Oregon. An earlier attempt to challenge the law foundered at the federal appeal level, and the Supreme Court declined to hear it.

However, Father Michael Orsi, research fellow in law and religion at the Ave Maria Law School in Ann Arbor, Mich., believes the ruling will give the assisted suicide movement an impetus across America. He agreed, however, with Smith that the decision was results-based and in keeping with the Supreme Court’s general endorsement of the notion of the individual as an autonomous being who achieves highest development when least interfered with by higher authority.

But, “as Catholics we believe we don’t own our lives,” he said. “We are stewards. And what we do with our lives is not only our own business. Our individual lives are intrinsically bound up in the good of society.”

“Whatever its motives and means, direct euthanasia consists in putting an end to the lives of handicapped, sick, or dying persons,” the Catechism of the Catholic Church states. “It is morally unacceptable. Thus an act or omission which, of itself or by intention, causes death in order to eliminate suffering constitutes a murder gravely contrary to the dignity of the human person and to the respect due to the living God, his creator.”

It goes on to say, “The error of judgment into which one can fall in good faith does not change the nature of this murderous act, which must always be forbidden and excluded. Discontinuing medical procedures that are burdensome, dangerous, extraordinary, or disproportionate to the expected outcome can be legitimate; it is the refusal of ‘over-zealous’ treatment.  Here one does not will to cause death; one’s inability to impede it is merely accepted” (Nos. 2277-2278).

Court’s Future

Father Orsi said approval of assisted suicide would further “the cheapening of life,” and push society down the “slippery slope to where doctors and states would be deciding for people who cannot speak for themselves whether they will live or die.”

However, the American Civil Liberties Union’s Fidanque said the Oregon law had not led down any slippery slope.

“Fears that the Oregon law would lead to large numbers of people taking advantage of it have not panned out,” he said. (An estimated 243 have died through doctor-assisted suicide since 1994.) In many cases, he said, including that of his mother, who died of cancer a year ago, “it set their mind at ease knowing it was there. It gave them the courage to attempt aggressive treatments.”

As well, he asserted, the law encouraged the expansion and improvement in hospice care. Doctors were much more willing to administer pain killing drugs than before, because they no longer feared prosecution when the drugs resulted in death.

The Catechism teaches, however, that “the use of painkillers to alleviate the sufferings of the dying, even at the risk of shortening their days, can be morally in conformity with human dignity if death is not willed as either an ends or a means, but only foreseen and tolerated as inevitable. Palliative care is a special form of disinterested charity. As such, it should be encouraged” (No. 2279).

Meanwhile, Father Orsi hopes in a reconfiguration on the Supreme Court. Judge Samuel Alito is close to being confirmed, while two of the other justices that voted to uphold Oregon’s law have had health problems.

“Do I pray that we get one more after Alito? Yes!” Father Orsi said. “I don’t want anyone to die but I hope some retire.”

Steve Weatherbe is based in

Victoria, British Columbia.