January 17, 2006

Oregon wins on physician-assisted suicide.

The Supreme Court surprises me with this one:
The Supreme Court on Tuesday upheld Oregon's one-of-a-kind physician-assisted suicide law, rejecting a Bush administration attempt to punish doctors who help terminally ill patients die.

Justices, on a 6-3 vote, said the 1997 Oregon law used to end the lives of more than 200 seriously ill people trumped federal authority to regulate doctors.

That means the administration improperly tried to use a federal drug law to prosecute Oregon doctors who prescribe overdoses. Then-Attorney General John Ashcroft vowed to do that in 2001, saying that doctor-assisted suicide is not a ''legitimate medical purpose.''

Justice Anthony Kennedy, writing for the majority, said the federal government does, indeed, have the authority to go after drug dealers and pass rules for health and safety.

But Oregon's law covers only extremely sick people -- those with incurable diseases, whom at least two doctors agree have six months or less to live and are of sound mind.
Fascinating. I'll have more later. For now, I'll just observe that this provides a nice occasion for liberals to feel mellow about that erstwhile bugaboo federalism.

UPDATE: Kennedy writes:
The idea that Congress gave the Attorney General such broad and unusual authority through an implicit delegation in the CSA's registration provision is not sustainable....

The importance of the issue of physician-assisted suicide, which has been the subject of an "earnest and profound debate" across the country, Glucksberg, 521 U.S., at 735, makes the oblique form of the claimed delegation all the more suspect. Under the Government's theory, moreover, the medical judgments the Attorney General could make are not limited to physician-assisted suicide....

The statute and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally. The silence is understandable given 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.'"....

Even though regulation of health and safety is "primarily, and historically, a matter of local concern," Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985), there is no question that the Federal Government can set uniform national standards in these areas. [Citation to the medical marijuana case, Raich.] ....

The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it.
Dissenting are Roberts, Scalia, and Thomas. It's quite interesting that the majority is made up of everyone who voted in favor of congressional power in the medicial marijuana case, plus O'Connor and minus Scalia. That means only O'Connor took the strong federalism position in both cases. And only Scalia sided with the government in both cases.

Let's look at Scalia's dissent:
The Court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality -- for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U.S. 308, 321-323 (1913); Lottery Case, 188 U.S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.
The most interesting dissenter is Thomas, of course, because he voted against federal power in the medical marijuana case. He writes:
I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at ___ (THOMAS, J., dissenting); cf. Whitman, supra, at 486-487 (THOMAS, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). 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.'" Raich, supra, at ___, n. 38 (slip op., at 27, n. 38). 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.
Thus, Raich was wrong, but now it's decided, and you ought to have to face up to the consequences of your own decision.

But there is some reason to see statutory interpretation and constitutional law as different when it comes to the division of power between the states and the federal government. You might want to interpret statutes narrowly to preserve room for the states to pursue their individual policies but still not want to say that Congress lacks the power to intrude with uniform law if it sees good enough reason to do so. Demanding that Congress pass more explicit statutes in order to blot out state experimentation in areas of traditional regulation is not inconsistent with the belief that Congress ultimately does have that power. This is a moderate approach to federalism that appreciates that uniform law may be necessary, but still values decentralized lawmaking. It enforces federalism values by requiring Congress to go through the exercise of consciously considering whether to deprive the states of the room to choose their own policy preferences.

ADDED: Here's a link to the text of the case, Gonzales v. Oregon.

30 comments:

David said...

As long as it is a 'real' Doctor. In Caifornia I would be concerned if I was pronounced terminal by an aromatherapist and a marijuna prescribing hippy with a degree from Esalon!

Art said...

Does Roberts' vote to overturn the law foreshadow how he and Alito will normally vote for expanded federal powers?

I suspect W saw his Daddy's mistake with Souter and said, "never again."

Sloanasaurus said...

Putting aside the Constitutional argument it is troubling that any "doctor" would assist someone in dying. This should be totally off limits for doctors. They take an oath!

Have a family member do it instead.

Nick said...

So basically all the folks who dissented in Raich are now saying... "You made your bed..."

Alan said...

I wish I actually understood this. Anyway, considering what O'Connor said on Felo and the side she took in this, I think she's going to be sorely missed when Alito takes her place.

Paul said...

Good. I want no one else but me deciding my departure and I don't want to have to contemplate barbaric methods of leaving. I want access to what only doctors have the power to dispense when it is time to leave.
My death is none of your business.
The alternative is subjecting my family to the huge expenses and paperwork involved with prolonging a terminal illness past when I choose to end it.
That would be good for the health industry who will take everything I worked for and amassed without blinking an eye nor worrying about my family.
It is not good to me.

