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Assisted suicide law found to be Constitutional
Posted by: McQ on Tuesday, January 17, 2006

Calling Dr. Kevorkian. In a 6-3 decision today, the Supreme Court upheld Oregon's assisted suicide law. Chief Justice Roberts and Justices Scalia and Thomas dissented.

Remember this is the nation's only physician-assisted suicide bill.

Right off the top, and given the precedent of Roe v. Wade, I don't see how the court could have found any other way.

Look at the dissent:
Writing in dissent, Scalia attacked the finding that the attorney general "lacked authority to declare assisted suicide illicit" under the federal law. "This question-begging conclusion is obscured by a flurry of arguments that distort the statute and disregard settled principles of our interpretive jurisprudence," he wrote.

Scalia backed the government's position that assisting in suicide was not a "legitimate medical purpose." Saying that the court's decision "is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business," Scalia wrote that "it is easy to sympathize with that position." However, the government has long been able to use its powers "for the purpose of protecting public morality," he said.
Explain the "legitimate medical purpose" of abortion on demand? Yes, there are legitimate medical purposes for some abortions, such as that when the continuation of the pregnancy would kill the mother. But it seems rather difficult, given Roe v. Wade, to claim, in this case, that "legitimate medical purposes" is now a legitimate reason to declare the law unconstitutional.

How in the world can one accept the argument that terminating a life on one end of the spectrum is absolutely fine but isn't on the other end?

Now, I want to make it clear ... I am not arguing a pro-abortion position or an anti-abortion position. That's not the purpose of this article, so save all of those comments for another time. I'm arguing that the Oregon physican assisted suicide law is as "constitutional", at least to me, as any law which provides for abortion on demand, and whether you like the court's ruling or not, it is consistent with the precedent set by Roe v. Wade.

This ruling also makes it easier to understand why this is such an important issue to each side of the political spectrum when considering Supreme Court justices.

Why?

Because I suspect, had Samuel Alito been on the bench the outcome would have been the same, however the vote would have been 5-4.

There's a lot more to this decision than just my initial take, but I thought I'd offer it up, as such, for discussion.

UPDATE: The Court's decision with dissents can be found here. Full majority decision here.
 
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From what I have managed to read of the majority and dissenting opinions, which has admittedly only been a few pages worth, this ruling is not specifically about physician assisted suicide at all. The arguments I read in the ruling from each side revolved around whether or not by statute under the controlled substances act the administration could prohibit the practice.

The majority determined that the language of the law gave deference to the state, while the minority argued that the decision was within the administrations regulatory bounds.

So in reality, this ruling had very little to do with physician assisted suicide. It was, overall, a simple matter of jurisdiction and interpetation of how a specific peice of legislation could be applied.


 
Written By: Rosensteel
URL: http://
However, the government has long been able to use its powers "for the purpose of protecting public morality," he said.
Protecting public morality.

Sweet.

/sarcasm
 
Written By: W
URL: http://www.qando.net
I haven’t been following the Assisted Suicide debate closely, but how could Scalia and Thomas, such proponents of States’ Rights, dissent from this case? The law was twice put to Oregon voters and twice approved. According to Reuters, "terminally ill patients who want to end their lives with a physician’s help must get a certification from two doctors stating they are of sound mind and have fewer than six months to live. A prescription for lethal drugs is then written by the doctor, and the patients administer the drugs themselves."

Like you, I wouldn’t want to see this turn this into a pro- vs. anti-abortion thing, but the big difference between the two, IMHO, is who the government is protecting. The pro-life movement believes the rights of the unborn child need to be protected, while the pro-choice movement believes it’s the rights of the mother. With this law, which requires a certificaiton of a sound mind, I frankly don’t see a reason to oppose it from a libertarian perspective, as there is no individual requiring government protection.

 
Written By: M. Jed
URL: http://
So in reality, this ruling had very little to do with physician assisted suicide. It was, overall, a simple matter of jurisdiction and interpetation of how a specific peice of legislation could be applied.

