Physician-Assisted Suicide and Federalism

Physician-Assisted Suicide and Federalism

• Law often decides who gets to decide
• In the American political system it is often at what level the decision should be made (individual, municipal, state, or federal), and by what institution it should be made (individual, family, administrative agency, court, or legislature)
• Focus on the process of deciding is important in controversial medical treatment decisions
• Focus on adding required procedures and decision-makers is a way of dealing with conflicting views about whom to trust
• Discussions of federalism focus on who decides
• The United States is a federal republic, with powers and responsibilities divided between the federal government and the states
• A federalist system has consequences for the way issues are considered, including physician-assisted suicide

Interactions Between States and Between State Governments and The Federal Government

• American federalism is based on the idea that decisions are divided between the central, national government and the individual states
• Power within states is frequently devolved further to municipalities and other entities
• American federalism contains the idea of states as experimental laboratories; and the tension between state autonomy, national citizenship, and federal governmental initiatives.

States as Laboratories

• Justice Louis Brandeis described the value of federalism in terms of how states can try out new programs and approaches
• States are encouraged to try social and moral problem approaches
• Federal intervention is justified by the belief that certain matters should be beyond the scope of state choice
• Federal courts (and Congress) do not intervene until consequences of approaches are clear through actual practice
• Supreme Court decisions refused to recognize a constitutional right to physician-assisted suicide referring to the ongoing state “experimentations” on the issue
• Oregon is the only "laboratory" in the United States experimenting with physician-assisted suicide
• Maine narrowly defeated a ballot measure in 2000 which would have allowed physician-assisted suicide with similar initiatives also defeated in Washington in 1991 and in California in 1993
• The Hawaii legislature defeated a comparable proposal in 2002
• Experimentation on this issue is also going on in other countries

Extra-Territorial Effects (the Examples of Marriage, Divorce, and Welfare)

• The combination of normal practices and constitutional doctrines can cause a single state's decisions to have nation-wide effects
• The most famous recent example is when Hawaii and later Vermont threatened to recognize same-sex marriages
• Same-sex couples had challenged decisions not to allow them to marry, on the basis of state constitutional protections
• The Hawaii "threat" was eventually foreclosed by a referendum that modified the state constitution to authorize legislation confining marriage to opposite-sex couples
• The Vermont litigation resulted in a court order that the state legislature either extend marriage to same-sex couples or create an alternative institution that would give same-sex couples all the (state-law) benefits of marriage
• The Vermont Legislature chose the second option, creating "civil unions" for same-sex couples
• The federal government became involved in the debate before either state had resolved the legal challenges with the federal intervention based on concerns arising from the Full Faith and Credit Clause of the United States Constitution:
  • Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings by every other State
  • The Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof
• The Full Faith and Credit Clause held one state to enforce the valid divorce judgments of another state
• The Full Faith and Credit Clause applies to divorce decrees because the decrees are judgements of courts
• Marriages are not "judicial Proceedings," nor are they in any obvious way the "public Acts [or] Records" of the state
• Each state must grant the laws under which the marriage was celebrated because of the "full faith and credit"

Defense of Marriage Act (DOMA)

• DOMA authorized states not to recognize same-sex marriages if they so desired, thus reducing the fear that recognition of same-sex marriage by one state would impinge on the marriage policies of other states
• DOMA tries to determine how one requires states to respect the laws and judgments of other states without giving each state the power to undermine the policies of every other state
• The basic tension of American federalism is granting significant autonomy to the individual states while maintaining a national identity and rights of national citizenship
• States have no power to deny access of laws or benefits to someone based on the state they are from

Residency

• States can impose residence-durational requirements, at least on some benefits offered by the states
• In Sosna v. Iowa, the Court upheld Iowa's one-year residency requirement for obtaining a divorce in the Iowa courts
• The Supreme Court has affirmed as legitimate a state's interest in not becoming a magnet to out-of-state citizens, based on the services or benefits it offers
• No one qualifies to use legal physician-assisted suicide in Oregon who is not a “resident of Oregon
• Four factors determine resident status: having an Oregon driver's license; having registered to vote in the state; leasing or owning property in the state; and having filed an Oregon tax return for the most recent tax year
• Merely traveling to Oregon is insufficient to qualify someone to seek physician-assisted suicide under the Oregon Act
• States might interfere in policy concerning a physician's license on the basis of participating in an assisted suicide

