Monday, May 31, 2004

Appeals court right to rebuke Ashcroft


Attorney General John Ashcroft had a constitutional defeat handed to him last week, when a federal appeals panel ruled that he had no authority to block Oregon's assisted suicide law. In a 2-1 decision, the court declared that Ashcroft's "unilateral attempt" to block the law by taking away doctors' right to prescribe medicine "far exceeds the scope of his authority under federal law." The court got it right.

Ashcroft opposed the 1997 Death With Dignity law on moral grounds even before he became attorney general. But in 2001, he moved to use federal narcotics laws and other statutes to put the squeeze on Oregon. The courts have squeezed back.

The new ruling came from a panel of the notably liberal West Coast U.S. 9th Circuit Court of Appeals, which might merit an "a-ha!" from cynics, except for a couple of things:

• The lead judge who wrote the opinion, Richard A. Tallman, is considered one of the court's more conservative members.

• Ashcroft's blatant overreach also irked conservatives who take the concept of federalism seriously, including none other than U.S. Justice Antonin Scalia.

Caricatured as an extreme authoritarian-traditionalist, Scalia is a favorite bogeyman of the left.

But two years ago, speaking at an Oregon college, Scalia declared the state's residents should be able to decide for themselves on assisted suicide without interference from Washington. "You don't hear me complaining about Oregon's law," Scalia said. "Conservatives are just as willing to distort the Constitution as liberals are. I say, a pox on both their houses."

The Supreme Court has already affirmed Oregon's right to enact such a law, but no other states have followed suit.

Assisted suicide will continue to be the subject of intense debate in the states, and that's where the issue should stay.

The appeals panel rightly noted that its role was to decide the legal question in the Ashcroft case, not parse its sociological or even moral content. So it did not rule on the rightness or appropriateness of assisted suicide per se. "This case is simply about who gets to decide," Tallman wrote.

Who is that? States can take comfort that in such matters, it isn't John Ashcroft.

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