Back to the 10th Amendment!

James J. Kilpatrick
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Posted: Jan 25, 2006 8:14 PM

The Supreme Court's 6-3 decision last week in the case of Oregon's Death with Dignity act was a double disappointment. Justice Anthony Kennedy's opinion for the majority was unpersuasive. Justice Antonin Scalia's opinion for the dissenters was unconvincing. And no one even mentioned the 10th Amendment! It makes you wonder what the world is coming to.

In 1994 Oregon voters approved their unique and euphemistic law. The legislation might have been identified more candidly as Oregon's Right to Assisted Suicide Act. It is based upon this unstated but plausible premise: An individual's right to live his own life embraces a right voluntarily to end it. The same proposition was advanced most eloquently by Prince Hamlet a long time ago.

In his famed soliloquy the melancholy Dane thought of using an old-fashioned dagger to end his miseries. The Oregon law is more humane and less messy. It begins by authorizing Oregon physicians to certify that a given patient, a state resident, is suffering from "an incurable and irreversible disease" that is likely to result in death within six months.

Justice Kennedy explained: "Attending physicians must also determine whether a patient has made a voluntary request, ensure a patient's choice is informed, and refer patients to counseling if they might be suffering from a psychological disorder or depression causing impaired judgment." A second physician must examine the patient and concur. (If Oregon physicians are as busy as physicians in Washington, D.C., the six-month requirement will often defeat the law's purpose. Before they can get an appointment, ailing Hamlets will long since have shuffled off this mortal coil.)

Once the law's safeguards have been met, attending doctors may prescribe, but not themselves administer, a fatal drug. Under federal law, such drugs are "controlled substances." They may be prescribed only for "a legitimate medical purpose." Since the act became effective 11 years ago, Oregon doctors have written several hundred prescriptions for suicidal patients. No one seems to know how many prescriptions actually have been filled and put to deadly use.

In 2002, Attorney General John Ashcroft threatened to revoke the drug-prescribing privileges of any doctor who assists a suicide. A group of doctors, pharmacists and terminally ill patients sought an injunction to nullify his asserted authority. In May 2004, a panel of the 9th Circuit ruled 2-1 that his directive was unauthorized and unenforceable. He had encroached upon Oregon's power to regulate medical care within its borders. He had claimed "extraordinary authority" to criminalize conduct he deemed illegitimate.

The government's appeal led to last week's affirming opinion in the Supreme Court. Justice Kennedy noted the attorney general's "lack of expertise" in the area of medical practice. Apparently Ashcroft had never consulted anyone outside his department who might aid in a reasoned judgment. The act governing "controlled substances," said Kennedy, manifests no intention to regulate the practice of medicine generally. The attorney general seeks power "to effect a radical shift of authority from the states to the federal government to define general standards of medical practice in every locality." Kennedy could find no evidence of any such congressional intention.

Justice Scalia, joined by the chief justice and Justice Clarence Thomas, sputtered lustily in dissent. Congress surely has power to regulate interstate commerce in deadly drugs. Thus, "using the federal commerce power to prevent assisted suicide is unquestionably permissible." Kennedy had claimed a decisive role for the secretary of health. Scalia saw no such role. To accord the secretary exclusive authority over medical determinations "is not remotely plausible." The secretary's supposedly superior medical judgment, said Scalia, is "strikingly irrelevant." The majority's reasoning is "sophistic." And so on. Scalia's dissent was not great Scalia, but it was very good Scalia.

Regrettably, neither side even mentioned the Constitution's 10th Amendment. Nobody mentions the 10th Amendment any more. It says that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states , are reserved to the states respectively , or to the people." Surely a power to define assisted suicide and a power to regulate the practice of medicine are powers reserved to the states.

Mr. Justice Kilpatrick, meaning me, joins in affirming the 9th Circuit's opinion, but on different reasoning. He holds that Oregon has reserved the power to experiment with lawfully assisted suicide. If the law works, other states may use it as a model. If it doesn't work, so be it. We can summon Hamlet's ghost and get a second opinion.

(Letters to Mr. Kilpatrick should be sent in care of this newspaper, or by e-mail to kilpatjj@aol.com.)