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Prescription for Chaos: Understanding the lethal Oregon case that's hitting the Supreme Court

Wesley J. Smith

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The Supreme Court had barely announced that it was accepting the federal government's appeal of /Oregon/ v. /Ashcroft/, and the mainstream media was already reporting the story incorrectly. For example, the Associated Press's lead paragraph about the news stated:

The Supreme Court said Tuesday it will hear a challenge to the nation's only assisted-suicide law, taking up the Bush administration's appeal to stop doctors from helping terminally ill patients die more quickly.

If only. In actuality, the case does /not/ challenge the Oregon law that permits physicians to write lethal prescriptions for patients who they believe to be likely to die within six months. Indeed, the Bush administration has never asked any court, anywhere, at any time, to overturn the Oregon law. Thus, even if the federal government prevails 9-0 in /Gonzales/ v. /Oregon/ (renamed because we have a new attorney general), assisted suicide will remain legal in Oregon.

So what's the fuss all about? This case is actually less about assisted suicide than it is about "federalism." And it's more about "federal rights" than it is about "state's rights" -- the extent of the ability of the U.S. government to regulate and apply federal law when a state disagrees -- an issue also litigated extensively in recent years with regard to "medical marijuana."

Here's how /Gonzales/ v. /Oregon/ came to be: When Oregon voters legalized assisted suicide in 1994, state regulators had a problem. They wanted to authorize doctors to prescribe barbiturates as killing agents. But the federal government regulates the use of these drugs under the Controlled Substances Act (CSA), and under the law, "controlled substances" can only be used for legitimate medical purposes. Thus, while it is generally illegal to possess morphine, it can be prescribed legally to control pain because the federal government deems it to be a legitimate medical use of this narcotic.

Assisted suicide was not even a dark cloud on the horizon when the CSA was passed and thus it doesn't take assisted suicide into account. But once Oregon legalized assisted suicide, it became important to determine whether controlled substances could be prescribed in Oregon not only to alleviate pain or aid in sleep as in other states, but also to intentionally kill.

Wesley J. Smith is a senior fellow at the Discovery Institute and a special consultant to the Center for Bioethics and Culture. He is the author most recently of Consumer's Guide to a Brave New World.

Read the entire article on the National Review website (new window will open).

Posted: 01-Mar-05



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