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On Apr. 17, a federal district judge blasted Attorney General John Ashcroft for trying to overturn an Oregon law that allows physician-assisted suicide. The judge was right. Ashcroft was wrong. Here's why.
Despite Ashcroft's legal protestations, such right-to-die laws are a matter of state, not federal, jurisdiction. In this country, states license doctors and make rules about who can write prescriptions. When he was in the U.S. Senate, Ashcroft tried to get Congress to overturn those rules, but he failed. So last year, he took it upon himself to do it as Attorney General, without any legal authority. If voters in Oregon want such a law -- and they approved this one in 1994 and again in 1997 -- Washington, D.C., has no business telling them they can't have it.
More important, the right-to-die case goes far beyond a simple state statute. It's an attempt by Ashcroft to use the power of the Justice Dept. -- the nation's highest law enforcement agency -- to impose his own religious values on well-meaning people who do not share them.
FLEXIBLE PRINCIPLES. It was no accident that Ashcroft chose to challenge the Oregon law in November, shortly after the September 11 terrorist attacks. The decision was made when America's attention was focused entirely on terrorism. And it was done at a time when public opinion was strongly behind the Bush Administration's law-enforcement apparatus.
Ashcroft's attack was in many ways predictable. After all, this was just the latest example of the Bush & Co.'s rather, shall we say, flexible views about Federalism. This White House has believed firmly in the principle of states rights -- except when it's inconvenient. Then, the Administration takes on all the characteristics of an old-style Democratic nanny-state.
In recent months, the Administration has inserted itself into states' affairs on Internet taxes, where it backed a federal moratorium on the right of states to impose their own levies. It recently did so again when the Environmental Protection Agency attempted to block efforts by Alabama to force a company to clean up a polluted river. So why not do the same on the right to die, the thinking goes, no matter what the voters of Oregon said?
PERSONAL ISSUES. After Ashcroft tried to block the Oregon law, the state immediately went to court to stop him. In his Apr. 17 ruling, Judge Robert Jones had blunt words for Ashcroft and Justice for attempting to subvert the law. Jones, who was appointed by the first President Bush, wrote in his opinion: "The citizens of Oregon, though their democratic initiative process, have chosen to resolve the moral, legal, and ethical debate on physician-assisted suicide for themselves by voting -- not once, but twice -- in favor of the Oregon Act." In other words, said Judge Jones, the issue has been settled in Oregon. The feds should butt out.
The moral and ethical debate on physician-assisted suicide dwarfs the legal technicalities. Ultimately, the only people Ashcroft's decision directly affects are the dying and their families. They should have the final say on such a deeply emotional, personal matter.
When Judge Jones issued his decision, a spokesman for the Family Research Council, a group representing Christian conservatives, said: "Medicine by definition is the art of treating and curing. Drugs are for curing, not killing."
Nice sound bite. But it couldn't be more wrong. People die, whether the Right to Life movement likes it or not. And often, they die in great pain. They can't be cured. A physician's job is to relieve their agony and make them as comfortable as possible.
MORALITY CZAR. When Ashcroft was in the Senate, however, he sponsored a flawed bill that would have discouraged physicians from doing just that. Essentially, Ashcroft wanted the Drug Enforcement Administration to second-guess docs who gave terminally ill patients heavy doses of, say, morphine. Too many physicians already do a lousy job of pain management for the dying. Want to guess how they would have done with federal narco-cops looking over their shoulder? Fortunately, Ashcroft's bill went nowhere.
If the Attorney General finds physician-assisted suicide morally repugnant, that's his right. If he objects to giving a dying person drugs to relieve pain if that hastens the person's death, that's his right as well. But he has no right to impose those views on the rest of us.
Judge Jones gets a gold star. And Ashcroft, who may be mulling an appeal, ought to stick to catching terrorists.
Gleckman is a senior correspondent in BusinessWeek's Washington bureau. Follow his views every Tuesday in Washington Watch, only on BusinessWeek Online Edited by Douglas Harbrecht
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