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False Federalism
In Gonzales v. Oregon, it's the state that's violating federalist principles.


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Wesley J. Smith

Does Oregon have the constitutional right to force the United States government to permit state doctors to assist patient suicides with federally controlled substances (narcotics)? Or is the federal government entitled under the Controlled Substances Act (CSA) to prevent these federally regulated drugs from being prescribed for lethal use regardless of state law? The Supreme Court will tell us soon in Gonzales v. Oregon, a case that will not only influence the course of the euthanasia and assisted-suicide debate, but will also profoundly impact the delicate balance of power between “states rights” and the overarching sovereignty of the federal government.

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So far, court decisions have favored Oregon. Most recently, the Ninth Circuit Court of Appeals ruled that Oregon’s right to regulate medical practice within its borders prevents the federal government from punishing state doctors who prescribe federally controlled substances to end their terminally ill patients’ lives. Under this view, the federal government can punish doctors who prescribe lethal doses of controlled substances for use in assisted suicide in states where the act is illegal. But punishing Oregon doctors would violate the principle of federalism because assisted suicide has been explicitly made a proper medical practice under Oregon law.

I have argued previously in NRO that it is actually the other way around–that Oregon is violating the principle of federalism by seeking to prevent the federal government from pursuing its own legitimate public policy. Now, this view has been substantially supported in the just-announced Gonzales v. Raich, in which the Supreme Court ruled 6-3 that the federal government is entitled to enforce the CSA’s proscription of the use of marijuana–even though California permits the drug to be possessed legally for medicinal purposes; even though the marijuana in question was clearly being used by California residents for such medicinal purposes; and even though the marijuana was unquestionably home-grown and exclusively used for in-home consumption.

Most of the issues dealt with in Raich involved arcane interpretations of the interstate commerce clause, a matter now unlikely to be crucial in deciding Gonzales v. Oregon. But the majority opinion, written (surprisingly) by Justice John Paul Stevens, also invoked the Constitution’s Supremacy Clause as “unambiguously” providing “that if there is any conflict between federal and state law, federal law shall prevail.”

As applied in Raich, this means that the federal government is entitled to enforce federal law against medical marijuana users even in the face of contrary state laws, a ruling clearly applicable to the assisted-suicide controversy. And if the Court found this to be true for medical marijuana–which, after all, involves mere symptom relief–it hardly seems likely that it would reach a drastically different conclusion regarding the prescription of more potent controlled substances with the intent to kill.

True, marijuana has been determined by Congress to have no legitimate uses, while the controlled substances used in assisted suicide do have proper medical uses, such as aiding sleep or controlling pain. But this should be a factual distinction without a legal difference in deciding the assisted-suicide case since Congress expressly delegated the task of determining what medical uses and under what circumstances controlled substances could be put to the attorney general. Indeed, the Oregon case began when the state sued to prevent former attorney general John Ashcroft from enforcing his decision to preclude the use of federally controlled substances in assisted suicide.

What about the oft-made argument that the states are the test tubes of democracy, and therefore Oregon’s decision to legalize assisted suicide should be allowed to proceed unfettered by a contrary federal public policy? Justice O’Connor accepted this argument with great enthusiasm in the final section of her dissent, opining that while she would not have personally supported legalizing medical marijuana, the majority ruling stifled “an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently” than the federal policy.

If the Court accepts this view, Oregon will prevail. But this is unlikely. Justice O’Connor was the lone voice arguing the test-tube-of-democracy theory. Indeed, her two fellow Raich dissenters, William Rehnquist and Clarence Thomas, specifically did not join in this section of her opinion. (Thomas, in an individual dissent, did allude to states deciding for themselves “how to safeguard the health and welfare of their citizens.” But by not signing on to O’Connor’s more broadly stated views, he seems to have limited his dissent in this regard to the unusual factual context of the Raich case, which involved the growing of a mere six marijuana plants.)

Gonzales v. Raich, alongside the earlier unanimous Ashcroft v. Oakland Cannabis Buyer’s Cooperative, points clearly in the direction (barring a technical defect in the federal government’s approach) to the Supreme Court’s strongly affirming a federal right to proscribe the use of federally controlled substances in assisted suicide unfettered by state laws to the contrary. That would be a proper federalist result. If so, come this time next year, assisted suicide will remain fully legal in Oregon–just as medical marijuana remains legal in California–but doctors there will have to find other ways to hasten the deaths of patients than prescribing controlled substances. Such an outstanding outcome would not only protect the vulnerable, but also send a clarion societal message that killing is not a legitimate medical act.

Wesley J. Smith is a senior fellow at the Discovery Institute, an attorney for the International Task Force on Euthanasia and Assisted Suicide, and a special consultant to the Center for Bioethics and Culture. He is the author most recently of Consumer’s Guide to a Brave New World..



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