I am quite shaken that the judges I believe in more strongly and support the most, chose to dissent.

brylin said...

Because of Kennedy's swing vote position, the Dems don't need the filibuster with Alito. They should save it for the next vacancy, which will really change the direction of the Court.

And how do you think Kennedy will rule in the Texas reapportionment case?

Cat said...

I couldn't help but think about the "right to die" crowd yesterday when so many on that side of the fence thought that putting to death an aged murderer was "inhumane," and "unconstitutional." (who is only so aged before his executiion due to 20 years of appeals...during his time in jail he ordered the execution of one of the witnesses to one of his murders...)

jeff said...

From what I understand, doctors do not actually "take" the Hippocratic Oath at any time.

I'm split on this one... I'm generally in favor of federalism, but as an Oregonian I also voted against physician assisted suicide.

Eli Blake said...

brylin:

That's the thing about Kennedy. You just don't know how he will rule, really on anything. You don't. And if you think you have him figured out, he will surprise you.

Now, Alito will certainly change the direction of the court. Before, liberals needed, if their four held, either O'Connor OR Kennedy. Now we will need Kennedy.

I don't support trying to filibuster Alito but only for the very practical reason that the votes aren't there, and an unsuccessful filibuster (whether 'nuked' or not) is more damaging than no filibuster.

Then again, in case anyone remembers, I thought that Harriet Miers should have had her hearing.

Eli Blake said...

Sloanasaurus, Cat, Jeff:

We need this law. Otherwise we have the total hypocrisy of a system that allows (taken together there is no way you can say this is not hypocrisy):

1. People are forced to pay for medical care even if they don't want it.

2. We talk about repealing inheritance taxes (conservatives call it a 'death tax,') but someone with a terminal illness can be forced to live until their estate is all used up to pay the health care provider, but somehow that is OK, as long as it isn't the government seizing part of the estate. The hospital can have it all.

If we had universal healthcare, then you could make a stronger case against the law. But without it, forcing someone to live longer simply so that they can go broke and leave nothing to their families is cruel in a Scrooge-ish sort of way.

Fritz said...

Bad decision and activist. Yes the CSA may have been a burden, but Oregon should have asked for federal legislation to exempt itself from such a burden.

Sloanasaurus said...

"....We talk about repealing inheritance taxes (conservatives call it a 'death tax,') but someone with a terminal illness can be forced to live until their estate is all used up to pay the health care...."

This is a dumb argument.

If someone feels as if they are being forced to live, they should go into their garage, turn on their car and sit there until they die. I see more dignity in that than having some doctor inject you with poison. Both are suicide.

Throughout history people have come up with all kinds of ways to expire themselves. Having a medical doctor who takes an oath to essentially keep people alive is not the answer.

Mike said...

I'd like to first say that doctor's don't actually take oaths anymore. Furthermore, I'm not sure how that would change this outcome. The prevailing thought is "do no harm." If a doctor and patient decide that continuing life is at least as harmful as death, then death is not any more harmful.

The problem with the courts and/or the legislature in this situation is that they're very obviously not well-equipped to make these decisions. Certainly they're not well equipped relative to the doctor and the patient.

What's the alternative for someone who wants to die? A revolver? A commuter train? Come on now.

Simon said...

At 65 pages between Kennedy, Scalia and Thomas, I won't be able to read this until tonight...Thirty pages of Tony's turgid prose is a lot to wade through.

I got a little excited earlier when I heard the result on NPR, which described it as being decided "over a dissent from Chief Justice Roberts" - no such luck, he merely joined Nino's. We will have to wait a little longer before seeing how Roberts handles his first dissent.

Simon said...

Paul-
"I want no one else but me deciding my departure and I don't want to have to contemplate barbaric methods of leaving . . . I am quite shaken that the judges I believe in more strongly and support the most, chose to dissent."

You must, surely, understand that those who chose to dissent were not passing any judgement on whether or not the Federal government SHOULD interfere in these matters, right? The question before the court isn't "is this a good idea?", it's "is this what Congress has said?". It seems to me that you are seeing this through the liberal's result-oriented eyes.

nunzio said...

So as long as your Oregon doctor doesn't prescribe marijuana as part of your death cocktail everything's copacetic, until Congress changes the CSA.

Federalism pretty much died when the 16th Amendment was passed. Once the gov't could take as much of your income as it wants, it has the money to spend on whatever silly programs it wants and will, including litigating this silly case. Curse you, John Ashcroft.

