New Chief Justice John Roberts stepped forward Wednesday as an aggressive defender of federal authority to block doctor-assisted suicide, as the Supreme Court clashed over an Oregon law that lets doctors help terminally ill patients end their lives.
The justices will decide if the federal government, not states, has the final say on the life-or-death issue.
It was a wrenching debate for a court touched personally by illness. Roberts replaced William H. Rehnquist, who died a month ago after battling cancer for nearly a year. Three justices have had cancer, and a fourth has a spouse who counsels children with untreatable cancer.
The outcome is hard to predict, in part because of the uncertain status of retiring Justice Sandra Day O’Connor, who seemed ready to support Oregon’s law. Her replacement may be confirmed before the ruling is handed down, possibly months from now.
Roberts repeatedly raised concerns that a single exception for Oregon would allow other states to create a patchwork of rules for steroids, painkillers and other drugs.
The key O’Connor vote
The Supreme Court eight years ago found that the dying have no constitutional right to doctor-assisted suicide. O’Connor provided a key fifth vote in that decision, which left room for state-by-state experimentation.
The new case is a turf battle of sorts, started by former Attorney General John Ashcroft, a favorite among the president’s conservative religious supporters. Hastening someone’s death is an improper use of medication and violates federal drug laws, Ashcroft reasoned in 2001, an opposite conclusion from the one reached by Attorney General Janet Reno in the Clinton administration.
Oregon won a lawsuit in a lower court over its voter-approved law, which took effect in 1997 and has been used by 208 people.
The Supreme Court appeared sharply divided in hearing the Bush administration’s appeal.
Justice Ruth Bader Ginsburg, who has had colon cancer, talked about medicines that make a sick person’s final moments more comfortable. Justice David Souter, in an emotional moment, said that it’s one thing for the government to ban date rape drugs and harmful products but “that seems to me worlds away from what we’re talking about here.”
On the other side, Roberts and Antonin Scalia appeared skeptical of Oregon’s claims that states have the sole authority to regulate the practice of medicine.
Regulating addictive drugs
Roberts, 50, was presiding over his first major oral argument and thrust himself in the middle of the debate. Over and over he raised concerns that states could undermine federal regulation of addictive drugs. Before Oregon Senior Assistant Attorney General Robert Atkinson could finish his first sentence, Roberts interrupted with the first of many questions.
“Doesn’t that undermine and make enforcement impossible?” he asked Atkinson. He posed just two questions of the Bush administration lawyer.
At one point, a flustered Atkinson said, “I’m starting to be backed into a corner.”
“I was wondering if the new chief would hold back and wouldn’t ruffle other people’s feathers. It appears clear he’s not waiting for anything or anyone,” said Neil Siegel, a law professor at Duke University and a former Supreme Court clerk.
The two justices who seemed most conflicted were Anthony Kennedy and Stephen Breyer. Breyer’s wife counsels young cancer patients. Besides Ginsburg, the justices who have had cancer are O’Connor and John Paul Stevens.
“It’s a tough case,” Kennedy told the Bush administration’s lawyer, and later he asked about the “serious consequences” of curbing federal government authority in regulating drugs.
Solicitor General Paul Clement said Congress was concerned about drug overdoses and suicides.
Thomas vote unknown
Justice Clarence Thomas, as is his usual practice, asked no questions. He could be sympathetic to Oregon. He was one of three justices who said in a summer decision that the federal government should not interfere with state medical marijuana laws. The other two were O’Connor and Rehnquist.
If O’Connor is the deciding vote in the case, the court would probably delay the decision and schedule a new argument session after the arrival of the new justice. On Monday Bush named White House lawyer Harriet Miers to replace O’Connor.
Dozens of spectators gathered outside the court, waving signs supporting and opposing the Oregon law. “My Life, My Death, My Choice,” read one sign. “Oregon Law Protects Doctors, Not Patients,” said another.
Oregon is the only state with an assisted suicide law, but other states may pass their own if the court rules in the state’s favor.
The case is Gonzales v. Oregon, 04-623.