No. 04-623
In The
Supreme Court of the United States
______________________
October Term, 2004
______________________
Alberto R. Gonzales, Attorney General, et al.,
Petitioners,
v.
State of Oregon, et al.
Respondents.
______________________
On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
______________________
BRIEF OF AMICI CURIAE NOT DEAD YET, ADAPT, CENTER ON DISABILITY STUDIES, LAW AND POLICY AT SYRACUSE UNIVERSITY, CENTER FOR SELF-DETERMINATION, HOSPICE PATIENTS ALLIANCE, MOUTH MAGAZINE/FREEDOM CLEARINGHOUSE, NATIONAL COUNCIL ON INDEPENDENT LIVING, NATIONAL SPINAL CORD INJURY ASSOCIATION, SELF-ADVOCATES BECOMING EMPOWERED, TASH AND THE WORLD INSTITUTE ON DISABILITY
IN SUPPORT OF PETITIONERS
Max Lapertosa
Counsel of Record
Kenneth M. Walden
Access Living
614 West Roosevelt Road
Chicago, IL 60630
Walter J. Kendall III
Professor of Law
The John Marshall Law School
315 South Plymouth Court
Chicago, IL 60604
TABLE OF CONTENTS
TABLE OF AUTHORITIES................................................ iii
INTEREST OF AMICI CURIAE.......................................... 1
A. Not Dead Yet.............................................................. 3
B. ADAPT...................................................................... 3
C. Center on Disability Studies, Law and
Human Policy at Syracuse University................... 4D. Center for Self-Determination.............................. 4
E. Hospice Patients Alliance..................................... 4
F. Mouth Magazine/Freedom Clearinghouse............ 5
G. National Council on Independent Living.............. 5
H. National Spinal Cord Injury Association.............. 5
J. Self-Advocates Becoming Empowered................. 6
K. TASH................................................................... 6
L. World Institute on Disability................................ 6
SUMMARY OF ARGUMENT............................................. 7
ARGUMENT......................................................................... 8
I. Assisted Suicide Serves No Legitimate ...................... 8
Medical Purpose Because It Discriminates
Against and Degrades the Lives of
People with Disabilities
A. Laws, Programs and Services Operate to
Prevent People from Committing Suicide............. 8
B. The Oregon Assisted Suicide Law
Denies People with Disabilities the
Benefits of Suicide Prevention
Laws and Measures............................................ 10
C. Euthanasia and Assisted Suicide
Are Part of the Long and Tragic
History of Discrimination Against
People with Disabilities...................................... 11
D. Assisted Suicide Contravenes
Medical Ethics and Practice Because
of the Abuse It Poses to\ People
with Disabilities.................................................. 14
1. The Uncertainty of Diagnosing a
"Terminal Illness"................................. 14
2. The Law's False Assumption
that Suicide is "Rational" When
Committed By a Person
with a Disability...................................... 16
3. The Law's False Assumption that
Disability Intrinsically Deprives Life
of Dignity and Value............................. 18
4. The Difficulty in Ensuring
Decisions to Die Are Not Coerced
or Made by Others................................. 22
II. The Attorney General's Determination that
Assisted Suicide is Not a "Legitimate Medical
Practice" is a Permissible Construction of the
Controlled Substances Act........................................ 23
A. The Attorney General's Interpretive
Ruling is Entitled to Deference........................... 23
B. The "Clear Statement" Rule Does Not
Apply to Regulation of the Practice
of Medicine........................................................ 25
CONCLUSION................................................................... 28
TABLE OF AUTHORITIES
CASES
Abbott v. Bragdon, 912 F. Supp. 580 (D. Me. 1995), aff'd,
107 F.3d 934 (1st Cir. 1997), vacated & remanded,
524 U.S. 624 (1998)........................................................................................... 28
ADAPT v. Philadelphia Hous. Auth., 2000 U.S. Dist.
LEXIS 5380 (E.D. Pa. Apr. 14, 2000).................................................3
ADAPT v. Skinner, 881 F.2d 1184 (3d Cir. 1989)................. 3
ADAPT v. SkyWest Airlines, 762 F.
