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Debate Club
DEBATE CLUB 8/22/05

Is Assisted Suicide Legal?

Jonathan Adler and Wesley J. Smith debate.

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Voters in Oregon passed the "Death with Dignity Act" in 1997, allowing terminally ill patients told they have six months to live the right to commit suicide with the aid of a doctor. By doing so, the state stepped into one of the most controversial debates in America, as seen by the uproar over the case of Terri Schiavo.

In October, the Supreme Court will hear a challenge to Oregon's law, which is still the only one of its type in the country. Can the state allow its citizens to kill themselves under the Constitution?


Jonathan Adler associate professor of law at the Case Western Reserve University, is visiting professor at George Mason University this fall. Wesley J. Smith is an attorney and the author of Culture of Death: The Assault on Medical Ethics in America.

Adler: 8/22/05, 09:23 AM
The people of Oregon clearly believe in doctor-assisted suicide. Oregon voters expressed their preference not once, but twice—adopting a 1994 referendum and defeating a 1997 initiative to repeal the "Death with Dignity" Act. We both may have opposed this law as unwise or immoral, but that's not the issue. Rather, the question is whether the federal government has any business intervening here. In my view, the wisdom of doctor-assisted suicide is one of many questions best left to the states.

Our constitutional structure divides power among the federal and state governments. By and large, the federal government is given the authority to address genuinely "national" concerns, while other matters are left to the states. Even where the federal government has the power to act, courts generally apply a presumption against federal interference in state or local questions. As traditionally understood, the regulation of medical practice is among those matters traditionally left in state hands.

Federal regulation of local activities is often justified due to the presence of "externalities." Yet the sort of interstate effects that often justify federal intervention, such as pollution spillovers, are absent here. How will Oregon's decision to legalize doctor-assisted suicide spill over into other states? Do you believe Oregon's law will prevent neighboring states from enforcing their own laws against doctor-assisted suicide?

I suppose one argument for federal preemption of Oregon's law is that life is at stake. But I don't think this argument goes very far. Individual states—or, rather, their citizens—decide policy questions with life-or-death implications all the time. We leave it to individual states whether to impose the death penalty and when to allow the use of lethal force in self-defense. Similarly, the laws governing end-of-life medical treatment, and the validity of advanced directives, living wills, and the like, are made at the state level. What is the reason this should be any different?

The strongest legal argument for federal intervention is the Controlled Substances Act, the primary federal law governing the distribution of drugs. The CSA was passed to control the illegal sale and distribution of drugs, not to micromanage the practice of medicine. Federal enforcement traditionally focuses on interstate commerce in drugs, not whether a given doctor, acting in conformity with state law, is practicing medicine in a manner the federal government deems "appropriate." I doubt you would maintain that extensive federal regulation of firearms can make any gun crime a federal case, so why should the existence of the CSA make doctor-assisted suicide a federal concern? Is there any precedent for boot-strapping the CSA in this fashion?

I recognize the importance you place on combating doctor-assisted suicide and other policies that contribute to what you consider the "culture of death." Yet I am concerned at your apparent willingness to jettison traditional understandings of federalism in pursuit of this end. Am I misreading your position? Is doctor-assisted suicide just too important a question to leave to the states? Or is there a principled basis for federal intervention here. I look forward to your response to these and related questions.

Smith: 8/22/05, 01:04 PM
Jonathan, you're mixing apples and oranges. The federal government has not attempted to invalidate Oregon's law that permits physicians to issue a lethal prescription to a dying patient who requests it. What Attorney General John Ashcroft did do was interpret the federal Controlled Substances Act (CSA) as barring narcotics, which are regulated by the federal government, from being prescribed by physicians to intentionally cause the deaths of patients. The federal claim is that prescribing controlled substances to cause death is not a "legitimate medical use" of controlled substance under the CSA, which is a federal law.

The CSA generally prohibits the possession and use of narcotics throughout the country. The law does provide an exception to this general rule. Certain narcotics, known as opioids, have legitimate medical uses. For example, morphine is very effective in controlling serious pain. The federal government thus permits morphine, which it otherwise bans, to be prescribed as a palliative. But under the Ashcroft interpretation, morphine could not be used to intentionally cause death, in Oregon or any other state, because this would not qualify as a legitimate medical use of morphine under federal law.

