# Oregon Assisted Suicide Law Upheld by SCOTUS **URL:** \ **Category:** Great Debates\ **Created:** [January 17, 2006, 10:49pm UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427 "2006-01-17T22:49:01Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![yBeayf](https://avatars.discourse-cdn.com/v4/letter/y/e274bd/32.png) [@yBeayf](https://boards.straightdope.com/u/yBeayf)\ **Post date:** [January 17, 2006, 10:49pm UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/1 "2006-01-17T22:49:01Z")
The Supreme Court today [upheld](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-623) the Oregon law permitting doctors to prescribe lethal doses of painkillers to hasten death. In a 6-3 vote, with Roberts, Scalia, and Thomas dissenting, the court ruled that federal drug law did not overrule the right of the state to permit doctor-assisted suicide. What are the ramifications of this decision? Is this decision a fluke, or the beginning of a new deference to states’ rights? ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [January 17, 2006, 11:07pm UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/2 "2006-01-17T23:07:34Z")
I think the dissent represents judicial activism, seeking to bestow a power on the Federal government that is not present in the text of the Constitution. Specifically: > [@](#): > > “if the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death.” Says who? Where in the Constitution does it describe what “legitimate medical purposes” are? That should be left to the governing medical authorities of the states. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 17, 2006, 11:14pm UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/3 "2006-01-17T23:14:57Z")
> [@Fear Itself](#): > > I think the dissent represents judicial activism, seeking to bestow a power on the Federal government that is not present in the text of the Constitution. Before we go further in this debate, I’d like to understand if you are arguing that the SCOTUS should stick solely to the text of the Constitution when it makes these types of rulings. ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [January 17, 2006, 11:20pm UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/4 "2006-01-17T23:20:55Z")
Although in my heart I tink it is the right decision, I don’t think it is necessarily so clear cut. After all drugs are regulated by the FDA. Could a state on it’s own certify a drug for general use within the state? I don’t think so, but I really don’t know,maybe the state’s just defer to the feds because what’s the point of 50 different stet-level FDAs? But then I think that gives the federal governmaent a little more say over what is proper use. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [January 17, 2006, 11:21pm UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/5 "2006-01-17T23:21:47Z")
> [@John Mace](#): > > Before we go further in this debate, I’d like to understand if you are arguing that the SCOTUS should stick solely to the text of the Constitution when it makes these types of rulings. Not at all. I believe the Constitution is a living document, with room to include all sorts of rights that were not imaginable to the Founding Fathers. By the same token, I feel no hypocrisy what ever in pointing out that judicial activism is a relative thing, depending on whose ox is being gored. Sauce for the goose, **John** , sauce for the goose. ---
**Author:** ![middleman](https://avatars.discourse-cdn.com/v4/letter/m/e9a140/32.png) [@middleman](https://boards.straightdope.com/u/middleman)\ **Post date:** [January 17, 2006, 11:30pm UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/6 "2006-01-17T23:30:30Z")
I have not read the case, but excerpts of the ruling (grain of salt time) suggest that this wasn’t really a state’s rights ruling. Everything I’ve seen suggests that the court looked at the legislation and said it was not intended to convey to Ahscroft the powers he asserted. From CNN’s article: > [@](#): > > Congress did not have this far-reaching intent to alter the federal-state balance They reference Congressional intent and not the Constitution. Kennedy then goes on to say: > [@](#): > > The authority claimed by the attorney general is both beyond his expertise and incongruous with the statutory purposes and design. I am not crazy about the first part because it really shouldn’t be relevant to a review of legislation (there seem to be a lot of people in government who act on authority beyond their capacity!). But if they found that the legislation did not mean to convey to the AG the powers asserted, then I have no problem with the ruling. Let’s just see Congress pass a law giving the AG express powers to do what ashcroft did and see how THAT case turns out. I don’t see how this case could be a landmark ruling. But like I said, I am going by CNN and not the case itself. ---
