Bogus federalism

• Article
• Comments ()
• Click-2-Listen
• Videos

By

President Bush honors federalism more in the breach than in the observance, contrary to his vocal celebration of states' rights as a candidate in the 2000 campaign.

Principles of local choice and experimentation have regularly succumbed to national political expediency, proving that the more things change in the White House, the more they stay the same. Emblematic has been Attorney General John Ashcroft's crusade to void Oregon's Death With Dignity Act (DWDA) under a federal Controlled Substances Act (CSA) banner, a coup de main which was defeated last week by the United States Court of Appeals for the U.S. 9th Circuit Court of Appeals in State of Oregon vs. Ashcroft (May 26, 2004).

The Supreme Court denied a constitutional right to physician-assisted suicide in Washington vs. Glucksburg (1997). In a concurring opinion, Justice Sandra Day O'Connor saluted the entrustment of that wrenching issue to the states because both moral and practical knowledge is slender: "States are presently undertaking extensive and serious evaluation of physician-assisted suicide. ... In such circumstances, the ... challenging task of crafting appropriate procedures for safeguarding ... liberty interests is entrusted to the 'laboratory' of states ... in the first instance."

In 1994, the State of Oregon enacted by ballot measure the nation's trailblazing law authorizing physician assisted suicide. The DWDA permits the prescription of lethal doses of controlled substances to terminally ill Oregon residents safeguarded by procedures to protect the vulnerable from coercion or undue influence. For instance, patients must sign a written request for the prescription in the presence of two witnesses attesting to their competence and the lack of duress. In 1997, Oregon voters reaffirmed the DWDA after meticulous debate and scrutiny by opposing a referendum seeking its repeal.

Oregon's pioneering endorsement of physician-assisted suicide has proven unalarming. The annual number of lethal prescriptions has averaged approximately 30, accounting for one-seventh of 1 percent of Oregon deaths.

Moreover, convincing studies have discredited the fretting that the poor, ill-educated, or uninsured would disproportionately resort to assisted suicide.

At present, no sister state jurisdiction has emulated Oregon's example. Some desire more empirical data. Others have been unpersuaded by the moral case for individual choice when inescapable death and parting memories impending. States, however, remain free to alter their physician-assisted suicide policies as citizen education, colloquy, and advocacy dictate. Oregon itself might somersault if the DWDA comes to suggest previously undiscerned or unappreciated moral shortcomings.

Several members of Congress sporting pro-life credentials, including then-Sen. John Ashcroft, Missouri Republican, whined about the DWDA to Attorney General Janet Reno.

According to the congressional detractors, physician-assisted suicide violated the CSA. In an atypical display of warmth for federalism, Miss Reno retorted that the CSA was not "intended to displace states as the primary regulators of the medical profession, or to override a state's determination as to what constitutes legitimate medical practice."[T]he CSA does not authorize [the Drug Enforcement Administration ("DEA") to prosecute, or to revoke DEA registration of a physician who has assisted in a suicide in compliance with Oregon law."

Then came the tumultuous 2000 elections. President Bush appointed Mr. Ashcroft to succeed Miss Reno. As a former state attorney general, governor, and U.S. senator, Mr. Ashcroft generally brimmed with praises for states' rights.

He pleaded with the Supreme Court to overrule or shrivel its controversial Roe vs. Wade (1973) abortion decree. But the new attorney general balked at his customary bow to federalism to continue crusading against physician-assisted suicide. On Nov. 9, 2001, he pontificated that the practice serves no "legitimate medical purpose" under federal regulations; and, that prescriptions written under the DWDA "may render [a practitioner's] registration ... subject to possible suspension or revocation."

Mr. Ashcroft's directive was held unlawful and unenforceable by a 2-1 panel of the U.S. 9th Circuit in State of Oregon. The directive epitomized executive branch activism at its worst.

But the foiled directive was only the last in a motorcade of Bush administration decisions to abandon federalism in favor of electrifying the president's electoral base.

President Bush, for example, has championed constitutional amendments to ban same-sex marriages and to override states' victims' rights laws with a federal mandate. He eagerly signed a partial-birth abortion statute despite its threadbare constitutional moorings. He has sermonized in favor of a national damages ceiling in medical malpractice litigation initiated under state law.

On the other hand, the president has appointed a pantheon of talented judges sympathetic to states' rights, and litigated in favor of state immunities from federal statutes. In addition, federalism should be subordinate to compelling national policies, such as nuclear waste disposal, national economic markets, and environmental regulation with inevitable cross-border ramifications.

But federalism's tailoring of policies to local concerns and habits, training ground for statesmen and cultivation of citizen education in the arts of self-government are too important to be treated like a restricted railroad ticket, good for this day and train only.

Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and The Lichfield Group.