Thus, the federal government has not attempted to invalidate the Oregon law. Indeed, if the federal government prevails in Gonzales v. Oregon, which I think it will, assisted suicide will remain perfectly legal in Oregon. In such a circumstance, doctors who prescribed federally controlled substances for use in assisted suicide would remain safe from state prosecution, while possibly being liable to federal sanction. However, doctors that prescribed drugs or substances not regulated by the CSA for use in assisted suicide would not be subject to federal sanction. For example, if a doctor prescribed an overdose of insulin for use in assisted suicide, the federal government would have no basis for prosecution since insulin is not regulated under the CSA.

Federalism is a two way street. The federal government generally has no right to force the states to adopt public policies, nor may it overturn state laws with which it disagrees. But neither can the states nullify a federal law or regulation. In this case, the State of Oregon, abetted so far by federal courts, has stated that it has the right to determine federal drug policy with regard to the use of narcotics governed by the CSA as it relates to using those drugs to intentionally cause death. This argument would permit the states to dictate federal drug policy and thus would impinge on the national jurisdiction.

There is indeed a clear legal precedent for the federal approach in the outcome of litigation over medical marijuana. California passed Proposition 215, which created a medical use defense for the state crime of possessing marijuana. Now, under California law, if a doctor writes a letter recommending the use of marijuana as a palliative, the state generally cannot prosecute the patient for possessing marijuana.

The federal government took the position that the state law did not prevent federal law enforcement officials from prosecuting marijuana cases in California—even if the drug was possessed for medical use—because under the CSA, there are no legitimate medical uses for marijuana. This position prevailed. According to a unanimous decision of the United States Supreme Court in United States v. Oakland Cannabis Buyers' Cooperative, California was free to legalize medical marijuana, but the state's decision did not prevent the federal government from enforcing federal law in the state. In other words, the state law is no defense to a federal prosecution, while the federal law does not prevent the states from pursuing a different policy. That is classic federalism and it should apply to assisted suicide in Oregon.

There are some technical differences between medical marijuana and the use of controlled substances to kill. Marijuana is explicitly precluded in the CSA from having any legitimate medical use, while the CSA is silent about assisted suicide. This shouldn't matter since courts are supposed to give great deference to federal administrative interpretations. Besides, Jonathan, you aren't arguing over technicalities, but rather, over the principle of federalism.

To summarize: The federal government isn't violating federalism in the assisted suicide litigation now before the Supreme Court. The State of Oregon is. States should not be allowed to nullify federal laws or regulations, nor dictate drug policy to the federal government.

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Adler: 8/23/05, 09:15 AM
Wesley, I don't think there is any doubt that the point of the Bush Administration policy was to limit doctor-assisted suicide in Oregon. If upheld, the Ashcroft interpretation will certainly have that effect. You yourself hailed directive as a "body blow" against assisted suicide when it was issued. So while doctor-assisted will remain legal in Oregon, it would be quite constrained.

While a win for federal government would constrain state prerogatives, I still fail to see how preserving Oregon's policy choice threatens federal law. Oregon is not seeking to dictate federal drug policy. The "Death with Dignity" Act doesn't affect medical practice or the use or distribution of drugs in other states, nor will it limit neighboring jurisdictions' ability to prohibit assisted suicide. Rather, Oregon is seeking to define the contours of "legitimate medical use" for those licensed within the state. This no more dictates federal policy than the current practice of revoking a doctor's federal registration to prescribe medications due for violations of state law. In each case, violation of federal law is contingent of violating the state law in which the action takes place.

I am willing to accept that, under current precedent, the federal government has the power to bar the use of regulated substances to cause death, but the CSA does not do this on its own terms. As you acknowledge, "the CSA is silent about assisted suicide." What you don't mention is that Congress considered, but failed to adopt, the Bush Administration's policy. If anything, this would suggest Congress did not intend for the CSA to be used to preempt the traditional state regulation of medical practice.

