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February 26, 2005

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SCOTUS, should rule in favor of Oregon reflecting the concept of Federalism laid out in the Constitution.

Well I am not a lawyer, either, but it does look like the Oregon physician-assisted-suicide statute has been devised so as to address most of the problems of abuses of the procedure that are likely to arise under a system of legally-permissable PAS. However, it should really be no wonder, though, that there has been opposition to the Oregon law, and still less wonder that it should be the Bush Administration DOJ that would take action, as this sort of thing is precisely the type of law the "pro-life" lobby (who are so large a part of their support base) gets itself worked into a frenzy over.
It is, if you will, a converse of the absolutist attitude towards abortion which affects the "pro-life" movement's reflexive opposition to things like contraceptives that "induce abortion" (or are believed to do so) - a clinging to a rigidly defined, no-exceptions-allowed paradigm, that "righteousness" demands be enacted in any and all legal regulation of the matter.
Why use euphemisms? - "physician-assisted-suicide" is just another form of euthanasia. It is quite different, IMO, since it is self-directed and controlled, rather than being imposed by an outside agent - but the distinction is likely to be lost on those [activists? legislators? Right-wing bloggers?] who have made a no-interference-whatsoever-with-"life" the touchstone of a large political/ideological movement.
Just as an aside, it was interesting to see your figures that PAS's in Oregon have been about 40 a year (out of 31,000 deaths total): any idea how this relates to the numbers/ratio of those "late-term-viable abortions" that anti-abortion types (and yes, this means you, Sebastian) get so worked up over?
It seems a bit harsh for the Government to move to foreclose, via the legal system, a doctor's being able to legally offer a terminal (but otherwise functioning) patient a humane alternative to a death of badly-alleviated agony. But, given that the incumbent Adminstration owes so much to the political pressure group to whom these sorts of laws is unacceptable on "moral" grounds, it's no surprise.

Actually, I think it's really important to distinguish physician-assisted suicide from euthanasia. PAS has a built-in safeguard: the patient takes the medicine, the doctor doesn't administer it. One could always say: yes, but family members could pressure the patient etc., but that's already the case with respect to other means of killing yourself; if anything, bringing cases into the highly regulated area of PAS makes this less likely.

Let's please stop ragging on Sebastian. (Speaking not as a moderator, but as a person.) If he actually says something you disagree with, by all means say so, but on a thread he didn't write and hasn't commented on?

This does seem like a well-constructed law, and I'm inclined to support upholding it. I must confess that I'm not particularly comfortable with physicians being given a go-ahead to participate actively in causing *anyone's* death (it seems like a first, hesitant step on a road that I'd rather not see society go down), but that's not enough for me to oppose the law as written. If it turns out that my vague fears are justified by later events, I may well change my position.

Apologies, hilzoy (and Sebastian): no rag was intended - I just had SH's recent linked pro-life/pro-choice posts in mind, in which he stressed the point about late-term abortions (and the number thereof): you're right, comments on that particular issue are OT here.
However, I still feel that the abortion/assisted suicide issues are somewhat of parallel concepts: both involve the legal status and regulation of "life" issues (beginning and ending, respectively), are medical practices which have been around for a long time, but basically underground and unpublicized; and have both become matters of public debate over their being open and legal, in the face of an opposition movement that sees the fundamental issue as a moral, not a legal one.

Jay C: yes, I think they are, with the interesting difference that there's no dispute about whether there's one person involved (directly) or two. So it focuses squarely on the question whether we value autonomy (as expressed in the ability to decide whether to take your life when terminally ill) or the preservation of life (regardless of what the person whose life it is might think). And secondarily, on whether or not this is going to count as one of those deeply personal decisions that individuals have a right to make for themselves.

"the court said it will review a lower court's decision preventing enforcement of a November 2001 statement of Justice Department policy by"

I am interested in this court's decision, and reasoning.
Does anyone have a link?

And of course, this is not necessarily directly about physician-assisted suicide. It is about(at least according to the DOJ) federalization of drug policy. The classes, definitions etc of various drugs and has direct implications for medical marijuana disputes. If I am not mistaken, there is a recent SCOTUS marijuana decision that is pertinent.

A couple of comments about assisted suicide, but first, I'd like to address hilzoy's point about raggin on Seb. I think there is a point, but I feel equivocal about this because Seb seems to never acknowledge that there may be another side. For example, the abortion post has the following

The pro-choice advocacy groups are going to have to either admit that their rhetoric about late-term abortions was merely smoke, or they are going to need to allow verification regarding medical necessity when aborting viable fetuses--which is to say without exaggeration, children.