**Author:** ![middleman](https://avatars.discourse-cdn.com/v4/letter/m/e9a140/32.png) [@middleman](https://boards.straightdope.com/u/middleman)\ **Post date:** [January 17, 2006, 11:34pm UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/7 "2006-01-17T23:34:24Z")
> [@Fear Itself](#): > > Not at all. I believe the Constitution is a living document, with room to include all sorts of rights that were not imaginable to the Founding Fathers. By the same token, I feel no hypocrisy what ever in pointing out that judicial activism is a relative thing, depending on whose ox is being gored. Sauce for the goose, **John** , sauce for the goose. How was the dissent judicial activism? Deference to the Congress and the Executive seems to be a time honored facet of judicial restraint. Was there something in the dissent that struck you as activist? (Because I agree that Scalia is a Conservative Activist, I just don’t see it here.) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 17, 2006, 11:34pm UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/8 "2006-01-17T23:34:56Z")
> [@middleman](#): > > I have not read the case, but excerpts of the ruling (grain of salt time) suggest that this wasn’t really a state’s rights ruling. Everything I’ve seen suggests that the court looked at the legislation and said it was not intended to convey to Ahscroft the powers he asserted. Interesting. I’ll have to read the whole opinion and see where they’re coming from. My instinct was to agree with the majority, but if there’s one thing I’ve learned from these SCOTUS ruling debates it’s to not trust my instincts. I’ll be interesting in seeing how they square this with \*Rache \*(sp?). ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [January 18, 2006, 1:15am UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/9 "2006-01-18T01:15:18Z")
> [@John Mace](#): > > I’ll be interesting in seeing how they square this with \*Rache \*(sp?). You are referring to _Gonzales v. Raich_ and I am also trying to wrap my head around this. What I believe is the difference is that the majority in this case focused on who/what can define “legitimate medical purpose” and “public interest” in the CSA. In Raich the court said: > [@Raich](#): > > First, the fact that marijuana is used “for personal medical purposes on the advice of a physician” cannot itself serve as a distinguishing factor. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Since Congress classifiefd marijuana a Schedule I drug thereby declared it to have no medical purpose. Congress has the power under the commerce clause to declare that. As such no argument can be made that marijuana has legitimate medical purposes. On the other hand the drugs used in assisted suicide are Schedule II which have legitimate medical purposes. The issue is then, who decides what a legitimate medical purpose is and what is in the public interest? The Court said: > [@](#): > > The specific respects in which he is authorized to make rules, however, instruct us that he [The Attorney General] is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law. So the AG can not declare something to be without legitimate medical use if it is permitted by state law. > [@](#): > > The explanation the Government seems to advance is that the Attorney General’s authority to decide whether a physician’s actions are inconsistent with the “public interest” provides the basis for the Interpretive Rule. > > ``` > By this logic, however, the Attorney General claims extraordinary authority. If the Attorney General's argument were correct, his power to deregister necessarily would include the greater power to criminalize even the actions of registered physicians, whenever they engage in conduct he deems illegitimate. This power to criminalize--unlike his power over registration, which must be exercised only after considering five express statutory factors--would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General's limited authority to deregister a single physician or schedule a single drug, but to have given him, just by implication, authority to declare an entire class of activity outside "the course of professional practice," and therefore a criminal violation of the CSA. > > ``` Nor did Congress intend to give him broad power to declare a certain drug or medical proceedure against the public interest. Since the drugs in question are schedule II they can be prescribed for legitimate medical purposes. The Court found that the AG does not have the power to declare something an illegitimate medical proceedure or against the public interest. In the absence of a Federal law it is the States who decide what is a legitimate medical procedure becuase they are the liscensing board and determine what is the public interest by their general police power. Oregon has declared assisted suicide a legitimate medical procedure it is legal to dispense these drugs to that end and the AG does not have the power under the CSA to stop them. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [January 18, 2006, 1:28am UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/10 "2006-01-18T01:28:43Z")
The SC made the right decision. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 18, 2006, 1:53am UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/11 "2006-01-18T01:53:19Z")
