Life-and-Death Decisions

Thursday, January 19, 2006

FEW LEGAL ISSUES are more fraught with emotion than those involving the beginning and end of life. So when, in the space of two days, the Supreme Court decides cases involving each of those issues (one a New Hampshire abortion law, the other Oregon's assisted-suicide statute) and gets both of them right, with due respect for states' rights, while managing to dispose of the abortion case unanimously, it's worth pausing to appreciate the moment.

"We do not revisit our abortion precedents today," Justice Sandra Day O'Connor wrote in the opening sentence of what may be her final opinion. At issue was a state law requiring parental notification and a 48-hour waiting period for minors seeking an abortion. While the law permits a doctor to perform an abortion without complying with those requirements in cases in which the minor's life is in jeopardy, it does not contain a similar exception if the minor's health is at risk, as the court's precedents have required.

The question, as Justice O'Connor's opinion properly framed it, was whether the law should be invalidated in its entirety because it could be unconstitutional in the small fraction of cases where health was at stake, or whether a more modest remedy -- enjoining the law from being enforced in such cases but otherwise letting it stand -- should be adopted. In choosing the latter approach -- "Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem," Justice O'Connor wrote -- the court nicely balanced the constitutional rights of minors with sensitivity to the prerogatives of the state. Now lower courts will decide whether New Hampshire legislators would have preferred a parental-notification statute with a health exception or no statute at all.

The assisted-suicide case divided the court in a way that the abortion ruling did not, with Chief Justice John G. Roberts Jr. casting his first dissent along with Justices Antonin Scalia and Clarence Thomas. The case concerned the Bush administration's effort to invalidate an Oregon law, the only one in the nation, allowing doctors, in carefully limited circumstances, to prescribe lethal doses of painkillers to terminally ill patients.

The administration argued that the federal drug control law, which regulates such painkillers and requires that they be prescribed "for a legitimate medical purpose," prohibited such physician-assisted suicide -- this despite the administration's supposed commitment to federalism, the long-standing state role in regulating the practice of medicine, and the central purpose of the federal law to prevent drug abuse and illegal trafficking.

The court, in a ruling written by Justice Anthony M. Kennedy, agreed with two lower courts that the law did not empower this "radical shift of authority from the states to the Federal Government to define general standards of medical practice in every locality." We agree, and we were sorry to see the dissenters willing to let the administration stretch the reach of federal law.

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