Supp. 320 (D. Ut. 1991).....................................................................3
Atascadero State Hosp. v. Scanlon,
473 U.S. 234 (1985).... .....................................................................27
Barnhart v. Walton, 535 U.S. 212 (2002)............................................. 24, 25
Bragdon v. Abbott, 524 U.S. 624 (1998)......................................... 24, 27-28
Buck v. Bell, 274 U.S. 200 (1927)............................................................... 12
Chevron U.S.A. v. Natural Resources Defense
Council, 467 U.S. 837 (1982)...........................................................7, 23-25
City of Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985)......................................................................12, 26
Equal Employment Opportunity Comm'n v.
Massachusetts, 987 F.2d 64 (1st Cir. 1993)......................................... 26
Gregory v. Ashcroft, 501 U.S. 452 (1991).............. 7-8, 25-26
Helen L. v. DiDario, 46 F.3d 325 (3d Cir.),
cert. denied sub nom., Secretary of Publ.
Welf. v. Idell S., 516 U.S. 813 (1995).......................................................... 3
In re Grand Jury Proceedings, 801 F.2d 1164
(9th Cir. 1986) 26
In re Kober's Will, 285 P. 1032 (Or. 1930)........................... 9
In re Simpson, 180 N.E. 2d 206
(Ct. Common Pleas Oh. 1962)............. 12
McKay v. Bergstedt, 801 P.2d 617 (Nev. 1990).............. 21-22
Minor v. United States, 396 U.S. 87 (1969)......................... 26
Olmstead v. L.C., 527 U.S. 581 (1999).................... 20, 24, 27
Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004)........ 25-26
Reina v. United States, 364 U.S. 507 (1960)........................ 26
School Comm. of Burlington v.
Massachusetts Dep't of Educ.,
471 U.S. 359 (1985)........................................................ 12
Solid Waste Agency v. Army Corps of
Engineers, 531 U.S. 159 (2001).............25
Tennessee v. Lane, 541 U.S. 509,
124 S. Ct. 1978 (2004)......................................................................26
United States v. Moore, 423 U.S. 122 (1975)................ 24, 27
Vacco v. Quill, 521 U.S. 793 (1997).................................... 14
Washington v. Glucksberg, 521
U.S. 702 (1997).................................. 2, 3, 8, 11, 14, 16
Wyckoff v. Mutual Life Ins. Co.,
147 P.2d 227 (Or. 1944)................................................... 9
FEDERAL STATUTES
FEDERAL REGULATIONS
OTHER AUTHORITIES
INTEREST OF AMICI CURIAE
Amici are among the nation's leading organizations representing people with disabilities. Most are governed and staffed by a majority of people with disabilities of all types. They played a key role in enacting the nation's civil rights laws for people with disabilities, including the Americans with Disabilities Act, 42 U.S.C. ßß 12101-12181. Based on their shared experience as people with disabilities, including conditions judged to be "terminal," Amici strongly oppose the legalization of assisted suicide.[1]
In the United States, as in most other nations, a person who attempts or desires to commit suicide will typically be rushed to the nearest emergency room, as one-half million Americans are each year. The Surgeon General's Call to Action to Prevent Suicide 1999 1. The person will be subject to numerous laws, programs, and medical and therapeutic interventions designed to convince him or her not to commit suicide, or to prevent him or her from doing so. Id.
It seems axiomatic that society's response to a person who attempts suicide should not differ based on that person's race, ethnicity, gender, religion or disability. Yet Oregon's "Death with Dignity" Act, Or. Rev. Stat. ßß 127.800 - 127.995, encourages, rather than discourages, certain people to die solely because of their disability. Indeed, the law guarantees that the suicide attempts of the severely disabled will succeed. Although the Surgeon General has stated that suicide prevention policies "must recognize and affirm the value, dignity and importance of each person," Surgeon General's Call to Action at 13, Oregon's assisted suicide law implicitly states that some people's lives are worth saving and others are not. For amici, this debate is not about the "choice" of someone who is suicidal. Rather, it is about demanding a uniform legal and societal response to those who want to kill themselves. Amici's experience as people with disabilities is that the false assumption that suicide is a rational solution to the barriers and discrimination they face devalues them as human beings and sanctions their unequal treatment under law.
