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Slate's Jurisprudence: Court Upholds Suicide Law


From the studios of NPR West, this is DAY TO DAY, I'm Madeleine Brand.


And I'm Alex Chadwick. Coming up, Hurricane Katrina's impact goes beyond the Big Easy. A new plea for help from Mississippi's Gulf Coast.

BRAND: But first, the Supreme Court today upheld Oregon's assisted suicide law by a six to three vote. The justices said the Bush administration cannot stop physicians from helping terminally ill patients take their own lives. Oregon is the only state to allow assisted suicide. Joining us to discuss the case is Dahlia Lithwick, legal analyst for the online magazine Slate, and for us here at DAY TO DAY. And Dahlia, remind us quickly of the details of this case.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate): Sure, Madeleine. This is another sort of now familiar clash between a federal law and a state law, and it invokes all the familiar states' rights questions we've been asking ourselves in the last couple of years. The federal law is called the Controlled Substance Act. It's point and purpose was to regulate illegal drug use and abuse. The state law in question, as you said, is this one of a kind Oregon law, the Death with Dignity Act, that essentially exempts Oregon physicians from liability, criminal or civil, if they prescribe lethal doses of medicine to terminally ill patients. I should add that there are safeguards built into the act. Two doctors have to agree that the patient is terminally ill, have to agree that they have less than six months to live. Obviously, the patient needs to request the prescription him or herself.

In 2001, then Attorney General John Ashcroft kind of mashed that federal Controlled Substances Act to say, oh, doctors are liable under this act if they prescribe legal doses of medicine to enable patients to kill themselves. That was challenged. That interpretation of the law was challenged by Oregon and doctors in Oregon and some patients, and the ninth circuit said, no, this is overreaching by John Ashcroft. Today's Supreme Court decision upheld the ninth circuit and said, that's right. This was misreading or overreaching with the federal law to try to apply it to physicians who are prescribing lethal doses of medicine for the terminally ill.

BRAND: So, this is really a rebuke to the federal government's power to reach into what states have already decided.

Ms. LITHWICK: That's absolutely right. I mean, this a very, all the coverage this morning calls it a sort of stinging rebuke to John Ashcroft and the Bush administration. Interestingly, it's under the guise of states' rights, which, as you know, is supposed to be the big benchmark of the Rehnquist court, or the now Roberts court. The majority opinion in this case, written by Anthony Kennedy today says, look, the attorney general certainly has the right to construe federal statutes, but he can't usurp traditional state prerogatives to regulate the practice of medicine, which is sort of a classic federalism characterization. He's saying, go ahead and have your federal drug laws, but this is not what's contemplated by an illegal substances law. And moreover, we are just not going to take away from states the right to sort of quote, "Regulate the practice of medicine, generally."

BRAND: And who are the dissenters? And what did they argue?

Ms. LITHWICK: Well, probably, not surprisingly, two of the three were Clarence Thomas and Antonin Scalia. Slightly more surprisingly, in his first dissent, Chief Justice John Roberts. And the dissent was offered by Justice Scalia. He essentially said, this is just a very blatant disregarding of that settled principals of statutory interpretation, and that this is, of course, something that is traditionally regulated by the act. What is more dangerous a drug, he says, than drugs allowing to people to kill themselves. Interestingly, while Clarence Thomas and Scalia wrote dissents today, John Roberts signed off on the dissent, but did not write one himself.

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the Supreme Court for the online magazine, Slate, and for us here at DAY TO DAY. Thanks a lot, Dahlia.

Ms. LITHWICK: My pleasure. Transcript provided by NPR, Copyright NPR.