New Supreme Court Judge Gets to Really Go At Bioethics

Washington Post reports on the new justice's power on assisted suicide:

In October, physician-assisted suicide will be before the court in Gonzales v. Oregon, No. 04-623. The administration has appealed a lower court's order barring the Justice Department from taking away the prescribing rights of Oregon doctors who prescribe lethal doses of drugs to terminally ill patients who have chosen to die under that state's 11-year-old Death With Dignity Act.

Assisted suicide is an intensely emotiona l issue, both for advocates of a "right to die," who see it as many people's only means of a dignified death, and for conservative Christians, who see it as a form of murder.

Opposition to laws such as Oregon's was a favorite cause of former attorney general John D. Ashcroft, who issued a November 2001 directive determining that assisting suicide is not a "legitimate medical purpose" under federal drug-control law -- and that the Drug Enforcement Administration could act against any physician who authorized drugs to help someone die. The directive overturned a 1998 decision by President Bill Clinton's attorney general, Janet Reno, that permitted Oregon doctors to assist in suicides.

Strictly speaking, the case does not involve any assertion of a constitutionally protected right to die. The court unanimously refused to recognize such a right in 1997, ruling that it should be left to the states to determine wh ether legalized assisted suicide is wise policy.

Rather, the case is framed by the parties as a clash between federal power to regulate drugs and states' power to regulate the practice of medicine.

But the practical effect of the Ashcroft directive is to make Oregon's law a dead letter -- and O'Connor might have been sympathetic to Oregon. She vigorously dissented from the court's 6 to 3 ruling last month in which it upheld a federal override of California's medical marijuana law. In the 1997 case, Washington v. Glucksberg, the court was ruling on state bans on assisted suicide. O'Connor was one of five justices who wrote or signed concurring opinions implying that they might not strike down a state law such as the Oregon one that permits assisted suicide.

"Death will be different for each of us," she wrote. "For many the last days will be spent in physic al pain . . . some will seek medication to alleviate that pain and other symptoms."