Under the wide and starry sky,
Dig the grave and let me die.
Glad did I live and gladly die,
And I laid me down with a will.
—Robert Louis Stevenson, Requiem
When it comes to the right to die in the face of terminal illness, Congress has previously deferred to the states. Indeed, the liberty to relinquish life has thus far garnered limited congressional attention. Whether or not this will continue is uncertain.
After all, the right to die is closely aligned with the right to choose to terminate a pregnancy, wherein the sanctity of life features just as prominently. Both constitute leading moral issues of our time, comprising 2 sides of the same proverbial coin.
Viewed in this light, it is difficult to envisage how, in the long term, the right to die could elude the doctrinal and political minefields of the prochoice-prolife divide. Stated differently, congressionally mandated prohibition of assisted suicide may well be inevitable.
To further examine this possibility, consider recent congressional effort to override the Death With Dignity Act, enacted in November 2016 by the District of Columbia.
The Death with Dignity Act (B21-0038), the brainchild of Democratic Councilmember Mary M. Cheh, was passed by the Council of the District of Columbia on a vote of 11-2. After public hearings, committee reports, and multiple amendments, the bill ultimately was sent to the District of Columbia’s Mayor, Muriel Bowser. Just 3 days after a similar law, Proposition 106, the End of Life Options Act, went into effect in Colorado, Mayor Bowser signed the District’s bill into law on December 19, 2016. With this action, the District of Columbia became the seventh US jurisdiction to authorize physician aid in dying. As a consequence, as many as 1 in 5 US residents now live in a state (or district) where the liberty to die with assistance has been legalized.
State laws are deemed a settled matter, but in the District of Columbia, the US Constitution empowers Congress to “exercise exclusive Legislation in all Cases whatsoever, over such District…[that is] the Seat of the Government of the United States.” Moreover, under the District of Columbia Home Rule Act of 1973, Congress reserves the right “to exercise its constitutional authority” to amend or repeal any act passed by the Council of the District of Columbia within 30 legislative days. In a word, a bill signed into law by the Mayor of the District of Columbia may not go into effect until Congress says so.
Acting on this congressional prerogative, Rep Brad R. Wenstrup (R, Ohio), a podiatrist introduced the Disapproving the action of the District of Columbia Council in approving the Death with Dignity Act of 2016, which the House Oversight and Government Reform Committee voted 22-14 in favor of sending the measure to the House floor. A comparable Senate Joint Resolution introduced by Sen James P. Lankford (R, Oklahoma) was read by the Senate Committee on Homeland Security and Governmental Affairs but was never marked up. Neither resolution made it to a floor vote in the full House or the Senate by the statutory deadline. Only then did the District of Columbia’s Death With Dignity Act enacted by the District of Columbia go into effect, on February 18, 2017. Whether or not Congress plans to revisit the matter in the course of the annual appropriation process remains to be seen.
The reasons for the failed congressional override of the District of Columbia’s Death With Dignity Act are likely multiple. Apart and distinct from the glacial pace of the legislative congressional process, the resolution in question ran the risk of triggering a Democratic filibuster in the Senate. Moreover, the position of the White House on this matter was never clear. When asked, White House Press Secretary Sean Spicer did not indicate what President Trump’s position might be.
However, there is no underestimating the intensity of the convictions of those opposed to physician aid in dying. For example, Rep Jason E. Chaffetz (R, Utah), chair of the House Committee on Oversight and Government Reform, characterized the Death With Dignity Act as “misguided” and as one which may create “a marketplace for death.” Chaffetz went on to say that the United States “should never facilitate, encourage or tacitly accept measures that prematurely end the lives of its people.” Rep Steven D. Russell (R, Oklahoma) in turn offered that “only a twisted set of ethics can claim to dignify life while terminating it” and that “the legalization of a system of expanding murder-suicide pacts” must not be allowed. Rep Paul Mitchell (R, Michigan) for his part declared, “Only God gets to decide” when a life is to come to an end.
The recent dust-up over the right to die is likely but a taste of what political clashes may be in store. Indeed, it is not beyond the realm of possibility that the 115th Congress may enact a national moratorium on the practice of physician aid in dying. Congressional action along these lines will profoundly affect states wherein the right to die has previously been legalized.
Resultant legal battles are likely to end up at the US Supreme Court. If so, those pondering the fate of such cases should consider that current Supreme Court nominee Neil Gorsuch might well be involved in deciding such cases. In his 2008 book The Future of Assisted Suicide and Euthanasia, Gorsuch maintained that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.”
About the author: Eli Y. Adashi, MD, MS, is a professor of Medical Science and the former dean of Medicine and Biological Sciences at the Warren Alpert Medical School of Brown University in Providence, Rhode Island.
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