In 1997, following the State of Oregon’s failure to repeal its law legalizing physician assisted suicide (PAS), some members of Congress responded by supporting a federal ban on the practice. In a hand-written note at the top of a DOJ memorandum, Elena Kagan wrote that she thought making physician assisted suicide a federal crime was “a fairly terrible idea.”[1] She asked other members of the Administration whether they needed to “run some kind of policy process” on the issue.
There are no additional memoranda, emails, or notations in the collection of documents released by the William J. Clinton Presidential Library on Friday which indicate why Kagan thought a federal assisted suicide ban was a “terrible idea.”[2]
While two states, Oregon and Washington, have legislatively legalized physician assisted suicide, a decision by the Montana Supreme Court effectively made Montana the third state with legal assisted suicide.[3]
Assisted suicide proponents tout the practice as a compassionate choice for seriously ill individuals, the reality is much darker. The most frequently cited concerns of terminally-ill patients in Oregon, for example, are the loss of personal autonomy and bodily function and the decreased ability to participate in activities that make life enjoyable. Fear of becoming a burden to family and friends is also cited. Americans need care for emotional and physical pain, not death.
Conclusion:
If physician assisted suicide becomes legal in more states, legislatively or through state courts, activist U.S. Supreme Court justices might determine that “societal changes” or a new “social consensus” require revisiting the Court’s decisions in Washington v. Glucksberg[4] and Vacco v. Quill,[5] which held that there was no right under the US Constitution to assisted suicide.
Therefore it is critical that members of the Committee ask Kagan to explain her view that a national ban is a “fairly terrible idea”. What reasons led her to such a conclusion? Also, Senators should ask whether she believes national limitations on assisted suicide are constitutionally impermissible. Further, Kagan needs to say whether, as a Justice, she will respect United States Supreme Court precedent that assisted suicide is not a constitutional right.
[1] NLWJC – Kagan, DPC – Box 002 – Folder 011, Assisted Suicide [2], -page 31, available at http://www.clintonlibrary.gov/KAGAN%20DPC/Corrections/DPC%20-%20Box%20002%20-%20Folder%20011.pdf.
[2] According to the documents, President Clinton ultimately opted to “Kick the Can” on the issue. On a May 18, 1998 memo, he placed a check mark beside a suggestion that he “attempt to forestall legislative action this year.” The memo continued: “Delay would allow medical groups, states and others to weigh in that federal approaches in this area are ill advised. Chuck [Ruff] and Bruce [Reed] support this option believing federal drug agents should not regulate doctors, assisted suicide is not an area for federal legislation and ‘kicking the can’ is the best way to prevent a bill. . . .” NLWJC – Kagan, DPC – Box 002 – Folder 010, Assisted Suicide [1], page 29, available at http://www.clintonlibrary.gov/KAGAN%20DPC/DPC%201-4/915_DOMESTIC%20POLICY%20COUNCIL%20BOXES%201-4.pdf.
[3] See Baxter v. Montana, 224 P.3d 1211 (2009). The First District Court of Montana (a lower court) became the first court in America to declare a constitutional “right to die” for competent, terminally ill patients. Ultimately, the Montana State Supreme Court did not agree. In Baxter, the court held that existing Montana law precluded prosecution of doctors who assist in suicides.
[4] 521 U.S. 702 (1997).
[5] 521 U.S. 793 (1997).
