Update 033: Volume 19, Number 2 (2005)

U.S. Supreme Court: ITF submits amicus brief in Gonzales v. Oregon

The U.S. Supreme Court is a hot topic these days. Justice Sandra Day O’Connor resigns; Judge John Roberts, from the U.S. Court of Appeals for the District of Columbia Circuit, is nominated to take her place. And what if Chief Justice William Rehnquist retires because of health? Will the conservatives outnumber the liberals, or vice versa?

Speculation abounds, including how the justices will rule on Gonzales v. Oregon (formerly, Ashcroft v. Oregon) during the next session commencing in October 2005.

Background on Gonzales v. Oregon

On November 6, 2001—three years after Oregon enacted the only law in the nation to legalize physician-assisted suicide (PAS)—then U.S. Attorney General John Ashcroft issued a directive clarifying whether the practice of assisted suicide is a medically “legitimate” use of barbiturates under the federal Controlled Substance Act of 1970 (CSA). Basing his ruling on legal precedent and an analysis by the Office of Legal Counsel, Ashcroft wrote, “I hereby determine that assisting suicide is not a ‘legitimate medical purpose’” and “that prescribing, dispensing, or administering federally controlled substances to assisted suicide violates the CSA.” Physicians who engage in this activity risk losing their federally issued prescribing licenses. [Ashcroft, “Dispensing of Controlled Substances to Assist Suicide,” 11/6/01, p. 1]

Since barbiturates—the drugs of choice for inducing death—are controlled substances under federal law, assisted-suicide supporters strongly objected to Ashcroft’s stand. On the very day Ashcroft released his directive, Oregon Attorney General Hardy Myers, anticipating Ashcroft’s ruling, announced his intention “to take legal action in federal district court to protect Oregon’s physician-assisted suicide law.” [OR Dept. of Justice, Press Release, 11/6/01]

In 2002, Oregon-based Federal District Judge Robert E. Jones gave Myers and assisted-suicide activists what they wanted: a permanent injunction barring Ashcroft and the U.S. Drug Enforcement Agency (DEA) from taking action against Oregon doctors who prescribe lethal barbiturate doses, or fatal doses of any federally controlled substance, for assisted suicides. Ashcroft appealed the ruling.

The Ninth Circuit Court of Appeals heard oral arguments in the case on May 7, 2003. On May 26, 2004, in a 2-1 decision, the Ninth Circuit declared that Ashcroft overstepped his authority in issuing the Directive.

On July 12, 2004, the Justice Department petitioned the Ninth Circuit Court of Appeals to reconsider its May decision. The Court refused a rehearing.

On November 9, 2004, the Justice Department petitioned the U.S. Supreme Court to hear the case and, on February 22, 2005, the Supreme Court agreed to do so in the upcoming session.

ITF’s amicus curiae brief

The International Task Force on Euthanasia & Assisted Suicide (ITF) has submitted an amicus curiae (friend of the court) brief to the U.S. Supreme Court in support of the U.S. attorney general (now Alberto R. Gonzales) and the Ashcroft Directive. The brief was written by ITF Executive Director Rita L. Marker, Esq. What follows are excerpts from that brief.

Summary of Argument

This case is not about whether the State of Oregon may permit the practice of assisted suicide within its borders. It is about Oregon’s attempt to determine the manner in which a federal registration to prescribe federally controlled substances may be used. The Oregon Death with Dignity Act (ODWDA) gives Oregon physicians the right to ‘‘prescribe medication’’ to induce death. Or. Rev. Stat. §§ 127.800 et seq. (2003). However, the ODWDA does not specify the type of drugs for that purpose.

While all federally controlled substances are prescription drugs, not all prescription drugs are federally controlled substances. The Directive issued by Attorney General Ashcroft was an interpretive rule dealing solely with whether using a federal registration to prescribe federally controlled substances to cause drug-induced death serves a ‘‘legitimate medical purpose’’ under DEA regulations. 66 Fed. Reg. 56,607 (2001). Under the Directive, Oregon physicians are still free to prescribe drugs that are not federally controlled.

