By Tom Curry National affairs writer
msnbc.com
updated 1/17/2006 6:37:59 PM ET 2006-01-17T23:37:59

The Supreme Court ruled Tuesday that the federal laws now on the books don’t permit the Bush administration to block Oregon doctors from helping terminally ill patients kill themselves.

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But will Congress react to the court’s ruling by passing a law to give the Bush administration the power to stop assisted suicide?

In the hours after the court’s ruling Tuesday, some social conservatives urged Congress to act: “It is entirely appropriate for Congress to revise the Controlled Substances Act to make clear that federally-regulated drugs may not be used to facilitate state-sanctioned assisted suicide,” said Tony Perkins, president of the Family Research Council, a social conservative group with clout in Republican ranks.

Manuel Miranda, a former aide to Senate Majority leader Bill Frist and the head of the Third Branch Conference, a conservative advocacy group, called on Congress to “step in quickly to resolve any doubts that the Supreme Court's majority has over the federal intent to regulate the use of drugs to intentionally end life.”

What did the 1970 law allow?
Despite the emotional subject matter of assisting suicide, the court’s majority decision Tuesday hinged on a dry and precise legal question: did the 1970 Controlled Substances Act (CSA) give the attorney general the power to decide that assisting suicide had no “legitimate medical purpose” and that therefore Oregon doctors’ could not prescribe federally controlled drugs to assist suicide?

Oregon has the nation's only physician-assisted suicide law.

The high court held that former Attorney General John Ashcroft’s 2001 attempt to use the CSA to punish doctors who assist suicide was wrong.

US Associate Justice Anthony Kennedy poses for an official picture in Washington
Jason Reed  /  Reuters File
Associate Justice Anthony Kennedy, who wrote the majority opinion Tuesday in the Oregon assisted-suicide case.
If Ashcroft’s interpretation of the CSA were correct, it would cause “a radical shift of authority from the states to the federal government,” the majority said, in an opinion written by Justice Anthony Kennedy, adding that there was no evidence in the law that Congress intended to do that.

Marc Spindelman, a law professor and bioethics expert at Ohio State University’s Moritz College of Law, noted that Tuesday’s majority opinion pointed to two attempts by some in Congress in the 1990s to give the attorney general the authority to bar the use of federally controlled drugs to assist suicides. In 1998 and 1999, those bills failed to pass.

According to Spindelman, the high court majority essentially said that Ashcroft had “tried to do through a reading of the text of the CSA what Congress had failed to do” by not voting to amend the text.

Spindelman said, “This administration has been more willing than others in the recent past to take statutory language and read it aggressively.”

Leaving door open to legislation
But Spindelman added that the majority opinion “leaves the door wide open and may turn on a green light to Congress to pass a law to prohibit assisted suicide as a national matter.”

He pointed to what he saw as an especially significant passage in the 6-3 majority decision where Justice Kennedy said, “Even though regulation of health and safety is ‘primarily, and historically, a matter of local concern,’…there is no question that the Federal Government can set uniform national standards in these areas.”

A prominent supporter of Oregon’s assisted suicide law, Sen. Ron Wyden, D- Ore., praised the court for stopping “the Administration’s attempts to wrest control of decisions rightfully left to the states and individuals. I will fight tooth and nail any Congressional attempts to overturn this court ruling.”

As of Tuesday night no member of Congress had announced legislation to counter the ruling, but lawyers and advocates who oppose doctor-assisted suicide anticipate legislative action soon.

Dorothy Timbs, an attorney with the National Right to Life Committee said, “I think it is a strong possibility we’ll see legislation to amend the Controlled Substances Act.”

Miranda also said legislation is likely. “The political issue is a matter of timing.” He said he expected anti-assisted suicide legislation to be an issue in this November’s house and Senate elections.

“I think it will pass, but I have to say it will depend on the polling. People (in Congress) are going to have be educated as to where the people are.”

Frist's role in Schiavo controversy
The conventional wisdom in Washington is that Senate Majority Leader Frist was politically burned by his involvement in the Terri Schiavo case last March. At one point Frist, himself a cardiac surgeon, took to the Senate floor to question doctors’ diagnosis that Schiavo was in a persistent vegetative state.

But Miranda said Frist must also be mindful that social conservatives are unhappy with him due to his call for federal funding of embryonic stem cell research.

A Senate GOP staffer who spoke on condition of anonymity, said Tuesday, “I could see legislation happening, but not getting traction” because some senators would want to avoid summoning up memories of the Schiavo episode and sensitive end-of-life issues.

Republican pollster Whit Ayres said, “There may be some people who are gun shy because of the Schiavo case, but this is a different issue. Public opinion opposed the involvement of elected officials in an individual case where there was a serious family dispute, but that is fundamentally different from establishing national policy. People understand that it is Congress’s job to establish national policy.”

The constitutionality of the Oregon law was not an issue in Tuesday’s decision.

No constitutional right at stake
Tuesday's ruling does not overturn Washington v. Glucksberg, a 1997 decision in which the high court said there is no constitutional right to assisted suicide.

"For over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide,” Chief Justice William Rehnquist said in Washington v. Glucksberg.

(Former Rehnquist law clerk and now Chief Justice John Roberts was one of the three dissenting justices Tuesday, along with Justices Antonin Scalia and Clarence Thomas.)

Spindelman said some advocates had urged the high court to re-consider the Glucksberg decision but “the Supreme Court flatly refused to take the invitation.”

In the Glucksberg case, those seeking to overturn the ban on assisted suicide claimed that the “liberty” spoken of in the Fourteenth Amendment to the Constitution included the liberty to assist a gravely ill person in killing himself.

But Rehnquist said liberty has to be based on “fundamental rights found to be deeply rooted in our legal tradition.”

Physician-assisted suicide is not “deeply rooted” in American laws, but it is at least “rooted” in one state and conservatives want to outlaw it before it does become deeply rooted nationwide.

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