As I mentioned, Rosensteel, there’s much more to the case than my initial take. What I discuss is just what struck me as obvious initially. When I read the line in the dissent about "legitimate medical purposes" I immediately thought that particular standard was killed (no pun intended) years ago in Roe v. Wade and really has no validity in any argument about assisted suicide.
 
Written By: McQ
URL: http://www.qando.net/
I haven’t been following the Assisted Suicide debate closely, but how could Scalia and Thomas, such proponents of States’ Rights, dissent from this case? The law was twice put to Oregon voters and twice approved.

Well the fact that a law was passed by Oregon voters has very little to do with its constitutionality, and that is what the court was asked to determine.

Obviously, Oregon could popularly approve a measure which allowed lynching, but the court would find (at least I hope they’d find) that it was unconstitutional because it violated the due process clause.
 
Written By: McQ
URL: http://www.qando.net/
I’m all for states’ rights. Let them experiment.

I want to add here that "assisted suicide" is big business for Oregon. Old folks are uprooting and moving to Oregon by the thousands for the control the state gives them over their private deaths. Once there, they boost the economy and tax rolls by hiring investment and trust advisors, real-estate agents, nurses, and burial services.

Given this ruling, I’m tempted to invest in Oregon’s Kaiser Hospice services.
-Steve
 
Written By: Steve
URL: http://
I’m all for states’ rights. Let them experiment.

I’m with you ... they’re supposed to be the "laboratories of freedom". Now if everyone would get out of the way and let a few states go whole hog with school vouchers.
 
Written By: McQ
URL: http://www.qando.net/
I’m assuming that Steve is being facetious with his comments about assisted suicide being big business in Oregon, but in case he’s not, here are some stats
 
Written By: Steven Donegal
URL: http://
It may look like Thomas, Scalia, and Roberts ruled in favor of their personal ideas today, but that is not the case. The activists were in the majority today.
 
Written By: Glen Dean
URL: http://glendean.typepad.com/christianlibertarian
Steven,
Not facetious, just uninformed. :-)

I have a friend who is a hospice nurse in North western Oregon. Word is that anyone from any state who has a "living will" that rules-out tube-feeding or life-sustaining machines could find themselves in Oregon’s hospice care. The legal "will" greases the path to a contra-indicated prescription of liquid Valium and synthetic opiates. A pain-free suicide is the result.

I browsed the link you provided, Steven, and quickly found this in the footnotes: "...there is no way to determine the total number for the 7-year span." I think we need better stats before we discuss the numbers. They seem way too low to me.

A lot of these "managed suicides" are carried out by hospice nurses. Because the stats in the link you provided rely on Oregon doctors’ lethal prescriptions, I wonder if this difference in professional label (doctor vs nurse) makes any difference in the reportage.

Lastly - a skeptic to the core - I wonder if Oregon’s medical community has any reason to suppress it’s "assisted suicide" stats.
-Steve
 
Written By: Steve
URL: http://
There are many misconceptions both about the actual case and about Oregon’s program. First, contra to the headline of this entry, the Supreme Court did not find that Oregon’s law was "constitutional." What the Court held was that Congress did not intend the Controlled Substances Act to apply to Oregon’s statute regulating the practice of medicine in this particular manner. There is nothing in the opinion to prevent Congress from passing a law banning physician assisted suicide and frankly, given the reasoning, it is possible that the Administration can craft regulations that would effectively ban the practice as well.

Second, to Steve’s point above, the physician assisted suicide statute is highly controlled and regulated and involves the prescription by a physician of drugs to end life. The unofficial "assisted suicides" which occur at hospice facilities and other long-term care facilities are not the subject of the statute and are prohibited in Oregon as they are everywhere else. But since out culture feels comfortable with these "Don’t ask; don’t tell" types of arrangements, they continue on a regular basis.
 
