Supreme Court says you are allowed to die peacefully
That's today's decision in Gonzalez v. Oregon: the Supremes have upheld Oregon's law permitting you to ask your doctor for drugs that will help you go gently into that good night.
The decision was 6-3 against letting the feds arrest your doctor for giving you morphine as you lay dying--or rather, against letting federal drug laws overrule state drug laws. Roberts took his place in the dissent. It's very interesting to see that Scalia and Thomas are so quickly willing to desert Rehnquist's federalist revolution (i.e., the Rehnquist court's signature determination to shift power away from the federal government and back to the states), and that Roberts too has no interest in it. My guess is that Alito would have made the decision 5-4.
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. Just another reminder that that coalition can be split.
Just another reminder that that coalition can be split.
Conservatives hold positions that are untenable as well. It is not so much that these guys can be split, it is the fact that if they are worth their salt and think about the issues at hand they find their provincial beliefs are unscalable to society at large.
January 17, 2006 8:41 AM | Reply | Permalink
If the GOP falls from power, libertarians lose their #1 priority: tax cuts. They'll swallow extra-large helpings of "conservative Catholic [or Protestant] theology" before leaving the coalition that protects their Grail.
January 17, 2006 8:43 AM | Reply | Permalink
The entire Supreme Court is inconsistent - that is, except for good old Clarence Thomas. Last year, the Court held that the feds have the right to regulate medical marijuana under the Commerce Clause. O'Connor, Rehnquist, and Thomas dissented -- adopting the state's rights argument that the feds did not have that power.
Now the Court says that the feds do not have the authority to regulate medication used for the purpose of suicide under the commerce clause. Got that? Medical marijuana = regulation ok. Suicide drugs = regulation not ok.
A total of 7 justices switched sides, going from pro- to anti-federal regulation or vice versa. Four side-switchers were "liberal," one "conservative," (Scalia) and two "moderate" (O'Connor and Kennedy).
January 17, 2006 9:16 AM | Reply | Permalink
If anything, you've shown that O'Connor was consistent.
January 17, 2006 9:26 AM | Reply | Permalink
A total of 7 justices switched sides, going from pro- to anti-federal regulation or vice versa.
Is Roe v. Wade implicated? That to undermine the strength and importance of the doctor-patient relationship undermines a "woman's right to choose" abortion in consultation with her doctor?January 17, 2006 9:35 AM | Reply | Permalink
So how does he square the medical marijuana ruling with his dissent in the assisted suicide case?
If anything, you've shown that O'Connor was consistent.
You're right. I managed to confuse myself with all the switching. In Raich, Thomas argued the feds do not have the power to regulate medical marijuana. Now he argues the feds do have the right to regulate suicide medication.
You are also right that O'Connor was the only justice to stay consistent: arguing the state does not have the right to regulate medical marijuana or suicide medication.
Ok, I'm dizzy.
January 17, 2006 9:45 AM | Reply | Permalink
Just another reminder that that coalition can be split.
well whaddya know, I just saw the news and was about to make a "My Blog" entry to the same effect, and you beat me to it. What kept me from doing it right away was that I was looking for a link to the recent poll that said a large majority of Americans support as much private choice as possible in dying issues.
And my main point was going to be:
WHEN ARE DEMS GOING TO START EXPLOITING THIS RIFT and go for pushing some libertarian values on personal issues when they can do so without offending some important base? The danged far religious right often has the Rove big tent dream by the balls on this, and the Dems don't see to use it.
Not only is there a majority of Americans who want personal choice and freedom on a lot of this stuff, you've got a danged conservative Supreme court behind you on a lot of it, too, and you're too afraid to make some of these issues a cri de coeur?
A nice side benefit is that here's also where the Dem objection to conservative Supreme Court nominees can be made to look less obstructionist! If Dems were more strongly libertarian about some of this stuff, and more amenable to states and local communities trying out what they wanted to on some of this stuff.
I don't get where going libertarian on a lot of this stuff is seen as dangerous! It's majority approved!
For instance, I grew up Catholic, I know lots of Catholics, the vast majority of American Catholics are "cafeteria" catholics, they understand the whole concept of being able to pick and choose on some of these sticky moral topics. They know they're supposed to be against abortion, but they don't see much benefit in the old back alley system, so they go for the legal but rare thing. They know the pope wouldn't want gay marriage, but they don't see why most U.S. states couldn't offer some kind of civil union because Christians are not supposed to be disallowing basic rights to some people. They know they're supposed to be against capital punishment, but then again, when a jailed-for-life person kills another inmate, maybe...
