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Chief Justice Roberts' first case: Oregon's Death with Dignity Act

It’s Chief Justice John (“no innkeeper, that IS my real name”) Roberts’ first case on the Supreme Court, and it’s one of the most contentious cases in years. It’s Oregon’s Death with Dignity Act, a citizen-initiative passed with 51% of the vote in 1994. An attempt to repeal it in 1997 was rejected by 60% of the voters. In the time it has been active, 208 terminally ill patients have ended their lives using the Act.

(AP) Under the Oregon law, terminally ill patients must get a certificate from two doctors stating they are of sound mind and have less than six months to live. A prescription for lethal drugs is then written by the doctor, and the patients administer the drugs themselves.

Of course, these lethal drugs are restricted under the Controlled Substances Act, the laws written by the feds to control access to harmful drugs. And as we saw from last term’s Gonzalez v. Raich decision, anything that threatens federal power to maintain prohibition of drugs is going to get hammered.

At the outset, Roberts laid a barrage of questions on Oregon Senior Assistant Attorney General Robert Atkinson before he could finish his first sentence.

Roberts asked whether such state laws would undermine the effectiveness and uniformity of the federal Controlled Substances Act, as the Bush administration argues.

Justice Antonin Scalia also seemed skeptical of the state’s position. “I think that assisted suicide would have been just as unthinkable at the time this (the federal law) was enacted as prescribing cocaine for recreational use,” Scalia said.

Justice Stephen Breyer asked whether states could make marijuana or morphine legal. Other justices asked whether states could allow doctors to prescribe steroids for body building.

“It’s a tough case,” noted Justice Anthony Kennedy, a moderate.

Now, nothing these justices decide is going to stop the suicides of terminally ill people. Our law just gives people the option of a painless drug rather than the hose in the tailpipe in the closed garage, or the slit wrists, or the gunshot to the roof of the mouth.

But in order to keep marijuana illegal — and believe me, with the recent Raich case and one-fifth of the states declaring marijuana legal for medical use within their state, that’s the subtext here — the feds can’t have any backdoor loopholes in the Controlled Substances Act. It’s the odd Drug War Exception to the usual States’ Rights stance of conservatives like Scalia, Thomas, and Roberts.

It’s also odd how the Drug War makes such strange ideological bedfellows. In the Raich case, Scalia concurred with usual liberals Ginsburg, Stevens, and Breyer, and moderates Kennedy and Souter, in asserting that the state regulation of medical marijuana was still governed by the Interstate Commerce Clause, even if the marijuana was never bought, sold, shipped, manufactured, or used across state lines. Liberals like to maintain federal power to regulate the states (it’s the reasoning behind many civil rights victories, among others), so they too could not let the states regulate marijuana when the feds say no.

Justice Sandra Day O’Connor immediately challenged Clement, asking if the federal act also prevented doctors from prescribing drugs for lethal injections of death row inmates.

“The practice of medicine by physicians is an area traditionally regulated by the states, it is not?” O’Connor asked Clement.

Justice David Souter described it as a “bizarre result” to suddenly give the attorney general effectively sole authority over whether a state may authorize physician-assisted suicide.

Justice Ruth Bader Ginsburg asked whether the federal government had abandoned the position it took in a 1997 case that assisted suicide was a matter for the states to decide.

And Justice Anthony Kennedy said he found the administration stand “odd” when Oregon strictly limits how the drugs could be administered and in what cases.

It’s hard to tell where the case may fall. SCOTUS watchers figure that Justices Roberts, Scalia, Thomas, and perhaps Kennedy will decide that Congress did not intend to help people die when it passed the Controlled Substances Act. Justices O’Connor, Ginsburg, Souter, and perhaps Stevens seem to favor the idea that there is a 200-year-plus tradition of allowing states to regulate the practice of medicine. Justice Breyer seems to be the swing vote on this case.

The monkey wrench in all of this is that O’Connor is retiring just as soon as Bush’s next nominee is seated. If that happens before the case is final, O’Connor will not vote and we could end up with a 4-4 deadlock, leaving the opinion of the 9th Circuit in effect (supporting Oregon’s law). If the case is then re-argued, and we have a Justice Harriet (“I’m Bush’s personal lawyer, but of course I’ll be completely fair… ain’t that right, Dubya?”) Miers on the court, you know she’ll be on the Roberts / Scalia / Thomas side.

Like I argued for the Raich case, I’ll argue for this case. Oregon’s Death with Dignity Law is a popular and well-meaning law that has been in effect for eleven years without any problems. States have the right to regulate the practice of medicine. People have the right to determine the end of their own life. It is about personal liberty, self sovereignty, and the right to make confidential medical decisions between patient, doctor, and no one else.

That’s why I fully expect the Supreme Court to decide against Oregon. I’m betting it won’t even be close, maybe even a unanimous decision, that the Controlled Substances Act means the feds can control substances and doctors can’t give lethal prescriptions. Because any other decision means that people, rather than government, might actually get to decide how to medicate themselves, and we can’t have that!

“If people let government decide which foods they eat and medicines they take, their bodies will soon be in as sorry a state as are the souls of those who live under tyranny.” — Thomas Jefferson

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