From West by Northwest.org Voices of the Northwest Sadler's Sense: A Right to Die? By Russell Sadler Nov 1, 2005 Oregonians should be thankful Supreme Court Justice Sandra Day O’Connor conditioned her resignation on the confirmation of her successor. With self-styled conservatives congratulating themselves for tanking the Harriet Miers nomination, President George W. Bush will have to nominate someone else. Oregonians have a large stake in any delays confirming O’Connor’s successor. The state’s voter-approved physician-assisted suicide law (The Death with Dignity Act) may well be hanging on O’Connor’s vote. If O’Connor leaves the bench before the Oregon case is decided, it will be decided by the eight remaining justices who heard oral argument earlier this month. If the remaining justices are split 4-4, the case will have to be reargued for the benefit of the court’s newest member. Gonzales v. Oregon creates a dilemma for conservatives. Overturning Oregon’s physician-assisted suicide law requires conservative judges to behave like the liberal, activist judges conservatives love to hate. Oregon’s law, first approved as an initiative in 1994, allows doctors to prescribe a lethal dose of barbiturates to mentally competent, terminally ill patients. The Bush administration’s case against the Oregon law rests on the argument that physician-assisted suicide is not a “legitimate medical purpose” of federally controlled drugs. The problem for conservatives is that they cannot find any authority in the U.S. Constitution enabling the federal government to determine which medical purposes are “legitimate” and which are not. The Controlled Substances Act was written to stop illegal traffic in prescription drugs. The law derives its authority from the interstate commerce clause in the U.S. Constitution. Regulating commerce among the several states is one of the enumerated powers the original states gave to the federal government in 1787. Any powers not granted to Congress remain with the states, including the power to regulate the practice of medicine. For example, most states allow -- even require -- physicians to administer the lethal dose of drugs during criminal executions. Oregon -- alone so far among the states -- has extended that medical practice to providing a lethal dose of barbiturates to the mentally competent, terminally ill who request it. While Oregonians were debating adopting physician-assisted suicide in the mid-1990s, voters in the State of Washington approved an initiative banning the practice. Both sides took the Washington ban all the way to the U.S. Supreme Court, arguing that the Due Process Clause of the Fourteenth Amendment granted a constitutionally protected right to die. The U.S. Supreme Court ruled it could find no such right in the case of Washington v. Glucksberg in 1997. In a concurring opinion and in public comments on the case, Justice O’Connor held that although there was no constitutionally protected right to die in the U.S. Constitution, there was also no prohibition against a state creating such a right for its citizens. That is what Oregonians did. That is why O’Connor’s vote in Gonzales v. Oregon is so important. Her principled conservatism is not what the Christian Conservatives want to hear. The far right is more eager to hear Justice Antonin Scalia, who said during oral arguments that physician-assisted suicide falls “outside the scope” of medical practice. He called the practice ‘unthinkable.” Scalia is expressing his personal opinion. It is also the opinion of the Roman Catholic Church, of which Scalia is a member. But Scalia’s dilemma is that his opinion is not the law. The law says the scope of medical practice is a matter for the states to decide. To strike down the Oregon initiative, Scalia and his allies must discover some enumerated power in the U.S. Constitution giving the federal government authority. It’s going to be a hard search, because no such words are there to be found. Perhaps Scalia will divine some authority emanating from the penumbra of a constitutional provision like the interstate commerce clause! Penumbras are where the late Justice William O. Douglas found a constitutional right of privacy the Court used to strike down a Connecticut law prohibiting the use or sale of contraceptives in the 1965 case of Griswold v. Connecticut. “Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them their light and substance,” wrote Douglas. But then Douglas never denied he was a liberal, activist judge determined to keep the pretentiously pious off your back and out of your bedroom. For Scalia to impose his opinion about the limited scope of medical practice on Oregonians, he must legislate from the bench, creatively finding some undiscovered federal authority to override the state regulation of medicine. It may be expedient for Scalia’s cause, but it is not conservative strict construction or judicial self-restraint. It is the kind of judicial activism that principled conservatives ostensibly oppose. It is apparent that Justice O’Connor is the swing vote between these two factions on the court. It is in Oregon’s interest that she stay until the Gonzales case is decided. Copyright © 2005 by Russell Sadler Russell Sadler is a journalist and a lecturer at Southern Oregon University. You may write him c/o publisher at westbynorthwest.org. Visit Sadler's Sense column's at West By Northwest.org: Sadler's Sense: Who Are These Candidates Representing? 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