No Last Rites for 'Death With Dignity'

By ZP Heller, AlterNet. Posted February 3, 2006.

Last month, the Supreme Court upheld Oregon's Death With Dignity Act in Gonzales v. Oregon by a margin of 6-3. The court's decision was a critical setback for the Bush administration's crusade against Death With Dignity, more commonly known as physician-assisted suicide. Formerly Oregon v. Ashcroft, this legal battle dated back to the fall of 2001 and outlasted Attorney General Alberto Gonzales' predecessor, John Ashcroft, as well as the original patients involved in the case, who have died from their respective terminal illnesses. It was a hard-fought victory for states' rights that will no doubt have tremendous repercussions for several states looking to push their own Death With Dignity legislations in the coming years.

While the Supremes' decision was a shot across the bow of the Bush administration and its "culture of life" agenda, it was a direct hit on the legacy of John Ashcroft. As a Missouri senator, Ashcroft unsuccessfully tried twice to bring national attention to the issue of physician-assisted suicide. Once Ashcroft became attorney general, however, he declared that physician-assisted suicide was not a "legitimate medical purpose" for prescribing overdoses of federally regulated drugs to terminally ill patients. Ashcroft claimed that Death With Dignity therefore violated the 35-year-old Controlled Substances Act (CSA).

In writing the court's majority opinion, Justice Kennedy stated that Ashcroft made an overly broad interpretation of the CSA, which was designed to curb drug trafficking and not to impede the actions of state-licensed physicians. "The text and structure of the CSA," Kennedy wrote, "show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it." Kennedy never questioned the federal government's authority to regulate drugs. Instead, he contended that Ashcroft exceeded his power as attorney general.

Interestingly, this case came on the heels of Gonzales v. Raich, in which the Supreme Court upheld a federal override of a California law legalizing marijuana last year. The CSA defines marijuana as having no established medical benefits, a drug that is too dangerous to use under medical supervision. As Bruce Mirken of the Marijuana Policy Project pointed out, politicians established this categorization, not health experts. "Attempts to reclassify marijuana so that doctors may prescribe it have been blocked repeatedly by Drug Enforcement Administration bureaucrats with no medical training -- just what Kennedy said the CSA is not meant to do," Mirken said. In short, these two contradictory Supreme Court rulings suggest that terminally ill patients may relieve suffering through lethal overdoses of legal drugs, but under no circumstances are patients to use marijuana as a palliative.

Dissenting from the decision were justices Clarence Thomas, Antonin Scalia and, in his first dissent since becoming chief justice, John Roberts. "If the term legitimate medical purpose has any meaning," Scalia wrote, "it surely excludes the prescription of drugs to produce death." In a separate dissent, Thomas argued that the majority ruling wasn't in keeping with the court's decision in Gonzales v. Raich.

Yet, according to Kathryn Tucker, a co-counselor in Oregon v. Ashcroft, it was Thomas and Scalia who were inconsistent. "Their voting was hugely hypocritical," Tucker told me, "and it reveals a lack of principle, especially when Scalia talks so much about states' rights." For Tucker, who is also the director of legal affairs for Compassion and Choices, the Court's ruling allowed her an enormous sigh of relief. "This Oregon law was beleaguered because it had been fought on every level," she said, "and now there is growing excitement outside of Oregon that this power will stay with states."

Zack Pelta-Heller is a graduate student at The NewSchool and a regular contributor to AlterNet.

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