You are correct, Wesley, that courts are supposed to defer to federal agencies' interpretations of federal statutes in most situations. Yet courts are also to be more wary where there are serious federalism concerns, such as where a given interpretation may cause the federal government to intrude on matters traditionally left in state hands, such as the practice of medicine. The Supreme Court rejected an expansive interpretation of the federal government's regulatory authority over isolated wetlands on these grounds in 2001. I would hope they do so again here.

I should also note that I don't agree with your interpretation of the Oakland Cannabis Buyers' Cooperative decision. The court only considered whether there was a "medical necessity" defense to the federal prohibition on marijuana possession. The federalism aspects of the case were explicitly set aside. Moreover, the issues are not the same. There is no legitimate medical use of marijuana under the CSA, and therefore it can never be prescribed. Here, however, the whole question is whether the federal government should preempt state determinations of what constituted the legitimate practice of medicine.

More broadly, you haven't answered the fundamental question: Even if the federal government has the power to do effectively constrain Oregon's policy choice, why should it? Why should the federal government define what constitutes a legitimate medical use of a legal drug without any consideration of state standards and preferences? Is it simply because life is at stake and there is a far-reaching federal law at the ready? Or is there some other principle that can be used to determine when federal regulation is, or is not, appropriate?

Smith: 8/23/05, 12:59 PM
As to your first point, so what? The federal government has no duty to distort its view of proper public policy to suit state desires. It is true that if the federal government wins Gonzales v. Oregon, it would be a body blow to assisted suicide—albeit not a fatal one, if you will pardon the pun—because it would put the federal government firmly on record as disfavoring assisted suicide. And it would chill other states from passing assisted suicide legalization bills. I find that all to the good. The federal government has no duty to be neutral in this matter.

The legislation that failed to pass Congress was called the Pain Relief Promotion Act. It would have created an explicit federal policy stating that the application by doctors of aggressive pain control which inadvertently caused a patient's death as an unintended side effect would not be actionable under federal law. The idea was to overcome the supposed chilling effect some doctors have reported feeling about applying aggressive pain control due to Drug Enforcement Administration (DEA) heavy-handedness. (I don't know if, in fact, the DEA is heavy-handed. I am just reporting what some doctors have stated.) At the same time, the legislation would have explicitly provided that prescribing opioids for assisted suicide was not a proper use of controlled substances. Congress' failure to pass legislation is not a statement of policy, as you well know, thus it is bogus to argue that any policy was created one way or the other by PRPA's not becoming law, particularly since no vote was ever taken in the United States Senate. (As I recall, it passed the House, but I could be mistaken.) Indeed, the primary reason the Pain Relief Control Act was not passed, was a filibuster led by Oregon Senator Ron Wyden.

Do you acknowledge that it would be constitutional for the Congress to pass the PRPA, even though its terms would have contradicted the Oregon law? And if that is so, what is wrong in principle with the Ashcroft interpretation, since it sought to accomplish the same thing. Are you thus stating that Congress can create an enforceable federal policy regarding assisted suicide via legislation but an administrative decision cannot? If that is all you are hanging your argument on, then you are obsessing about technicalities more than federalism.

Again, the federal government is not trying to regulate state medical practice in Oregon. It is merely regulating federal law and the proper use of controlled substances from the federal perspective. Moreover, there are plenty of medical substances that can kill besides opioids, so the argument can't really be made that the "medical treatment" of killing would be prevented by the Ashcroft interpretation.

The policy is also consistent with regulations promulgated during the Clinton Administration that forbids federal money to be used in assisted suicide paid for by Medicaid. Do you think this rule also violates federalism?

As to your last question: The real question is: Why shouldn't it? Unfortunately, in modern culture, the law not only reflects our values but also often is the gauge by which people judge right from wrong. It is thus quite appropriate for the federal government to create public policies that are designed to protect the lives of all citizens, and which as a consequence, sends a strong message to the nation that all lives are equally valued and protected. Indeed, that is the first role of government.

