New at Reason

Julian Sanchez | October 5, 2005

Ron Bailey looks at what the battle over medical marijuana implies about the Supreme Court's likely ruling on assisted suicide.

Comments

|10.5.05 @ 9:49AM|#

The Raich decision really has remarkably little to do with the issues in Gonzales v. Oregon. Raich was all about whether Congress's power to regulate interstate commerce extended to home-grown medical marijuana -- to an activity, in other words, that was neither interstate nor commerce. Randy Barnett, who argued the case, didn't even urge the Court to overturn Wickard v. Filburn, but rather attempted (rather cleverly, I thought) to distinguish it. No one can seriously argue that the sale of drugs by pharamacies, or that prescription of such drugs by medical practitioners, isn't commerce, nor can they argue that it isn't "interstate commerce" without actually overturning Wickard, and probably without turning the clock back to the era of United States v. E.C. Knight (1895). (Not that there's anything wrong with that, but no one is proposing it with any hope of persuading the Court to take that step.)

Gonzales v. Oregon case, in contrast, turns entirely on statutory construction. The relevant issue is whether the DEA's reading of the terms "legitimate medical purpose" and "professional treatment," as used in the Controlled Substances Act, is correct, which brings in the larger question of whether Congress, in enacting those terms, implicitly set a uniform federal standard or meant to defer to state standards (which would mean that the those terms would define different things in different states). These are questions that can't be answered by invoking broad principles of individual liberty or of interstate commerce, but require close reading of the statute (and probably the legislative history), and comparison of this case with other cases (usually involving much less exciting issues) where the question arose of whether the law imposes a uniform federal standard or incorporates different state standards.

|10.5.05 @ 10:49AM|#

Fuck it. Why do we even have a Constitution if every law, rule, philosphy, etc. can be bent to mean whatever?

What a bunch of patriarchal, bigoted, pretentious bullshit!

Let the dying die with peace and dignity.

I also agree with Bailey about the future of modern medicine. In fact, its already arrived. We can keep some poor soul "alive" artificially for weeks, or even months, while their body slowly rots and atrophies away. I've always said, I don't fear death, I fear not dying.

|10.5.05 @ 11:00AM|#

To this non-lawyer, the arguments used in the cases mentioned by Bailey seem awfully tortured and calculated to arrive at a predetermined conclusion ("drugs bad").

|10.5.05 @ 11:15AM|#

mattc - The reason we have a constitution is so that the powerful can establish laws that suit their needs. If some lessor person finds the laws to their liking, then that's one less person to worry about. For the others who may protest, the jingoistic propaganda machine kicks in.

Is it any wonder then that that the 1800s were remarkable for its over-the-top displays of patriotism? It was all about brainwashing the lower class, bringing them on board, convincing the illiterate that this fine document is a fine document indeed. We're all part of a great nation and although you may live in a slum today, if you work hard and obey the rules, you'll become rich too. Yes, you, my fine fellow!

And although Abigail asked him not to, Mr. Adams proptly forgot about the ladies once he was with his rich, white-guy buds in Philadelpia.

|10.5.05 @ 11:23AM|#

Question to any lawyers:
When or how could there be a test case establishing who owns whose body?
As a corollary, does owning our body take precedence over interstate commerce?

|10.5.05 @ 11:26AM|#

mattc: "What a bunch of patriarchal, bigoted, pretentious bullshit!"

Yup. 'Tis probably best to just ignore those pompous gummint liaryers as much as possible:
"There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." - O'Rourke.

|10.5.05 @ 11:56AM|#

As far as I am concerned any of the government bigot/hypocrits who would keep a substance from a patient based on these bullshit principles dies a slow, lingering, painful death. While at the same time suffering from every possible side effect from the drugs they claim are safe and effective.

Do you think Bill Bennett, Bush, Chaney or Hillary would not seek out pot for their family members if they were told it was the only thing that relieved their pain? Something tells me we would suddenly see a rush of legislation to provide it free of charge. After all a government employee would never break the law right!

Choke on those pills you pharma loving fat basturds then puke them up. Then while looking at your puke remember all the others you denied comfort and feel good about yourself.

In some instances the only pharma that could have helped you is the pot farmer you had busted for his evil deeds. So pray for death, lord knows you deserve it sooner than later, but society deserves your suffering!

|10.5.05 @ 12:04PM|#

But on the other hand this is a good time to buy BMY. Oh yeah, I also hope anti-medijane folk get their comupance. Bastards!

|10.5.05 @ 12:24PM|#

Another thing I find ludicrous is that "Physician Assisted Suicide" is already widely practiced, albeit in a behind closed doors, round-a-bout way.

For instance, a patient with terminal cancer has an Advance Directive stating that he does not want to be kept alive or "saved" if he goes bad. He just wants "comfort measures". Such a patient often ends up in a Hospice program where the goal is to ease the pain of dying. This includes taking huge amounts of narcotics, especially in the late stages. This isn't talked about readily because it a PERSONAL matter that is nobody else's business but the dying person and their loved ones. The amount of narcotic analgesics and sedatives that some dying people receive quite probably hastens their death (but makes it more bearable and humane).

When I think of Physician Assisted Suicide I think of instances like these. I don't think of a 30 yr. old mother of 3 that gets diagnosed with breast cancer, gives it a day, and then goes to her doctor asking for a leathal dose of drugs. NO, the only people this is appropriate for are those who are truly, obviously suffering from an incurable, terminal illness.

|10.5.05 @ 12:45PM|#

the only people this is appropriate for are those who are truly, obviously suffering from an incurable, terminal illness.

