I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, January 18, 2006

Assisted suicide case shows the Administration's true colors

The Supreme Court yesterday ruled 6-3 in Gonzalez v. Oregon that Attorney General John Ashcroft lacked the authority under the Controlled Substances Act of 1970 (the CSA) to "interpret" that statute -- which was intended to regulate drug usage -- as prohibiting physician-assisted suicide, which the State of Oregon legalized by referendum in 1994.

The legal issues in the case turn (ostensibly) on relatively obscure matters of statutory interpretation. The far more interesting aspect of this case is its factual background -- the way in which this whole dispute arose as a result of the Bush's Administration's attempts in the weeks after 9/11 to overturn Oregon's assisted suicide law. How this whole thing came about presents some interesting and truly disturbing insight into what the Bush Administration is really all about.

In 1994, Oregon citizens approved legislation allowing doctors to assist terminally ill patients (i.e, patients who are reasonably certain to die within 6 months) who want to bring about a peaceful and painless death. In 1997, Oregon voters rejected a referendum to repeal the law. The democratic process in Oregon twice resulted in a judgment by its citizens that terminally ill individuals should be permitted to have the assistance of their physician in choosing a dignified and peaceful death.

Unhappy with the outcome of democracy in Oregon, certain Republicans in Congress (led by Orrin Hatch and Henry Hyde) demanded that the Justice Department (through the DEA) revoke the federal registration of any doctors in Oregon who provide the death-inducing medication to the terminally ill patients who request it under the Oregon law. As the Supreme Court explained, the Justice Department refused to do so when Attorney General Janet Reno wrote to Hatch and Hyde, concluding:

that the DEA could not take the proposed action because the CSA did not authorize it to "displace the states as the primary regulators of the medical profession, or to override a state's determination as to what constitutes legitimate medical practice."

Unhappy with the notion that Oregon could make its own decisions about assisted-suicide, these same Republicans then introduced legislation in Congress in order to give the Attorney General authorization to revoke the federal licenses of any Oregon doctors who assisted in suicide under this law. These Republicans wanted to use federal law to override Oregon law despite the fact they have long claimed to be believers in "states’ rights" -- i.e., that the Federal Government’s power should be restricted and individual states should be able to make their own decisions in areas traditionally reserved to the states, which indisputably includes regulation of the doctor-patient relationship.

In any event, the Republican sponsors could not get their legislation enacted. Congress refused to provide the Attorney General with authority to revoke the registration of Oregon doctors who assist in suicide.

So, Republican opponents of Oregon's assisted suicide law tried and failed: (a) to have Oregon’s law repealed by referendum; (b) to induce the Justice Department to revoke the licenses of Oregon’s doctors who assisted in suicide; and (c) to enact legislation in Congress giving the Justice Department the right to revoke the registration of doctors assisting in suicide. Again and again, these crusaders were rebuffed by the democratic and legal processes.

But once the Bush Administration took power, democratic processes in this area ceased to matter. John Ashcroft was hell-bent on putting an end to physician-assisted suicide in Oregon because he personally believes it to be morally wrong, and he wasn’t going to let any legal barriers stand in his way of imposing his moral framework on Oregon.

When Ashcroft took office, the State of Oregon was concerned -- due to Ashcroft’s well-known opposition to assisted-suicide -- that he was going to take steps to impede Oregon’s statute. As a result, Oregon’s Attorney General wrote a letter to Ashcroft asking for a meeting to discuss his intentions, in reply to which Ashcroft had a subordinate send a letter that said this:

"I am aware of no pending legislation in Congress that would prompt a review of the Department's interpretation of the CSA as it relates to physician-assisted suicide. Should such a review be commenced in the future, we would be happy to include your views in that review."

That letter was sent on April 17, 2001. Less than seven months later, on November 9, 2001, Ashcroft caused the DoJ to blatantly breach its promise to Oregon and – while the whole country was focused on the September 11 and anthrax attacks – Ashcroft issued an "interpretation" stating that it was illegal under the CSA for Oregon doctors to assist in suicide. As the Supreme Court described it:

On November 9, 2001, without consulting Oregon or apparently anyone outside his Department, the Attorney General issued an Interpretive Rule announcing his intent to restrict the use of controlled substances for physician-assisted suicide.

Incorporating the legal analysis of a memorandum he had solicited from his Office of Legal Counsel, the Attorney General ruled "assisting suicide is not a 'legitimate medical purpose' within the meaning of 21 CFR 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the Controlled Substances Act.

It cannot be overstated how reprehensible this is. Ever since September 11, the Bush Administration has insisted again and again that the threat of terrorism is an unprecedented existential threat. We are at "war," and must devote our full attention to capturing terrorists and winning the war, even if it means severely restricting our constitutional liberties and taking other extreme measures to fight this war.

And yet, less than two months after September 11, what was the Justice Department doing? What was the Attorney General's attention devoted to? Working in secret, and in violation of its promises to the State of Oregon, to figure out how it could trample on the democratic process and on principles of states rights which conservatives claim to believe in, all in order to block terminally ill people from choosing how to die because John Ashcroft and James Dobson think that it’s immoral to exercise that choice. That’s what Ashcroft’s DoJ was doing in the weeks after September 11.

For the last four years, this Administration has cynically exploited the September 11 attacks and the supposedly overarching terrorist threat to work unnoticed, wielding the ever-expanding powers of the Federal Government in order to implement a whole slew of moralizing, intrusive measures. In this time of alleged "war," the Administration has devoted substantial resources of the Federal Government -- including the DoJ, the FBI and other law enforcement agencies -- to measures as pressing as waging the war against adult pornography, the war against the morning after pill, and the vicious war against adult gambling.

But when it comes to anti-democratic impulses and rank hypocrisy, none of those things match the Administration’s behavior with regard to Oregon’s assisted suicide law. These crusaders for the democratic process, majority will, and states’ rights simply lied to the State of Oregon, trampled on the will of a majority of Oregon’s citizens, and used the power of the Federal Government to override laws regulating medical treatment, an area which has always been reserved for the states.

And this was all done inside the Justice Department, engineered by John Ashcroft, literally in the weeks (before and) after September 11. This was all happening while the country was focused on September 11, the anthrax attacks which the DoJ never solved, enactment of the Patriot Act, and scores of other newly pressing concerns brought about by these terrorist attacks. But in the weeks before September 11 and in the weeks immediately after, the priority of the Attorney General was figuring out how to override the will of Oregon voters in order to prevent terminally ill patients from choosing how to die.

The Administration has skillfully used fear-mongering over terrorism to obscure the extent to which intrusive religious conservatism is shaping and molding almost every aspect of U.S. domestic policy. Agencies and sub-agencies which receive relatively little attention but which have great influence on domestic policies have, in many cases, been turned over to religious extremists, and the lack of light being shined on these bureaucratic crevices in Washington means that they are running wild, without any real restraint or opposition.

Americans are going to wake up one day and look at the results of these largely covert activities and find that there is a whole panoply of intrusive, religion-driven restrictions embedded into federal law in almost every sector. Not even the September 11 attacks slowed these efforts. To the contrary, as these assisted suicide manueverings demonstrate, the terrorists attacks were used, and continue to be used, to enable the Administration to pursue measures which it knows the country would not accept if it were paying attention to them.

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