On Oct. 5th the Supreme Court heard arguments in Gonzalez v. Oregon over whether the Oregon legislature has the right to pass a law allowing doctors to prescribe lethal doses of medication to terminally ill patients. This law conflicts with the federal Controlled Substances Act, which restricts the use of drugs only to “useful and legitimate medical purposes.” The administration is justifying the preeminence of the CSA by the Constitution’s Commerce Clause, a portion of Article I that specifically delegates to Congress the duty to regulate interstate and foreign trade.
But the real interesting issue here (at least to us non-masochists who don’t take Adenwalla Con Law classes for kicks) is whether the government should allow assisted suicide. And there are reasonable people on both sides of this issue. I think it’s a stretch to argue that somehow ending a life is a “legitimate medical use” of a drug. (Isn’t the doctor’s first rule do no harm?) And I don’t buy the argument that disallowing a physician to end a life needlessly extends suffering, because the CSA doesn’t restrict the use of painkillers, even those that make patients feel next to nothing.
Bottom line, though, this decision comes down to a moral choice: should physicians be allowed to end a patient’s life? And when the Supreme Court returns its verdict, you’re going to agree with it if that’s the sort of thing you tend to agree with.
Now this is where the detestable problem of judicial activism becomes relevant. If the Supreme Court comes back and says, “Well, people really do suffer a lot at the end of their lives, and it’s really not that bad if somebody fully consents, and a bunch of European countries allow it anyhow,” then they’re being activist. While if they say the Commerce Clause doesn’t apply to prescription drugs because, say, that’s what the framers meant, and therefore Oregon can allow assisted suicide then they’re fulfilling the role dictated by the Constitution. See the difference?
Contrary to what many liberals would have you believe, it’s not the court’s place to make normative decisions on behalf of the citizenry. That’s reserved for the Legislative branch, which is composed of members who, conveniently, can be voted out of office if they fail to reflect the will of their constituencies.
Point-counterpoint: Physician-assisted suicide