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Adler: 8/24/05, 09:17 AM
I think we've hit upon the central basis of our disagreement, Wesley. Whereas you seem to believe it is appropriate for the federal government to use every means at its disposal to advance "its view of proper public policy" irrespective of state preferences, I believe that federal action should be disfavored absent a uniquely federal interest in the question. This is true even where life is at stake. I agree with you that the positive law influences public perceptions of right and wrong, but that doesn't mean every issue of profound moral importance should become a federal case.

Most cases of murder and theft are beyond the reach of the federal government—and this is a good thing. The reason is not because life isn't precious—or that murder is not a grievous crime—but because it is not the job of the federal government to solve problems easily handled by state and local governments, even where state governments adopt policies the federal government doesn't like. Moreover, I would maintain, it is inappropriate and inconsistent with the federalist principles that underlie our constitutional structure for the national government to seek to bootstrap its constitutional authority so as to intrude upon the "police power" traditionally exercised by the states—a power that has traditionally encompassed regulation of the medical profession and most criminal law.

As a constitutional matter, I think we agree that existing court precedent provides ample authority for the federal government to regulate the use of controlled substances, and to bar their use to hasten death. But this doesn't resolve the issue. That Congress has the authority to prohibit certain conduct does not mean that a federal agency can do so on its own. To the contrary, the Supreme Court has held repeatedly that traditional rules of deference and statutory interpretation do not apply where they raise serious federalism concerns. This so-called "clear statement rule" is not a mere "technicality." Rather it is a safeguard against federal encroachment upon traditional state responsibilities without congressional authorization. It embodies the principle that such federal intrusion is disfavored, and thus will only be allowed where the people's representatives have approved.

Even if the Justice Department can overcome this legal hurdle—and I suspect (though regret) that it might—there are still substantial policy reasons to disapprove on federalist grounds. That the federal government can leverage its constitutional authority to reach various conduct, does not mean it should, even for a good cause. It is one thing for the federal government to set conditions on the state use of federal money, as occurs under Medicaid. It is quite another for the federal government to effectively preempt conduct traditionally regulated by the states.

Let me illustrate with an example I suggested in my first post. The federal government heavily regulates the manufacture, sale, and distribution of firearms, much like drugs. Under current precedent, Congress might well have the authority to criminalize every homicide committed with a firearm that is regulated under federal law. Would this be okay? I think most would agree such a law is inconsistent with principles of federalism. Do you disagree? If so, we clearly have different views of federalism. If not, how do you distinguish this from the policy at hand?

Smith: 8/24/05, 12:48 PM
You must be a fan of Senator Stephen A. Douglas. Your position that "federal action should be disfavored absent a uniquely federal interest in the question," is perilously close to Douglas's "Popular Sovereignty" policy that required the federal government to remain neutral on the crucial moral issue of slavery, and that the territories and states were to be the final deciders of public policy towards African-Americans within their borders.

In the first Lincoln/Douglas Debate, Senator Douglas stated:

"The question then arises, what rights and privileges are consistent with the public good? This is a question which each State and each Territory must decide for itself...Now, I hold that Illinois had a right to abolish and prohibit slavery as she did, and I hold that Kentucky has the same right to continue and protect slavery that Illinois had to abolish it. I hold that New York had as much right to abolish slavery as Virginia has to continue it, and that each and every State of this Union is a sovereign power, with the right to do as it pleases upon the question of slavery, and upon all its domestic institutions...

Now, my friends, if we will only act conscientiously and rigidly upon this great principle of popular sovereignty, which guarantees to each State and Territory the right to do as it pleases on all things, local and domestic, instead of Congress interfering, we will continue at peace one with another."

Lincoln knew better. He understood that slavery was so odious that it was a moral imperative for the federal government to pursue a federal policy toward ending slavery—even though the Constitution explicitly left the matter to state determination. His policy was not outright abolition, which would have required superseding state law via federal mandate, which he knew would have been declared unconstitutional. Rather, Lincoln proposed an indirect federal policy to destroy slavery throughout the country, e.g., to prevent the spread of slavery into the federal territories so that all new states would be free. He supported this not just to prevent slavery's expansion, but toward the explicit end of destroying slavery in the states where it already existed. Lincoln believed that if slavery did not continually expand it would soon implode and his policy was aimed at causing the implosion. In other words, he proposed using federal policy over a clearly federal issue—slavery in the territories—as a lethal tool intended to snuff out slavery in the states—all without the federal government ever imposing its jurisdiction over an issue explicitly permitted by the Constitution to be regulated by state law.