Supporters of physician-assisted suicide laws such as Oregon's claim they are limited only to competent people who face imminent death as a result of terminal illness. Yet neither Oregon's system of physician-assisted suicide nor any other - whether de jure (the Netherlands)[2] or de facto (Dr. Kevorkian)[3] - has operated within these boundaries. Physician-assisted suicide invites anyone involved in the decision to die, including the physician, to make monumental judgments on the relative value of a person's life - or, as one Oregon reporter noted, to act as "the gatekeepers of death." Evelyn Hoover Barnett, Is Mom Capable of Choosing to Die? The Oregonian, Oct. 16, 1999, at G1. It is no coincidence, then, that this Court has refused to recognize assisted suicide as a fundamental right, see Washington v. Glucksberg, 521 U.S. 702, 735 (1997), the medical profession has eschewed it as a legitimate practice, see American Medical Association, Code of Ethics ß 2.211, and every other state besides Oregon has refused to allow it shelter under their laws, Glucksberg, 521 U.S. at 710. And, as Amici here submit, it is condemned by the vast majority of people with disabilities. See National Council on Disability, Assisted Suicide: A Disability Perspective (1997, re-released 2005).
A. Not Dead Yet
Not Dead Yet is a national grassroots organization of people with disabilities formed in response to the movement to permit physician-assisted suicide and euthanasia in the United States and around the world. Not Dead Yet's mission is to protect the civil rights of people with disabilities by advocating against discriminatory legalization of physician-assisted suicide and euthanasia and to bring a disability-rights perspective and awareness of the effects of discrimination to the legal and sociological debate surrounding these practices. Not Dead Yet has worked to educate, support, coordinate and lead the disability community's effort to stop the "right to die" from becoming a duty to die or a right to kill. This Court cited Not Dead Yet's amicus brief in Washington v. Glucksberg, 521 U.S. 702, 733 n.23 (1997). Not Dead Yet has also testified before the U.S. Congress three times on the subject of physician-assisted suicide.
B. ADAPT
ADAPT is a national disability rights organization comprised primarily of people with disabilities. ADAPT has a long history and record of enforcing the civil rights of people with disabilities. In addition to being one of the key organizations that helped enact the Americans with Disabilities Act, ADAPT has been a plaintiff in numerous civil rights lawsuits. See e.g. ADAPT v. Skinner, 881 F.2d 1184 (3d Cir. 1989); Helen L. v. DiDario, 46 F.3d 325 (3d Cir.), cert. denied sub nom., Secretary of Publ. Welf. v. Idell S., 516 U.S. 813 (1995); ADAPT v. Philadelphia Hous. Auth., 2000 U.S. Dist. LEXIS 5380 (E.D. Pa. Apr. 14, 2000); ADAPT v. SkyWest Airlines, 762 F. Supp. 320 (D. Ut. 1991).
C. Center on Disability Studies, Law and Human Policy at Syracuse University
The Center on Disability Studies, Law and Human Policy is an interdisciplinary disability research and policy institute at Syracuse University. Established in 1971, the Center's work focuses on people with cognitive disabilities. The Center's research has included studies of institutions, schools, and community services, the history of the treatment of people with disabilities in America, disability law and policy, images of disability in the media and popular culture, and the politics and ethics of treatment.
D. Center for Self-Determination
The Center for Self‑Determination is a national organization comprised of individuals with disabilities, family members, and professionals committed to the principles of self‑determination: freedom to choose where and with whom one wants to live, as well as what one will do with one's life; authority and control over the dollars necessary for long term supports; designing and providing individual, community-based supports for people with disabilities; and responsibility for both the wise use of public dollars and for contributing to one's community.
E. Hospice Patients Alliance
The Hospice Patients Alliance, Inc. is a charitable nonprofit patient advocacy organization that works to promote excellence in end-of-life care and to protect the rights of patients. It provides information about hospice services, directly assists patients, families and caregivers in resolving difficulties they have with current hospice services, and promotes better quality hospice care.