I don't think it would have killed Seb to have written 'I understand that many feel that peering into medical records is a bad idea, but in this case, some proof of medical necessity must be given'. I'd certainly ask everyone to stop ragging on Seb, but I'd also ask Seb to tone his rhetoric down a bit.

But moving to assisted suicide, this link has a good summary of laws around the world.

I think it is also important to note that Oregon's enacting of this law is not a sign that it is a liberal bastion, it is reflex of Oregonian self-image, which is less liberal and more 'mind your own damn business'. As Bob notes, there is a drug issue here, and Oregon is on the leading edge of the medical marjuana issue. It seems pretty clear that Ashcroft's suspension of Oregon's suicide law is simply a cloaked attack on Oregon's drug laws.

The issue also shows that Ashcroft was a, well words fail me, but I'm thinking of some juxtaposition of hypocrisy and crap. The LATimes article has this.

"The attorney general's unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide and far exceeds the scope of his authority."

Tallman's opinion included a subtle jab at Ashcroft. He wrote that the attorney general was seeking to "alter the usual constitutional balance between the states and the federal government," quoting a 1991 Supreme Court ruling in Gregory vs. Ashcroft.

In that ruling, Ashcroft — then the governor of Missouri — won a victory for states' rights by arguing that state judges could be subjected to a mandatory state retirement law, despite a federal law that barred such retirements. The high court agreed with Ashcroft that states historically had controlled their judiciaries. Adopting that theme in the right-to-die case, Tallman said control of medical practice had been historically within the powers of the state.

Also a gem from this RegisterGuard (Eugene Oregon) article

They'll be reviewing a 2002 decision by U.S. District Judge Robert Jones of Portland, who rebuked then-U.S. Attorney General John Ashcroft for his effort to hobble the Oregon law, and a 9th U.S. Circuit Court of Appeals ruling that upheld Jones' opinion.

Jones ruled that Ashcroft overstepped his authority when he issued a directive in 2001 that found that assisted suicide was "not a legitimate medical purpose" under the Controlled Substances Act. The directive authorized federal drug agents to investigate - and to revoke the license to prescribe narcotics - of doctors who participated in the law.

"To allow an attorney general - an appointed executive whose tenure depends entirely on whatever administration occupies the White House - to determine the legitimacy of a particular medical practice without a specific congressional grant of such authority would be unprecedented and extraordinary," Jones wrote.

Here's a link to findlaw with the 9th Circuit Court's oinion and some other documents.

Mark Kleiman has a very good post on this. Among other things, he points out that there is no need to use a controlled substance to cause death in Oregon.

Let's please stop ragging on Sebastian. (Speaking not as a moderator, but as a person.) If he actually says something you disagree with, by all means say so, but on a thread he didn't write and hasn't commented on?

Agreed.


I think this is an interesting test of the "federalism/states' rights" position, in which both sides have certain difficulties in maintaining a consistent point of view, but that the right will have slightly more difficulty.

There are genuinely people on both sides who hold that States' Rights as enshrined in by the founders are the correct way to go about business in a federal USA, and they will have no problems here: vote for Oregon. There are, however, many more people (and I am one of them) who feel that whichever layer of government agrees with me should win. The perfect government from any individual's point of view, after all, is one that makes the exact same decisions you'd make if you were all-powerful emperor.

Where I feel the right has a problem here is because it has historically been rah rah for States' Rights and a lot of the time, if we are brutally honest, "gummint can't tell me what to do" has only been the fashionable and publicly acceptable side of the argument. The other half has been a sentiment that is racist, sexist or generally otherwise bigoted, depending on which group the feds are threatening to take away one's freedom to abuse today. The problem now is that right-wingers who feel the Feds should absolutely be able to tell those liberal states what to do are effectively, as has been pointed out, hamstrung by their omission of the unfashionable side of the sentiment.

The left, who have traditionally been more honest about their willingness to see the Feds encroach on States' Rights when it was obvious that the States in question needed some chivvying into the 20th Century, especially with the 21st encroaching, are on firmer ground because their argument relies less on legal esoterica and more on a moral stance -- we go with the Feds when we agree with them, and the State when we agree with them. The problem from this side, however, is that although the legal situation is in their favour it's hard to argue why this should tilt towards Oregon without arguing that a whole raft of previous laws are vastly abusing the commerce clause. And there's always 'turnabout is fair play' to consider -- if the libs could abuse the commerce clause while they were in charge, it seems hardly fair to complain now that the conservatives have the remote control clutched in their hands.