Federal Intervention

• The federal government has already stepped in, to a limited extent, to constrain state experimentation in the area of physician-assisted suicide, and some federal officials have tried to end the experiment entirely
• The first form of federal intervention with the Oregon legislation in fact came from the judicial branch when a federal district court had enjoined implemention of the Act
• The federal district court's decision claimed the legislation violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
• A preliminary injunction appears in Lee v. Oregon, 869 F. Supp. 1491 (D. Or. 1994) with the permanent injunction appearing in Lee v. State, 891 F. Supp. 1429 (D. Or. 1995), rev'd sub nom. Lee v. Oregon, 107 F.3d 1382 (9th Cir. 1997), cert. denied, 522 U.S. 927 (1997)
• The initial suit was brought by “two physicians, four terminally ill or potentially terminally ill patients, a residential care facility, and individual operators of residential care facilities.
• The patients claimed The Act violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as the First Amendment rights to free exercise of religion and association, and the Americans with Disabilities Act
• The district court's decision was overturned by the Ninth Circuit Court of Appeals, and the United States Supreme Court refused to hear the appeal
• The injunction against implementation of the Oregon legislation had been lifted on October 27, 1997, and in November of the same year, Oregon voters rejected by a margin of 60% to 40% a referendum effort to repeal the legislation
• The Federal Assisted Suicide Funding Restriction Act of 1997 prohibited the use of federal funds in support of physician-assisted suicide
• The Pain Relief Promotion Act was introduced in the House and the Senate in both 1999 and 2000, and was passed by the House in October 1999 before it died in the Senate, it would have made it illegal to use a federally controlled substance in physician-assisted suicide
• On November 6, 2001, Attorney General John Ashcroft sent a letter to the Drug Enforcement Administration, stating that assisting suicide was not a "legitimate medical purpose", and therefore the use of controlled substances to effect that purpose would violate the Controlled Substances Act, and make a physician's license subject to suspension or revocation if she prescribed controlled substances for that purpose of assisting suicide
• The State of Oregon subsequently filed a complaint in the United States District Court for the District of Oregon, seeking declaratory and injunctive relief from the Attorney General's Directive
• Judge Robert E. Jones initially granted temporary relief, and eventually granted a permanent injunction against enforcement of the Directive concluding Attorney General's actions had exceeded his authority under the Controlled Substances Act

Theories of Federalism

• According to the political science and economics literature, there are a variety of perspectives on the values and effects of federalism
• Those who theorize about the subject often seek ideas about how the various levels of government should divide their responsibilities
• Commentators have summarized prevailing views as: those who value a federal system typically do so for some mix of three reasons:
  • Encourages an efficient allocation of national resources
  • Fosters political participation and a sense of the democratic community
  • Helps to protect basic liberties and freedoms

Competitive Federalism

• States tend to compete with one another for various objectives and benefits
• Federalism often leads to a "race to the bottom" in which governments top one another not only for the generosity of tax breaks, but also laxness of pollution, employee safety, and employee-rights regulations
• Some argue that there is competition among states to create the most "efficient" rules for the regulation of commercial activities
• Oregon's physician-assisted suicide could be seen as some competition with other states to attract residents

Sorting and Responsiveness

• Federalism reflects different values via different states and local governments
• Vermont and New York might recognize same-sex unions while Utah or Louisiana might deny benefits to same-sex couples
• "Libertarian-inclined" State of Oregon has a distinctively different approach to physician-assisted suicide than states influenced by a large population of devout Catholics

Federalism and Efficiency

• The central government is involved only with those issues which involve significant externalities across geographically wide areas
• More local decision-making would seem appropriate for physician-assisted suicide unless and until the local rules had significant spillover effects
• State laws on physician-assisted suicide should have a residency requirement to avoid spillover effects

State's Rights and Sovereign Immunity

• According to legal theories of federalism, the U.S. Consitution requires a division of powers between the federal government and states
• The United States Supreme Court cases have recently provided substantial protection for state sovereignty and state prerogatives, as against federal power
• Many of the cases are based directly or indirectly on the Eleventh Amendment
• Some cases indicated certain subjects are presumptively beyond Congress' power to regulate: non-economic regulation, especially if it concerns the family
• Regulations which do not impose liability on the states themselves, and do not "commandeer" state governments to do the bidding of the federal government, are usually upheld

Application to Physician-Assisted Suicide

• Most recent proposals impose a residency requirement on those who would take advantage of the legalization of physician-assisted suicide
• States pass laws that lead to financial incentives and ideological opposition
• Federal legislation prohibited the use of federal funds for physician-assisted suicide
• Citizens of other states should not have to subsidize state experimentation
• States should make own decisions and live with the costs and benefits

Conclusion

• According to federalist principles, the separation of political decision-making should exist among different levels of government
• Some states might legalize physician-assisted suicide because it reflects the values of the citizens of those states
• There should be "experiments" going on, as long as the spillover effects of the experiment can be minimized
• Oregon is the only such experiment in the United States, but it may be a sufficient "laboratory" for ascertaining the likely long-term effects of legalization