The End Of The Beginning

Attorney Andrew Cohen analyzes legal issues for CBS News and

Three things are likely to happen in the wake of Tuesday's Supreme Court decision upholding an Oregon law that permits physician-assisted suicide. Other states are going to tinker with similar laws. Congress is going to consider legislation that would emphatically and specifically attempt to do away with all such laws.

And law professors are going to be scratching their heads for decades trying to figure out why the Court backed Oregon's law while voiding California's medical marijuana initiative just a few months ago.

That last point was raised, not unfairly, by Justice Clarence Thomas, who dissented from the 6-3 ruling in favor of Oregon along with his conservative brethren on the Court, Justice Antonin Scalia and Chief Justice John Roberts. All three men sided with the Bush Administration and former U.S. Attorney General John Ashcroft in declaring that the federal government's regulation of doctors permits it to trump a state law like Oregon's that allows those doctors to prescribe deadly medication to the terminally ill.

That view, however, is not the law of the land.

That's because the Court's moderate core -- Justices Souter, Kennedy and the soon-to-be-gone O'Connor -- all sided with Oregon, ruling that neither the Controlled Substance Act, nor Ashcroft's 2001 effort interpreting it, permitted the Attorney General to "effect a radical shift of authority from the states to the federal government to define general standards of medical practice in every locality."

Justice Kennedy, writing for the majority, declared that the Attorney General exceeded his authority when he "interpreted" the Act to mean that "using controlled substances to assist suicide is not a legitimate medical purpose and that dispensing or prescribing them for this purpose is unlawful."

What the majority saw as overreaching by the executive branch the dissenters saw as a perfectly appropriate and legitimate effort to give more meaning to the Controlled Substance Act. Justice Scalia, writing the main dissent, said that the Act permitted, even encouraged, the Attorney General to issue rules identifying the scope of congressional authority and that the federal government long has had the power, through the Commerce Clause, to regulate state activities.

The majority's ruling, Justice Scalia wryly noted, "is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position…. [But] if the term legitimate medical purpose any meaning, it surely excludes the prescription of drugs to produce death." (Emphasis added by Scalia).

What's striking about both the majority's opinion, and Scalia's main dissent, is how much this viscerally, emotional case turned upon arcane and technical rules of statutory construction. If you were looking for sweeping language about the meaning of life and death, or a doctor's role in end-of-life decisions, you will find very little of it.

Instead, you will find a fight over how much deference the Court was supposed to give, not just to Congress when it enacted the Controlled Substance Act, but also the former Attorney General when he used it as a sword to cut down Oregon's efforts. Reading the dueling opinions was like reading a textbook when you are expecting a novel.


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