I was disappointed Tuesday (Feb. 14) on learning the U.S. Supreme Court had upheld Oregon's assisted-suicide statute. I was hoping the court would deliver us from the evil of Oregon's doctor-assisted suicide law.
There was a plausible chance the high court would find that Oregon's law violated the federal Controlled Substances Act, and three justices did just that. There was good news in the fact that new Chief Justice John Roberts was in that trio. There was good sense in Justice Antonin Scalia's dissent ("If the term 'legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death.") In the end, however, the numbers weren't there. The court had spoken in Gonzales v Oregon.
But my disappointment and others' didn't end there. It only grew worse. Shortly after the ruling, Sen. Gordon Smith issued a short statement. "This case has run the full length of the American legal process, and the issue is now settled law," the Oregon Republican said. "Regardless of my personal position on assisted suicide, Oregon's law has been tested at every branch of our government, and the judgment of Oregon's voters has been affirmed. I accept the Supreme Court's decision, and Congress should do the same."
Yes, Gonzales v. Oregon is settled law. Yes, the case has run its legal process. Yes, Smith has shown remarkable moral integrity and political courage on this issue through the years. But he sounded more Bob Packwood than Mark Hatfield on (Feb. 14), more scattered and pragmatic than coherent and principled. That is, if the statement was anything more than a hustled-up and ill-considered press release.
Smith's last phrase -- "I accept the Supreme Court's decision, and Congress should do the same" -- raised more questions than it answers. Was he just offering a political judgment on prospects of immediate congressional action and saying he wasn't interested in tilting at windmills on this issue? Was he simply saying Congress should acknowledge the 6-3 ruling, or was he trying to pre-empt a future congressional effort to a remedy a decision that was a matter of statutory interpretation? Was he saying that six unelected justices should have the last word on what Congress intended in the Controlled Substances Act? Would he oppose any effort to clarify the federal statute sometime in the future?
Would he oppose a broader federal effort to outlaw assisted suicide or establish real patient safeguards and reporting requirements -- all missing in the Oregon act -- for states that want to use federally controlled substances for doctor-assisted suicide?
Was Smith reversing his earlier position on this issue? And, if he was saying he would oppose all efforts that threaten Oregon's suicide law, how far is he ready to go? Would he join Oregon Sen. Ron Wyden in filibustering or threatening to filibuster any such bill in the Senate? Or would he merely vote against this kind of legislation in an up-or-down vote -- no filibusters, no delaying tactics -- and leave it at that?
Was his statement a way to say something without saying something? Was it a signal? Or was he saying he wanted this yucky issue to go away?
One can hardly blame Smith. The federalism issues are not uncomplicated. The politics are on this are, and have been, fierce for Smith. His constituents have voted twice for doctor-assisted suicide. He's a pro-lifer representing a state that's now ground zero in what is called "the culture of death" -- state-funded, unlimited abortion at the front end, state-sanctioned assisted suicide at the back end. And the whole issue of suicide must be especially painful for a senator whose son took his own life.
Even if a Senate majority existed for something like the old Pain Relief Promotion Act -- and after last year's Terri Schiavo experience, that's dubious -- Senate rules require a 60-vote super majority to close debate. So nothing's likely to happen soon.
But the issue isn't likely to go away. The Supreme Court settled a case last week on narrow grounds. It didn't settle the issue. Smith was away last week and disinclined to offer up much more than his initial words on the painful and disappointing ruling.
So many questions grew out of his short statement. I have no doubt Gordon Smith will provide some thoughtful answers in the next week.
David Reinhard
