Ripples in the Supreme's Assisted Suicide Ruling

Jeff Alworth

So, a day after the Supreme Court ruled 6-3 in favor of Oregon's Death with Dignity law and already the ripples are spreading.  There seem to be two immediate conversations following the ruling--the first on the future of assisted suicide, the second about the character of the Supreme Court.

Predictably, conservative Christian groups have condemned the ruling.  The Family Research Council called it a "perversion of medicine."  For Pat Robertson, it was "disturbing and dangerous" (topics on which he is versed).  Scott McClellan, speaking for the President, says he remains "committed to building a culture of life."  The emergent theme: "doctors shouldn't be killing people." 

Also predictably, those groups have now called for Congress to put a stop to our little law.  Whether that dog will hunt remains to be seen; most members aren't in Washington to comment.  It wouldn't be the first attempt--in 2000, former Oklahoma Senator Don Nickles promoted the  Pain Relief Promotion Act, which might have passed without the threat of a filibuster by Ron Wyden.  The odds seem even longer now--Wyden again promises a filibuster, and now Gordon Smith has pulled his support.  Moreover, everyone recalls the last great federal power grab on end-of-life issues--the Terri Schiavo debacle--and with 64% of Americans supporting a law like Oregon's, it seems likely that scandal-weary Republicans won't be itching for the fight. 

Will that stop the hard right from pressing this issue, or will they remind their senators that  it was "conservative issues that won [the 2004] election?"  Will the Democrats use it to highlight that somewhat radical agenda?  We'll have to wait and see.

The second discussion revolves around the dissentors in the Supreme Court decision and the surprising addition of new Chief Justice Roberts in the Scalia-Thomas axis of originalism.  A key element of conservative jurisprudence is the reliance on federalism--the notion that states should have the power to make law that an overweening federal bureaucracy won't overturn.  For much of the 20th Century, conservatives made much hay of federalism, for it fit neatly next to their opposition to liberals who controlled the government.  Ah, but so much less neat has federalism become!  Now justices try to ignore abuses of federal power, and their fealty to the states appears to be on the wane.  So noted both Cato and the Wall Street Journal following yesterday's ruling:

"The Supreme Court's decision is a welcome win for defenders of limited government. The Court not only strikes down federal efforts to squash Oregon's experiment with assisted dying, but calls the federal policy inconsistent with the 'principles of our federal system.' Last summer, the Court upheld sweeping federal power to regulate local medical decisions in Gonzales v. Raich. Court-watchers called Raich a disaster for the 'federalism revolution' (the Court's effort to revive constitutional limits on federal power.) As Justice Thomas notes, today's decision marks a 'hasty retreat' from Raich and signals that the federalism revolution isn't yet over." 
-- Mark Moller, Cato senior fellow, and author of an amicus brief in the case

"The High Court's liberal wing ... has suddenly discovered the constitutional virtues of federalism," a Journal editorial states, adding, "Count us with the federalists in this one, even if they are of the born-again variety." The editorial states, "We don't favor assisted suicide as a policy," but "in the American system, there's no good reason that Washington should be able to trump states' rights in the matter" (Wall Street Journal, 1/18).

But if the liberal wing has discovered federalism, what of the axis of originalism?  Shouldn't Scalia and Thomas have defended Oregon's right to enact this law with near-religious zeal?  And "moderate" Roberts--he of the pretty face and polite demeanor--surely he would side with other moderates?  Instead, perhaps we can read in these tea leaves the true liberalism of Justice Roberts--maybe he will emerge as a great champion of civil liberties, defending those being spied on just as he defends those who would foolishly waste the final, brutal weeks of life.  (Or is my tea made of something else?)

So with a single decision, Christian conservatives have found themselves on the wrong side of the "values" debate even while erstwhile federalists have become toadies of big gubmint.  A Cubs World Series must be just around the corner. 

By Jeff Alworth Jan. 18, 2006