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Role Reversal: The Supreme Court on Physician Aid-in-Dying

In <i>Oregon</i>, the liberal justices give a lesson in judicial conservatism.

| Tue Jan. 24, 2006 3:00 AM EST

Article created by the Center for American Progress.

The U.S. Supreme Court this week proved itself a surprising, and strong, ally in the ongoing fight against the Bush administration's desire to play doctor.  As we honor Roe v. Wade's legacy of the right to conscience, bodily autonomy, and government non-interference with private decisions, it is appropriate that we celebrate this latest victory for personal freedom in the case of Gonzales v. Oregon.

Eleven years ago, Oregon citizens voted to make physician aid-in-dying an option for the terminally ill - with clear guidelines, strict safeguards, and state oversight. 

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In 2001, Attorney General John Ashcroft, by regulatory "directive" (read: fiat), declared that doctors who complied with the new law violated federal law.  This week, the Supreme Court, with a stunning 6-3 majority, struck down the Justice Department's extraordinary abuse of power, thwarting the federal government's improper attempt to use national drug trafficking and control laws to usurp state regulation of medical practice.

In the process, the Court's conventional liberals offered instruction to the conventional conservatives on what judicial conservatism actually means:  careful and restrained statutory construction, deference to the traditional role of the states, and firm checks on executive power.    

The Bush administration's assault on the traditional doctor-patient relationship and the historic prerogative of states to regulate medical practice has been disturbing, and damaging.  Unfortunately, the 2001 "Ashcroft Directive" authorizing the Drug Enforcement Agency to investigate and punish doctors who prescribe medication consistent with the Oregon aid-in-dying law was but an early example. 

In another matter, enforcement of the so-called "partial-birth abortion" ban, the Justice Department went as far as subpoenaing patients' medical records from clinics and hospitals as part of a fishing expedition into whether medical procedures women had undergone arguably violated the federal ban on abortion.  The predictable protests ensued, and the Department reversed course.  But its ultimate decision to act with restraint is the exception, rather than the rule, and seems to come only after receiving outside pressure.  Witness, for example, the government's raids on cannabis clubs that provide patients with medicinal marijuana.  After all, why rely on doctors' judgment when lawyers and police are available to assume the role of medical decision makers when dealing with terminally ill patients seeking a measure of dignity in their final chapter?  Instead, the Department pursued its desire to exercise police power against these vulnerable Americans all the way to the Supreme Court.

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