F. Mouth Magazine/Freedom Clearinghouse
Mouth Magazine, published by Free Hand Press, Inc., is a magazine run by and dedicated to issues concerning people with disabilities. Its mission is to promote the lives and freedoms of all people with disabilities through magazines, books, handbooks, speeches, pamphlets, and electronic media. The mission statement of Freedom Clearinghouse is to publicize and implement the right of people with disabilities to live in the community.
G. National Council on Independent Living
The National Council on Independent Living (NCIL) represents over 700 advocacy organizations and people with disabilities of all types. The independent living philosophy, which NCIL and its members advance, holds that people with disabilities have the right to live with dignity and appropriate supports in their own homes, participate in their communities, and control and make decisions about their lives, regardless of the degree of disability.
H. National Spinal Cord Injury Association
Founded in 1948, the National Spinal Cord Injury Association (NSCIA) is the largest organization in the United States dedicated to improving the quality of life of persons with spinal cord injuries and diseases. The NSCIA's mission is to enable people with spinal cord injuries to make choices and take actions to achieve their highest level of independence and personal fulfillment. Spinal cord injury has been cited as the type of impairment warranting a desire to hasten death. The NSCIA believes that expediting one's death because they have a disability is immoral and unwise, both for society at large and members of the disability community in particular.
I. Self-Advocates Becoming Empowered
Self-Advocates Becoming Empowered is a national organization comprised of and directed by people with developmental disabilities, including intellectual disabilities or mental retardation, cerebral palsy and autism. First established in 1974, Self-Advocates Becoming Empowered now has over 900 chapters in 46 states (known locally as "People First" organizations), with an estimated 20,000 members. Many members have been unnecessarily institutionalized and have experienced discrimination by medical practitioners.
K. TASH
TASH (formerly the Association for Persons with Severe Handicaps) is an international advocacy organization of people with disabilities, their families, advocates and professionals in the disability field. It has over 30 chapters covering 37 states and members in 34 nations. TASH has adopted a resolution opposing physician-assisted suicide.[4]
L. World Institute on Disability
The World Institute on Disability (WID) is a nonprofit research, public policy and advocacy center dedicated to promoting the civil rights and full societal inclusion of people with disabilities. WID is governed and staffed by a majority of people with disabilities.
SUMMARY OF ARGUMENT
Amici support the Attorney General's interpretive ruling that assisted suicide is not a "legitimate medical practice" under the Controlled Substances Act, 21 U.S.C. ßß 801-971, and its implementing regulations, 21 C.F.R. ß 1306.04(a). When applied only to people with significant or even "terminal" health impairments, Oregon's assisted suicide law encourages the disabled to end their lives - and guarantees such efforts will be successful - while other state laws concurrently discourage non-disabled persons from doing so. Assisted suicide laws deny people with disabilities the benefit of programs and laws that prevent suicide and are the ultimate legal judgment that the life of a person with a disability is not as worthwhile as that of a non-disabled person.
Assisted suicide also raises serious ethical concerns regarding the medical profession's treatment of the disabled. It requires doctors to make difficult, if not impossible, determinations of a person's competency and life expectancy, the consequences of which are both ultimate and irreversible. The availability of assisted suicide also distracts from the determination whether a person's desire to die might be lifted with improved treatment, community-based health care or other measures that improve a person's independence and dignity.
Thus, given the Attorney General's latitude to interpret federal statutes that Congress has authorized him to enforce, see Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1982), this difference in treatment, based solely on the presence of a severe disability, justifies the Attorney General's action here. Additionally, Congress and the Attorney General are not precluded from acting to protect the rights of people with disabilities simply because such protection regulates the practice of medicine. The Court of Appeals' erroneous reliance on Gregory v. Ashcroft, 501 U.S. 452 (1991), and its imposition of the "clear statement" rule to an area that is not a "fundamental" state function, unduly impairs Congress' ability to legislate against state infringements on the civil rights of people with disabilities.
