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States of hypocrisy

January 18, 2006

FEDERALISM BRINGS OUT the hypocrite in all of us. So because we think Oregon's assisted-suicide law is sensible and humane, we are tempted to wrap ourselves in the flag of states' rights, celebrating the U.S. Supreme Court's 6-3 ruling on Tuesday that federal officials could not overrule a state's power to regulate medical care. On this issue, as in the case of California's ill-fated medical marijuana law, social liberals and conservatives trade their customary places in the trenches in the never-ending war between the states and the federal government.

It's actually not hypocritical to point out that this case was rightly decided. That's because the issue at hand was narrow -- focused on whether former U.S. Atty. Gen. John Ashcroft had the authority under the federal Controlled Substances Act to forbid physicians to prescribe drugs to terminally ill patients who wanted to use the medications to end their lives. Assisted suicide did not serve a "legitimate medical purpose," Ashcroft said, and therefore could be controlled just like any other form of drug abuse.

The court majority rightly pointed out that the drug law clearly was written only to stem "illicit drug dealing and trafficking as conventionally understood." In other words, Ashcroft was overreaching. (The Oregon law, in contrast, was carefully crafted to protect terminally ill patients while allowing them the option of assisted suicide. The numbers show that it has not been abused; since the law took effect in 1997, according to the most recent figures, only about 200 people have ended their lives with prescribed drugs.)

There was no conflict here between the will of Congress and the will of a state legislature. The Bush administration was merely seeking to impose its social agenda, and shame on justices Antonin Scalia and Clarence Thomas, as well as Chief Justice John G. Roberts Jr., for seeking to act as a rubber-stamp.

But however satisfying the outcome in this case, we are not prepared to conclude that the federal government cannot under any circumstances undermine a state position on a contentious social issue like assisted suicide. If Tuesday's case had been about a state law banning gay marriage, instead of one allowing assisted suicide, many of today's liberal believers in states' rights would suddenly rediscover the joys of national power.

If Congress had intended to address assisted suicide at the national level, or if an individual assisted-suicide case came before the Supreme Court raising a federal constitutional question, we would be less comfortable championing the supremacy of state law. And some rights, such as the right to an abortion, are part of a core right to privacy that is protected by the Constitution. These rights belong to all Americans regardless of which state they live in.

This case was rightly decided. But the broader trend it represents -- a court marked more by ideology than by reason -- is disturbing.

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