No Legislating from the Bench
(Except About Assisted Suicide)
Art Caplan writes on MSNBC:When it comes to U.S. Supreme Court appointments, President Bush and the Republicans in Congress have made it crystal clear what their core requirement is — no "legislating from the bench."
Both with the nomination of new Chief Justice John Roberts and now, with Supreme Court nominee Harriet Miers, Bush has insisted that he has selected people to serve as judges who will not override the will of the American people. So one has to wonder what his administration is thinking in pressing the case against physician-assisted suicide in the state of Oregon? Or, more accurately, why is the administration not telling us the truth about how it really views the role of the Supreme Court?
The state of Oregon is the only state in the nation where it is legal for a physician to prescribe a lethal dose of medication to a terminally ill patient who requests assistance in dying. The citizens of Oregon approved “The Oregon Death With Dignity Act” by a ballot initiative in 1994. In 1997, a push was made to revoke the law. But again Oregonians voted to permit physician-assisted suicide, this time by a larger majority than they had three years earlier.
Various attempts have been made by the Department of Justice to challenge the constitutionality of the law in court. In 2002, U.S. District Judge Robert Jones, in ruling against the attempt by the Bush administration to block the law, said, “Oregon voters decided not once, but twice to support the law and have chosen to resolve the moral, legal and ethical debate on physician-assisted suicide for themselves."But Bush and his administration will not give up. Then Attorney General John Ashcroft pressed the case on appeal and it has now wound up in front of the Supreme Court. The president’s conservative base is so strongly opposed to any form of assisted suicide that it has sought all possible means to overturn the Oregon law.
The Justice Department argued before the Roberts court on Wednesday that the federal Controlled Substances Act gives the U.S. attorney general the power to prohibit the use of drugs in assisted suicide, regardless of state law. This is truly grasping at a straw to overturn the will of the people of Oregon.
This 6-year jihad against the Oregon law might make some sense if there had been a pattern of terrible abuse of the dying and disabled since its enactment. As it happens, I am very wary of legislation permitting physician-assisted suicide. I worry that it could lead to pressure being put on people to end their lives prematurely or people with psychiatric or physical disabilities being dispatched for the convenience of others or to save money. But there is no such record of abuse in the wake of the law.
While some Oregonians dying of cancer, AIDS or Parkinson's disease do request a lethal dose of medication, very few actually wind up using it. There have been fewer than 300 cases in the years since the law was implemented. And despite a concerted effort by opponents of physician-assisted suicide to find cases in which the law has led to abuse or misuse, I know of only one case in the past five years in which any serious challenge has been raised regarding the ethics of patients, families or doctors who have honored a request to die.So what is Bush thinking? Why is the Justice Department trying to use a broad interpretation of an obscure federal statute to restrict a law legislated twice by the citizens of Oregon that has not led to any problems or difficulties since its enactment?
There is only one answer: The president is not telling the truth. He is only willing to respect the decisions of Americans if he agrees with them. He is only willing to advocate for a conservative court if it upholds a social agenda that he agrees with. He is not willing to allow a state to follow a policy regarding the terminally ill if he does not agree with it. And he clearly expects the Supreme Court to "legislate from the bench" when it suits his moral agenda.The federal government should not have brought the case against Oregon’s law. And the Supreme Court should not listen to the cockamamie argument that a statute intended to prevent the illicit use of drugs somehow gives the federal government the right to tell the citizens of Oregon how they must die when they are terminally ill.
The administration constantly bemoans the fact that Roe v. Wade imposed a policy on the American people about abortion that was never legislated. Oregon has a policy on assisted suicide that was legislated — twice. Bush and his administration should be ashamed for trying to use the Supreme Court to do what they claim they do not want any federal judge or court to do. The ethical hypocrisy involved is beyond description.
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Art, I couldn't have said it better myself!
I personally would feel uncomfortable participating in an assisted-suicide and therefore would not. I don't find it is required for me to explain my decision further.
However, with regard to the Oregon law, it is not the issue of assisted-suicide which is being studied by the Supreme Court but whether use of specific chemicals whose use is controlled by agencies of the federal government are being used for "medical treatment".