Written By: Steven Donegal
URL: http://
There is nothing in the opinion to prevent Congress from passing a law banning physician assisted suicide and frankly, given the reasoning, it is possible that the Administration can craft regulations that would effectively ban the practice as well.

I think that’s a little misleading. Congress can do that at any time it wishes with anything like this, not just this particular case.

If they do, then the Congressional law will obviously be reviewed by the SC again since it is a dead certainty it will be contested in court.

I’d also dissent concerning the title. The court decided it could find no legal consititutional grounds on which to overturn the law. In my book that makes the law effectively constitutional.
 
Written By: McQ
URL: http://www.qando.net/
I am usualy libertarian on these social issues, but I cant help but wonder if we are headed down the wrong path, with abortion on one end, and euthenasia on the other. Whats next? killing downs syndrom kids? Where will it end?
Am I wrong to have these concerns?
 
Written By: kyle N
URL: http://impudent.blognation.us/blog
Whats next?

Well that’s kind of the point Kyle. You tell me. But first, given the precedent in place, how could they have logically decided the case any other way?
 
Written By: McQ
URL: http://www.qando.net/
I’d also dissent concerning the title. The court decided it could find no legal consititutional grounds on which to overturn the law. In my book that makes the law effectively constitutional.
Wrong. Purely issues of statutory and regulatory interpretation. The respondents made no agrument whatsoever that the AG’s action violated the Constitution.

Not only that, but the issue before the court was not whether Oregon’s law should be "overturned." Read the first line of the majority opinion:
The question before us is whether the Controlled Substances Act allows the United States Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide, notwithstanding a state law permitting the procedure.
Sorry McQ, but you’re not even in the ballpark.
 
Written By: mkultra
URL: http://
Dont get me wrong, I’m not attempting to preempt any of the discussion here. Discussion about this topic is certainly needed in this country, and I encourage it. I simply wanted to make it more clear that this ruling isnt so much about the constitutionality of assisted suicide, but rather more mundane legal issues.

It is very likely that we will see this issue before the courts again, where the court will be asked to rule directly on it, be it regarding the constitutionality of laws that allow it or laws that prevent it.

The problem is, in my opinion, that with these issues we tend to approach them from our personal viewpoints and opinions on the matter. That oftentimes has little to do with the overall legal rationale that is used in the case, which oftentimes causes confusion. Abortion is a perfect example. Cases involved in it are typically viewed through a pro-choice or pro-life lense, and the legal issues regarding interpretation of the constitutionally derived ’right to privacy’ are simply lost in the noise.

[quote]The activists were in the majority today.[/quote]

I’m not sure that was really the case. Although I do, at least, give that blog entry credit for recognizing what the actual judicial contention was. I will have to dig up the relevant portions of the majority opinion, but I seem to recall they made reference to a portion of the law that seemed to imply that a certain amount of deference should be granted to the laws of the states regarding its intepretation and enforcement. I dont think it was quite as cut and dry as that blogger made it out to be.

I’d also dissent concerning the title. The court decided it could find no legal consititutional grounds on which to overturn the law. In my book that makes the law effectively constitutional.
I would agree with your dissent concerning the title, but for different reasons. The constitutionality of the Oregon law, to the best of my knowledge, has yet to be challenged. The Supreme Court specifically did not rule on the consitutionality of the Oregon law.

It ruled on whether or not the administration, through its use of the controlled substances act, had the authority to prohibit the practice.
 
Written By: Rosensteel
URL: http://
Right off the top, and given the precedent of Roe v. Wade, I don’t see how the court could have found any other way.
Roe had zero - and I mean zero - to do with today’s decision.