I just don't see why Democrats don't go libertarian on some of these culture wars issues, dissing both radical righties and radical lefties. The radical righties will never vote for you, the radical left who want to impose their own special morals on everyone else will either hold their nose and vote for you or go off to do the Greens or Naders. You'd pick up lots of disgruntled right of center and conservatives. Where's the down side to being much more vocal in support of some of this libertarian personal stuff? Why so afraid to do so? The pro-choice party as to death situations, the pro-choice party as to "food supplements," the pro-choice party for medical use of marijuana in some situations, the pro-choice party against rampant use of eminent domain, the pro-choice party as to civil unions (and no, we won't force your religion to accept gay marriage,) and yes, the pro-choice party on family planning and first trimester abortion.
January 17, 2006 9:52 AM | Reply | Permalink
Is Roe v. Wade implicated? That to undermine the strength and importance of the doctor-patient relationship undermines a "woman's right to choose" abortion in consultation with her doctor?
No. There was no due process argument being made here. They lost the argument that physician assisted suicide is a "fundamental right" under due process in Washington v. Glucksberg, decided unanimously by the Court in 1997. And yes, the Respondents in Glucksberg borrowed arguments from Roe much like the one you sketch out.
If Glucksberg had gone the other way, all Americans would have the right to physician assisted suicide (PAS). Instead, the issue fell to the individual states and Oregon chose its path. The present case was about whether or not the federal government could prevent Oregon (and other states) from legalizing PAS under the Controlled Substances Act.
Medical marijuana is similar insofar as the Bush Administration also relied on the Controlled Substances Act as its rationale for shutting down California's medical marijuana system. I'm going to assume that the difference between this and the medical marijuana case stems from the fact that the Controlled Substances Act is primarily intended to regulate illegal drugs like marijuana rather than physician-prescribed medication like morphine.
Of course, this seems like a bit of a stretch since you can go to jail for illegally possessing morphine just as easily as marijuana, but the Court has a way of getting the result it wants...
January 17, 2006 9:56 AM | Reply | Permalink
Democrats don't need to get into the Supreme Court debate to make the point, either. While the Court's decision is relevant, it would have never been an issue if the Bush Administration didn't try to shut down Oregon's law in the first place. Just like it shut down California's medical marijuana law.
Americans have shown minimal interest in the Supreme Court debate, so why even go there? It is Alberto Gonzalez who is trying to shut down Oregon's program, not Clarence Thomas.
The other place I think the discussion is relevant, of course, is abortion. If Roe v. Wade is overturned, abortion will not become a "state issue." Republicans in Congress and the White House will go after it on the federal level, using the same arguments they used in this and the medical marijuana case. I suspect the attempts to ban abortion nationally would be constant in a post-Roe era.
January 17, 2006 10:08 AM | Reply | Permalink
The Democratic party ignores the libertarian vote at its extreme peril. The hallmark of mainstream libertarian ideology (if one may even call it an ideology) is getting the government at all levels off people's backs. While that notion runs counter to many so-called "liberal" objectives like Social Security and single-payer health care, an argument can be made that rational libertarians would desert the Republicans in droves if such programs could be seen as essential services rather than bureaucratic boondoggles. But even public schools and highways are under attack by extreme and perforce definitely ideological libertarianism. The trick is to convey a message to the public just where the common good meets individual rights, and vice versa.
In the context of organized religion, the same dynamics are increasingly apparent. One can push an ideology only so far before its essential artificiality is revealed at some pragmatic level. The addition of Roberts and Scalito may indeed provide that push and get people riled up.
January 17, 2006 10:25 AM | Reply | Permalink
One thing tht this case shows is the different ways there are to be a judicial conservative. This case does not seem to have been decided on libertarian grounds but on state power grounds. For all those applauding this outcome today may hate a future outcome on another issue that is decided on the same grounds, state power.
One of the things that Republicans have really help to make murky is what do we want from judges. They tell us they want principled decisionmaking based on judicial restraint and strict construction. However, Scalia does not believe in judicial restraint. He is very aggressive in exercising judicial power and making decisions on broad grounds. Further, Republicans clearly believe in the jurisprudence of outcomes as much as any "wild-eyed" liberal Democrat.
There may be nothing wrong with results oriented. There should be more honesty about it.
January 17, 2006 10:41 AM | Reply | Permalink
We started out with interstate commerce and Wickard v. Filburn. How in God's name did we wind up with a federal vice squad?
January 17, 2006 10:43 AM | Reply | Permalink
Given Bush's determination to be a king, why are we so sure this court decision will change anything? If the Bush gang decides that Bush has absolute authority to execute the laws, thus has the absolute right to interpret the meaning of the laws, then the administration will not back down on this. I'm curious to see how this plays out now. And, I would much rather this be the battleground than for Bush's right to torture people be it.
