More Abuses of Federal Power

Washington protects Americans from themselves.

In the past year, a great deal of concern has been expressed about the federal government trampling on the civil rights of Americans in the war on terrorism. One may debate the legitimacy of some measures that limit the rights of suspects where the threat of terrorism is involved, and the need to balance safety and liberty. But this is far from the only area in which dangerous abuses of federal power can be found.

Take one item that went almost unnoticed late last month. On Sept. 23, the Bush administration renewed its efforts to strike down Oregon's assisted suicide law.

The Death With Dignity Act, which allows a physician to prescribe a lethal dose of barbiturates to a terminally ill adult patient, was first approved by the voters of the state of Oregon in 1994. Assisted suicide opponents mounted a vigorous campaign against the law, delaying its implementation until referendum in 1997, when it passed again.

The federal Drug Enforcement Administration immediately stepped in and sought to overturn the law on the grounds that it violated the Federal Controlled Substances Act, which prohibits the use of certain drugs except for a "legitimate medical purpose"—which, the DEA said, did not include aid in dying. Then-Attorney General Janet Reno, however, overruled the agency, and the law was allowed to remain in place.

Under Attorney General John Ashcroft, however, all of that changed. In November 2001, the attorney general took time out from cracking down on terrorists to crack down on physicians who prescribe lethal drugs to the terminally ill. He authorized the DEA to revoke their licenses.

In April 2002, US District Judge Robert Jones struck down Ashcroft's ruling as unconstitutional, saying that the attorney general does not have the power "to determine the legitimacy of a particular medical practice without a specific congressional grant of such authority." Now, Ashcroft has appealed his decision to the US 9th Circuit Court.

The issue of assisted suicide is an emotional and complicated one. There are heart-rending stories of people desperate to be released from their suffering. There are also legitimate concerns about very vulnerable people being overtly or subtly pressured to stop being a burden on their families. The Death With Dignity Act provides fairly stringent safeguards to curb possible abuses: The request for the lethal drugs must be made in writing, the patient must be mentally competent, and two physicians must agree that he or she has less than six months left.

In nearly five years since the law took effect, 91 people have used it to end their lives. Notably, about 900 have asked for a prescription but have not used it. Among them was Richard Holmes, the 73-year-old cancer patient whose legal challenge to Ashcroft's ruling caused it to be overturned. Holmes was able to a obtain lethal dose of drugs; but he died of natural causes last month, days before the Justice Department went back to court to fight the Oregon law. Like many terminally ill patients, Holmes wanted the drug as a last resort if his pain became unbearable.

Whatever the merits of the Oregon law, it was approved twice by the voters. The US Supreme Court has explicitly left this issue to the states: In 1997, it refused to recognize a constitutional right to die but also rejected a challenge to Oregon's assisted-suicide law. Conservatives are supposed to be in favor of states' rights—not only on principle but because, many argue, such an approach allows different policy ideas to be tested. Yet here is a conservative administration using a dubious interpretation of federal law to run roughshod over a state.

Assisted suicide is not the only example. Both the Clinton and the Bush administrations have used federal law to effectively annul the results of several states' ballot initiatives legalizing the medicinal use of marijuana. In 1996, after such proposals passed in California and Arizona, Clinton drug czar Barry McCaffrey made the insulting comment that the voters must have been "asleep at the switch." Yet this stance was hailed in the same conservative circles where the Clinton administration was assailed for defying the will of the people when it refused to enforce California's Proposition 209, which banned the use of racial, ethnic, and gender preferences in the public sector.

At least in the war on terrorism, the federal government is seeking to protect us from a real and lethal enemy. In its crusade against assisted suicide and medical marijuana laws, it's deploying its power and arrogance to protect Americans from themselves.