Hypocrisy on Parade

Last week, headlines proclaimed that the Ninth Circuit Court of Appeals had ?upheld? Oregon?s physician-assisted suicide law. What actually happened, while not quite that dramatic, gives us, however, an object lesson in hypocrisy.

The issue in Oregon v. Ashcroft was the U.S. Attorney General?s interpretation of the Controlled Substances Act, or CSA. Ashcroft contended that the Oregon law violated the CSA, which requires that controlled substances be used only for ?legitimate medical purposes.?

Thus, in 2001 Ashcroft said that physicians who prescribe lethal drugs under the Oregon law faced sanctions or prosecutions under the CSA.

Last Wednesday, the Ninth Circuit, by a 2-1 vote, ruled that Ashcroft lacked the legal authority to do that, arguing that the purpose of the CSA was to prevent ?drug abuse,? by which it meant addiction.

In his dissenting opinion, Judge Clifford Wallace wrote that the CSA bans all ?improper use of controlled substances,? and that ?the Attorney General has discretion to decide whether registering a physician to dispense drugs ?is consistent with public health and safety.??

?Nothing in the . . . Act,? Wallace wrote, ?precludes its application to physician-assisted suicide.?

Still, the majority had one more weapon in its arsenal: brazen hypocrisy. Not content with telling the Attorney General that he had misinterpreted the CSA, the majority took him to task for, of all things, trampling over federalism and the democratic process.

Judge Richard Tallman criticized ?the attorney general?s unilateral attempt to regulate general medical practices historically entrusted to state lawmakers . . . ? Ashcroft?s effort, Tallman added, ?interferes with the democratic debate about physician-assisted suicide and far exceeds the scope of his authority under federal law.?

Coming from the most notoriously activist and liberal federal court in the country, Tallman?s solicitude for federalism and ?the democratic debate about physician-assisted suicide? is a bit hard to take. After all, it was the same Ninth Circuit that in Compassion in Dying v. Washington created a constitutional right to physician-assisted suicide. If the Supreme Court had not reversed the ruling, physician-assisted suicide would have been the law regardless of ?democratic debate.?