National standards of medical practice reject the use of drugs for the purpose of inducing death. Likewise, international standards of medical practice reject the use of drugs for the purpose of inducing death. Yet, Oregon seeks to exempt itself from a uniform national standard. It seeks to substitute a state-determined interpretation of ‘‘legitimate medical purpose’’ for the use of federal registrations. Under such an interpretation, each state could determine the use of federally controlled substances, potentially resulting in fifty different sets of accepted purposes.

The use of federally controlled substances for assisted suicide does not affect only the state of Oregon. Distribution of federally controlled substances for assisted suicide cannot be confined within Oregon’s borders since prescriptions can be filled through out-of-state mail order prescription services. [Brief of Amicus Curiae ITF in Support of Petitioners Gonzales et al., Gonzales v. Oregon, No. 04-623, p. 2. Hereafter cited as Brief.]


The Ashcroft Directive does not criminalize assisted suicide, nullify Oregon’s assisted suicide law or interfere with Oregon’s ability to control the practice of medicine.

The Ninth Circuit Court of Appeals erred when its majority asserted, ‘‘By criminalizing medical practices specifically authorized under Oregon law, the Ashcroft Directive interferes with Oregon’s authority to regulate medical care within its borders…’’ Oregon v. Ashcroft, 368 F.3d 1118, 1124 (9th Cir. 2004). The Ashcroft Directive does not criminalize assisted suicide nor does it interfere with Oregon’s regulation of medical care within its borders.

Congress granted authority to the Attorney General to carry out the Controlled Substances Act (CSA) and Drug Enforcement Administration (DEA) regulations that implement the CSA, including 21 C.F.R. § 1306.04 (a).

…If the Ashcroft Directive is implemented, and if a physician chooses to prescribe federally controlled substances for assisted suicide, administrative proceedings could be instituted. The outcome of those proceedings would determine whether the physician’s federal registration is retained, revoked or suspended. No matter what the outcome of those administrative proceedings, the physician would still be able to lawfully prescribe non-federally controlled drugs and would still be able to practice medicine in Oregon. Furthermore, the physician would still be able to engage in assisted suicide under Oregon’s law.


Commercial distribution of federally controlled substances that are prescribed under the Oregon Death with Dignity Act is not wholly intrastate in nature.

…As indicated above, prescriptions for assisted suicide under the ODWDA can be, and may currently be, filled in other states and transported through other states. Thus, participation in providing federally controlled substances under Oregon’s assisted-suicide law currently impacts the federal government’s ability to regulate the distribution of federally controlled substances on a national basis. Furthermore, the distribution of federally controlled substances under the ODWDA from outside the state of Oregon violates the laws of other states where filling prescriptions for assisted suicide takes place.

It is unconscionable that a state law would render both the implementing regulations under the Controlled Substances Act and the laws of other states unenforceable. However, if the Ninth Circuit’s decision is allowed to stand, that is the effect. [Brief, pp. 26 & 29] (Text of ITF brief; more about Gonzales v. Oregon)

Terri’s autopsy: Key questions still unanswered

For those who thought a thorough autopsy of Terri Schiavo’s body would finally answer all the gnawing questions surrounding her case, June 15, 2005, was a very disappointing day.

That was the day Dr. Jon R.Thogmartin, chief medical examiner for Pinellas and Pasco Counties in Florida, presented his and other experts’ long-awaited autopsy findings to the public. The 39-page autopsy report, while containing new information and some surprises, also ended up revealing more unanswered questions than anyone expected.