Paul said...

This is a dumb argument.

If someone feels as if they are being forced to live, they should go into their garage, turn on their car and sit there until they die. I see more dignity in that


Yes, but you see I don't. You haven't the right to decide that for me, you haven't the right at all.
No one insists that it be a doctor but only the doctor has legal access to drugs.

It seems to me that you are seeing this through the liberal's result-oriented eyes.

Now THAT hurt! I will never possess the fine minds gathered here, some so steeped in law and I do not mean them disrespect.
I understand what you are saying, that part. But understand my obligation is to my family before the law and if the courts and Congress will understand that, they will leave this matter to me and allow me access to a relatively peaceful death at my choosing, a legal ordinary death that will not shame my family. The law obscures that.
50 years ago blacks were not equal to whites, women should not receive equal pay, gays were not allowed to see the light of day.
What I'm saying is that this too, this tribal leftover, must change and I thought though layman's eyes, this was a beginning.

Goesh said...

Doctors are also obligated to alleviate pain and suffering - cadaverous looking people loaded up on morphine with but a few months to live should have the right to end it and stop putting their family through more suffering and anxiety as well - two birds with one stone, rather with one one dose of poison I should say... death be quick, death be practical when the reaper has laid his hands clearly on me...

Smilin' Jack said...

Scalia sez:

Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible.

So if I take the bottle of pills myself, that's one thing, but if I ask someone to hand it to me, that's "interstate commerce?" I hope someone asks Scalia that someday--I've no doubt he can defend his position, but it would be amusing to see the new heights of Constitutional logic-chopping absurdity he employs to do so.

vbspurs said...

From what I understand, doctors do not actually "take" the Hippocratic Oath at any time.

Incorrect in my case.

As a medical student, I signed an ethics clause, when given the white lab coat, at the end of first year.

My father, who of course studied at Oxford in the 60's, so it may well be different, took the Hippocratic Oath in classic Greek.

Cheers,
Victoria

vbspurs said...

Followup:

Of course Oxford is a bit heavy with their oaths, secret or otherwise.

Before you use the Bodleian Library, every student must repeat words they give you on a piece of paper -- a super secret oath dating to the 1200's.

I can't reveal it. Not even to Althousians.

Cheers,
Victoria

P. Froward said...

That's okay, vbspurs. We can look up the Church latin for "extra pickles, hold the mayo" if we really need to. Though access to the Bodleian Library might help...

vbspurs said...

That's okay, vbspurs. We can look up the Church latin for "extra pickles, hold the mayo" if we really need to. Though access to the Bodleian Library might help...

I can't talk, P. Froward. They're everywhere!

(scurries away into the night)

Cheers,
Victoria

37383938393839383938383 said...

So if I take the bottle of pills myself, that's one thing, but if I ask someone to hand it to me, that's "interstate commerce?"

So if I just possess it in my own home, that's not commercial activity, but if I purchase it from someone else, it is commercial activity? So if I shoot myself in th ehead it is suicide, but if someone else shoots me in the head it is murder? Absurd!

downtownlad said...

This was an excellent decision by the Supreme Court. Although it looks like only Kennedy and O'Connor are the ones are consistent on Federalism. The justices on the left and right will side with federalism only when they agree with the underlying decision.

I mean, let's think of the alternative. Suppose federal law allowed assisted suicide in all states, and Oregon passed a law to ban it. Can anyone imagine that Scalia or Roberts or Thomas would say that Federal law trumps state law in that scenario?

sonicfrog said...

Paul said:

"I will never possess the fine minds gathered here..."

God, I Hope Not!!! I mean, where would you keep them? Darrel's Mini Storage? I think they have rules against that sort of thing. And how many jars would you have to buy to contain them all. How would you go about labeling them?

Flaming libs would be "Abby Normal"! JK.

Patrick said...

My theory is that the dissenter's Catholicism is behind their vote on assisted suicide.

Paul said...

"I will never possess the fine minds gathered here..."

God, I Hope Not!!! I mean, where would you keep them? Darrel's Mini Storage? I think they have rules against that sort of thing. And how many jars would you have to buy to contain them all. How would you go about labeling them?


Heh. No, I mean and meant it as a sincere compliment. I learn, I try to learn a lot here. Failing that, because of my limited intelligence, It is always interesting. This blog draws the finest sort and in life, before blogs existed, I would never have read them, come this close to them. I'm fortunate.

Gene C Evans said...

For now, I'll just observe that this provides a nice occasion for liberals to feel mellow about that erstwhile bugaboo federalism.

Only if they can still remember how :)