Thus, we see highlighted the big dilemma with any federal system: how do you compose the laws governing stratification of power such that the federal government can tell states not to enslave black people or beat women, but can't tell states to enslave black people or beat up women?

One answer that leaps to mind is: enact the 13th and 14th amendments, and have the Supreme Court hold that they're binding on the states.

(Ducks)

Ah, the lost art of taking a metaphor literally for comedic value. How we did done laughed.

Thus, we see highlighted the big dilemma with any federal system

Yes, but in modern times, it was Reagan who let the States Rights genie out of the bottle with his speech at the Neshoba County fair (right near Philadelphia, Mississippi, where the civil rights workers were murdered, ah, the subtlety!) Some have said that Reagan's next speech was to the Urban League in NY, so he couldn't have really meant it as a 'you go guys' signal. Yet the rapid oscillation between drowning government in a bathtub and putting it in the bedroom or making sure it has an overabundance of raw materials to manufacture cases casting people as terrorists should be contrasted with the left's desire to have the power of the government help people, yet assure individual privacy. (but obviously, I would think this way, right?)

As for Kleiman's argument, I find it rather naive. The reason that opiates are used is because they are controlled. Nitrogen, on the other hand, is not a controlled substance. The state has a huge interest in being able to monitor this, and it is probable that physicians have, before this law, prescribed lethal amounts of opiates. I'm relatively sure that no doctor strapped on masks connected to nitrogen tanks to patients. IANAL, but it seems that if the Oregon legislature passed a law that said doctors could use nitrogen, the federal government could prosecute those doctors for murder or at least for denial of civil rights to patients.

lj: I took the point of Kleiman's post to be: only certain medications are "controlled substances" subject to the law Ashcroft/Gonzales is invoking, and Oregon doesn't require that these medications be used. He's probably wrong about nitrogen -- at least, I'm assuming it wouldn't count as a 'medication', which is what the Oregon law allows doctors to prescribe -- but he may be right about non-opioid medications.

I went back and reread the piece and if the point is that there are lots of substances that can kill you that aren't controlled, then the point is utterly fatuous. Maybe this is Swiftian in intent ("uncounted numbers (tens of thousands? hundreds of thousands?) of people who would like to die quickly and painlessly will instead be condemned to die slowly and miserably"? really?), but when he writes

But for a death covered by an Oregon-style law, the controlled substances are utterly irrelevant, and their use is either merely vestigial or the result of a bloody-minded decision to seek a confrontation.

he seems to be suggesting that if the legislature really wanted to write a foolproof law, they should have just written it using nitrogen and he generously adds that some jurisdictions might require a doctor 'if they insist'. He also cites the low number of people who have used the statute as proof of its uselessness. Having lived in Oregon, I'm pretty sure that the legislators didn't want a 4 figure body count, they wanted to affirm individual rights in a way that would stand legal challenge and would not abdicate their responsibilities. I get the impression that Kleiman thinks that this stems from liberal tendencies and a desire to stick a finger in the eye of the DOJ, but Oregon's 'liberalism' is, as I noted, a much more 'leave-me-alone-ism'.

Perhaps they didn't think of using nitrogen, but I would really like to hear from some lawyers as to how nitrogen would withstand a legal challenge that opiates would not.

Note that the decision being reviewed (which barred the DOJ from enforcing its position) is another Ninth Circuit opinion -- funny how we haven't heard any right-winger lines about "that out-of-control Ninth Circuit" on this issue.

Legally, the question is similar to the medical marijuana controversy (state laws permitting it contradicted by federal laws prohibiting it), which so far has resulted in DOJ victories. There is another case already argued this term (decision pending) which presents a different wrinkle on the medical marijuana question that could yield a different result, but I doubt it.

I would expect the Supreme Court to uphold the DOJ (reverse the Ninth Circuit). Otherwise, they probably would not have bothered to take the case.

Based on trends, this court's use of federalism unfortunately has had more to do with ideology than the underlying principle of federalism, which has to do the practicalities of power sharing rather than ideology. In other words, upholding federal power for issues dearer to conservatives, but never admitting as much. Rehnquist started that trend years ago.

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