Again, the respondents were not making a constitutional argument. They were arguing that the AG did not have the authority under the CSA to ban doctors from prescribing certain drugs for physician assisted suicide. (I suppose that one could make the argument that the AG was acting unconstitutionally in the sense that he was acting without authority, but no lawyer would therefore call the case a "constitutional" case.) It’s a classic administrative law case. Basically, the argument is that Congress did not give the head of an agency - in this case the AG - a certain power he was claiming to have. There was no reason to consult Roe to make the decision.

Indeed, the title of the post is wrong because it fundamentally misunderstands the nature of the Oregon law. Unlike a law prohibiting an individual from doing something, such a law prohibiting an individual from obtaining an abortion, the Oregon law permits an indivudal to do something he could not do before.

A law that permits an individual to do something new is not going to be challenged on consitutional grounds, i.e., on the ground that it violates an individual right embodied in the Constitution. Think about it - in what possible way could the Oregon law be unconstitutional?

From a political standpoint, this case is exhibit # 452 that wingers are rank hypocrites. They claim to be for state’s rights. They claim they want the government to stay out of their lives. They claim to believe in personal autonomy and the individual - not the government - is the best judge of what is good for him.

And yet their favorites on the USSC are Scalia, Thomas, and now Roberts. And these three justices were in the dissent. The three justices that took the anti-libertarian view.

There were two competing interepretations of the CSA in this case - a libertarian one and an authoritarian one. In a case such as this, one’s general oritentation - libertarian or authoritarian - tends to decide which one of the two competing interpretation one adopts. In other words, if you are generally authoritarian (such as Scalia and Thomas), you will side with the AG. If you are generally libertarian, you will side with the supporters of the Oregon law. Why? Because the CSA can arguably reasonably be interpreted eithter way.

In this case, the darlings of the right on the court sided with the government against the individual. How shocking. Of course, the AG’s name on this case is the same AG who is the chief apologist for Bush’s obviously and embrassingly unlawful domestic spying program. How fitting.

There was a time when wingers didn’t need a daddy running their lives. Oh how times have changed.




 
Written By: mkultra
URL: http://
Mkultra,

All you are really saying is that conservatives are usually on the side of individual rights, but in this case involving people killing themselves they side with the essence of the pro-life movement which is itself a movement based on individual rights.

Roe was definitely the precedent for this case as we are a witness to the validity of the slippery slope argument. We have merely slipped down the slope, but we aren’t at the end as kyle foreshadowed. We have carried Roe to its logical conclusions and its continuing conclusions underly one pursuit. This precedent manifestly devours lifes. This explains the motivation behind the dissenting judges IMHO. Anything to stop this progressive perversion is moral and justified.
 
Written By: thordaddy
URL: http://
All you are really saying is that conservatives are usually on the side of individual rights, but in this case involving people killing themselves they side with the essence of the pro-life movement which is itself a movement based on individual rights.
You are seemingly well meaning, but confused.

The "pro-life" movement is not a movement based on individual rights. To the contrary, it is a movement that is quite open about the fact that an individual has no "right" to obtain an abortion. The premise of the "pro-life" movement is that the existence of a fetus negates, or at least effectively outweighs, any "right" to get an abortion. The political side of the movement is a rather naked effort to limit the options of women. This ain’t rocket science, after all.

More fundamentally, your position is Orwellian. (But then so are most wingers.) According to your logic, the effort to take away the legal right of a person to commit doctor assisted suicide is an effort to increase freedom. That is winger logic in a nuthshell, you poor soul.

Arbeit Macht Frei.
 
Written By: mkultra
URL: http://
I’m against the mainstream medical profession being a part of the euthanasia process.

Say you have a serious illness. Without euthanasia, you face cure or surcoming to the illness. With euthanasia you face cure or euthanasia.

The problem is when euthanasia is consider a medical option.

From the perspective of the doctor involved: Without euthanasia the doctor can cure you or fail. With euthanasia, the doctor can cure you or give you euthanasia. With euthanasia, as an option the medical profession can no longer fail you. They have an option for you regardless of your condition.