For example, Thogmartin found that the “mechanism” by which Terri died was “marked dehydration” (resulting from the court-ordered removal of her feeding tube and the withholding of all food and fluids for 13 days). She did not die from starvation. However, the actual “cause or manner of death”—what caused her collapse and brain damage in 1990—could not be determined with “reasonable medical certainty.” “The manner of death,” Thogmartin wrote, “will therefore be certified as undetermined.” [Report of Autopsy, J.R. Thogmartin, MD, Summary, 6/13/05, pp. 8-9. Hereafter cited as Summary.]

The eating disorder theory

In his report, Thogmartin carefully addressed the various theories that have been suggested as to why Terri, at the young age of 26, collapsed on February 25, 1990. The most common theory was the one used by Terri’s estranged husband, Michael, to win over $1 million in malpractice awards against two of Terri’s doctors. Michael contended that Terri had an eating disorder that lowered her potassium level, causing her to have a heart attack and subsequent brain damage. According to Michael, her doctors should have picked up on the low potassium level prior to her collapse. The jury agreed.

But Thogmartin questioned the claim that Terri had an eating disorder. “Recent interviews with family members, physicians, and coworkers,” the medical examiner wrote, “revealed no additional information supporting the diagnosis of Bulimia Nervosa and, indeed, many other signs and symptoms of Bulimia Nervosa were not reported to be present.” In fact, the only real evidence pointing to a possible eating disorder was the low potassium level detected at the hospital after her collapse and after she had been given epinephrine in a dosage sufficient to cause her potassium to drop. “Thus, the main piece of evidence supporting a diagnosis of Bulimia Nervosa is suspect,” Thogmartin concluded, “or, at least, can be explained by her clinical condition at the time of the blood draw.” [Summary, pp. 1-3]

More questions

Did Terri have a heart attack (myocardial infarction)? No. According to the autopsy findings, “Mrs. Schiavo’s heart was anatomically normal, without any areas of recent or remote myocardial infarction.” [Summary, p 4]

Did someone strangle her? “No trauma was noted on any of the numerous physical exams or radiographs performed on Mrs. Schiavo on the day of, in the days after, or in the months after her initial collapse,” Thogmartin found. Terri’s neck region was examined during the autopsy and no remote trauma was detected, but the autopsy occurred 15 years after her collapse, so it was unlikely that any anomalies would have been detectable after such a delay. [Summary, p. 4]

Could she have collapsed due to other trauma? “Mrs. Schiavo had no traumatic injuries observed or recorded by her initial treating physician despite numerous physical exams and radiographs.” [Summary, p.5]

But what about the 1991 bone scan that showed a history of trauma? “In early 1991,” Thogmartin found, “Mrs. Schiavo was undergoing intense rehabilitation….” Her medical records indicated “that in February 1991, she was experiencing redness and swelling in her knees.” The bone scan was performed on March 5, 1991, to rule out infection, trauma, or a condition called heterotopic ossification (H.O.), the abnormal growth of bone in the soft tissue. The request for the scan erroneously listed Terri’s history as being “closed head injury.” As a result, “the phrase ‘the patient has a history of trauma’ appears to have been derived solely from the erroneous history on the request form.” What the scan really revealed, according to the medical examiner, was that Terri had osteoporosis, which upon autopsy was categorized as “severe”—a condition common in patients with “immobility and/or paralysis.” “By far,” Thogmartin wrote, “the most likely explanation for the bone scan findings in Mrs. Schiavo are prolonged immobility induced osteoporosis and complicating H.O. in an environment of intense physical therapy.” [Summary, pp. 5-7]

So we still do not know what really happened on February 25, 1990, to cause Terri’s collapse and brain damage. But it’s likely Michael knows, since he was the only other person present when it happened.

