News-Record.com

My column today:

It’s not often that matters of life and death depend on the meaning of an ordinary word. But, as I read it, that was the issue in last week’s capital punishment ruling by a closely divided N.C. Supreme Court.

The question is what the legislature intended by writing into state law the requirement that a physician must be “present” at lethal-injection executions. No specific role is spelled out.

That suited the N.C. Medical Board, which governs professional standards, including ethics. In January 2007, the board adopted a statement asserting that physicians should not play any active role in executions. Participation beyond mere presence could trigger disciplinary action.

Sounds innocent. But from then on, the warden at Central Prison no longer could find a physician willing to join him at executions. Without a physician present, lethal injections could not be administered legally. The long line of men and women waiting their turn stopped moving. Confronted with this intolerable deadlock, the Department of Correction sued the Medical Board for overstepping its legislative authority.

By a 4-3 count, the Supreme Court ruled in favor of the state. Writing for the majority, Justice Edward Thomas Brady fleshed out the sparse language of the law, filling in the legislative intent:

“To assert that the physician is to merely occupy space in a nonprofessional capacity is simply illogical. ...”

Inferring that “presence” implies participation, Brady deduced that the Medical Board’s threat to discipline physicians who serve a required function at executions defies state law.

Justice Robin Hudson delivered a passionate dissent, claiming that the majority exceeded its own authority by reading what the legislature did not write. “Present” shouldn’t be taken to mean anything more than that.

The court’s split on this case was not surprising in one sense, although the arguments of the two sides were.

Joining Brady were Justices Mark Martin, Bob Edmunds and Paul Newby. They are the court’s four men, and all are registered Republicans and moderate-conservatives. Maybe it was expected they would rule in favor of the state and its desire to get on with executions.

With Hudson were Chief Justice Sarah Parker and Justice Patricia Timmons-Goodson. They are the court’s three women and registered Democrats. But Hudson’s dissent isn’t based on liberal opposition to capital punishment. Instead, it’s an appeal to the conservative value of judicial restraint — upholding the letter of the law in its most basic understanding.

There’s more context here. North Carolina’s Council of State, responding to a federal court order, adopted an execution protocol that’s supposed to protect a condemned inmate from pain and suffering during a lethal-injection execution. It calls for a physician to monitor the condemned for signs of distress. Detecting any, the physician should stop the proceedings until the problem is corrected through some different application of drugs.

That’s a macabre role for a professional healer. Even in the guise of easing pain, this puts the physician in the position of participating in the process of taking life. I don’t blame doctors who refuse to play along.

In her dissent, Hudson raised the possibility that physicians in fact won’t comply despite the defeat handed to the Medical Board:

“Further, it is far from clear how enjoining defendant from disciplining physicians will achieve the result sought by plaintiffs, namely, the resumption of executions. The court order below neither requires that physicians be involved at executions nor that executions proceed.”

She’s right. This ruling blocks the Medical Society’s enforcement of its policy, but neither law, nor protocol, nor court order can compel any individual physician to assist in an execution.

It’s disturbing that anyone would think it should.

Brady wrote, “Exceptional care was taken when drafting the Protocol to ensure that it would not cause a physician to violate the Hippocratic Oath.”

Really? The protocol wasn’t written with the support of the Medical Board, and it contravenes the stance of the American Medical Association. Who should decide what conforms to medical ethics if not those professional organizations? Surely not the courts nor any collection of politicians.

Hudson’s argument is better. The court went too far in speaking for the legislature, which has a voice of its own.

If the legislature wants to resolve this messy dispute for good, it should just say no to the death penalty.

Everyone will get the meaning of that.

Thanks for reading. You can call me at 373-7039, email me at dgclark@news-record.com or post a comment here.