The questions of law are far from academic. Attorney General Alberto Gonzales has threatened to revoke federal drug privileges for any doctor who defies his edict. Is he abusing his authority under the Controlled Substances Act? Put another way: May the state of Oregon unilaterally exempt itself from a federal law of nationwide application? Put still another way: Does the act, as interpreted by the attorney general, improperly intrude upon a state's power to control the practice of medicine within its borders?
At last week's oral argument, Chief Justice Roberts and Justice Antonin Scalia appeared to support the attorney general. Justices David Souter and Ruth Bader Ginsburg appeared to side with the state. Such appearances are often deceptive.
We Tenth Amendment conservatives recur to fundamentals. Under the Constitution, all political powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people. The power to regulate interstate traffic in deadly drugs is a power delegated to Congress by the Constitution. But the power to regulate the practice of medicine is a power historically reserved to the states.
This is my point: If Oregon wants to experiment with a law regulating doctor-assisted suicide, that ought to be within Oregon's reserved powers under the Tenth Amendment. Eight years have passed since Oregon's Death with Dignity Act went into effect. The skies have not fallen upon Medford, Portland and Eugene. The sun still rises over the Wallowa mountains. If Oregon's experiment ultimately fails, it fails. In that event, no other state will want to replicate Oregon's experience. If the law succeeds, other states may follow Oregon's example. This is what federalism is all about.
Granted, the auspices are not auspicious. In 1990 the Supreme Court considered the sad case of Nancy Cruzan, a young woman who fell into a coma after suffering nearly fatal injuries in an automobile accident. When it became evident that recovery was wholly unlikely, her parents sued the hospital for permission to disconnect the life-sustaining tubes. In an opinion by Chief Justice William Rehnquist, the court refused, 5-4, to grant their request. There was no "clear and convincing" evidence that she would have wanted to die rather than to live in a "persistent vegetative state."
"Our holding," said Rehnquist for the court, "permits this debate to continue, as it should in a democratic society."
Last week the debate continued in the Oregon case. Given the uncertainties hovering over the court's composition, it may be months before a dispositive opinion comes down.
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
COPYRIGHT 2005 UNIVERSAL PRESS SYNDICATE
This feature may not be reproduced or distributed electronically, in print or otherwise without the written permission of uclick and Universal Press Syndicate.