That was the conclusion reached by former detective Mark Fuhrman after researching the Schiavo case for his book, Silent Witness: The Untold Story of Terri Schiavo’s Death. He told Sean Hannity of FOX News, “I think he [Michael] had a role, whether it was intentional or unintentional, whether it was after the fact or before. There is a lot of things that Michael Schiavo knows that he is not saying.” [“Hannity & Colmes,” FOX News Transcript, 7/4/05]

Governor calls for investigation

During a conversation between Gov. Jeb Bush and Thogmartin the day before the autopsy findings were released, the medical examiner said that he had access to information indicating that Michael waited 40 to 70 minutes after Terri collapsed before calling 911. Bush considered the information “worthy of some investigation.” [Miami Herald, 6/17/05]

State Attorney Bernie McCabe was called on to oversee the investigation. Pinellas County prosecutors Doug Crow and Bob Lewis actually conducted the inquiry. It took less than two weeks for Crow and Lewis to conclude (as they had in previous inquiries): “[I]t is obvious to us that there is no possibility of proving that anyone’s criminal act was responsible for Mrs. Schiavo’s collapse.” As to the 40-70 minute delay in calling for help—based on Michael’s varying accounts of the time of Terri’s collapse—the prosecutors dismissed it as Michael being extremely stressful at the time and, understandably, “his attention to and memory of the exact time were faulty.” “We strongly recommend,” they concluded, “that the inquiry be closed and no further action be taken.” [Crow & Lewis, Memo to Bernie McCabe, 6/27/05. Published in St. Petersburg Times, 7/8/05]

On July 7, the governor agreed to drop the investigation. [Miami Herald, 7/8/05; Reuters, 7/8/05; Washington Post, 7/8/05]

Was Terri PVS?

Because Florida courts accepted the diagnosis that Terri was in a persistent vegetative state (PVS), she became legally qualified for judicially-ordered death by dehydration. But many, including her family, said she was minimally conscious, not PVS. Unfortunately, this was another key question which remained unanswered after the autopsy.

According to Dr. Stephen J. Nelson, chief medical examiner for Florida’s 10th Judicial Circuit, who was a consultant on the autopsy, “Neuropathologic examination alone of the decedent’s brain—or any brain, for that matter—cannot prove or disprove a diagnosis of persistent vegetative state or minimally conscious state.” Both conditions can only be diagnosed in live patients.

Nelson did determine, however, that Terri’s brain damage was “most severe in the occipital lobes,” causing severe visual impairment and blindness, but that there was “relative preservation of the frontal and temporal lobes,” which deal with cognition, awareness, and hearing functions. [Report of Autopsy, Neuropathology Report, S.J. Nelson, MD, pp 3-6]

Was Terri actually aware but just unable to communicate? Possibly. But we will never know for sure.

Above all, Terri was a human being with intrinsic moral worth, who deserved love, care, and respect. “The moral shame of what happened is not erased because of Terri’s level of disability,” her family said in a statement. “No one would say that ‘blind people’ or ‘brain-injured’ people should be put to death. That would be an irresponsible and heartless position to take. Tragically, this is what happened to Terri.” [Statement of the Schindler Family Re: The Autopsy Report, 6/16/05] (More about tube feeding)

California’s assisted suicide bill down for the count in 2005;
authors say they will resurrect it in 2006

California’s legislature proved to be hostile territory for a 2005 bill to legalize Oregon-style physician-assisted suicide (PAS).

AB 654, dubbed the “California Compassionate Choices Act,” passed both the Assembly Judiciary and Appropriations Committees with some strong-arm tactics on the part of the bill’s authors, Assembly Democrats Patty Berg and Lloyd Levine. But, when it came to a full Assembly floor vote, the measure fell far short of the needed 41 votes to pass. The authors quickly pulled the bill before the Assembly could formally defeat the measure with a vote.

Hoping for a more favorable outcome in the Senate, Berg and Levine engaged in a “shell game” of sorts—a backroom maneuver called “gut and amend” or “GANDA.” They completely removed the text of one bill that had already passed the Assembly and was up for Senate approval, and amended it with the entire text of the stalled PAS measure. The bill that was gutted, AB 651, would have provided health care for chronically-ill poor patients. Now it would legalize physician-assisted suicide, instead.