I thought it was the individual states that defined what was or was not "medical treatment" in their state.
My license to practice medicine is provided to me by the state of California and California law has set the criteria of practice. Enough said. ..Maurice.
- by Maurice Bernstein, M.D. on Oct 6, 2005 at 10:49 PM | link
The government brought no case against the Oregon law. Oregon brought a case against the government to prevent it from enforcing Ashcroft's interpretation. The federal government has every to have its own public policy about assisted suicide under the Controlled Substances Act. Indeed, the feds don't permit federal money to be used to fund assisted suicide under Oregon's Medicaid program. The proper legal result should be the same as the medical marijuana cases, that is, the Oregon has legal assisted suicide and the feds punish doctors who prescribe federally controlled substances to intentionally end life. At least until a different interpretation is rendered. The matter really should be legislated.
- by Wesley J. Smith on Oct 6, 2005 at 11:09 PM | link
Whether or not one agrees with the goals of the current administration with regard to PAS, there is every reason to question how helping one's patient to kill him/herself can be construed as "medical treatment."
The suggestion that it is proper for the state, at whatever level of political organization, to dictate the meaning of this term should be vigorously opposed by medical professionals who value the integrity of their discipline.
- by Bob Koepp on Oct 7, 2005 at 1:31 AM | link
I agree with Bob Koepp: there's no way that prescribing a lethal dose ofa "deadly drug"with the intention of killing can legitimately be called "medical care."
Regardless of Oregon's State law, the permits to prescribe Federally regulated substances are issued under Federal laws. There are pathways to changing Federal law, and the citizens of Oregon are welcome to try those pathways instead of circumventing them.
- by Beverly on Oct 7, 2005 at 7:23 AM | link
As far as one state's ability to change the federal law may sound good in theory, it is not likely in practice. From an Op ed in 2001:
U.S. Attorney General Ashcroft attempted to do what Congress had been unable to do -- namely, prohibit the practice of physician-assisted suicide (PAS) in the state of Oregon. In what is arguably another chapter in a continuing saga pitting the rights of the state and individual against the dictates of federal officials, the "Ashcroft Directive" and the partisan-based war against physician-assisted suicide ultimately comes at the unfortunate expense of suffering patients and American democratic principles. . . .
Conservatives respect the concept of federalism, provided of course that it does not conflict with conservative policy preferences.
see also
http://www.painandthelaw.org/mayday/ziegler_lovrich_100301.php
- by steve on Oct 8, 2005 at 5:42 AM | link
Wonderful.....I have added you to my blogmarks in blogroll. Very interesting blog here.
- by dreamstate on Oct 10, 2005 at 1:02 PM | link
They're bringing this case under the controlled substances act. Among other things, that law is intended to ensure that people don't get addicted to narcotics.
Not such an important issue if the people in question are already dying, many might say.
Then again, as Art Caplan points out, it's clearly a case of looking for the law that will let the administration do what it wants to do. . . . proving that, once again, this bunch is full of it when they oppose particular methods. What they really mean is, only *they* should get to use them.
- by on Oct 10, 2005 at 3:06 PM | link
Someone should explain to Art that "legislating from the bench" is not the same thing as "acting in one's capacity as attorney general."
This case is, legally speaking, no different from the California medical marijuana case considered by the Supreme Court last term. The issues are exactly the same.
One difference--not legally relevant--is that California has been joined by at least 8 other states in legalizing the use of medical marijuana. That didn't stop a majority of the Supreme Court from finding the attorney general's refusal to remove marijuana from Schedule 1 of the CSA.
The suggestion that the CSA is an "obscure" federal statute is bizarre. Further, the Bush administration's arguments are entirely consistent with the history of the enforcement of the act. Whether they are good public policy or reflect the public's take on the law are entirely unrelated questions. And whether the executive branch--accountable to the voters of the nation--is making policy decisions that Art Caplan and other voters disagree with is entirely unrelated to whether the court is being asked to legislate from the bench. It isn't.
- by Thomas on Oct 11, 2005 at 3:01 AM | link