Slate's Jurisprudence: Arguing Assisted Suicide

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MADELEINE BRAND, host:

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

The Supreme Court today heard its first major case of the term, as well as the first major case of what is now the Roberts court. The justices heard arguments over Oregon's physician-assisted suicide law. It is the only law in the nation that allows doctors to prescribe a lethal dose of drugs to terminally ill patients. In a moment, we'll hear from a man grappling with his own life-or-death decision.

But first, Emily Bazelon, legal analyst for the online magazine Slate, was in court this morning. She joins us now.

And, Emily, first give us some background to this case.

EMILY BAZELON (Slate): In 1994 and again in 1997, Oregon voters passed a law allowing doctors to prescribe legal but regulated medication to terminally ill patients who want to die. So in other words, this is physician-assisted suicide. When John Ashcroft became attorney general, he decided that Oregon's law violated the federal Controlled Substances Act, which was passed many years ago by Congress to help deal with drug abuse.

BRAND: And so what were the government's arguments today?

BAZELON: So the government was concerned that Oregon is really overstepping its powers as a state sovereign, and that if the attorney general allows this sort of practice by a state that it will open up different states to being able to do all kinds of things; for example, prescribing morphine for recreational use.

BRAND: So they're really concerned about the state overriding a federal law.

BAZELON: Exactly. The idea is that if states are allowed to prescribe drugs in whatever manner they choose, that that will really be at odds with the Controlled Substances Act, which, while it does touch on state sovereignty, has been around for a very long time and no one is really questioning the federal law on its own grounds.

BRAND: And what did the lawyers for Oregon argue?

BAZELON: The lawyers for Oregon were really concerned about Oregon being able to regulate the practice of medicine. That's very much traditionally a concern of the states, not the federal government. And Oregon pointed out that when Congress passed the Controlled Substances Act, it was really dealing with drug abuse. It didn't--there was nothing in the act about physician-assisted suicide. And what the federal government has traditionally been concerned about is regulating bad doctors who are practicing medicine in ways that states don't approve of, rather than doctors who are doing what states are allowing them to do.

BRAND: So while this touches on moral and religious issues, it's really a states' rights case.

BAZELON: It really is a states' rights case, Madeleine. It's about physician-assisted suicide, but not in the same way as Gluxberg(ph), which was the earlier case in which the court said there was no constitutional right to die. In that case the Supreme Court said that states really were the right place to be determining these difficult issues, state legislatures in particular, and that's exactly what happened here.

BRAND: And this was the first major case for Chief Justice John Roberts, so what kind of questions did he ask today?

BAZELON: He was quiet for a while, and then he asked questions about the text of the federal Controlled Substances Act. He seemed very concerned about the power of the attorney general and where exactly in the act that power was coming from.

BRAND: And Justice Sandra Day O'Connor--she's retiring, but she was on the bench today. What will happen if this case comes down to her vote and she is no longer on the bench?

BAZELON: Well, if she's no longer on the bench when the case comes down, then her vote will not count. And then, if there were a 4-to-4 split on the court, the court could choose to re-argue the case. That's probably what they would choose to do, once Justice O'Connor's replacement was confirmed. If for some reason the court chose not to do that, then the lower court opinion in the case would stand, and that opinion favors the state of Oregon.

BRAND: Analysis and opinion from Emily Bazelon. She writes on legal affairs for the online magazine Slate. Thanks a lot, Emily.

BAZELON: Thank you very much.

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