MICHELE NORRIS, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
ROBERT SIEGEL, host:
And I'm Robert Siegel.
With the new chief justice, John Roberts, presiding, the Supreme Court heard arguments today on doctor-assisted suicide. The Bush administration is challenging Oregon's Death With Dignity Act. It is only state law that allows doctors to help terminally ill patients end their lives. NPR's Nina Totenberg reports.
NINA TOTENBERG reporting:
Oregon voters twice passed the Death With Dignity law. It was upheld by the lower courts, and the Clinton administration concluded that there was no federal justification for challenging it. But the Bush administration reversed course and tried, so far unsuccessfully, to block implementation of the law. Today on the steps of the Supreme Court, right-to-life advocate James Bopp attacked the Oregon law as illegitimate.
Mr. JAMES BOPP (Right-to-Life Advocate): How can one say that Congress allowed use of control substances to kill patients because they never contemplated the absolutely absurd proposition that any state would authorize doctors to actively kill patients rather than treat them?
TOTENBERG: But Kathryn Tucker of Compassionate Choices countered that the federal drug law was aimed at preventing drug trafficking and protecting public health.
Ms. KATHRYN TUCKER (Compassionate Choices): And what the evidence is, is that there has not been any threat to the public interest posed in Oregon. This has brought an additional choice to dying patients who have a prolonged dying process and for whom this is a least-worst alternative.
TOTENBERG: Inside the courtroom, the Bush administration's Supreme Court advocate, Paul Clement, immediately ran into a buzz saw of questions from some of the justices.
Justice O'Connor: `Could a doctor who administers a lethal injection in carrying out the death penalty for a convicted murderer--could that doctor lose his federal license to prescribe drugs?'
Justice Breyer: `The federal law at issue in this case has nothing to do with the death penalty. It has nothing to do with assisted suicide. It was meant to prevent addiction and drug-pushing.'
Justice Ginsburg pointed to the court's 1997 decision unanimously ruling that there's no constitutional right to die. And she noted that the court in that decision assumed that the question was one for the states to resolve.
Solicitor General Clement replied: `The government's position doesn't foreclose assisted suicide. Perhaps the most notorious advocate of assisted suicide, Dr. Kevorkian, did not use federally controlled drugs.'
Justice Ginsburg: `Those methods are less gentle to the patient, though.'
Justice O'Connor: `Certainly the practice of medicine is an area traditionally regulated by the states, and there's nothing in this statute that displaces that state regulation. Indeed,' observed O'Connor, `opponents of the Oregon law tried twice to insert language in the federal law that would expressly forbid laws like Oregon's, and those efforts failed.'
Justice Souter: `It seems to me the problem you have is that the history of this law for 91 years was to stop drug abuse and drug-pushing in the conventional sense.'
Answer: `I grant you that Congress didn't have assisted suicide in mind, but,' said Clement, `the whole federal scheme could be undermined if assisted suicide were permitted.'
Justice Kennedy: `For me, the case turns on the statute, and it's a hard case. Isn't it odd to have a statutory scheme where the attorney general can find that doctors cannot use a drug that's specifically authorized by state law?'
Answer: `Allowing the Oregon law to stand could be a slippery slope that would undermine the federal anti-drug laws.'
Justice Kennedy: `So you think that if we rule against you, there would be consequences for federal law enforcement?'
Answer: `I think that could be. I don't want to overstate it, though, because most state laws mirror federal laws.'
That would have seemed a signal for defenders of the Oregon law to give some assurances on this point to Justice Kennedy, who could end up the deciding vote in the case.
To the contrary, though, Oregon Assistant Attorney General Robert Atkinson, questioned by Chief Justice Roberts and Justice Scalia, contended that if states wanted to, they could make it legal for doctors to prescribe morphine for recreational use. That argument didn't seem to sit well with any member of the court.
Justice O'Connor: `Can the attorney general, in the name of preserving public health, find that steroids for bodybuilding are illegal under the Controlled Substances Act?'
Answer: `No, that would be up to the state.'
Justice Breyer: `Suppose I think you're wrong. Do you lose?'
Answer: `I would certainly lose ground, Your Honor. Our position is that the attorney general lacks the authority to do that.'
Justice Scalia: `So it comes down to what is legitimate medical practice as defined by the state?'
Answer: `Yes.'
Chief Justice Roberts, incredulous: `Doesn't that make the Controlled Substances Act unenforceable?'
Justice Stevens: `Isn't the point here that Congress has not spoken to the issue in this case?'
Answer: `That's right. There's no reason for Congress to assume that the states will pass irresponsible laws.'
At the end of today's argument, the court seemed closely divided. Unclear is what would happen if Justice O'Connor is the deciding vote in the case. Her vote cannot count if she's not on the court when the decision is announced, and it's unclear whether Harriet Miers, if confirmed, could participate in any reargument of the case since she likely was involved in the development of the Bush administration's position. A tie vote in the case would affirm the lower-court decision upholding the Oregon law. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
