Assisted Suicide and States' Rights

by Jay Johansen
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In 1994, Oregon passed a law making it legal for doctors to give people drugs that they could use to kill themselves. (With certain restriction, basically that it must be limited to sick old people.) In response, the Attorney General (AG) said that, even if Oregon no longer had any laws against "assisted suicide", it is still a violation of federal laws for a doctor to prescribe drugs for such a purpose, and any doctor who did this could lose his license to prescribe drugs. (Note: A federal license to prescribe drugs is a separate thing from a state license to practice medicine.)

The case went to the Supreme Court, and they ruled against the AG. (Gonzalez v Oregon) Personally, I found the case debatable -- I think a good argument could have been made for either side, as I'll get to in a moment. But the court's reasoning for its decision was ... bizarre.

The AG's position hinged on the fact that the "Controlled Substances Act" (CSA) requires him to take various steps to prevent "diversion of particular controlled substances into other than legitimate medical, scientific, and industrial channels". He further concluded that assisted suicide was not a "legitimate medical, scientific, or industrial" purpose.

The Supreme Court ruled that the Attorney General does not have the authority to declare that assisted suicide is not "legitimate medicine". They said that when the law talks about legitimate medicine, it means any use of drugs other than "addiction and recreational abuse". But these words are not found in the law: the court just made them up. So we're left asking, "Who says?" There is nothing obviously unreasonable about saying that deliberately killing people is not legitimate medicine. The court itself concedes that every medical authority from Hippocrates to the American Medical Association agrees that this is not legitimate medicine, but they insist it has now become a debatable issue. The court's position is that it is perfectly legitimate for the government to make it illegal for someone to engage in "recreational" use of a drug, on the grounds that such use might result in illness or injury. But it is not legitimate for the government to try to prevent someone from using a drug to commit suicide. Accidental harm can legitimately be made illegal, but deliberate harm can not. Huh? Why not?

The court went on to say that when the law says that the Attorney General must "control" various drugs, that the word "control" here means solely that he should put them on a list of "controlled substances", but that he does not have the power to say what can actually be done with any of these drugs. Surely it takes only a moment's thought to realize that such an interpretation would make the entire law rather pointless. If the government cannot do anything to prevent people from abusing a drug, but is limited to simply declaring that certain drugs are subject to abuse, then why even bother? So we give the policeman the power to shake his finger at people and say, "You shouldn't do that", but he can't actually arrest anybody or take the drugs away? Surely this was not what Congress intended when they passed this law. And of course the court does not say that that is what the law means in other contexts. They interpret the words of the law to mean one thing when it comes to "recreational abuse", and something totally different when it comes to "assisted suicide".

Finally the court gets to what I would consider the legitimate constitutional issue. The state of Oregon argued that the federal government has no authority under the Constitution to decide what "legitimate medicine" is; rather, this is a subject that is reserved for state governments. The Court agreed that the federal government cannot impose a single rule that all the states must follow. But they also rejected the idea that each state can decide for itself. Instead, they said, the rule is that legitimate medicine is anything other than addiction or recreational abuse. That is, they said that it would violate the Constitution for the Attorney General, as an agent of the federal government, to impose one rule that applies to all states, and so the Supreme Court, as an agent of the federal government, will solve this problem by creating one rule that applies to all the states.

Interestingly enough, this very same Supreme Court heard a case involving this very same law just one year earlier. In that case, two people from California argued that as California state law allowed them to use marijuana for medical purposes, the federal government had no authority to stop them. The court rejected this argument, writing that the Attorney General had a legal responsibility for "creating a comprehensive framework for regulating the production, distribution, and possession of ... ‘controlled substances,’" in order to "foster the beneficial use of those medications" and "to prevent their misuse."

Personally, I think a good case could be made that the federal government should not have this authority in either case. If California wants to legalize marijuana, where does the Constitution give the federal government the authority to prevent that? The Constitution gives the government specific powers and says that any powers not listed are reserved for state governments or the people, and nowhere in the list is regulating medicine or drug abuse mentioned. But if we accept that the federal government should have this power, why does it apply in one case but not the other?

So just one year ago the Supreme Court said that the federal government does have the authority to forbid the use of drugs for reasons that state law allows, and then today they say that it does not. What's the difference? Surely the only plausible explanation is that the court believes that abuse of marijuana is a bad thing that must be stopped, but killing useless old people is perfectly okay and should be permitted. Indeed, while Oregon is the only state to allow assisted suicide, the court refers to them as the "first". Is this a subtle indication that they're hoping there will soon be more? Once again, the court rules, not on the basis of the law or the Constitution, but on the basis of their own personal views on controversial social issues.

When the Supreme Court today declares that a law is "unconstitituional", is there anyone who thinks that this means that their ruling actually has anything to do with the Constitution?

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Posted 13 March 2006.

Copyright 2006 by Pregnant Pause
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