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October 08, 2005

So, Mr. Roberts, is it us or them?

Given his first case, we'll know soon enough if new Chief Justice John Roberts is with us or them.

It's a control case, a who's-in-charge case. Us or them.

The people of Oregon -- me and you, 'cept they live there and we live here -- have twice affirmed through referenda that if a mentally-with-it dying person wants to skip the last part, it's OK for the doctor to prescribe and the pharmacist to fill a fatal prescription.

The Oregon Legislature, being the servant of the people that it is, did the necessary paperwork in 1997, including the law providing that no criminal or civil penalty could befall the doctors and the pharmacists for their part in carrying out the dying person's wishes. Janet Reno, then attorney general of the United States, said in response to a question from Congress that it was Oregon's business.

All makes sense to most anybody who's sat with a dying relative or friend, and most of us of many years have done so. In such circumstances, I'm sure not gonna be the one saying, "oh, don't be silly ..." if there's a deathbed declaration that the time is now.

But I'm not John Ashcroft or Alberto Gonzales.

When Mr. Ashcroft ascended to the attorney general's office in 2001, he lost no time finding a way to thwart the people of Oregon.

His tool was a routine housekeeping chore assigned the attorney general by the federal Drug Control Act of 1970. The act requires docs and pharmacists to have a federal license to handle drugs; the AG's in charge of the licenses. Mr. Ashcroft parsed the wording of the license requirements, found meaning in phrases Ms. Reno hadn't divined, and announced he'd yank the license of any doctor or pharmacist who followed a patient's dying request.

The people of Oregon appealed and have won through the federal appellate court level. Mr. Gonzales, who's since replaced Mr. Ashcroft, carried the case to the Supreme Court. The arguments were the first heard by the Roberts court.

You should note here that the issue of great import to you and I -- the range of options available to us in the most of trying of exceedingly personal circumstances -- is not being argued, or at best peripherally.

No, the arguments are about what Congress meant with this phrase or that when it wrote the Drug Control Act 35 years ago, and how much control that grants a federal bureaucrat. Paper-shuffling stuff, when core human issues are on the line.

History dictates pessimism.

The question of balancing power between the states and the central government bedeviled us even as we became "us." It is the question that split the revolutionaries of the 1770s into political parties as they turned from guns to pens.

It is the reason they added the Tenth Amendment to the Constitution: 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.

The Tenth, of course, was the first of the amendments to become a dead letter, done in primarily by Congress's power to regulate commerce among the states, and the Supreme Court's 200-year-willingness to endorse ever broader definitions of "interstate commerce."

The court's also been mostly willing to endorse executive branch power grabs, like the one Mr. Ashcroft's launched.

So, Mr. Chief Justice Roberts, will your court continue the tradition?

Will it be us, or them?


Footnote: In the eight years of its operation, 208 people have used the alternative offered by the Oregon Death with Dignity law.

Critical links

Briefs filed in the U. S. Supreme Court by parties to "Gonzalez v. Oregon"
History of Oregon Department of Justice filings in "Oregon v. Gonzalez"
Oregon's Death with Dignity site

Posted by jcb at October 8, 2005 10:06 PM


Isn't this the same group of conservatives who are always anxious to cry states' rights when it comes to abortion? Hmmm.

Posted by: Anonymous at October 10, 2005 09:26 AM

I know everyone's going to roll their eyes and dismiss this comment, but the simple truth is that the only political party that consistently supports all ten amendments in the Bill of Rights is the Libertarian Party.

Posted by: Iowa Libert at October 10, 2005 09:57 AM

No eye-rolling or dismissal on my part. The Libertarian Party's consistency on personal liberty issues as a bit of light in an often dark political picture.

Posted by: jcb at October 10, 2005 10:38 AM

In light of the many critical problems this country faces, including it's perilous economic situation, the Bush administration and his ideological allies taking a big stick to the hornet's nest of the mideast, and the decades of fallout the world will have to deal with, the fact that the end of the oil economy is rapidly approaching yet next to nothing is being done by the government to prepare for it, and on and on, doesn't the meddling in issues of personal comfort and health decisions by religious zealots seem a bit, well, to put it delicately, detached from reality?
It seems that their committment to the future of this nation and future generations of it's citizens is of far less concern than some delusional desire to "do God's work" as they happen to see it.

Posted by: Anonymous at October 12, 2005 03:21 AM

I believe we should all have the option to choose "death by prescription" and that the Federal Government should stay out of it, unless they would like to see someone starve to death as my grandfather did; because of throat cancer.

Posted by: Dennis at October 12, 2005 11:58 AM