> [@Fear Itself](#): > > I think the dissent represents judicial activism, seeking to bestow a power on the Federal government that is not present in the text of the Constitution. Specifically:Says who? Where in the Constitution does it describe what “legitimate medical purposes” are? That should be left to the governing medical authorities of the states. OK, having gone over the ruling once (it always takes me a couple of readings to get all the details) I can at least answer your question about the Constitutional issue at hand: There is no consitutional issue. This was not a ruling on the constitutionality of a law, but a ruling on whether or not the AG had the authority to act as he did under a Federal Law. If this is judicial activism (I’m still not sure yet), it won’t be so due to the argument you made. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [January 18, 2006, 1:59am UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/12 "2006-01-18T01:59:57Z")
I forgot to note that my previous post was my interpetation of the Court’s ruling. As to my opinion of the ruling. Well, its handwaving in about the worst possible way. The CSA says: > [@](#): > > The Attorney General shall register an applicant to distribute a controlled substance in schedule I or II unless he determines that the issuance of such registration is inconsistent with the public interest. In determining the public interest, the following factors shall be considered: > (1) maintenance of effective control against diversion of particular controlled substances into other than legitimate medical, scientific, and industrial channels; > (2) compliance with applicable State and local law; > (3) prior conviction record of applicant under Federal or State laws relating to the manufacture, distribution, or dispensing of such substances; > (4) past experience in the distribution of controlled substances; and > (5) such other factors as may be relevant to and consistent with the public health and safety. It clearly says the AG shall register an applicant to distribute a controlled substance unless he determines such registration is inconsistent with the public interest. Now he is given guidelines to do so (I quote only the relevent ones): > [@](#): > > (2) compliance with applicable State and local law; > (5) such other factors as may be relevant to and consistent with the public health and safety. Now, assisted suicide is legal under Oregon law so he can not deny registration on number 2. However, number 5 basically gives him carte blanche to deny a registration so long as his reasoning can reasonably be related to the public health. Certainly proscribing drugs that are not for medical use and in fact cause death in the patient can be reasonably argued to be detrimental to the public health. Whether I agree with that contention is irrelevent. The issue is whether or not that is a reasonable argument and I believe it is. Once the AG has made that determination, and by all accounts he has, then he may deny registration to distribute controlled substances. That conclusion and Raich are the unfortunate “logical” end of interpeting the commerce clause as broadly as the Court has. The activities now regulated through the commerce clause are so far removed from commerce that it is beginning to become ridiculous. Although the activities in this case are much closer to affecting interstate trade than Raich. The answer though is not to simply hand wave and side step issues to get to the logically correct ruling. The answer is to go back and correct where the Court stepped outside of the logical extent of the Commerce Clause. Right now the Court is in a hole in terms of the Commerce Clause and the first rule of holes is to stop digging. It has dug itself deeper into upholding Wickard by continually citing it. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [January 18, 2006, 2:17am UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/13 "2006-01-18T02:17:33Z")
Here’s what I think the rationale for the Courts’ decision on the marijuana law was: “We are a bunch of hidebound assholes wo don’t care how much people suffer if they don’t get to smoke pot, so we’re gonna say the Feds rule on that one, and here’s our rationale: legal mumbo-jumbo.” Now the really interesting point on the assisted suicide decision was that all of the Court’s Catholics: Scalia, Thomas and Roberts, dissented in the case. Their reason of course was, “We are Catholics and think suicide is a huge sin so we gotta vote against this, and here’s our rationale: legal mumbo jumbo.” In the case of the assisted suicide decision, the majority’s reasoning was, “We’re pretty sure we’re going to be in the market for assisted suicide once Alito gets on the court and we’ll have to deal with a four-man bloc of smug, conservative Catholics, so we’ll let the states have that one, here’s our rationale: legal mumbo-jumbo.” I’m really surprised that anyone thinks the legal mumbo jumbo means anything. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [January 18, 2006, 2:20am UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/14 "2006-01-18T02:20:29Z")
