Editorial: Justice Kennedy - 'It's a Tough Case'

By James Kilpatrick, The Southern Illinoisian, Oct. 18, 2005

Editorial

"It's a tough case," said Justice Anthony Kennedy. He was commenting last week as the Supreme Court heard argument in the right-to-die case of Gonzales v. Oregon. Some observers doubtless will agree with Kennedy's off-the-cuff observation. To us inveterate states-righters, this case is not tough at all. Oregon is right. In seeking to nullify the state law, the attorney general is wrong.

The facts are not in dispute. After twice winning approval from voters, Oregon's Death with Dignity Act took effect in 1997. Its provisions were carefully crafted. Two physicians must separately attest that in their judgment a petitioner has less than six months to live. The patient must be mentally competent, not suffering from depression or impaired judgment. A two-week waiting period must elapse. The patient must be advised of such alternatives as hospice care and pain-relieving drugs. Two neutral witnesses must attest the patient's request. Only then may a doctor prescribe a painless dosage of a fatal drug. Through 2004, according to state records, 326 terminally ill patients had obtained the lethal prescriptions, but only 208 persons had used them.

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.

Our argument is that the states must be free, within constitutional limitations, to engage individually in political experiment. If Massachusetts wants to sanction homosexual marriage, so be it. If Wyoming and Montana want to authorize super-speed limits on their highways, let them see what happens.

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."

More directly in point are the high court's companion opinions eight years ago in right-to-die cases from Washington and New York. The state laws prohibiting assisted suicide were substantially similar. This time Rehnquist wrote for a technically unanimous court. Within the apparent unanimity a profoundly difficult struggle was evident. The court's problem - the eternal problem - was to reconcile state powers and individual liberty. Here the state "won," but it was an unconvincing victory.

"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.

JAMES KILPATRICK writes for Creator's Syndicate.

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