What about those who simply do not wish to live anymore (and this is a permanent attitude, not a temporary case of "the blues")? My dad spent the last twelve or thirteen years of his life as a quadriplegic, and he was fucking miserable. And he seriously wanted to die--he told me as much many times--but of course he was incapable of killing himself. And he wouldn't let me or my mother kill him, because he didn't want us trashing our lives to free him from his. Unfortunately, being paralyzed isn't considered an "illness," either.

So, in memory of my father, I'd like to give a big round of "fuck off and die" to the goddamned lawmakers who insist that nobody should ever be allowed to end their life before the life ends itself.

|10.5.05 @ 12:50PM|#

Actually, I'd like to amend "fuck off and die" to read "fuck off, suffer paralysis, and long fruitlessly for death as your miserable existence drags on far longer than it should."

|10.5.05 @ 1:56PM|#

If you read the news reports Roberts seems very likely to support the Feds on this one. Thus, any hope he might be a libertarian justice has fizzled. He strongly supports executive and federal power along with Scalia.

There might be 5 votes to uphold Oregon but O'Connor will probabably be gone before it is handed down.

Bush's clone Miers will side with Roberts and Scalia .

|10.5.05 @ 2:13PM|#

Funny, how the people who oppose the right to die are often the same ones who oppose abortion and support the death penalty. They don't give a rat's ass about any so-called "sanctity of life"--they just want to keep for themselves the power to decide who lives and who dies.

|10.5.05 @ 2:21PM|#

It will be interesting to see how Thomas comes down on this one. He is the most consistent justice in that he rarely lets his personal opinions infect his jurisprudence.

He came down on the correct (in my opinion) side in Raich. It is easier to support states having the right to allow medical marijauana than to support states allowing controlled substances to be used voluntarily by terminally ill patients.

It's funny because Scalia derides legislative intent (he prefers the text itself) yet in the oral arguments he stated there's no way Congress could have intended allowing Oregon to have this law which seems to contradict the Controlled Substances Act despite it not being anywhere in the text of the statute.

norbizness|10.5.05 @ 2:32PM|#

"Newly installed Chief Justice John Roberts on Wednesday sharply questioned a lawyer (who was) arguing to preserve Oregon�s physician-assisted suicide law, noting the federal government�s tough regulation of addictive drugs.

The 50-year-old Roberts, hearing his first major oral argument since succeeding William H. Rehnquist at the helm of the court, seemed skeptical of the Oregon law.

At the outset, Roberts laid a barrage of questions on Oregon Senior Assistant Attorney General Robert Atkinson before he could finish his first sentence."

Story here. Woo-hoo! States' rights! Personal liberty!

|10.5.05 @ 2:34PM|#

norbizness, Roberts looks to be a clone of Rehnquist. Support federalism unless it contradicts your own personal beliefs. Drugs are bad, the Feds can regulate them no matter what the effect on interstate commerce.

As much as O'Connor is derided at least she supports state independence as much as anyone but Thomas.

|10.5.05 @ 2:58PM|#

Theo:

I think norbizness was being ironic.

|10.5.05 @ 7:24PM|#

If you believe in a "right to die" then you believe the following quotation is, in principle, wrong:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

If the right to life is unalienable, then an individual cannot set aside (alienate) that right and arrange for another person to kill him. Just as he cannot alienate his right to liberty and willingly become a slave to another person.

That being said, I am not sure where the Constitution would grant the federal governmnet the ability to regulate a state's decision to abrogate the right to life. However, it is beyond question that Oregonians have rejected the American conception of human rights.

|10.5.05 @ 8:03PM|#

The medication is self-administered. Neither the state or a doctor are administering anything. Grow up.

|10.5.05 @ 8:12PM|#

If the right to life is unalienable, then an individual cannot set aside (alienate) that right and arrange for another person to kill him. Just as he cannot alienate his right to liberty and willingly become a slave to another person.

That is the stupidest fucking thing I have ever read, and I've read John Grisham books.

SteveInClearwater|10.5.05 @ 11:05PM|#

It would seem prudent for all of us who might someday have an interest in suicide to quietly and methodically accumulate the neccesary substances to ensure the easiest possible form of demise.

Anyone know offhand how long a drug can be preserved and retain its potency? Perhaps in a deep freezer.

That being said, given the fairly easy access most of us have to internet pharmacies, it shouldn't be hard to procure the needed drugs when the time is right, regardless of the legal penalties. After all, it's difficult to convict someone for illegal drug possession if they're dead.

|10.6.05 @ 10:52AM|#

Think along the lines of "lethal injection". I believe the ingredients are phenobarbitol, potassium chloride, and pancuronium (Pavulon). Add a little 2% Lidocaine to that mixture and with a rapid intravenous infusion you'd be painlessly dead within minutes. Unfortunately, Phenobarb and Pavulon are very hard to come by.

The best way to kill youself painlessly, without robbing a hospital pharmacy, is by taking a shitload of Insulin with a few stiff drinks and maybe some OTC sleeping pills. You'd fall asleep and never wake up. Plus, Insulin isn't a controlled substance. And, figuring that many of us will be diabetics if we live past 60, insulin shouldn't be too hard to come by.

brucem|10.6.05 @ 11:26AM|#

Oh, also, the Feds never had a problem with state doctors using controlled substances, that is, barbiturates, to KILL PEOPLE when they are executed by the state. One barbiturate and two non-controlled substances are always used in a lethal injection.