Sturm College of Law
Physician assisted death, Federalism
Modern patients often enter a twilight zone of suspended animation between living and dying that did not exist a generation ago. The majority of Americans believe these terminal patients should have the right to refuse life support and to receive pain relief, even to the point of hastening death. Yet laws addressing the situation are unclear, and physician advocates, like Dr. Kevorkian of Michigan, have faced sanctions and jail time when they responded to patient requests for help to die peacefully. In its 2006 Gonzales v. Oregon decision, the U.S. Supreme Court shifted the physician-assisted death dilemma to the state-side of the federalism balance because the federal Constitution includes no guarantee for a right to die and Congress has not passed any legislation directly addressing the issue. Yet, not a single state legislature has passed a law that would legalize physician assistance in dying, even though representatives throughout the country have been struggling with the issue for over ten years. The only state that has legalized physician-assisted death is Oregon. Oregon is the lone success because its citizens were able to bypass the traditional legislative process and enact its law through a citizen initiative. Some criticize citizen initiatives as "fast-food government" because they serve up quick, ill-prepared laws by circumventing the more time-consuming deliberative process. However, influential minority groups have created stasis to stop the flow of legislation on controversial physician-assisted death legislation by asserting influence over the pressure-points in the traditional process. Because initiatives avoid these pressure-points, they can sometimes surmount the influence of minority group money more effectively than the legislative process, thus producing laws that better represent the will of the people. Federalism encourages the diffusion of power to validate citizen representation and to allow experimentation at the state level. The citizen initiative diffuses power to the most fundamental level - allowing each citizen an individual voice in government. Because some controversial issues can only reflect citizen choices when the decision-making is moved to this fundamental level, the citizen initiative plays a critical role in federalism.
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K.K. DuVivier, Fast-Food Government and Physician-Assisted Death: The Role of Direct Democracy in Federalism, 86 Ore. L. Rev. 895 (2007).