But, just like the old AB 654 died in the Assembly, the new AB 651 failed to garner needed support in the Senate, and, once again, Berg and Levine pulled it before any vote was taken.

Determined not to admit defeat, the authors announced that they have turned the PAS measure into a “two-year bill” to be revisited in January 2006 when the second half of the two-year legislative session convenes. In the meantime, they said, legislators and others had to be educated on the need for legalized assisted suicide. “A lot of people understand the issue; a lot of people don’t,” Berg told the LA Times. “For the ones that don’t, you need time to explain it, to walk them through it,” she added. Levine concurred. “It’s a very personal issue,” he said. “We just believe we need more time to educate the members.” [LA Times, 7/12/05; Sacramento Bee, 7/12/05, Inside the Bay Area, 7/13/05; Eureka Times-Standard, 7/13/05, 6/17/05]

Like Berg and Levine, Compassion & Choices (C&C), the assisted-suicide advocacy group that sponsored the California PAS bill, spun this year’s outright defeat as bordering on victory:

“The California Compassionate Choices Act has passed two committees of the Assembly and has the committed support of leadership in both the Assembly and Senate….

Although we planned for a campaign within tight timelines of May-September 2005, taking an additional 6 to 12 months to complete legislative approval by both houses gives us the best chance for passage. We’re in a position to use more time to sustain the strength of ‘aye’ votes and move other lawmakers off the fence. Every day support grows for the Compassionate Choices Act.” [C&C, The Advocacy Bulletin, 7/19/05]

But, according Californians Against Assisted Suicide (CA-AAS), a broad-based coalition opposed to the PAS bill, C&C’s spin is simply not true:

“The opposition to this bill just grew and grew, and it was broad, deep, and bipartisan….When legislators realized this bill was not about the right to die, but was, in fact, about undermining our healthcare system and about doctors assisting in their patients’ suicide, support waned as it always has.” [CA-AAS, e-mail memo, 7/12/05] (More about California bill)

Schiavo-inspired laws opposed by AMA

Louisiana House Bill 675, inspired by the Terri Schiavo case, was signed into law by Gov. Kathleen Blanco on July 12, 2005. [The Advocate, 7/13/05] The law prevents situations like Terri’s, where her husband—who lived with another woman with whom he fathered two children—battled her parents in court for years to retain guardianship and the power to order Terri’s death by dehydration. The new Louisiana law prohibits one spouse from making life-sustaining medical decisions for the other spouse if he or she “is cohabited with another person in the manner of married persons or who has been convicted of any crime of violence…against the other spouse.” [LA Act No. 447, § 1299.58.2 (14)]

International Task Force’s legal consultant, Wesley J. Smith, called the law “the first of what I hope will be an outpouring of state laws to prevent future Terri Schiavo cases.” But if the American Medical Association (AMA) has its way, that won’t happen.

On June 20, 2005, the AMA adopted a policy to oppose state bills and laws that try to remedy the Schiavo situation, especially if the measures presume that patients—without clear statements to the contrary—would want life-sustaining treatment such as tube feeding and hydration. Current AMA policy—that it is ethical in certain cases to stop life-sustaining treatment if the doctor determines it is in the patient’s best interest—was reaffirmed. “While the [Schiavo] circumstances were heart-wrenching and compelling, they’re so rare that they’re not a good basis to revise existing law,” said Johns Hopkins neurologist Michael Williams. [AP, 6/21/05]

False Federalism
In Gonzales v. Raich, it’s the state that’s violating federalist principles

by Wesley J. Smith

Does Oregon have the constitutional right to force the United States government to permit state doctors to assist patient suicides with federally controlled substances (narcotics)? Or is the federal government entitled under the Controlled Substances Act (CSA) to prevent these federally regulated drugs from being prescribed for lethal use regardless of state law? The Supreme Court will tell us soon in Gonzales v. Oregon, a case that will not only influence the course of the euthanasia and assisted-suicide debate, but will also profoundly impact the delicate balance of power between “states rights” and the overarching sovereignty of the federal government.