ARGUMENT
I. Assisted Suicide Serves No Legitimate Medical Purpose Because It Discriminates Against and Degrades the Lives of People with Disabilities__
A. Laws, Programs and Services Operate to Prevent People from Committing Suicide
Suicide is a practice that American society disapproves of and actively discourages through laws and prevention programs. Washington v. Glucksberg, 521 U.S. 702, 711 (1997) ("[F]or over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide."). The U.S. Surgeon General has called suicide "a serious health problem." The Surgeon General's Call to Action to Prevent Suicide 1999 at 1. Every year, 500,000 people in the United States use emergency room services as a result of suicide attempts. Id. In almost every state, helping someone commit suicide is a crime. Glucksberg, 521 U.S. at 710-11. In Oregon, intentionally causing or aiding another person to commit suicide is second-degree manslaughter. Or. Rev. Stat. ß 163.125. Oregon law also authorizes physical force to prevent someone from committing suicide. Or. Rev. Stat. ß 161.205(4).[5] Additionally, many states statutorily mandate suicide prevention plans, hotlines, or other intervention programs.[6]
According to the World Health Organization (WHO), depression and anxiety are often associated with suicide and over 80 percent of suicide victims had severe depression. WHO, World Report on Violence and Health 192 (2002). Oregon law reflects this assumption that persons who commit suicide do not act rationally. For life insurance purposes, Oregon law creates a presumption against suicide, under the reasoning that "it is common knowledge that sane persons do not ordinarily kill themselves." Wyckoff v. Mutual Life Ins. Co., 147 P.2d 227, 229 (Or. 1944); see also Or. Rev. Stat. ß 656.310 (for worker's compensation claims, worker's death presumed not to be suicide). Oregon also presumes that the will of one who commits suicide is invalid and the product of a "deranged" mind. In re Kober's Will, 285 P. 1032 (Or. 1930).[7]
B. The Oregon Assisted Suicide Law Denies People with Disabilities the Benefits of Suicide Prevention Laws and Measures
The Oregon "Death with Dignity" Act, Or. Rev. Stat. ßß 127.800 - 127.995, modifies the assumption that suicide is irrational and undesirable - but only as to persons with "terminal" disabilities or conditions. For these people, Oregon law does not assume that suicide is irrational or a practice that should be discouraged. Rather, the law allows doctors and others to facilitate suicide, an act that would be a crime but for the person's disability. Persons with severe health impairments are therefore denied the benefit of suicide prevention laws and programs. Indeed, state law guarantees their suicide attempts will succeed - unlike those of other persons with suicidal ideations. A practice that the State would otherwise expend public health resources to prevent is instead allowed to occur. This differing response is based solely on a person's disability.[8]
If a state overtly excluded people with "terminal" disabilities from suicide prevention laws and programs, it would undoubtedly violate federal civil rights laws such as the Americans with Disabilities Act, 42 U.S.C. ßß 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. ß 794(a). Yet that is precisely the design and effect of the Oregon assisted-suicide law. A more devastating form of discrimination would be difficult to imagine. By assuming that it is irrational for a non-disabled person to end his or her life, but rational for a disabled person to do so, the law assumes that the non-disabled person's life is intrinsically more valuable and worthwhile than that of a disabled person.
For amici, perhaps no other attitude strikes closer to the heart of the disability civil rights movement to which they have dedicated themselves for the past three decades. Central to this movement is the idea that a disabling condition does not inherently diminish one's life; rather, surrounding barriers and prejudices do so. Assisted suicide takes the opposite approach - it gives official sanction to the idea that life with a disabling condition is not worth living.[9] As this Court has recognized:
The State's interest here [in prohibiting assisted suicide] goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and "societal indifference ... " The State's assisted-suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person's suicidal impulses should be interpreted and treated the same as everyone else's.
Glucksberg, 521 U.S. at 732.
C. Euthanasia and Assisted Suicide Are Part of the Long and Tragic History of Discrimination Against People with Disabilities
Assisted suicide must be seen against the background of the United States' long and tragic history of state-sanctioned discrimination against the disabled, which five members of the Supreme Court have called "grotesque." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 454-55 & 461 (1985). Amici's experience is that this history continues to haunt the everyday lives and realities of people with disabilities, particularly when making so-called "end-of-life" decisions.