I hope I would have been an abolitionist in those years, but Lincoln's policy was the correct one from a legal standpoint. And while assisted suicide is certainly not—yet—an equivalent evil to slavery, the principle involved is the same. The federal government has every right to pursue federal policies that both ensure that its public policy will be moral and right and to have a secondary effect of indirectly affecting state law.

So, it seems to me that we have reached a consensus: First, Ashcroft's interpretation was not an unprincipled attack on federalism as you seemed to claim. Indeed, you admit that the federal government has the power to determine the proper medical uses of controlled substances. Your only quibble seems to be technical—that the right approach wasn't taken. That may or may not be true, but it seems clear that federalism itself is not endangered in this circumstance.

Second, we agree that the government need not involve itself in every moral issue involving state law. But it certainly has the right and power to pursue its own public policies regarding important moral issues—even if explicitly intended to affect state laws that pursue different policies.

Thus, our differences are not over principle but what we consider to be the proper federal policy regarding the issue of assisted suicide. You apparently don't see assisted suicide as a matter of sufficient moral import to justify federal policies that could dissuade doctors from participating in legal assisted suicide in Oregon. In this matter, you prefer the Popular Sovereignty approach.

I disagree. I believe assisted suicide/euthanasia to be of extraordinary moral import, fully justifying the federal government to act within its own sphere, both to assure proper national policy and, as with Lincoln, to indirectly affect state policy.

One look at the fall off of the moral cliff that has occurred in the Netherlands after the legalization of euthanasia—now including eugenic infanticide—demonstrates why the federal government should not remain neutral in this matter. But, we need not explore that now.

In summary, while the government has no legal obligation to pursue the Ashcroft approach in this matter, it is certainly appropriate legally for it to do so—and more than morally justified.

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Adler: 8/25/05, 09:20 AM
We continue to disagree more than you suggest, Wesley. In this post I'll try and reclarify what I see as the lines of our disagreement and answer your questions. I hope you will then get around to answering mine.

I do believe the federal government's new policy is an attack on the principle of federalism as it inserts the federal government into an area where the federal government does not have a distinct interest. I know you think that the existence of a federal law, by itself, creates such an interest, but such an argument is tautological. If enactment of a federal law creates a federal interest, than there is a federal interest in any issue that catches Congress' fancy. If that's not a recipe for an unprincipled approach to federalism, I do not know what is.

Yes, we agree that Congress has the constitutional power to bootstrap the regulation of doctors. But just because the federal government has the power to do something does not mean it is proper or principled for it to do so. This is the point of my firearm hypothetical which you have yet to address. So what do you think, Wesley, would it be okay for Congress to nationalize homicide law through the regulation of firearms?

I also do not think that requiring Congressional assent with certain policies is no more a "technical" quibble than requiring a majority vote to enact a law. It's the difference between legislation and administrative fiat. We typically don't allow federal agencies to increase taxes or preempt state law without express legislative warrant, nor are agencies generally allowed to intrude upon state police powers without an explicit okay from Congress.

Stephen Douglas? I don't think so. My articulation of the division of federal and state responsibility—that policy questions lacking a uniquely federal interest should be left to the states—is the very basis of the enumerated powers framework established in Article I, section 8 of the Constitution. The federal government is given a very limited set of powers to enable it to handle those matters that distinctly merit federal action, while everything else is left to the states. Again, this division of power represents a principle that the Ashcroft interpretation of the CSA contravenes.