> [@Evil Captor](#): > > Now the really interesting point on the assisted suicide decision was that all of the Court’s Catholics: Scalia, Thomas and Roberts, dissented in the case. Their reason of course was, “We are Catholics and think suicide is a huge sin so we gotta vote against this, and here’s our rationale: legal mumbo jumbo.” Kennedy who wrote the opinion of the Court is a Catholic. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [January 18, 2006, 2:22am UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/15 "2006-01-18T02:22:10Z")
Actually I want to take that back. **Evil Captor** ’s post doesn’t deserve a response unless its in the Pit. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [January 18, 2006, 2:23am UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/16 "2006-01-18T02:23:18Z")
> [@treis](#): > > Kennedy who wrote the opinion of the Court is a Catholic. Well, Kennedy is a rational Catholic. Scalia, Thomas, Robers and (in the very likely case he gets confirmed) Scalia are … what they are. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [January 18, 2006, 2:25am UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/17 "2006-01-18T02:25:00Z")
> [@treis](#): > > Actually I want to take that back. **Evil Captor** ’s post doesn’t deserve a response unless its in the Pit. 'Scuse me for pointing out the obvious. How ya like that line of clothing the Emperor is wearing nowadays? ---
**Author:** ![Metacom](https://avatars.discourse-cdn.com/v4/letter/m/ecae2f/32.png) [@Metacom](https://boards.straightdope.com/u/Metacom)\ **Post date:** [January 18, 2006, 2:34am UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/18 "2006-01-18T02:34:59Z")
Does anyone have a good rebuttal to Scalia’s “legitimate medical purpose” argument? It makes sense to me… ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 18, 2006, 3:24am UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/19 "2006-01-18T03:24:41Z")
Well, I’ve read the majority and the minority opinions twice as carefully as I can (eyes do glaze over), and I’ll be damned if I can make head or tails of this decision. Both sides seem to make some good arguments. But I’m not too concerned with this type of decision. Statutory law is easy enough to change-- if the SCOTUS got Congress’ intent wrong, Congress can fix that with a new law passed by a simple majority. I have to admit, though, that Scalia’s argument that suicide cannot be legitimately lumped in with “health” and “medicine” makes a lot of sense. I’m fully in favor of the concept of Death with Dignity, but that’s an area of public policy, not medicine. If the AG is out of his league in this area, then so are physicians. The real issue, when it comes down to it, is whether or not the SCOTUS finds a “right to die” in the constitution, and that decision will have to wait for another day. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [January 18, 2006, 3:56am UTC](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427/20 "2006-01-18T03:56:20Z")
> [@John Mace](#): > > I have to admit, though, that Scalia’s argument that suicide cannot be legitimately lumped in with “health” and “medicine” makes a lot of sense. I’m fully in favor of the concept of Death with Dignity, but that’s an area of public policy, not medicine. If the AG is out of his league in this area, then so are physicians. The real issue, when it comes down to it, is whether or not the SCOTUS finds a “right to die” in the constitution, and that decision will have to wait for another day. The whole argument is begging the question with a dash of appealing to authority. All it is boils down to assisted suicide is not medicine therefore its not medicine. For example he wrote (his emphasis): > [@](#): > > "[a]ny substance or preparation used in _treating disease_ I suppose I am to conclude that assisted suicide does not constitute treating disease. Unfortunately this argument doesn’t hold any weight becuase the issue at hand is whether or not assisted suicide constitutes a valid treatment for disease. The AMA and history has concluded that assisted suicide is not medicine but neither the AMA or history is the be all end all judge of what is medicine. History has judged homosexuality to be a disease and it wasn’t very long ago that the AMA agreed. Of course we no longer consider that to be true. The AMA has been wrong before and will be wrong again. Its judgement and the historical weight in of itself is not sufficient to conclude that assisted suicide is not medicine. To call assisted suicide not medicine but public policy does not make a great deal of sense. Assisted suicide is performed to alliviete the symptoms of a disease and is done so under the supervision of a medical professional. That has all the requirements of medicine and treatment of a disease. Whether or not death is an acceptable way to alleviate is an issue for debate. The desirability of a result in itself is not something unique to assisted suicide. C-Sections and circumcisions are just a few examples of procedures with debate around them. [Next page](https://boards.straightdope.com/t/oregon-assisted-suicide-law-upheld-by-scotus/340427.md?page=2)