Oregon's Death with Dignity Act, which the Supreme Court recently agreed to review, permits a terminally ill patient to end his or her life by drug overdose, with the assistance of a physician. For many Americans, permission to end one's own life represents an affront to God's sovereignty; many religious people argue that God, rather than man, should determine when we die. Others argue from a secular standpoint that "Death with Dignity" devalues a disabled person's life by pressuring the infirm to escape their suffering rather than embrace the human qualities inherent in a struggle with their limitations.
I believe these arguments are right; as a Christian I find that Jesus calls his disciples into suffering, not away from it, and that Jesus gave himself up to be painfully crucified although he could easily have chosen escape. His message is that the right course does not always seem dignified. But as a (small "d") democrat with conservative leanings, I cannot ignore that Oregon's Death with Dignity Act is a model of federalism in action. Through two referendums, Oregonians have chosen, first by a 51-to-49 percent majority, and three years later by a 60-to-40 percent vote, to give terminally ill patients the right to choose when to die.
Few initiatives fit our democratic model so well; the act is narrow and specific, and involves the cooperation of the legislature and the voters. No claims of judicial activism apply here; the Death with Dignity Act exemplifies the union of democracy and federalism beautifully.
Therein lies the rub for conservative - mostly Christian - activists led by John Aschcroft in the legal battle against physician-assisted suicide. Ashcroft argues that the act violates federal drug laws, but it seems clear that his chief concern is the moral statement made by The Death with Dignity Act, which undermines the "culture of life" that conservatives and many liberals care so deeply for.
Concerned Christians are right to take their faith-informed moral values into the public square and contend for truth; every citizen argues from some philosophical assumption, and it is mistaken to deride Christian or Muslim engagement in the public square as a violation of church-state separation. But conservatives should be aware of obviating the principles of federalism by forcing a contorted judicial battle and feeding the stereotype that
conservatives seek to abridge individual rights and impose "morality" through the law. Instead of arguing in the courts, conservatives should take their case to the culture. That is where the right to die originated, and where it should properly be countered.
I am essentially echoing William Stuntz, a criminal law professor at Harvard and, like myself, an evangelical Christian. Stuntz writes, "When the culture is sharply divided on some kind of behavior, the side that wins the law's endorsement tends to lose ground, culturally and politically. Roe v. Wade has been the pro-life movement's friend. Those who want abortions to be rare would do well to keep them safe and legal." His essential point is this: laws do not influence moral standards nearly so well as moral standards influence the law.
I can not agree with Stuntz on abortion; I find the abuse of a voiceless, fully-human fetus to be an unbearable violation of individual rights. But I do find sense in his argument that criminalizing a behavior will not undo the culture's beliefs; in fact it might reinforce them. Christians who want to save the suffering from ending their own lives would do well to spend their energies convincing as many as possible that our lives are for God, not for us, and human life finds its joy in communion with Him, regardless of physical suffering and pain.
Professor Stuntz was quick to explain to me recently that he is not sure that he is right; one must take excruciating care when handling human life, and it would be foolish to quickly dismiss abortion or physician-assisted suicide as simply someone "choosing what to do with their own body." But the evidence suggests that most Oregonians, despite having overwhelmingly approved the Death with Dignity Act, understand the gravity of human life. Since the Act was passed in 1997, only 170 or so have chosen to end their lives by a physician-assisted drug overdose. Out of the thousands of terminally ill and severely disabled citizens with only six months to live, a mere 170 have chosen an early death. Those interested in a culture of life should take heart; we may find a more receptive audience in Oregon than we might have thought.
All this does not mean that the Act can not be easily improved; the most glaring weakness is that the law allows for a patient's primary care and consulting physicians to assess the patient's mental competency to choose an overdose even though few physicians are trained to understand the mental stresses that accompany a physical deterioration. In fact, in one recent poll, 90 percent of Oregonian psychiatrists said they would feel uncomfortable assessing a patient's mental competency to choose an overdose after only a single observation session. The law should be tightened to ensure that those who choose an overdose possess their full mental faculties.
Conservatives should meanwhile remain mindful that two wrongs do not make a right; you can not fight "judicial activism" by resorting to it yourself. In this case, judicial activism would stand in glaring opposition to our prized democratic processes, and those who believe that a truly dignified death is a natural one should remain well within the bounds of those processes.
Matthew Dysart graduated from Tufts in 2004 and will begin law school this fall.