So far, court decisions have favored Oregon. Most recently, the Ninth Circuit Court of Appeals ruled that Oregon’s right to regulate medical practice within its borders prevents the federal government from punishing state doctors who prescribe federally controlled substances to end their terminally ill patients’ lives. Under this view, the federal government can punish doctors who prescribe lethal doses of controlled substances for use in assisted suicide in states where the act is illegal. But punishing Oregon doctors would violate the principle of federalism because assisted suicide has been explicitly made a proper medical practice under Oregon law.

It is actually the other way around. Oregon is violating the principle of federalism by seeking to prevent the federal government from pursuing its own legitimate public policy. Now, this view has been substantially supported in the just-announced Gonzales v. Raich, in which the Supreme Court ruled 6-3 that the federal government is entitled to enforce the CSA’s proscription of the use of marijuana — even though California permits the drug to be possessed legally for medicinal purposes; even though the marijuana in question was clearly being used by California residents for such medicinal purposes; and even though the marijuana was unquestionably home-grown and exclusively used for in-home consumption.

Most of the issues dealt with in Raich involved arcane interpretations of the interstate commerce clause, a matter now unlikely to be crucial in deciding Gonzales v. Oregon. But the majority opinion, written (surprisingly) by Justice John Paul Stevens, also invoked the Constitution’s Supremacy Clause as “unambiguously” providing “that if there is any conflict between federal and state law, federal law shall prevail.”

As applied in Raich, this means that the federal government is entitled to enforce federal law against medical marijuana users even in the face of contrary state laws, a ruling clearly applicable to the assisted-suicide controversy. And if the Court found this to be true for medical marijuana — which, after all, involves mere symptom relief — it hardly seems likely that it would reach a drastically different conclusion regarding the prescription of more potent controlled substances with the intent to kill.

True, marijuana has been determined by Congress to have no legitimate uses, while the controlled substances used in assisted suicide do have proper medical uses, such as aiding sleep or controlling pain. But this should be a factual distinction without a legal difference in deciding the assisted-suicide case since Congress expressly delegated the task of determining what medical uses and under what circumstances controlled substances could be put to the attorney general. Indeed, the Oregon case began when the state sued to prevent former attorney general John Ashcroft from enforcing his decision to preclude the use of federally controlled substances in assisted suicide.

What about the oft-made argument that the states are the test tubes of democracy, and therefore Oregon’s decision to legalize assisted suicide should be allowed to proceed unfettered by a contrary federal public policy? Justice O’Conner accepted this argument with great enthusiasm in the final section of her dissent, opining that while she would not have personally supported legalizing medical marijuana, the majority ruling stifled “an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently” than the federal policy.

If the Court accepts this view, Oregon will prevail. But this is unlikely. Justice O’Conner was the lone voice arguing the test-tube-of-democracy theory. Indeed, her two fellow Raich dissenters, William Rehnquist and Clarence Thomas, specifically did not join in this section of her opinion. (Thomas, in an individual dissent, did allude to states deciding for themselves “how to safeguard the health and welfare of their citizens.” But by not signing on to O’Conner’s more broadly stated views, he seems to have limited his dissent in this regard to the unusual factual context of the Raich case, which involved the growing of a mere six marijuana plants.)

Gonzales v. Raich, alongside the earlier unanimous Ashcroft v. Oakland Cannabis Buyer’s Cooperative, points clearly in the direction (barring a technical defect in the federal government’s approach) to the Supreme Court’s strongly affirming a federal right to proscribe the use of federally controlled substances in assisted suicide unfettered by state laws to the contrary. That would be a proper federalist result. If so, come this time next year, assisted suicide will remain fully legal in Oregon — just as medical marijuana remains legal in California — but doctors there will have to find other ways to hasten the deaths of patients than prescribing controlled substances. Such an outstanding outcome would not only protect the vulnerable, but also send a clarion societal message that killing is not a legitimate medical act.

