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Supreme Court Ruling in Favor of States’ Rights Creates a Quandary for Some Republicans

You can’t favor states’ rights only when the state’s majority opinion aligns with your own. That’s the lesson the Bush administration and many on the far right of my party are struggling with this week after the Supreme Court ruled that the Justice Department had acted improperly in an attempt to suppress the will of the voters of Oregon over the issue of assisted suicide.

Republicans should be applauding this decision as a boon for states’ rights that reinforces the limited domestic reach of the federal government. Instead, many of my friends on the right are wringing their hands because the Court’s decision — that the federal government does not have the Constitutional authority to wrest away from the state regulatory oversight of the medical profession — in this case also fails to render null Oregon’s Death with Dignity Act. In other words, the Court upheld the rights of Oregonians to determine for themselves whether or not terminally ill patients of sound mind should be able to end their own lives with the aid of a physician. So, the decision puts at odds Republicans’ desire for limited federal authority and the ethical objections many of those same Republicans have to euthanasia.

Debate over whether a suffering, terminally ill patient should have a choice regarding the manner in which he or she will die will likely be more heated in the wake of this week’s ruling. That was not, however, the concern in the case decided by the Court. At issue in this case was the power of the federal government to usurp authority when administration policy runs counter to the laws and practices of the state. The administration has been pressing its hand on this matter since 2001, and this is the dangerous slope the Court sought to level with this week’s ruling.

In 1997, Oregon became the only state in the Union to permit physician-assisted suicide when voters took to the polls and passed the Death with Dignity Act. The Act establishes standards for doctors and patients negotiating this most serious decision, ultimately giving patients with less than six months to live the right to a lethal dose of barbiturates prescribed by a physician.

The law came under fire from the religious right immediately, but it wasn’t until Attorney General John Ashcroft was appointed by President Bush in 2001 that the federal government assumed its heavy-handed approach to ending assisted suicide in Oregon. The administration, unable to mount a challenge that would have the Death with Dignity Act declared unconstitutional at either the state or federal levels, sought a backdoor through the federal Controlled Substances Act. AG Ashcroft simply announced that there was no legitimate medical purpose for prescribing a lethal dose of medication and that any physician who did so risked prosecution and the loss of his license to write prescriptions. It was the equivalent of firing a warning shot across the bow. In effect, the AG was attempting to strong-arm doctors into refusing their patients this level of care despite the state law that allowed it.

What’s surprising about this tactic is that it so completely flies in the face of core Republican principles regarding the importance of states’ rights and the reach of the federal government. Republicans who oppose legislation permitting assisted suicide should be battling over the issue at the state level, attempting to change hearts and minds, not looking for clever ways to circumvent the will of the people.

Strangely, the tables seem to be completely reversed on the abortion issue, where Republicans argue that overturning Roe v. Wade would not make abortion unconstitutional but would instead allow voters in each state to decide the matter for themselves. However, the attempt by AG Ashcroft — and the administration’s continued support for that effort — on assisted suicide, in effect, knock the wind out of our argument against Roe v. Wade. You can no longer claim that activist judges and an overreaching federal government used Roe to hijack the abortion issue if you support an activist attorney general attempting to do the same thing but to a different end on assisted suicide. Either the federal government should have oversight in both cases involving medical procedures that bring about death, or both issues should be left to the states.

Unfortunately — and I should qualify this by saying that I am, on the whole, a very vocal supporter of the Bush administration who went door to door to drum up support for the president in the run up to the 2004 election — there has been an alarming willingness in this administration to disregard the will of voters on issues that should be decided at the state level. When the Massachusetts state Supreme Court ruled that a same-sex marriage ban violated the state constitution, President Bush began frequently and publicly suggesting that he might seek an amendment to the U.S. Constitution to ban gay marriage. In part, this was campaign rhetoric, a ploy to gin up support among conservatives and the religious right. But it also was a clear demonstration that the administration was more concerned with the advancement of its own policy on issues that many would argue are outside the purview of the federal government than with preserving the limits of the federal government and maintaining the ability of the states to govern from within. These missteps are fodder for and make it difficult to rebut the Democrats’ charges that President Bush seeks to radically expand the powers of the presidency, regardless of whether or not he is acting appropriately on issues such as no-warrant wiretapping of domestic terror suspects.

The decision in the Oregon case gives new weight to the states in states’ rights arguments. That’s the good news for Republicans who truly believe in the powers and limits of the federal government as established by the Constitution. There is no reason that the president should not be a strong executive; in fact, we want him that way. But, he and his administration must acknowledge and should appreciate the boundaries of his office.

The case decided by the Supreme Court this week was not about Oregon’s Death with Dignity Act. The Court did not mean to suggest, nor did it imply, a Constitutional right to physician-assisted suicide. But through the attempt and failure of the administration to impose its will on Oregon by way of the Controlled Substances Act, proponents of right-to-die legislation in states like California and Vermont will be emboldened by what appears to them to be Supreme Court endorsement of euthanasia. And that may be a very hard lesson learned for certain members of the administration and supporters of the president’s agenda.

Shawn Bannon is a professional speechwriter and editorialist. A graduate of Carnegie Mellon University, he has written for and served as a communications consultant to a number of civic, business and community leaders. He can be reached by e-mailing Shawn.Bannon@not-quite-right.com.

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Posted by on January 20, 2006.

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Categories: Not Quite Right

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