Mimsy Were the Borogoves

Editorials: Where I rant to the wall about politics. And sometimes the wall rants back.

Oregon’s physician-assisted suicide

Jerry Stratton, January 17, 2006

The irony in John Ashcroft’s position opposing Oregon’s physician-assisted suicide law is that his argument was that the federal government’s power to regulate drugs allowed the federal government to override Oregon’s laws allowing physicians to prescribe lethal doses of drugs.

One of the biggest driving forces in favor of assisted suicide is that the federal government uses its power to regulate drugs to keep effective pain medicine away from the severely and terminally ill. Ashcroft’s policy was to viciously war against physicians who prescribe effective pain medication.

In Gonzales v. Raich, the Supreme Court ruled that this was legal, and that state laws could not take precedence over federal law when it came to regulating what doctors can do to keep patients alive. Now, in Gonzales v. Oregon, they’ve said that state laws do take precedence when it comes to killing them.

In other words, if a patient needs marijuana to maintain not just quality-of-life but life itself, the federal government can forbid states from allowing it. If a terminally ill patient is in so much pain that they need regular, large doses of pain medication, the federal government can lock physicians away for prescribing it regardless of what the state says. But if a terminally ill patient asks the physician to prescribe so much that they’ll die, the federal government has no say in the matter if the state allows it.

Justice Thomas noticed the same disconnect, but still voted against state’s rights in this case. In Thomas’s Gonzales v. Oregon dissent, Thomas writes:

The majority’s newfound understanding of the CSA as a statute of limited reach is all the more puzzling because it rests upon constitutional principles that the majority of the Court rejected in Raich. Notwithstanding the States’ “‘traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens,’” the Raich majority concluded that the CSA applied to the intrastate possession of marijuana for medicinal purposes authorized by California law because “Congress could have rationally” concluded that such an application was necessary to the regulation of the “larger interstate marijuana market.” Here, by contrast, the majority’s restrictive interpretation of the CSA is based in no small part on “the structure and limitations of federalism, which allow the States ‘“great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.”’” According to the majority, these “background principles of our federal system... belie the notion that Congress would use... an obscure grant of authority to regulate areas traditionally supervised by the States’ police power.”

Of course there is nothing “obscure” about the CSA’s grant of authority to the Attorney General. And, the Attorney General’s conclusion that the CSA prohibits the States from authorizing physician assisted suicide is admittedly “at least reasonable,” and is therefore entitled to deference. While the scope of the CSA and the Attorney General’s power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administrative agencies are merely the inevitable and inexorable consequence of this Court’s Commerce Clause and separation-of-powers jurisprudence.

I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States’ “‘traditional... powers... to protect the health, safety, and welfare of their citizens.’” The Court’s reliance upon the constitutional principles that it rejected in Raich--albeit under the guise of statutory interpretation--is perplexing to say the least. Accordingly, I respectfully dissent.

Thomas claims not to be dealing with the constitutional issues, but that seems to be an excuse to dissent so as to call attention to the disconnect between the two cases.

Scalia’s dissent does not mention Raich. The majority appears to mention Raich in passing, only to say that it shows the Controlled Substances Act to be comprehensive, but not this comprehensive.

Until we allow effective medical care, supporting suicide to avoid poor medical care is a misplaced compassion.

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