Now what’s happened to the motivation to improve medicine? The financial motive is gone from the perspective of those footing the bill, be they insurance company or socialist government. The professional motive for doctors will also be gone for some. Because he has all outcomes covered, he has a full arsenal. There’s nothing he can’t successfully treat. Who’s left to push medicine further?
 
Written By: John
URL: http://
I’ll note that Scalia, Roberts, and Thomas, all Catholics, voted with their religion, not with their alleged "constructionist" judicial beliefs. Either they are Catholic first and judges second, or their constuctionist judicial beliefs really only apply when expedient. Either way, it bodes very badly for the future. The difference between the court we thought we were getting and the court we actually ended up with might even scare a few libertarians over time.


 
Written By: cindy
URL: http://
Cindy: read Glen’s link:

mkulta and thordaddy:
Some comments.

There are two kinds of conservatives. Political conservatives want less (smaller) government. Social conservatives want the government to enforce their socially-conservative principles on the governed.

To criticize the latter by saying the don’t always behave like the former is an empty criticism; they are separate groups. Social conservatives *need* a fairly large government, without such a government they can’t mandate their socially-conservative principles.

And, mkulta, per
The premise of the "pro-life" movement is that the existence of a fetus negates, or at least effectively outweighs, any "right" to get an abortion.
Oh shut up. Don’t slant it as though pro-lifers have a view that they desire to rescind rights. They desire protect the rights of an unborn child. If you want to make an argument about the unborn not-yet being human lives, fine - but don’t slant things such that you make pro-lifers out to be anti-rights. They aren’t. They are just interested in protecting the rights of people you can’t understand to be, well, people.
 
Written By: krouskop
URL: http://
To criticize the latter by saying the don’t always behave like the former is an empty criticism;

Why? When fiscal conservatives hitch their wagon to the same horse that social conservatives do, why is it unreasonable to criticize the horse, vehicle, or passengers?

If you apply the same reasoning on the other end, then criticizing civil libertarians for hitching their wagon to big government liberals would therefore be inadmissible.

No?
 
Written By: PogueMahone
URL: http://
Oh shut up. Don’t slant it as though pro-lifers have a view that they desire to rescind rights. They desire protect the rights of an unborn child. If you want to make an argument about the unborn not-yet being human lives, fine - but don’t slant things such that you make pro-lifers out to be anti-rights. They aren’t. They are just interested in protecting the rights of people you can’t understand to be, well, people.
Jesus H Christ, there is no "argument" to make. An apple isn’t an orange and a fetus isn’t a person. It’s that simple. For some reason, wingers can’t get their little minds around this most basic concept.

Why is this so goddamm hard to understand? Did your mother drop you on your head?

If a fetus is a person, then all abortion doctors are murderers. If a fetus is a person, abortion can never be legal, even when it is meant to save the life of the mother. The problem with wingers is that they don’t have the power of their convictions. They don’t have the guts to argue that doctors who perform abortions are murderers. Because to make such an argument would make it even more clear that they are out of their minds.





 
Written By: mkultra
URL: http://
mkultra,

But all persons were once fetuses, Have you ever known an orange to once be an apple? Your analogy doesn’t hold.

Doctors are killers, though. Not just killing the unborn anymore, but now the elderly and ill. Whether they are murderers is a legal dispute. If you smash a tadpole then you have essentially killed a frog. If you run over a "joey" then you have essentially killed a kangaroo. If you abort a fetus then you have killed a person. Just like an orange can never be an apple, a tadpole can never be a kangoroo or a joey be a frog. To say a fetus isn’t a person is to only say that you have designated particular labels for particular times in the human life cycle. You say you are a "person" now but were not a "person" when you were a "fetus." What has changed? Are you in fact a different entity from your former fetus self? Your "person" argument seems to me to be based on some kind of Intelligent Design theory. There is nothing in Darwinian theory that would differentiate between a fetus and a person. You’ve taken your argument into non-scientific areas.
 
