Wednesday, March 2, 2005

Is Uncle Sam beating up on poor Oregon?


By DAVID REINHARD
Express Staff Writer

Slug:

It makes for such a rip-snorting good story, full of bad faith and hypocrisy.

The sovereign state of Oregon approves doctor-assisted suicide. Then, the self-proclaimed champions of states' rights in the Bush administration, led by then-Attorney General John Ashcroft, attack the state's assisted-suicide law. And if the U.S. Supreme Court ends up siding with the Bush administration, the story will grow even riper. The high court's advocates of judicial restraint will have become judicial activists to nix Oregon's law.

Yes, a heckuva story, and you get a hint of it in what followed the news that the Supreme Court would take up the case. "I am confident that now that politics are put aside," Oregon Gov. Ted Kulongoski said, "the Supreme Court will ultimately side with the rights of Oregonians as citizens of a sovereign state."

Oregon Sen. Ron Wyden went further. "(W)hat's really at issue here (is) whether citizens, on a medical practice that has historically been left to the states, should have a bunch of people from Washington, D.C., push them around," he declared. "I'm going to be arguing that all the people who jump up on the floor of the Congress and talk about states' rights are basically saying they only support states' rights if they think a state is right."

The only problem with this story line: It's poppycock.

The politics certainly didn't start with the arrival of Ashcroft and the Bush administration. It was in the Clinton administration that the Drug Enforcement Administration first ruled that assisted suicide is not a legitimate medical use of barbiturates under the federal Controlled Substances Act. Politics seemed to intrude when Attorney General Janet Reno issued a new "interpretation" allowing Oregon doctors to prescribe the kill pills. Ashcroft's later "interpretation" basically returned federal policy to the first DEA interpretation.

As for states' rights and "the rights of Oregonians as citizens of a sovereign state," we wouldn't be having this debate if Oregon voters had not waded into an area of federal jurisdiction in passing their particular assisted-suicide law. States' rights don't mean a state can take over or ignore an established area of federal regulation.

Wyden asserts that the feds shouldn't intrude "on a medical practice that has historically been left to the states." Question: How can you talk about a medical practice that has historically been left to the states when that medical practice—if you can even call it a medical practice—has never been allowed in another state?

Instead of a defining moment for states' rights or assisted suicide, the Supreme Court's decision could prove a far narrower procedural ruling. The high court could focus on the attorney general's authority to make this interpretation under the Controlled Substances Act and the arcane issue of judicial deference to executive-agency actions. This is just what Judge Clifford Wallace's instructive dissent focused on when his two 9th Circuit Court of Appeals colleagues rejected the "Ashcroft Directive" on federally controlled drugs in assisted suicide.

The appeals court majority's argument that the attorney general lacks authority to decide whether assisted suicide is consistent with "the public interest" and a "legitimate medical practice" under the Controlled Substances Act, Clifford wrote, "ignores the Controlled Substances Act's text and controlling Supreme Court decisions. It is axiomatic that the meaning of federal law is a federal question."

Ah, but didn't the high court allow for assisted-suicide laws in Washington v. Glucksberg? Wallace offered helpful clarification: "Glucksberg ... addressed states' authority to prohibit physician-assisted suicide in the absence of federal regulation; the case did not answer the question whether Congress may exercise its Commerce Clause power to deny physicians access to controlled substances for physician-assisted suicide. ... Rather, the ... decision stands for the broader proposition that federal courts generally should keep their distance, allowing the political process to decide whether and how to regulate physician-assisted suicide. The majority's shortsighted decision to declare the Ashcroft Directive invalid has precisely the opposite effect."

If the Supreme Court affirms the Ashcroft Directive, Oregon could still fashion an assisted-suicide law. The state's right would remain intact. Oregon simply couldn't facilitate assisted suicide using a federally controlled substance. Our assisted-suicide fans would have to devise another means—say, carbon monoxide.




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