Wednesday, January 18, 2006

The assisted suicide ruling

The Supreme Court has ruled, quite properly in my view, that the federal government does not have the authority to block the Oregon state law permitting physician-assisted suicide by prosecuting doctors who prescribe lethal doses of federally controlled drugs (Gonzales v. Oregon).

Much of the discussion of the ruling has focused on the dissent by Antonin Scalia, who wrote:

The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality--for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. ... Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA [Controlled Substances Act]. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.

John Cole, Bill at INDC Journal, and Publius (among others) feel that this is a hypocritical position on Scalia's part, considering his invocation of federalism and state's rights and his opposition to Commerce Clause overreach in cases like United States v. Morrison. Baseball Crank at disputes this charge:

This misunderstands the role of the Court and the role of enumerated powers. First, as Scalia noted, this is a long-settled doctrine, and nobody in the case was calling to overturn it. Even Justices who think that we may properly revisit long-settled Constitutional doctrines are usually hesitant to do so without any party to the case asking them to. All Scalia was doing here was assuming that Congress legitimately intended to legislate for this purpose, given 100+ years of history saying it could.

More to the point, there is a big difference between saying that Congress (or another branch of government) can go beyond its enumerated powers, and saying that Congress can act within those powers for unenumerated purposes. Here, we have the latter -- there is no question that the drugs involved in this case traveled in interstate commerce, and even Scalia is unlikely to sign on, at this late date, to a sufficiently cramped view of the commerce power to find that Congress can't regulate the use of goods shipped in interstate commerce; that battle was lost 70+ years ago.

As for the VAWA comparison, Crank writes:

... the Court in that case found an absence of proper basis for the commerce power in the first instance - i.e., an insufficient nexus between interstate commerce and domestic violence - rather than creating an affirmative rule repealing the commerce power, even when otherwise applicable, based upon the intended use of that power.

It is worth noting that the other regulated "immoral" activities Scalia cites actually do involve crossing state lines. By contrast, in physician-assisted suicide, the medicines cross state lines at some point, but their use occurs strictly within a single state. Using this kind of logic, one could argue that violence against women was a proper subject for congressional legislation under the Commerce Clause if either the victim or the perpetrator had crossed a state line at some point in their lives.

More to the point, the majority opinion by Justice Anthony Kennedy makes a very strong case that the CSA was intended to prohibit the illicit use of drugs related to addiction and recreational use, and not physician-assisted suicide. It may seem odd to describe assisted suicide as "legitimate" medicine, but it seems pretty clear that under the CSA "legitimate" means simply related to a medical purpose (rather than recreation, drug habit, or profit).

Do Scalia's own moral views influence his perception of what constitutes "legitimate medical purpose" or where the Commerce Clause may be legitimately applied? It's hard to avoid such a conclusion, considering that Scalia's opinions are so often colored by his personal views on such issues. Take Scalia's dissent in Lawrence: unlike Clarence Thomas, he did not simply argue that anti-sodomy laws were constitutionally permissible, but clearly didn't see anything particularly wrong with such laws.

Meanwhile, Thomas's separate dissent in Gonzales focuses on the contradiction between the majority opinion in this case and in Raich, the medical marijuana case, in which Thomas was also a dissenter. I agree with Thomas about the court's inconsistency (surely there is an irony somewhere in the Supreme Court saying that a state can't legalize medical marijuana but can legalize assisted suicide!), but it's disappointing that he chose to express his protest by writing an opinion that, in turn, is inconsistent with his own stance in Raich.


Revenant said...

it's disappointing that he chose to express his protest by writing an opinion that, in turn, is inconsistent with his own stance in Raich

Is he inconsistent? He basically says in the dissent that he'd like to limit the CSA on federalism grounds, but that that idea has been rejected by the court. He seems to be aiming at keeping court rulings consistent, even if he doesn't agree with the outcome.

Anonymous said...

What am I to do?!

On the one hand, I agree with Cathy and the majority in principal. On the other hand, I see the opinion as somewhat outcome based. Still, on the other hand, I'm in favor of states rights. But on the other hand...

I feel like Tevye - "No...there is no other hand!"

maurile said...

Thomas's opinions in Raich and Gonzalez aren't inconsistent with each other.

Raich was a Commerce Clause case. It asked, Does Congress have the authority to prohibit intrastate pot-smoking?

Gonzalez, by contrast, was not a Commerce Clause case. The parties stipulated that Congress has the authority to prohibit physician-assisted suicide. The issue was whether the Controlled Substances Act actually did so. The executive branch argued that it did, but the statutory language was unclear.

Thomas's position in both cases seems to be that Congress does not have the authority to regulate intrastate commerce -- and he likely would have sided with the physicians/patients in Gonzalez if they had made a Commerce Clause argument. But they didn't.