Wesley J. Smith is an attorney for the International Task Force on Euthanasia and Assisted Suicide, a senior fellow at the Discovery Institute, and a special consultant to the Center for Bioethics and Culture. He is the author most recently of Consumer’s Guide to a Brave New World. His article originally appeared in the National Review, 6/8/05, and is reprinted here with the author’s permission.

Canadian PAS bill introduced

Bloc Quebecois MP Francine Lalonde has introduced a private member’s bill that would amend sections of Canada’s Criminal Code to make it legal for one person to help another to die.

As reported in the Winnepeg Sun, MP Lalonde “believes most Canadians agree with legalizing assisted suicide, and that parliamentarians have a ‘moral obligation’ to help respect the wishes of those suffering with terminal illness.” [Winnepeg Sun, 6/23/05]

But, according to Alex Schadenberg, executive director of the Canadian group, Euthanasia Prevention Coalition, Lalonde’s bill does more than legalize assisted suicide for the terminally ill. “Bill C-407 is not about allowing a ‘death with dignity,’” Schadenberg said. “This bill legalizes euthanasia and assisted suicide for people suffering chronic physical and mental pain.” Moreover, the bill does not mandate that persons with “chronic physical and mental pain” even try available and effective treatments to alleviate their pain before their requested deaths. It simply says that a person qualifies for induced death even if they have refused all effective treatment options.

The bill is so flawed, Schadenberg says, that it “allows anyone to euthanize or assist the suicide of anyone, so long as they are ‘assisted by a medical practitioner,’ and act in the way indicated by the person who asks to die.” The term “medical practitioner” is not limited to physicians.

Essentially the only real restriction contained in the bill is that the person asking to die must be 18 years-old. There is no definition for “terminal illness,” and people requesting death need only “appear to be lucid.” [A. Schadenberg, “Bill C-407: A Bill to Legalize Euthanasia & Assisted Suicide,” 6/30/05] (More about Canada)

Australia clamps down on Nitschke’s web suicide trade

For months, Australia’s Dr. Death, Philip Nitschke, has been doing an impression of Chicken Little, claiming the “sky” is going to fall on him and his work. On June 23, 2005, the “sky” did fall: the Australian Parliament passed laws outlawing just about everything Nitschke and his organization, EXIT, do via the Internet.

The laws have banned the use of the Internet to incite people to commit suicide or to instruct them on how best to kill themselves. Violations of the new laws carry fines of up to A$110,000 (US$85,000) for individuals and up to A$550,000 (US$425,000) for organizations. The laws also apply to other means of communication, such as telephones and faxes.

According to Nitschke, every time someone from EXIT talks to people on the phone who want euthanasia information, the group could face $550,000 in fines. He also told reporters that the law now gives authorities justification for tapping his and EXIT’s phones. [AAP, 6/28/05]

Justice Minister Chris Ellison explained that the laws “are designed to protect the young and the vulnerable, those at greatest risk of suicide, from people who use the Internet with destructive intent to counsel or incite others to kill themselves.” Japan, for example, has had several group suicides with all the people recruited and all the arrangements made via the Internet. [Reuters Health, 6/24/05]

Nitschke is considering moving his operation to New Zealand or North America. Then again, he said, “It [the law] really only affects the Internet, telephones and faxes, so I guess we might have to start using a lot more letters.” [AAP, 6/28/05]

British & New Zealand doctors take different stands
on euthanasia & assisted suicide

The British Medical Association (BMA), which has had a century-long policy opposing euthanasia and assisted suicide, has changed its official position to neutral. It has been called an historic change of policy that opens the door for legalized euthanasia and assisted suicide in Britain.

The BMA’s firm stand of opposition had been a key factor in Parliament’s reluctance to change the laws banning euthanasia and assisted suicide.