Throughout history, state officials, with the support of the medical community, have authorized the sterilization of people with disabilities. Buck v. Bell, 274 U.S. 200, 207 (1927) ("It is better for all the world, if ... society can prevent those who are manifestly unfit from continuing their kind ... Three generations of imbeciles are enough").[10] People with disabilities were placed in "massive custodial institutions ... built to warehouse the retarded for life; the aim was to halt reproduction of the retarded and 'nearly extinguish their race.'" City of Cleburne, 473 U.S. at 461-62 (Marshall, J., concurring & dissenting) (citations omitted). The disabled were deemed "uneducable" and excluded en masse from public schools. See School Comm. of Burlington v. Massachusetts Dep't of Educ., 471 U.S. 359, 373 (1985). These practices, like Jim Crow laws in the south, were carried out by elected officials with the support of the voters. This did not make them any more legitimate or constitutional.
Euthanasia played a key role in this history. In the 1940s, medical professionals sought the involuntary euthanasia of the severely disabled. In a 1941 presentation to the American Psychiatric Association, which was later published in the Association's journal, Dr. Foster Kennedy, the President of the American Neurological Association, stated:
[T]he place for euthanasia, I believe, is for the completely hopeless defective: nature's mistake; something we hustle out of sight, which should never have been seen at all. These should be relieved of the burden of living ... to allow them to continue such a living is sheer sentimentality, and cruel too; we deny them as much solace as we give our stricken horse. Here we may most kindly kill.
M. Louis Offen, Dealing with "Defectives": Foster Kennedy and William Lenox on Eugenics, 61 Neurology 668 (Sept. 2003) (quoting Foster Kennedy, The Problem of Social Control of the Congenital Defective, 99 Am. J. Psychiatry 13, 16 (1942)). In 1935, a Nobel Prize-winning fellow at the Rockefeller Institute similarly urged that "sentimental prejudice ... not obstruct the quiet and painless disposition of incurable ... and hopeless lunatics." The Right to Kill, Time, Nov. 18, 1935, at 53-54.[11]
Such attitudes, unfortunately, are not completely in the past. Prominent ethicists such as Peter Singer of Princeton University have sanctioned the killing of infants with severe disabilities based on a belief that they will not lead a "good" life and will burden their parents and society. Peter Singer, Rethinking Life and Death: The Collapse of Our Traditional Ethics 197-98 (1994). Professor Singer has also written that it is impossible to kill people with severe cognitive disabilities "against their will" "because they are not capable of having a will on such a matter." Id.
Amici do not claim that Oregon's assisted suicide law was intended to "extinguish" the disabled. Nevertheless, given this history and the slippery slope it exemplifies, federal safeguards are appropriate and necessary to ensure that euthanasia against the disabled is not, once again, sanctioned as a "legitimate medical practice" as it was for so many years.
D. Assisted Suicide Contravenes Medical Ethics and Practice Because of the Abuse It Poses to People with Disabilities
As this Court has recognized, assisted suicide is contrary to well-established medical ethics. Glucksberg, 521 U.S. at 731 (quoting American Medical Association, Code of Ethics ß 2.211 (1994)); see also Vacco v. Quill, 521 U.S. 793, 801 n.6 (1997) (discussing medical profession's distinction between withholding treatment and assisted suicide). This rejection is firmly grounded in the potential harm the Oregon assisted suicide law poses to the lives of people with disabilities.
1. The Uncertainty of Diagnosing a "Terminal Illness"
First, the diagnosis and prognosis of a "terminal condition" - defined under the Oregon law as a condition likely to cause death within the next six months - is inherently uncertain. Timothy E. Quill et al., Sounding Board: Care of the Hopelessly Ill, 327 New Eng. J. Med. 1380, 1381 (Nov. 5, 1992) ("[W]e acknowledge the inexactness of such prognosis [of imminent death]"). Oregon's own reports on the implementation of its assisted suicide law confirm this uncertainty. In 2004, 60 patients were determined "terminally ill" and prescribed lethal medication, but only 35 ingested the medication. Of the 25 who did not, 12 - almost half - were still alive at the end of 2004. One patient who was prescribed medication in 2003, and thus determined to have less than six months to live, did not ingest the medication and was nevertheless still alive by the end of 2004. Oregon Department of Human Services, Seventh Annual Report on Oregon's Death with Dignity Act 12 (2005).
