One of the Supreme Court's biggest battles this term promises to be over physician-assisted suicide. Specifically, Oregon's Death With Dignity Act, which has been affirmed twice at the polls and also in the courts, is now being challenged at the highest level by the Bush administration.
The act, which is very narrowly constructed, enables patients with less than six months to live (as determined by two doctors) and of sound mind to make a sequence of requests that eventually lead to the prescription of life-ending medications. To date, only 208 Oregonians have taken advantage of the act, which former Bush Attorney General John Ashcroft initially challenged.
Another close decision is expected, but the confirmation of Harriet Miers has the potential to swing the case in the administration's favor. If that happens, the repercussions would be immediately felt - and a woman's right to choose would be in jeopardy.
The administration's position is fraught with hypocrisy.
On the one hand you've got the Bush administration doing everything it can to limit "frivolous" lawsuits, cases which may very likely be brought against physicians whose negligence resulted in disability or - worse - death. Bush and his surrogates claim that such lawsuits would make it harder for doctors to practice medicine, so they want to make it harder for you to sue if a loved one dies.
On the other hand you've got the Bush administration doing everything it can to single-handedly thwart the state of Oregon and the will of its people. Not only do they want to make it impossible to sue if your loved one is wrongfully killed, but now they also want to make it impossible for physicians to carry out their mutually agreed-upon duty to end a patient's life with dignity.
Never mind, of course, that what the administration is trying to do flies in the face of their supposed platform. The party of states' rights finds itself meddling in Oregon's business. The party of hands-off government finds itself putting its fingerprints all over a family's private affairs. What started with medicinal marijuana and Terri Schiavo continues today.
The case boils down to little more than a state-federal pissing match, with Ashcroft trying to piss on the state of Oregon. Though Alberto Gonzales has replaced Ashcroft, the administration's case remains: Using physician-prescribed medication to hasten a patient's death is, in the administration's eyes, an improper procedure and against federal drug laws.
More specifically, new Chief Justice John Roberts has wasted no time making his mark with the court. He peppered Oregon Senior Assistant Attorney General Robert Atkinson with more than a dozen tough questions, interrupting him within the first minute. Meanwhile, he only asked the Bush administration representative, Solicitor General Paul Clement, three questions.
Coming across as a strong defender of the federal case, Roberts, the Associated Press reported, "said the federal government has the authority to determine what is a legitimate medical purpose" and, he said, "it suggests that the attorney general has the authority to interpret that phrase."
Suddenly, the umpire that Roberts claimed would be a fair arbiter of the rules has shifted to the right and is calling balls and strikes from a skewed perspective. Roberts is smart enough to recognize that what he's seeing is one man - the attorney general - trying unjustly to deny the will of the people and himself seems ready to ignore the lower court's initial ruling. From his comments, it appears we've been dealt more of an activist judge than the man behind the plate Roberts promised.
Roberts's assertion, to be sure, has far-reaching effects - moving well beyond physician-assisted suicide. That philosophy should send shivers up and down the spines of choice advocates nationwide. If the federal government can determine what is a "legitimate medical purpose" and what isn't, it doesn't require a logical leap of faith to presume that, to the Republican-controlled government, abortion won't soon qualify as such a purpose.
And, if that happens, it would happen at the discretion of the attorney general and would - if the administration prevails in the Oregon case - seemingly allow the federal government to trample the rights of the states should abortion become a state-by-state issue. The potential for that, to me, is quite chilling.