Dr. Evan Harris, the member of Parliament who called for the BMA to change its strong opposition policy, said, “This is now a matter for Parliament to decide and the role of the medical profession is to press for the necessary safeguards, not to oppose an overdue move.” [Daily Telegraph, 7/1/05]

MP Claire Curtis-Thomas condemned the BMA for “fixing the vote.” “The vote was deliberately held at the end of the conference because many doctors opposed to euthanasia had to leave.” The BMA responded, saying, “The vote was not fixed. We had a fair, honest, and open debate.” [Daily Post, 7/14/05]

Meanwhile down-under, the New Zealand Medical Association (NZMA) has voted to maintain its stand opposing euthanasia and physician-assisted suicide. [NZCity, News Talk ZB, 7/31/05]

British court reverses Leslie Burke ruling

The England and Wales Court of Appeal has reversed a lower court ruling by Judge James Munby, who ordered the General Medical Council (GMC) to revise its guidelines to read that doctors must provide food and fluids to a competent patient who requests them, as well as an incompetent patient with an advance request for such treatment. [London Times, 7/28/05]

The case was originally filed by Leslie Burke, 45, a man with a degenerative brain condition. Burke was terrified that, when he loses his ability to communicate, a doctor might not “believe I have a good quality of life,” and “could withdraw my treatment, food and hydration.” [BBC, 2/23/04]

Burke’s fears were real. At that time, the GMC’s ethical guidelines stated, “Where a patient’s wishes are not known it is the doctor’s responsibility to decide what is in the patient’s best interest.” [GMC, “Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision-Making,” para. 15, August 2002] Judge Munby’s ruling assured Burke that he would not be dehydrated to death.

But the GMC, backed by the British government, appealed Munby’s ruling. They argued that the ruling had broad implications, allowing patients to request treatments “no matter how untested, inappropriate or expensive, regardless of doctors’ views.” Lawyer Philip Sales, representing the government’s Health Secretary, argued that doctors, not patients, should have the final say on treatment options like tube feeding, otherwise there would be “inefficient use of resources within the NHS [National Health Service].” It was estimated that providing food and fluids would cost the NHS £1,500 per day. [London Times, 5/18/05, 5/19/05]

While the appellate court did overturn Munby’s ruling, it upheld disabled patients’ rights not to have tube feeding withdrawn, but only if they can request it. Britain’s Disability Rights Commission called that a “Catch 22.”[DRC Press release, 7/28/05] (More about England)

Swiss government panel says assisted suicide
should remain legal

The Swiss National Advisory Commission on Biomedical Ethics has recommended that the practice of assisted suicide should remain legal, but not routine.

“It is right on ethical grounds,” the commission said, “that assisted suicide should not be considered a criminal offence unless it is performed for self-seeking reasons.” “However, by tolerating altruistic assisted suicide, the state acknowledges the plurality of moral views within society concerning suicide and assisted suicide” the commission explained. [Swiss National Advisory Commission on Biomedical Ethics, “Assisted Suicide,” 2005. p. 18. Hereafter cited as Commission.]

The commission also recommended that “the autonomy of people aiding suicide, by exempting them from punishment…should not be called into question. However, in view of the current practice of assisted suicide, additional regulations are required for right-to-die organizations.” [Commission, p.20]

In reference to the groups Dignitas and Exit, Switzerland’s best known suicide providers, commission member Margrit Leuthold said, “The organizations need to be state-controlled. Here, anyone can start such an organization.” [Bloomberg.com, 7/11/05]

Perhaps the most controversial recommendation dealt with allowing mentally competent children and adolescents access to assisted suicide. “For just as children suffering from an incurable terminal disease may refuse medical treatments, the possibility of a request for assisted suicide also being complied with in a terminal situation cannot be ruled out.” While most of the panel’s recommendations were adopted unanimously, this one regarding children and teens had dissenters. [Commission, p.22]