Pubdate: Tue, 24 Jan 2006
Source: Ft. Worth Star-Telegram (TX)
Copyright: 2006 Star-Telegram, Fort Worth, Texas
Contact:  http://www.star-telegram.com/
Details: http://www.mapinc.org/media/162
Author: Don Erler, Special to the Star-Telegram
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

WHERE THE JUSTICES DID NOT GO

Last week, the U.S. Supreme Court issued an opinion that is as
sensible as it is legally flawed. Gonzales vs. Oregon, in which the
court had before it the opportunity to draw upon and extend the
constitutional right to privacy, could suggest that the days of
extravagant judicial activism are numbered.

The issue was whether the U.S. attorney general could interpret the
Controlled Substances Act to keep doctors from prescribing drugs for
use in physician-assisted suicide for incurable patients with less
than six months to live. Oregon law permits the practice.

The six-member court majority ruled that Attorney General John
Ashcroft exceeded the authority that Congress intended when he issued
a 2001 directive that "assisting suicide is not a 'legitimate medical
purpose' " consistent with "the public interest."

The judicial ruling, of course, is surprising. Merely seven months
ago, the court decreed that California physicians should not be
allowed to prescribe marijuana for pain relief. In that highly
controversial decision, the justices showed no deference to state
sovereignty or the usual balance between national and state
governments in our federal system.

In the Oregon case, the majority attempted to parse various sections
and subsections of the Controlled Substances Act in order to show that
Congress merely intended to keep "a doctor from acting as a drug
'pusher' instead of a physician." The decision by each state about
proper medical practice ought, therefore, to be controlling.

The medical marijuana decision reached exactly the opposite
conclusion. Moreover, the majority in the Oregon case admitted that
Ashcroft's determination that medicine means "healing," not killing,
"is at least reasonable."

However, concluded the majority, Ashcroft's reasonable ruling cannot
override Oregon's (and the court majority's) "commonsense conclusion"
that the states, not the national government, should decide what is
legitimate medical practice.

I agree that allowing those close to death to end their misery is
humane public policy that should be decided state by state. But as
Justice Antonin Scalia (joined by new Chief Justice John Roberts)
demonstrated conclusively in his analysis of the federal law and
controlling Supreme Court precedents, Ashcroft's 2001 directive "is
assuredly valid insofar as it interprets 'prescription' to require a
medical purpose that is 'legitimate' as a matter of federal law."

Scalia also pointed out that "virtually every medical authority from
Hippocrates to the current American Medical Association" considers
physician-assisted suicide to be incompatible with medical practice.
The AMA says that it is "fundamentally incompatible with the
physician's role as a healer." And 47 states forbid the practice.

Yet for all the legal wrangling between majority and dissenters, the
bottom line, as Scalia noted, is that the "legitimacy of
physician-assisted suicide ... rests not on 'science' or 'medicine' "
but on the kind of "value judgment" that allows us to prohibit
"polygamy or eugenic infanticide."

For the three dissenting justices, if "the term 'legitimate medical
purpose' has any meaning, it surely excludes the prescription of drugs
to produce death." For the majority, allowing physicians to assist the
terminally ill to end their misery is a "commonsense
conclusion."

What the justices did not write is far more important than their
varying interpretations of the Controlled Substances Act. Two days
ago, America observed the 33rd anniversary of Roe vs. Wade, which
created a constitutional right to privacy so unfettered that it
permits women, in controlling their own bodies, to take the lives of
pre-born human beings.

If the Constitution contains such a right, must it not necessarily
include the less draconian right of each of us to determine whether to
terminate our own lives? For that matter, how can the Controlled
Substances Act be permitted to violate the privacy right of each of us
to determine for ourselves the drugs we'll place in our bodies?

I do not advocate these positions. But they represent the inexorable
logic of Roe vs. Wade. After Jan. 22, 1973, Americans had good reason
to think that the court might use assertions of privacy rights to
invalidate laws against suicide, drug abuse, polygamy, gambling, adult
incest, prostitution and perhaps even hazardous working conditions.
(It's my own business to assume risk.)

None of this has happened. Even this case permitting assisted suicide
was decided on narrow grounds of statutory construction. So the fact
that the Supreme Court has not expanded on most of the logic of Roe
vs. Wade is good news for American self-government.

Don Erler is president of General Building Maintenance.
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MAP posted-by: Larry Seguin