Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Wednesday, February 23, 2005

Steel Cage Match: A Culture of Life vs. Small Government, Gonzalez v. Oregon

So once again the Bush administration finds itself in a tug of war between traditional conservatism, contemporary fundamentalist evangelist, um, conservatism(?), and oh well, who even knows? The Times Linda Greenhouse does a characteristically good job of laying out the issues and keeping her heels out of the mud.

The topic? The right to die. No, actually that's not even true. It's not the right to die so much as it is the prerogative of a state to govern the practice of medicine within its borders.

The battleground? Oregon, just next door to Washington, where the last skirmish took place in this ongoing debate. In Washington v. Glicksberg, in 1997, SCOTUS ruled that there was no constitutional right to die. That is to say, the petitioners alleged that a) they had a right to commit suicide, and b) they had a right to a physician's help in doing so, and that Washington's law making it a crime to assist someone in committing suicide ran afoul of those rights. Heavy shit, and the Court wasn't having any of it.

The Glucksberg Court, however, left open the larger issue of whether states on their own, and in response to internal democratic groundswells, referenda, etc., might provide for some sort of euthanasia procedure. This aspect of the ruling was in keeping with the sometimes anti-federal bent of the Rehnquist Court, which often has bent over backwards to defer to states' prerogatives in myriad areas.

This time, however, it's not a constitutional argument being raised. Instead, this is a suit brought by the Justice Department under John Ashcroft in 2001 against Oregon to effectively prevent doctors from practicing in accordance with Oregon's Death With Dignity Act (DWDA or Act), a law approved twice in referendum form by Oregon's voters.

Ashcroft, and now new Attorney General Alberto Gonzalez, have attempted to cut Oregon's DWDA off at the knees by using the 1969 federal Controlled Substances Act (CSA) against Oregon physicians who prescribe lethal medications in compliance with that state's Act. By so enforcing the CSA against physicians who prescribe lethal doses of medications under the Act, the Justice Department will, in effect, be revoking physicians' licenses to practice, since a physician without his prescription pad is like a Republican without a chip on his shoulder.

Linda Greenhouse in the Times is correct, of course, that this is an adminsitrative law case; unlike Glucksberg, this case presents no facial constitutional issues. And that's what she must say, because it's not her place to get into why the Bush administration felt the need to reverse Janet Reno's originally stated position in 1998 that it was not the federal government's place to meddle in such issues of state governance, and why it is choosing to undermine a popular referendum that has repeatedly been defended by the citizens of Oregon since it was first approved in 1994. But this case is so much more.

Along with statutes enhancing punishment for violent criminals who harm a fetus and those barring or restricting late-term abortions, this is just another front in the culture war. Here's a quote from the Justice Department brief defending its decision: "The attorney general's reasonable interpretation of the comprehensive federal statute must prevail over the determination by a particular state that departs radically from long-accepted legal and ethical norms . . . ." That is, a statute that was passed with no eye, mind, or language, toward physician-assisted suicide, that indeed was expressly crafted to address trafficking in illegal drugs, should now be applied against physicians who prescribe medications in accordance with the democratically asserted desires of the physician's state's populace.

"Legal norms," for the record, tend to focus on Congressional intent and plain language, neither of which urge enforcement of the CSA in this circumstance. "Ethical norms," however, are the money shot -- although DOJ lawyers would argue that with this phrase they intend to invoke the hippocratic oath of doctors first to do no harm, what this is really all about is moral norms, as viewed by the Right, concerning the very sanctity of life invoked as against abortion-friendly policies. For every one of these flank battles the Bush administration and the fundamentalist Right wins (for let's not kid ourselves, both in office and in the street, there are plenty of Republicans who wouldn't deny abortion across the board, but they continue to let their party foreground exponents who would), they figure they're that much closer to ending abortion.

At some point, with the passage of many such statutes, with the carefully excerpted comments of many favorable Supreme Court rulings, and with momentum on their side, the Right can say, Look, in so many words the Court has already ruled that a fetus's life is no less valuable than a person's, that a fetus is basically a person, and that we must protect all persons' lives even if they don't want them protected!!! That's where the Administration's strained reading of the CSA comes in in this case: no matter how miserable you are, no matter how mentally competent you are to make an informed decision, you simply do not have the prerogative to say ENOUGH. Because all life is so precious that a miserable, near-to-ending, pain-addled existence is yours to bear, no matter how you feel about so bearing it.

