Comments from The Outpost

10 January 1997

by Dan Murphy

It's About Choice

Good evening.

In the last two weeks, two issues have come to the fore which share a number of characteristics. Both are social issues backed by strong and emotional positions, and both are being battled in the federal courts. I notice also that both are about choice, and about whether the law will allow or support individuals in making choices about their own mind and body.

These issues are the medical use of marijuana and doctor-assisted suicide. The former was brought back to the front page last week by the Clinton administration, which announced its opposition to any state initiatives to legalize such uses and its intent to use federal powers to thwart the will of the voters as expressed in two state referenda last November.

The latter has been widely discussed this week as the US Supreme Court heard arguments on the appeals of two lower court decisions striking down state laws which prohibited doctor-assisted suicide.

Both of these issues have many facets specific to the particular question, but both can be fairly characterized as having a pro-choice and a no-choice position. In the marijuana case, the questions is whether an individual can, in some circumstances, obtain and choose to use marijuana for medical purposes, or whether that choice is never available. Similarly, the question now before the Supreme Court is whether an individual can, in some circumstances, obtain the help of a doctor in ending their life as an act of choice and will, or whether that choice is never available.

Choice or no choice. That is the question.

Of course, "pro-choice" has long been used in connection with the issues surrounding abortion, and indeed, many of the same kinds of arguments are being heard again. There is one important difference however. Those who oppose the right to an abortion often argue that the fetus has rights and that the state may and should limit the choices available to a woman in order to protect the rights of the fetus.

No comparable allegation of competing rights exists in the current two cases. It's entirely my mind and my body at stake in my choice. Nonetheless, opponents of choice are still unwilling to let people make their own choices in these areas, and they demand that the law serve to limit those choices.

Indeed, we must remember that the argument is about law, for that is what courts and legislatures actually deal with. Those who oppose choice in these areas are necessarily arguing that the law should deny that choice to everyone in society and should further act with its usual mechanisms against those who attempt to make the prohibited choices. After all, that is all the law can do. It cannot change the way people think, it cannot alleviate suffering or banish pain. On the contrary, it can only cause suffering and inflict pain in the form of incarceration and punishment in the often futile hope that the threat of such suffering and pain will be a dis-incentive to breaking the law.

It would be helpful, or at least less frustrating, if the debates and discussions around these issues would at least acknowledge this fact -- that the operative question is, what do we make the law say, and do we wish to have law enforcement applied in all its crude and ponderous ways against those who don't obey it. One need look no further than the war on drugs for an example of the complete and abysmal failure of law to achieve its stated ends, and of the massive suffering and degradation of people caused by using law enforcement in inappropriate and ineffectual ways.

One need look no further than our own society prior to Roe v. Wade to see that the choice of abortion can not and will not ever be truly denied by the law; the law can only deny a safe abortion; an affordable abortion to someone of limited means; an abortion provided in a environment of caring and respect and which affirms the dignity of someone making a difficult choice that no one ever really wants to make.

Fortunately, these are all issues on which a majority of the American people come down on the side of choice when the circumstances are made real and close at hand. No jury has ever convicted a doctor of assisting a suicide, even though numerous such cases have been brought, including three in what can only be described as the persecution of Dr. Jack Kavorkian.

The public supports choice in some cases, and that is the key -- some cases. No one is arguing that all terminally ill patients must commit suicide, only that we start by allowing that there are at least some cases, some circumstances, and some patients for which that decision is reasonable. The no-choice side is saying in effect, no -- there is no case, no circumstance, no patient for which that can be allowed.

Similarly, the Clinton administration is saying that no patient at no time can possibly benefit from the use of marijuana, despite countless first-hand reports that such use has been of enormous and unique benefit. Taken together, Clinton administration positions on these two issues deny terminally ill patients both the right to die and the right to alleviate their suffering. Where, then, is the vaunted compassion and empathy with which the President is supposedly so well endowed?

Donna Shalala says that marijuana really doesn't help. The terminally and chronically ill say that it does. Who gets to make the choice. That is the fundamental question. Does big daddy government know what's best for us, and does it have a duty to keep us from hurting ourselves? Or do we retain personal responsibility for these difficult decisions, and live -- or die -- with the result?

The Constitution preserves a number of important choices for each of us, and, fortunately, has survived numerous and continuing attempts by factions who are convinced that their choice must be my choice. It would be nice if the Constitution said generally that the government may not limit our choices in matters affecting only our own mind and body. As far as I'm concerned, the Ninth Amendment goes a long way in that direction, and I hope the Supreme Court will use that and the other great themes of the Bill of Rights to ensure that we the people retain the particular rights and choices implicit in these two current issues.

For this week, that's the view from the Outpost. For WMBR, this is Dan Murphy.

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