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Bad Law, Good Ruling
Let Oregonians Decide Assisted Suicide's Morality

By E. J. Dionne Jr.
Friday, January 20, 2006

I believe that legalizing physician-assisted suicide is a mistake. I also believe that having federal courts and bureaucrats decide the issue is a mistake. This is a question that should be debated by the people and their representatives.

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 U.S. Supreme Court rejected far-reaching claims by the Bush administration (originally put forward by then-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, which was joined by Chief Justice John Roberts and Justice Clarence Thomas (who also dissented separately), 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.

Assisted suicide 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 suicide.

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 judgment." 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 judgment"? Isn't it strange that those who advocate for states' rights on so many issues, including abortion, then turn around and endorse the most expansive use of federal power to advance their own preferences?

In 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 difficult issue.

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 don't 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.

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