Suicide Is Painless

A U.S. Appeals Court on Wednesday ruled that a Bush Administration directive seeking to stop Oregon doctors from helping terminally ill patients commit suicide was unlawful and unenforceable. The decision by the 9th Circuit held that Attorney General John Ashcroft overstepped his authority when he ordered Oregon doctors to ignore a state law -- the "Oregon Death with Dignity Act." both passed and then later reaffirmed by voters via referrendum -- that allowed phyisicians to prescribe lethal doses of medication to terminally ill patients who wished to die. [Reuters.com].

The specific legal question addressed was not whether physician-assisted suicide is appropriate, but rather only who decides, states or the federal government. In a switch much like 2000's Bush v. Gore case that decided the presidential election, a liberal majority relied on principles of federalism to find that medical practice is an issue on which states have the final word, while the dissenting conservative judge argued that the Attorney General and the Constitution permit federal regulation of medical practice when it involves controlled substances. (The full opinions are here.)

The dissenting judge was J. Clifford Wallace, for whom I clerked in 1981-82. He is an independent, tremendously principled and courageous jurist. But I find it ironic that Judge Wallace used decisions extending the scope of federal power to override what he and other conservatives have for years championed, namely the limited nature of federal authority vis-a-vis traditional state activities regarding health and safety (known in legal parlance as "police power"). I think he's wrong here, but I have and always will greatly respect his legal judgments even when they disagree with mine.

The one point on which I violently disagree with with Judge Wallace's dissent, however, is his claim that the majority's decision overrides the democratic process. Seems to me it's really the other way around. Ashcroft disregarded the state democratic process to issue a federal edict. When state voters affirmatively decide, twice, to allow physician-assisted suicide, what right does the federal government have to step in and change that? And even if the feds have the power, isn't it contrary to everything America stands for to have the courts permit it to do so -- particularly when there is no constitutional barrier to state law -- in the face of a democratically approved law in an area of traditional state concern?

The next battleground of this issue will be the many cases certain to arise regarding gay marriage. It will be interesting to see whether the same, ironic switch between liberals and conservatives happens here, as well. I suspect the answer will be like the case last year in which the Supreme Court, by a 6-3 vote, overturned Texas' law criminalizing homosexual sodomy. It will be treated almost as a no-brainer.

 Posted by glenn