Tuesday, January 17, 2006

Go in peace

E. J. Graff observes the 6-3 ruling in favor of Oregon's Death with Dignity Law and says:
The administration's divebombing of Oregon's assisted suicide law, and the Scalia-Thomas (and-now-Roberts) determination to impose a conservative Catholic theology on all, exposes the cracks between the religious wing and the libertarian wing of the conservative movement.
I hope so.

But the ruling raises a question for me. I don't see how any group of three judges could honestly rule differently.

In the dissent, Scalia (joined by Roberts and Thomas) writes:

The [Attorney General's] Directive is assuredly valid insofar as it interprets "prescription" to require a medical purpose that is "legitimate" as a matter of federal law--since that is an interpretation of "prescription" that we ourselves have adopted.
Now, I'm more willing than some to grant Congress power to regulate all sorts of things. But let's ask a simple question of these "strict constructionists," these originalists who would never be activist enough to put something into the constitution that wasn't there.

The Tenth Amendment reserves "the powers not delegated to the United States by the Constitution, nor prohibited it by it to the States … to the States respectively, or to the people." Where in the Constitution is the power to define "legitimate" medical purposes delegated to the United States, or where is that power prohibited to the states? Indeed, defining the limits of appropriate medical practice is the traditional realm of the States.

Clearly, the issue isn't simple, but Publius is exactly right that the claims advanced by the dissenters are inconsistent at best, and plenty "activist" along the way.

No one disputes that a doctor may prescribe painkillers. Nor is it problematic to show that doctors who prescribe drugs which will be resold on the black market fall within the Commerce Clause, and that doctors who prescribe drugs for recreational use are participating in commerce that Congress has a legitimate interest in regulating.

But there is no commerce in suicide. And while John Ashcroft may not have felt that easing the final passage of terminally ill patients represents a legitimate medical purpose, the people of Oregon disagree, as is their 10th amendment right.

Apparently, the conservative commitment to federalism died with Justice Rehnquist.

The dissenters find this ruling incompatible with Raich, which is frankly stupid. The Controlled Substance Act regulates the commerce in illegal drugs, that is, drugs which the government seeks to prevent from use in non-medical contexts. RIght or wrong, marijuana is a Schedule 1 narcotic, meaning the feds recognize no legitimate use, and any sale of it is illegal. For California to authorize its sale clearly impinges on the attempt to quash that market.

In this case, the state has acted in its traditional role as the principal regulator of the medical profession to establish that providing death with dignity is a legitimate medical practice. They permitted doctors to prescribe drugs which the doctor can otherwise legally prescribe in a way that Attorney General Ashcroft didn't like.

To which I say, "tough." If he lived in Oregon, he'd get to vote on it. He doesn't, so he doesn't live under that rule, and he doesn't get to rewrite state laws.

It's a sign of the intellectual bankruptcy of the conservative wing of the Court that they'd quickly abandon any commitment to federalism, the rule of the Constitution, and the will of the people, just to promote their own partisan agenda.

This was a little test drive of a fight you'll see more and more of as Roe v. Wade is hollowed out. If some state legislature finds a way to limit certain medical procedures for performing abortions, the federal Congress will probably follow suit, banning that procedure in states which still regard that procedure as legitimate.

The situation is now analogous to what we see in this case. It is likely that Sam Alito, if confirmed, would join the dissent, leaving only one vote separating us from a federal power to regulate medical practices and to interfere with medical privacy.

This case wasn't about Raich, nor about death with dignity. It's staging for the great battle over a doctor's right to perform medically necessary abortions, and a woman's right to seek an abortion.