Written By: thordaddy
URL: http://
I fail to understand why this discussion got directed to the abortion debate. The personhood, or lack thereof, of a fetus is entirely inconsequential to the issue at hand.
Posted by thordaddy:
Roe was definitely the precedent for this case as we are a witness to the validity of the slippery slope argument.
No, it wasnt. Even a cursory reading of the majority and dissenting opinions would clearly show that Roe had absolutely nothing to do with this. As mkultra noted, this was nothing more than an administrative law case.
Posted by John:
I’m against the mainstream medical profession being a part of the euthanasia process.
That is all well and good, but goes entirely contrary to reality. Euthanasia happens all of the time, whether you like it or not. Anybody who has ever lost someone to cancer is likely familiar with this.

Many, if not most, cancer patients are killed by the massive amounts of morphine that they are injected with to minimize their pain towards the end of their life, rather than the cancer itself. Usually they would have only lived for a few more days, or a week or two at the most, but there is no question that the end was hastened by the use of drugs.

There comes a certain point where reality must be faced and treatment must change from attempts at life-saving to making the end as painless and comfortable as possible. Some would prefer to go out fully aware and on their own terms, rather than existing in a morphine induced stupor for the last few days. I can’t say that I fault them.
 
Written By: Rosensteel
URL: http://
Rosensteel,

You are likely technically correct, but on the larger point I think my statement stands and your last couple paragraphs allude to such a conclusion. Once we decided as a society that it was legal to kill our unborn progeny then it didn’t take too much of a genius to figure out where some would lead us as a society. Euthanasia is embarking on a PR campaign to legitimize itself as successfully as abortion. But it should be clear by your own words that another PR campaign will follow that asserts the justifiable killings of another subset of humanity. Perhaps Down Syndrome children? Perhaps child molestors. Perhaps the depressed? All bring into question quality of life issues and a person’s autonomy. It seems the more laws we pass the less rules we live by. It’s a free-for-all.
 
Written By: thordaddy
URL: http://
I suppose I can agree that this is at least some sort of philosophical similarity between the assisted suicide and abortion debates, and that they are developing along similar lines. Although I also think it would be important to point out that many people would be quick to point out that one scenario deals with an individuals choice about their own lives, while the other deals with an unborn fetus who has no say in the matter.

My point is simply to explain that the legal underpinning for this recent case are entirely seperated from that, and that the case itself did not actually address the matter of physician assisted suicide directly.

The debate regarding this issue will continue, and I hope that it does. However recognizing that the issue is not legally settled, since the court did not technically rule on it, is important to recognize as it leaves time to debate and consider before the time comes when the SCOTUS may eventually have to rule directly on the issue. (Then again, if Roe is any indication, the real debate seems to come afterwards.)
 
Written By: Rosensteel
URL: http://
I would remind folks here to read the relevant sections of the US Code. Many physicians have been prosecuted and convicted under the CSA charged with prescribing controlled substances without a legitimate medical purpose in Federal Court. My jaw dropped when I first read them.

mk, a human fetus is a person = human being by definition. All persons begin life as a single cell. Abortions are homicide by definition. The issue is when and where said homicide is justified. This is a determination best made at the state level; which is the situation that existed before the usurpation known as Roe v. Wade *and* Doe v. Bolton. What you are saying, logically, is that a human fetus is the legal equivalent of a black slave before that little war that killed about 600,000 Americans.

Rosensteel, you don’t know what you are talking about wrt morphine and cancer patients. True, that dose might kill you if you were injected with it given that you have not been on morphine for an extended period of time with the dosage titrated to the response. I have seen people get 100mg of morphine per hour for weeks while dying of cancer and they were still in pain, which meant that the dosage was still too low!

Also, dehydration is a horrible way to die.
 
Written By: Charles D. Quarles
URL: http://spaces.msn.com/members/cdquarles/

 
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