January 17, 2006 11:54 AM | Reply | Permalink
January 17, 2006 1:09 PM | Reply | Permalink
owenz - actually there are some critical differences between the two cases. Yes, they're both medicinal use of drugs, which is usually covered under the commerce clause by precedent. However, a one time lethal dosage is quantitatively and qualitatively different from an ongoing drug regime, and is much less about commerce.
The real problem is our constitution and legislation don’t address these issues clearly, and the amount of interpretation of what falls under the commerce clause is far too vague. Maybe if pols spent more time informing the public through honest debate, and then leading the public to greater consensus to pass legislation democratically, we wouldn't have this problem. Wouldn't that be nice.
btw, my personal belief is that assisted death is a fundamental right, and that pot should also be legal. Not because I think pot is so great, just it makes no sense to crimnalize it and create a black market.
January 17, 2006 1:47 PM | Reply | Permalink
Although I haven't read the detailed decisions, there does seem a difference between the regulation of drugs with generally accepted medical use but high abuse potential (DEA Schedule II) and drugs without accepted medical use (DEA Schedule I). Assignment of drugs to these categories isn't as clean-cut as one might like, since synthetic cannabinoids, the active ingredient in marijuana, are Schedule II with an indication for nausea of chemotherapy. In principle, any prescription drug, scheduled or not, can be used for an "off-label" indication (i.e., not approved by the FDA, and that can be simply because the manufacturer didn't apply for an approval of some well-known use), if the physician decides it is clinically appropriate.
That's rarely a problem for non-scheduled drugs, although it's riskier for scheduled drugs. Now, let me mention, in passing, that the drugs generally used for medical (and veterinary) anesthesia are of the barbiturate class, usually pentobarbital (Nembutal brand). Morphine, for various technical reasons, is not an especially good drug for euthanasia. Short-acting barbiturates like pentobarbital have relatively few medical indications compared with decades ago, and these applications, other than euthanasia, are almost always things that would only be done in hospitals.
If I were a pharmacist outside Oregon and received a prescription for oral pentobarbital, I'd tend to assume the intent was assisted suicide. It's not that assisted suicide isn't done elsewhere, but simply not as openly as in Oregon.
Dr. Timothy Quill is a professor of medicine at the University of Rochester (NY). In 1991, he published a stunning paper, "Death and Dignity: A Case of Individualized Decision making." New England Journal of Medicine 324:691 (1991). It described an extremely thoughtful, caring situation where Quill prescribed assisted suicide drugs to a long-term patient, rather the antithesis of Jack Kevorkian in sensitivity and ethics. There were no serious suggestions of indicting Quill, but I wonder how his actions would be considered by the Justice Department in this Administration, prior to this decision.
Outside the area of assisted suicide, with all its religious implications, the DEA has been getting increasingly reasonable in a number of medical areas. DEA is concerned about scheduled drug diversion, but actually worked with the American Academy of Pain Medicine to come up with a set of clinical guidelines for treating chronic pain with opioids ("narcotics"). These guidelines recognize that it can be totally appropriate to treat selected non-terminal patients with huge amounts of opioids. It's a fairly recent realization that, with careful dosing, there really is no upper limit to the opioid dose needed to control pain.
DEA essentially said, "Doctor, if you document your treatment in the following manner, and do certain things in treatment, do not worry about Federal prosecution for overprescribing." DEA has also approved standards for paperless electronic prescribing of Schedule II drugs, not surprisingly under the Office of Diversion Control.
In other words, the Administration is most prone to meddle with medicine when religious issues get involved.
January 17, 2006 2:07 PM | Reply | Permalink
Roberts presented himself as both brilliant and good humored. Reasonable . Perhaps a good dinner companion.
It was a stretch but still it was possible to hope he might rise to the occasion and be a chief justice for all the people not just the right wing. Now at the very first opportunity he disabused us.
All the more reason to expect that Alito who made no attempt to present himself as reasonable will ,like Roberts ,vote even more conservatively than how he presented himself.
BTW this is not an argument for a filibuster ( I don't believe in futile gestures) just an argument that might help a Ben Nelson or Mary Landrieu to join a solid party line vote in opposition.We're not going to convince any republicans to switch but at a minium let's not alienate our base. It happens as demonstrated by the votes for Nader in 2000-some cast by friends of mine to punish the democrats for Bill's triangulation.Voting to confirm Alito could lead to some stay at homeliberals in November- and I think won't help capture undecidedvoters then. Dunno what I base the last on. Just a gutfeeling.
January 17, 2006 8:23 PM | Reply | Permalink