And that's why the Supreme Court's grant of certiorari in this case is notable. Administrative law issue or not, this is all about the veneration of life at the expense of state's rights, individual autonomy, and at some remote future time, if at all possible, the right to abort an early-term pregnancy.

Fortunately, as Greenhouse notes, Gonzalez faces an uphill battle. The Rehnquist Court has been rather hostile to arguments that would reduce the power of the states to regulate internal matters. As one former Rehnquist clerk notes, "Rehnquist's achievement is to have pushed into the mainstream once idiosyncratic views of state sovereignty and limited federal power." The case, however, will not be argued until next fall (and decided spring/summer 2006), when, most observers expect, Chief Rehnquist will no longer be a member of the Court. In many areas of law, I expect the new justice will look a lot like Rehnquist. But with regard to issues of federalism, a matter of import to traditional conservatives but one the current administration has signaled no interest in honoring when it disserves its larger agenda, it's entirely plausible that a new justice will be considerably more deferent to the capriciousness of an runaway train executive branch.

And what's equally disturbing is that I'm sitting here thinking that on this issue, it's too bad Rehnquist will be gone. And indeed this case turns things on their heads, just as the government has said, because I have rarely felt the need to defend Rehnquist, and I don't remember ever imagining that even with regard to one case I'd be sad to see him go. Perhaps a more moderate compromise nominee will be selected and confirmed, but I'm not holding my breath, either that administration will show much in the way of humility or that the Democrats have the power or will to stand firm indefinitely against a fundamentalist nominee.

As Publius notes, in a related discussion:
On social issues, the religious right-wing is especially schizophrenic on federalism. On abortion and school prayer, religious conservatives know that their odds are better if these decisions could be made on a state – rather than a federal – level. However, on the issues of gay marriage, sex education, and medicinal marijuana, they don’t trust the states and instead want to impose a national Taliban-like edict that binds the entire nation.

And thus the consolidation of power, raw naked power, in the federal executive continues. And you should be afraid. But if the polls are any indication, you aren't. Which is too bad. You'll see.

(Other articles here and here. Hat tip to SCOTUSBlog for collecting articles.)


Blogger brian said...

I haven't been able to pin down a sharp response to all this, mostly because I don't have firm opinions about much of it. I'll say a few things though...

The culture of life, as the media and the Bush administration understands, really isn't a Biblical idea. Their biggest point of failure? The death penalty. Until conservative evangelicals come to terms with the baseness of this policy, their talk of a "culture of life" is just hypocrisy and political spin. And, truthfully, the culture war will never end, simply because Christians (regardless of how misguided they can sometimes be -- see above) have a completely different philosophical/theological foundation than everyone else. The spheres may intersect here and there, but even then, the foundations behind the agreements aren't the same (we all think murder is wrong, but for different reasons).

That said, I don't think policy is the way for Christians to advance their agenda. In fact, there are theological arguments that support this. Laws will never make people think differently (there are plenty of people in jail for murder, right?), but unfortunately many evangelicals think this way.

Both Moon and Publius do well by underscoring the administration's policy schizophrenia. And I'll take Publius' point one step further -- conservatives (and evangelicals) cry that gay marriage will destroy the institution of marriage, but I say where are the laws against divorce and pre-marital sex? When your country's divorce stands at close to 50% (and the rate among Christians isnt' much better -- see The Scandal of the Evangelical Conscience) you really can't blame gay marriage.

If anyone is at all interested in the greater philosophical/theological basis for the culture of life, check out the New Pantagruel. Many of the writers have (unfortunately) hitched themselves to conservatism, but they've laid out a fairly coherent argument for the culture of life and the cultural wars.

1:37 PM  
Blogger brian said...

I think I may have been a bit extreme about the culture of life divide between Christians and non. The spheres can certainly overlap, and the two can work together on a good many things. You do, however, have to pick at nits when you get down the philosophical/theological foundations of the two spheres. There they will never intersect. But, as I said, that doesn't preclude the two from working together for a common good (poverty, economic and social justice, etc). In fact, I'd argue that it's just these sort of relationships that Christians looking to make real cultural change, especially in the realm of social justice, must make.

5:54 PM  
Blogger brian said...

In my continuing efforts to be the only voice speaking here, I offer this post from a like-minded Christian.

9:32 AM  

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