No Legislating from the Bench
(Except About Assisted Suicide)
When it comes to U.S. Supreme Court appointments, President Bush and the Republicans in Congress have made it crystal clear what their core requirement is — no "legislating from the bench."Both with the nomination of new Chief Justice John Roberts and now, with Supreme Court nominee Harriet Miers, Bush has insisted that he has selected people to serve as judges who will not override the will of the American people. So one has to wonder what his administration is thinking in pressing the case against physician-assisted suicide in the state of Oregon? Or, more accurately, why is the administration not telling us the truth about how it really views the role of the Supreme Court?
The state of Oregon is the only state in the nation where it is legal for a physician to prescribe a lethal dose of medication to a terminally ill patient who requests assistance in dying. The citizens of Oregon approved “The Oregon Death With Dignity Act” by a ballot initiative in 1994. In 1997, a push was made to revoke the law. But again Oregonians voted to permit physician-assisted suicide, this time by a larger majority than they had three years earlier.
Various attempts have been made by the Department of Justice to challenge the constitutionality of the law in court. In 2002, U.S. District Judge Robert Jones, in ruling against the attempt by the Bush administration to block the law, said, “Oregon voters decided not once, but twice to support the law and have chosen to resolve the moral, legal and ethical debate on physician-assisted suicide for themselves."
But Bush and his administration will not give up. Then Attorney General John Ashcroft pressed the case on appeal and it has now wound up in front of the Supreme Court. The president’s conservative base is so strongly opposed to any form of assisted suicide that it has sought all possible means to overturn the Oregon law.
The Justice Department argued before the Roberts court on Wednesday that the federal Controlled Substances Act gives the U.S. attorney general the power to prohibit the use of drugs in assisted suicide, regardless of state law. This is truly grasping at a straw to overturn the will of the people of Oregon.
This 6-year jihad against the Oregon law might make some sense if there had been a pattern of terrible abuse of the dying and disabled since its enactment. As it happens, I am very wary of legislation permitting physician-assisted suicide. I worry that it could lead to pressure being put on people to end their lives prematurely or people with psychiatric or physical disabilities being dispatched for the convenience of others or to save money. But there is no such record of abuse in the wake of the law.
While some Oregonians dying of cancer, AIDS or Parkinson's disease do request a lethal dose of medication, very few actually wind up using it. There have been fewer than 300 cases in the years since the law was implemented. And despite a concerted effort by opponents of physician-assisted suicide to find cases in which the law has led to abuse or misuse, I know of only one case in the past five years in which any serious challenge has been raised regarding the ethics of patients, families or doctors who have honored a request to die. So what is Bush thinking? Why is the Justice Department trying to use a broad interpretation of an obscure federal statute to restrict a law legislated twice by the citizens of Oregon that has not led to any problems or difficulties since its enactment?
There is only one answer: The president is not telling the truth. He is only willing to respect the decisions of Americans if he agrees with them. He is only willing to advocate for a conservative court if it upholds a social agenda that he agrees with. He is not willing to allow a state to follow a policy regarding the terminally ill if he does not agree with it. And he clearly expects the Supreme Court to "legislate from the bench" when it suits his moral agenda.
The federal government should not have brought the case against Oregon’s law. And the Supreme Court should not listen to the cockamamie argument that a statute intended to prevent the illicit use of drugs somehow gives the federal government the right to tell the citizens of Oregon how they must die when they are terminally ill.
The administration constantly bemoans the fact that Roe v. Wade imposed a policy on the American people about abortion that was never legislated. Oregon has a policy on assisted suicide that was legislated — twice. Bush and his administration should be ashamed for trying to use the Supreme Court to do what they claim they do not want any federal judge or court to do. The ethical hypocrisy involved is beyond description.