I must say I don't see how your position equates with that of Lincoln. Sure he supported limiting slavery in the federal territories—lands under exclusive federal control under the Constitution's property clause—but he did not call for direct or indirect federal interference with state laws prior to Southern secession. Perhaps he should have, as slavery was a reprehensible institution, but that was not his position. Indeed, the Emancipation Proclamation only freed slaves in states that rebelled. If this was the "correct policy from a legal standpoint" it doesn't seem to support your position.
It's also worth putting in a broader context. When it came time to abolish slavery, it took a constitutional amendment. Taken together, the Reconstruction Amendments—the 13th, 14th, and 15th—radically altered the federal-state balance. This change was necessary, as it created a distinct federal interest in protecting fundamental liberties against state encroachment, but it was also a departure from the Constitution's underlying federalist structure. In any event, I don't see how this change would support federal action to curtail state efforts to allow doctor-assisted suicide. Even with these amendments, the feds aren't moral babysitters. Unless fundamental constitutional rights or other federal interests are involved, I maintain there's no principled basis for federal involvement.

Smith: 8/25/05, 01:40 PM
Well, now we are beginning to talk in circles. Of course the existence of federal law creates a federal interest! This does not mean the government can make any law it wants. It is limited by the Constitution.

But we have already agreed that the CSA itself is not an unconstitutional overreaching by the federal government. Thus, the federal government has a distinct interest in regulating the Controlled Substances Act—a constitutional law—uniformly throughout the nation, that is, to have one drug policy to govern its public policy regarding the medical use of narcotics in all fifty states. That is precisely what is happening with marijuana despite state laws permitting the use of cannabis for medicinal use. And it has a similar right to assert a federal public policy over the lethal use of narcotics regulated by the CSA. Moreover, this public policy is consistent with its interest in protecting the lives of all of its citizens—to the extent possible in our federal system.

That the Ashcroft approach might chill Oregon physicians in carrying out assisted suicides does not matter, and from my perspective is all to the good. It would not prevent them from doing so, particularly since there are non-controlled substances that could be used instead. It would not invalidate Oregon's law. Indeed, as with Lincoln's approach to ending slavery, Ashcroft's policy does not interfere with state's rights, while at the same time, promoting federal views of right and wrong about assisted suicide/euthanasia, and encouraging the states not to legalize assisted suicide. There is nothing unconstitutional about this approach.

You support popular sovereignty over the issue of assisted suicide (and apparently most other issues) and believe the federal government should be indifferent in most matters to whatever determination states may make. (I assume you admit the government could prevent assisted suicide in the military or V.A. Hospitals.) Under your view, this would mean that if states permit doctors to lethally inject patients who ask for it, permit family members to have their incapacitated loved ones euthanized, and prescribe lethal overdoses for use in suicide by people who aren't even sick—the federal government should meekly permit federally controlled substances to be used for those killing purposes since it should remain neutral about such state public policies.

I disagree. And that is the point. Our differences are about mere politics, not bedrock constitutional principle.

As to your hypothetical in which gun regulation federalizes homicide laws; it is inapt. I don't know whether the federal government could create a national law proscribing assisted suicide altogether. But this is not what the Ashcroft directive does. It did not create a new federal crime against homicide. It did not create new federal powers over the practice of medicine within state borders. It did not expand the federal reach in any way. It merely defended existing federal jurisdiction over an area of distinct federal interest against state encroachment and nullification.

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Adler: 8/26/05, 08:08 AM
As this is my last post in our exchange, Wesley, I thought it would be worthwhile to sum up some of our central disagreements. It seems clear at this point that we have very different conceptions of federalism. You argue that federalism principles are only relevant as a matter of constitutional law. So, if a given action is constitutionally permissible, or will be upheld by the courts, then it presents no federalism concerns, and the only question is whether it represents sound policy. I think this is an unduly narrow conception of federalism, and one that sanctions substantial federal interference in matters traditionally left in state and local hands.

