It's a Tough Case,' said Justice Kennedy by LawCrossing


Justice Anthony Kennedy was commenting last week as the Supreme Court heard argument in the right-to-die case of (ITAL) Gonzales v. Oregon.

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									COURT REPORTER                                                                                                                     1. 800. 973.1177

‘It’s a Tough Case,’ said Justice Kennedy
[by James Kilpatrick]
“It’s a tough case,” said Justice Anthony Kennedy. He was commenting last week as the Supreme Court heard argument in the right-to-die case of (ITAL)
Gonzales v. Oregon. Some observers doubtless will agree with Kennedy’s off-the-cuff observation. To us inveterate states-righters, this case is not tough at
all. Oregon is right. In seeking to nullify the state law, the attorney general is wrong.

The facts are not in dispute. After twice win-        all political powers not delegated to the          ing tubes. In an opinion by Chief Justice
ning approval from voters, Oregon’s Death             federal government by the Constitution, nor        William Rehnquist, the court refused, 5-4, to
with Dignity Act took effect in 997. Its provi-      prohibited by it to the states, are reserved to    grant their request. There was no “clear and
sions were carefully crafted. Two physicians          the states respectively or to the people. The      convincing” evidence that she would have
must separately attest that in their judgment         power to regulate interstate traffic in deadly     wanted to die rather than to live in a “persis-
a petitioner has less than six months to live.        drugs is a power delegated to Congress by          tent vegetative state.”
The patient must be mentally competent,               the Constitution. But the power to regulate
not suffering from depression or impaired             the practice of medicine is a power histori-       More directly in point are the high court’s
judgment. A two-week waiting period must              cally reserved to the states.                      companion opinions eight years ago in
elapse. The patient must be advised of such                                                              right-to-die cases from Washington and New
alternatives as hospice care and pain-reliev-         Our argument is that the states must be free,      York. The state laws prohibiting assisted
ing drugs. Two neutral witnesses must attest          within constitutional limitations, to engage       suicide were substantially similar. This time
the patient’s request. Only then may a doctor         individually in political experiment. If Mas-      Rehnquist wrote for a technically unani-
prescribe a painless dosage of a fatal drug.          sachusetts wants to sanction homosexual            mous court. Within the apparent unanimity
Through 2004, according to state records,             marriage, so be it. If Wyoming and Montana         a profoundly difficult struggle was evident.
326 terminally ill patients had obtained the          want to authorize super-speed limits on their      The court’s problem — the eternal prob-
lethal prescriptions, but only 208 persons            highways, let them see what happens.               lem — was to reconcile state powers and
had used them.                                                                                           individual liberty. Here the state “won,” but it
                                                      This is my point: If Oregon wants to experi-       was an unconvincing victory.
The questions of law are far from academic.           ment with a law regulating doctor-assisted
Attorney General Alberto Gonzales has                 suicide, that ought to be within Oregon’s re-      “Our holding,” said Rehnquist for the court,
threatened to revoke federal drug privileges          served powers under the Tenth Amendment.           “permits this debate to continue, as it should
for any doctor who defies his edict. Is he            Eight years have passed since Oregon’s             in a democratic society.”
abusing his authority under the Controlled            Death with Dignity Act went into effect. The
Substances Act? Put another way: May the              skies have not fallen upon Medford, Portland       Last week the debate continued in the
state of Oregon unilaterally exempt itself            and Eugene. The sun still rises over the           Oregon case. Given the uncertainties hover-
from a federal law of nationwide application?         Wallowa mountains. If Oregon’s experiment          ing over the court’s composition, it may be
Put still another way: Does the act, as inter-        ultimately fails, it fails. In that event, no      months before a dispositive opinion comes
preted by the attorney general, improperly            other state will want to replicate Oregon’s        down.
intrude upon a state’s power to control the           experience. If the law succeeds, other states
practice of medicine within its borders?              may follow Oregon’s example. This is what          (Letters to Mr. Kilpatrick should be sent by
                                                      federalism is all about.                           e-mail to
At last week’s oral argument, Chief Justice
Roberts and Justice Antonin Scalia appeared           Granted, the auspices are not auspicious. In       COPYRIGHT 2005 UNIVERSAL PRESS SYN-
to support the attorney general. Justices             990 the Supreme Court considered the sad          DICATE
David Souter and Ruth Bader Ginsburg ap-              case of Nancy Cruzan, a young woman who            This feature may not be reproduced or dis-
peared to side with the state. Such appear-           fell into a coma after suffering nearly fatal      tributed electronically, in print or otherwise
ances are often deceptive.                            injuries in an automobile accident. When it        without the written permission of uclick and
                                                      became evident that recovery was wholly            Universal Press Syndicate.
We Tenth Amendment conservatives recur                unlikely, her parents sued the hospital for
to fundamentals. Under the Constitution,              permission to disconnect the life-sustain-


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