Assisted suicide has not been limited to persons facing imminent death. In the Netherlands, whose assisted suicide law was a model for Oregon, a governmental report confirmed that many people have been killed who did not have a "terminal" illness. Peter Van der Maas et al., Euthanasia and Other Medical Decisions Concerning the End of Life, 338 The Lancet 669, 672 (1991).[12] Similarly, only one in four of the people whom Dr. Jack Kevorkian helped commit suicide had a terminal illness; others simply had physical or neurological disabilities. Lori A. Roscoe et al., Dr. Jack Kevorkian and Cases of Euthanasia in Oakland County, Michigan, 1990-1998, 343 New Eng. J. Med. 1735, 1736 (Dec. 7, 2000).
The medical profession's predictions of the capabilities and life spans of people with disabilities have been historically unreliable. As the National Council on Disability has reported, "people with disabilities are aware of enough instances of dramatic mistakes that many of them have a healthy skepticism of medical predictions, particularly as it relates to future life quality." Assisted Suicide: A Disability Perspective at 27-28. Evan Kemp, Director of the Equal Employment Opportunity Commission under President George H.W. Bush, wrote:
As a disabled person, I am especially sensitive to the "quality of life" rationale that is frequently introduced in the debate [over assisted suicide]. For the past 47 years I have lived with a progressive neuromuscular disease that first began to manifest itself when I was 12. My disease, Kugelberg Weylander Syndrome, has no known cure, and I have no hope for "recovery." Upon diagnosis, my parents were informed by the physicians treating me that I would die within two years. Later, another group of physicians was certain that I would live only to the age of 18. Yet here I am at 59, continuing to have an extraordinarily high quality of life.
Evan J. Kemp, Could You Please Die Now? Wash. Post, Jan. 5, 1997, at C1.
2. The Law's False Assumption that Suicide is "Rational" When Committed by a Person with a Disability
As the Glucksberg Court recognized, "those who attempt suicide - terminally ill or not - often suffer from depression or other mental disorders." 521 U.S. at 730.[13] The Court continued, "Research indicates ... that many people who request physician-assisted suicide withdraw that request if their depression and pain are treated." Id. For example, a study of cancer patients showed that those with depression were four times more likely to want to die. William Breitbart et al., Depression, Hopelessness and Desire for Hastened Death in Terminally Ill Patients with Cancer, 284 JAMA 2907, 2909 (Dec. 13, 2000).
Although the Oregon law mandates that doctors must determine that patients are "not suffering from a psychiatric or psychological disorder or depression causing impaired judgment" before prescribing lethal drugs, and must refer such patients for counseling, see Or. Rev. Stat. ß 127.825, in practice such determinations are extremely problematic. In a survey of Oregon psychiatrists, over half were "not at all confident" they could assess in a single consultation whether a psychiatric condition impaired a person's judgment; only six percent were "very confident." Linda Ganzini et al., Evaluation of Competence to Consent to Assisted Suicide: Views of Forensic Psychiatrists, 157 Am. J. Psychiatry 595 (Apr. 2000). This is because such assessments are inherently subjective and unreliable. As one research analysis concluded:
There is a marked lack of clarity about the goals of mandatory psychiatric assessment in all patients requesting PAS [physician-assisted suicide]. More worryingly, there are no clinical criteria to guide such an assessment - just as there are no criteria to assess the rationality of any person's decision to commit suicide.
Brendan D. Kelly et al., Euthanasia, Assisted Suicide and Psychiatry: A Pandora's Box, 181 British J. Psychiatry 278, 279 (2002).
Perhaps for these reasons, counseling referrals in assisted suicide cases under the Oregon law are alarmingly rare. In 2004, only five percent of patients seeking assisted suicide were referred for a psychiatric e