As I noted from the outset, the traditional justifications for federal intervention, such as interstate spillovers or alleged deprivations of constitutionally protected rights, are completely absent here. We can agree that doctor-assisted suicide represents unsound policy, but that does not mean that it is the proper concern of the federal government, as opposed to state and local governments. Moreover, it does not mean that a federal agency, acting alone, should reinterpret a federal law enacted pursuant to the commerce power designed to prevent illegal drug trafficking to redefine what constitutes permissible medical practice. This sort of bootstrapping may escape constitutional scrutiny in the courts, but it represents a misuse of federal power. The federal interest here is in regulating the commerce of controlled substances, not using a federal regulatory scheme as a lever to reach conduct traditionally regulated by the states.

I think it is disingenuous to argue that the Ashcroft directive merely "defended existing federal jurisdiction over an area of distinct federal interest against state encroachment and nullification." Prior to Ashcroft's directive, there was no conflict between state and federal law, let alone any "nullification," as prior to 2001, the federal government never sought to define "legitimate medical purpose" under the CSA beyond requiring that physicians only dispense prescriptions in the course of their "professional practice." When Oregon exercised its prerogative to redefine the contours of accepted medical practice within the state, this was no more a threat to any federal interest than variable state laws governing who can write prescriptions.

These differences, and more, exist within our federal system without posing any threat to national unity or the threat of federal law. I would actually suggest that the greater threat comes from the unnecessary nationalization of profound policy disputes. This is already a disturbing trend within our courts, and I regret to see the other branches join the game.

When this is over, I doubt we will have convinced each other, but I hope we've fleshed out some of these issues for our readers. In any event, I am sure we will cross swords on this subject again (as we have before). Until then . . . .

Smith: 8/26/05, 01:16 PM
First, Jonathan, let me thank you for a very worthwhile and productive exchange. I hope that both of us have given the readers of our debate much food for thought.

It seems to me that you have an outdated, almost quaint view about the nature of our federal union. The Articles of Confederation are long gone. We are a nation first and foremost, with divided sovereignties, yes, but the states are not islands unto themselves. Nor, in my view, have you articulated why it is so important for the federal government to remain aloof and indifferent to crucial issues that arise in the states, especially if, as with assisted suicide, they have life and death import and the potential to impact federal law. You have merely asserted that it is so. You even seem to imply that these issues could legitimately decided at the local level. ("We can agree that doctor-assisted suicide represents unsound policy, but that does not mean that it is the proper concern of the federal government, as opposed to state and local governments.")

Some issues, even though they play out within state boundaries, are actually national in character. Assisted suicide is one such issue.

You are mistaken about there being no previous federal interpretation on assisted suicide. When Oregon's assisted suicide law went into legal effect in 1997, the Drug Enforcement Administration (DEA) issued an opinion remarkably similar to the Ashcroft Directive. But Attorney General Janet Reno overturned the DEA by issuing her own interpretation (in a letter to Congressman Henry Hyde), which stated that while doctors would continue to face federal sanction for using controlled substances to assist suicides in states where it was illegal, Oregon doctors who obeyed the death regulations of the Oregon law would not.

What does this tell us? First, that the federal government had a preexisting policy opposing assisted suicide. Second, that it would continue to be enforced in states that did not legalize assisted suicide and would be enforced against doctors who assisted suicides in Oregon in contravention of the law's limitations. Otherwise, why enforce the CSA against any doctor who assisted suicide? Why not merely leave the matter up to state law enforcement?

Reno inappropriately permitted Oregon, in effect, to create its own niche federal policy. The potential consequences of such an approach are profound, and would not necessarily be limited to assisted suicide. After all, there could ultimately be fifty different state approaches to assisted suicide. In Oregon, only terminally ill people might be eligible, while in Washington State the law might permit the disabled and elderly to also be assisted with suicide. Some states might not even require the patient to be sick at all. In such a milieu, the CSA would be fatally undermined, if you will pardon the pun, since the proper medical use of controlled substances would differ from state, to state, to state? That might be seen as desirable in some quarters. But if we are to give up on enforcing a uniform federal drug policy throughout the country, the attack should be frontal, not through the back door.

In conclusion, I believe the Ashcroft Directive is an honorable attempt to create a proper national policy about one of the most important moral issues of our day, a policy that sends the bracing message that the federal government values the lives of each and every one of its citizens.

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NOTE: This debate took place before the Supreme Court's June decision in Raich.


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