Since there was no Commerce Clause issue, the question was one of statutory interpretation, and Thomas opined (along with Scalia and Roberts) that sufficient deference ought to be given to the executive branch's interpretation of the CSA to allow the executive branch to prohibit physician-assisted suicide.

I personally find the majority's position more persuasive than Thomas's on that issue -- but there is no inconsistency between Thomas's position in Raich and his position in Gonzalez.

Thomas does, however, accuse the Gonzalez majority of being inconsistent. Not with respect to the Commerce Clause, but with respect to how expansively they sought to interpret the Controlled Substances Act. In Raich, the Kennedy-Breyer-Souter-Ginsberg group opined that the CSA was a broad, all-encompassing regulatory scheme. In Gonzalez, they took a much narrower view of its scope.

mythago said...

Still, on the other hand, I'm in favor of states rights

The conservative wing quickly discarded states' rights when they figured out it could be used to help liberals.

Rainsborough said...

Yes--Scalia's opinion colored by his own rather dark moral views. And this opinion signed onto by the new Chief Justice.
For how many decades will be the morals of these anointed ones be forced down our throats, and we without democratic recourse?

Anonymous said...

Rubber. Rubber is widly used in the outsole of the athletic shoes.
cheap puma shoes
discount puma shoes
It has the advantages of durable, skipproof, flexible, elastic, extensive, stable and proper hardness.
nike shox torch
nike tn dollar
cheap nike shox
PU is a kind of macromolecule polyurethane materials which is offten used in the midsole
cheap nike shox shoes
nike shox r4
puma mens shoes
Sometimes, it is also used in the outsole of casual shoes.
PU is durable, strong hardness, upstanding flexbility and more important, it is environmentally
cheap nike max
discount nike shox
cheap puma ferrari shoes
The disadvantage is also outstanding. Strong hydroscopic property, break apart and EVA.
nike mens shoes
ed hardy womens hoodies
ed hardy mens tees
You will never find swimsuit more excellent than in Ed Hardy!
ed hardy ugg boots
ed hardy love kills slowly boots
ed hardy love kills slowly
We provide you with the sexiest swimwear at present. Wanting to be bright on beach in this
ed hardy polo shirts
ed hardy love kills slowly shoes
ed hardy wear
Abandoning traditional concepts on sexy swimwear, Ed Hardy adds tattoo upon, which is meaning
ed hardy love kills slowly shirts
ed hardy trousers
ed hardy jackets
It seems that ed hardy mens shoes was difficult to be able to let you exist out in swimwear, the
ed hardy t shirts sale
ed hardy womens t shirts
ed hardy boots
In the trunks term, the Panerai candy-flush has mainly took the Louis Vuitton Speedy purpose
ed hardy womens clothes
ed hardy womens shirts
ed hardy clothes

Anonymous said...

nike shox nz
discount nike running shoes
which is usually used in the midsole of the running shoes and casual shoes.
EVA is quite lightweight, elastic, flexible and suitable to a variety of climates.
discount nike shoes
nike shox shoes
cheap nike shoes
PHYLON. Phylon is the product of the EVA after the second processing. Just as the rubber
nike sports shoes
puma running shoes
puma sneakers
The midsole of running shoes, tennis shoes and basketball shoes in the world is made PHYLON.
nike air max tn
puma cat
puma shoes
The upstanding hardness, density, traction and extension make it favorite by the manufacture.
nike running shoes
wholesale nike shoes
nike shoes
Just as a coin has two sides, Phylon is nonrecoverable and easily shrink under high PHYLON.
nike shoes kids
nike women shoes
swimwear in an austere tone proposal combines the exclusive tailoring, Cool down, sunshine fair,
ed hardy outerwear
ed hardy womens
ed hardy womens jeans
green MOISTURE, attractive red no other elements, together with the unique thwart-buckle create
ed hardy bags
ed hardy winter boots
ed hardy t shirts
Whether it is sexy bikini, or cross-quantity g-star trunks intended to reach new heights with this
ed hardy bags
ed hardy winter boots
ed hardy t shirts
The desired redden of this type of bag, but once again the label that ed hardy and the Christian Audigier Brand Manage Louboutin at MAGIC in August 2009.
ed hardy t shirts for men
ed hardy mens jeans
ed hardy mens shoes
The total spectrum of Audigier Brand Management lifestyle brands and crop will be including ed hardy shirts,
ed hardy mens shoes
ed hardy womens hoodies
ed hardy mens tees

aiya said...

Office 2010
Microsoft Office 2010
Microsoft word
Office 2007
Microsoft Office
Microsoft Office 2007
Office 2007 key
Office 2007 download
Office 2007 Professional
Outlook 2010
Microsoft outlook
Microsoft outlook 2010
Windows 7

Unknown said...

nice share thanks a lot :)

download free pc games
affiliate review