That's why the Supreme
Court was right this week to uphold Oregon's assisted-suicide
law -- a law I would have voted against had I been an Oregon citizen,
and would vote to repeal.
Oregon passed the
law in a referendum. Six justices on the Supreme Court rejected
sweeping claims by the Bush administration (originally put forward
by former Attorney General John Ashcroft) that it could interpret
federal laws in a novel way to usurp Oregon's power to regulate
the practice of medicine. This, Justice Anthony Kennedy declared,
represented a ``radical shift of authority from the states to
the federal government.''
In this case, I found
myself in the odd position of agreeing with the sentiments expressed
by Justice Antonin Scalia on the underlying issue, but bewildered
by his willingness to impose his view (and mine) by judicial fiat.
In his dissent, joined
by Chief Justice John Roberts and Justice Clarence Thomas, Scalia
relied on the vast constitutional authority of -- Webster's dictionary.
Scalia cited Webster's to back up the following claim: ``Virtually
every relevant source of authoritative meaning confirms that the
phrase 'legitimate medical purpose' does not include intentionally
assisting suicide. 'Medicine' refers to '(t)he science and art
dealing with the prevention, cure, or alleviation of disease.'''
As a policy matter,
I agree with Scalia that the problem with physician-assisted suicide
is that it dangerously muddles the moral role of the doctor. To
put it as plainly as possible: I do not think doctors should have
the right to help people kill themselves.
is the wrong answer to the right questions. Should the medical
profession do a far better job alleviating the pain of those suffering
from terminal illnesses? Should our high-tech medical system do
as much as it can to allow people to die with dignity? Obviously,
yes. But so far -- happily, I would argue -- most states have
tried to solve these problems through measures short of assisted
But Scalia, Roberts
and Thomas would claim the right to impose this view on Oregon.
As Scalia himself writes, the legitimacy of physician-assisted
suicide ``ultimately rests, not on 'science' or 'medicine,' but
on a naked value judgement.'' Yes, and why should Ashcroft and
the Bush administration be able to cast aside the decision of
Oregon's voters and insist upon their own ``naked value judgement"?
Isn't it strange that those who typically advocate for states'
rights -- including, for reasons I respect, on the abortion question
-- then turn around and endorse the most expansive use of federal
power to advance their own preferences?
By contrast to the
conservative judicial activism of the dissenters, Kennedy's majority
decision is a model of judicial modesty. The court's majority
takes a careful look at the language of the Controlled Substances
Act. It finds no warrant for what it sees as the ``unrestrained''
power that Ashcroft was claiming in using the law to prohibit
doctors from prescribing drugs in assisted-suicide cases. The
majority does not try to judge the question of assisted suicide.
It would keep open the public's right to debate this genuinely
It cannot have been
lost on senators about to vote on Judge Samuel Alito's nomination
that the recently confirmed Roberts, for all his charming and
intelligent talk about judicial restraint at his Senate hearings,
cast his first dissent with the court's most activist conservatives.
In his own hearings, Alito would not even go as far as Roberts
did in claiming to believe in modesty on the part of judges.
For the life of me,
I cannot understand why moderates in both political parties do
not see that Alito's confirmation would continue to push the court
toward an activist jurisprudence determined to write conservative
ideological preferences into law. President Bush surely knew what
he was doing when he named Roberts and then Alito to the court.
Bush and his conservative allies have the guts to fight for the
future they want. You wonder if those with a different vision
can show the same determination.
As it happens, assisted
suicide is one issue on which my beliefs coincide with those of
many conservatives. But I want my view to prevail through persuasion
in the democratic process, not because an attorney general and
sympathetic judges impose it on every state in the union.