Gonzalez v Oregon: the Supreme Court expands the Reach of the Culture of Death
Deacon Keith Fournier
© Third Millennium, LLC

The Case

On January 17, 2006, six days before we will march to remember the thirty third “anniversary” of Roe v Wade and mourn the resulting death of over forty five million innocent human persons who were peacefully living in the first home of the whole human race before their lives were taken through procured abortion, the United States Supreme Court has opened wide the doors to the legalized euthanasia and given one more intrinsic evil a hiding place under a so called “legal” protection.

As thousands gather this week in front of the Court to grieve the horrors unleashed by the legally inexplicable and morally repugnant action of “legalizing” abortion on demand - for any reason throughout all nine months of pregnancy – the U.S. Supreme Court now not only fails to protect against euthanasia but lays the groundwork for calling it a “right.” In Roe the Court found within a “penumbra” of the right to privacy a “right” to engage in “surgical strikes” and “chemical warfare” in a war on the womb. Now, thirty three years after this same institution has again disregarded the Natural law, the Constitution and the Federal law once again in the case of Gonzales v. Oregon. This opinion serves as a bookend to the expanding reach of the culture of death. It is dangerous and it must be opposed.

The case arose out of a controversy surrounding the interpretation of the Controlled Substances Act (CSA) passed by Congress in 1970 to protect the public and serve the common good through regulating the prescription of certain dangerous drugs. The Statute recognized the authority of the Federal Government, acting through the Department of Justice, to regulate a wide array of drugs that are prone to abuse. In 2001, under the leadership of then Attorney General John Ashcroft, that Department found that Oregon's law which allowed the dispensing of lethal quantities of drugs to terminally ill patients - precisely to enable them to commit suicide - violated that Act.

The Oregon “Death with Dignity” Act allowed terminally ill people to procure a doctor's prescription for lethal dose of drugs to cause death. Under the State statute two medical doctors need only to confirm that the patient asking for help in the commission of suicide is an Oregon resident with a terminal illness that, within a medical probability, will lead to their death within six months. The medical Doctors are then supposed to confirm that this patient who wants to kill themselves is of “sound mind”- meaning that they are able to make “medical decisions” for themselves. Additionally, the Medical Doctor has to be able to affirm that they are at least 18 years old. The patient who wants to kill themselves must present their request for this new hemlock in a writing signed by two witnesses. Finally, they must make two oral requests, separated by fifteen days. The physician who wants to issue the lethal dosage of “medicine”(?) must confirm the diagnosis of brevity of life with another doctor, inform the inquirer of the availability of pain control and then ask - but not require - that the person who is suicidal tell family members they are going to take their own lives.

Attorney General Ashcroft’s action to prevent the implementation of this scheme was based upon his reading of a regulation passed in 1971 which was intended to provide guidance in the implementation of the CSA. It required him to consider whether a "legitimate medical purpose" existed for prescribing this lethal “medication”. In acting to preserve life, he showed both common sense and courage, two attributes often missing in Public Servants these days. Enabling someone to commit suicide by giving them a lethal dosage of drugs is simply not a “legitimate medical reason.”

Sadly, a majority of the United States Supreme Court disagreed and, under our current judicial oligarchy, that trumps everything these days

Suicide has long been against the law. Likewise, assisting someone in the act of suicide has long been illegal. Now, because of this opinion, those who kill themselves and the Doctors who help them, are protected, at least in Oregon. As a former prosecutor, the supplying of a substance intended to cause death used to render one an accomplice, now, it makes one wealthy, at least in Oregon, if the accomplice wears a white coats and holds what is now – understandably- called a terminal degree. Given the trajectory unleashed by this opinion, the delivery of the new hemlock will probably be covered by “health” insurance.

Most people still believe that newly graduating members of the medical profession take an oath, attributed to Hippocrates, before embarking upon their healing art. Some do and some do not, depending on the jurisdiction. Many of the oaths have been altered in the climate of political correctness. However, the old Hippocratic Oath read in part “I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.” Hippocrates must be rolling in his grave.

The Opinion

Make no mistake; the majority opinion in this case opens the door for euthanasia on demand, no matter what the “spin” says in the media. Death on demand activists in other States are already lined up. This decision was the green light for their strategic planning. That’s right; there is a plan to expand the practice of euthanasia by the new cultural revolutionaries. Just as Roe was prepared by the trajectory of cases following Griswold v Connecticut, Gonzalez v Oregon is at the beginning of a strategic plan to dismantle the legal framework that once protected the vulnerable, the depressed, the elderly and the terminally ill from euthanasia. This strategy follows the same path of verbal, social, political and legal engineering.


Justice Anthony M. Kennedy wrote for the majority of the Court, which included Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, Stephen G. Breyer and Sandra day O'Connor. He opined that the "authority claimed by the attorney general (was)…beyond his expertise”, insisting that the Act only authorized him to prevent "drug dealing and trafficking as conventionally understood." He rebuked the Attorney General for exercising authority that, in the Justices opinion would "delegate to a single executive officer the power to effect a radical shift of authority from the states to the federal government to define general standards of medical practice in every locality." The writer of this ominous opinion insisted that when Congress passed the drug trafficking laws, it "did not have this far-reaching intent to alter the federal-state balance."

Throughout the underlying litigation that led to this case ending up at the Supreme Court, the Administration passionately argued against legalizing euthanasia. The record is replete with massive evidence, including an unbroken line of Doctors from Hippocrates to the American Medical Association which have rejected any permutation of physician-assisted suicide as serving any “legitimate medical purpose." That mattered little to the majority. Apparently, their own judicial fiat which alters the long accepted prohibition against suicide - and its far reaching effect - are entirely another matter.

Three Justices dissented- Justices Scalia and Thomas and Chief Justice Roberts. Their opinion referred to the 1971 regulation relied upon by General Ashcroft directing him to find a "legitimate medical purpose" in the prescription of certain kinds of medication as a proper ground for his actions. They insisted that the Attorney Generals interpretation, that Medical Doctors could not prescribe “medication” intended to cause the death of a patient, was a legitimate exercise of his rights and responsibilities under the law.

Justice Scalia opined that "The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution. [But] from an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality. Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA…It is perfectly consistent with an intelligent 'design of the statute' to give the nation's chief law enforcement official, not its chief health official, broad discretion over" those who prescribe medication….. That is especially true where the contested 'scientific and medical' judgment at issue has to do with the legitimacy of physician-assisted suicide, which ultimately rests, not on 'science' or 'medicine', but on a naked value judgment….If the term 'legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death…."

In an addition to the dissenting opinion, Justice Thomas further noted that the majority ruling was at odds with the Court's interpretation of the same rule seven months prior when they struck down the legalization of medical marijuana in California in the case of Gonzales v. Raich. In that opinion the Court ruled that the CSA permitted the Federal Government to prohibit intrastate commerce in marijuana for medical use, even though that intrastate use had no discernible federal interest. He pointed out the inherent inconsistency in the Court holding that the very same section of the CSA allowed federal prohibitions on intrastate drug use of medical marijuana but not prohibitions on the dispensing of deadly drugs. It appears that the majority of the Court frowns on Medical Marijuana but dislikes federal efforts to prevent the prescribing of lethal drugs to enable the commission of suicide. It is what Justice Scalia referred to as a “naked value judgment”, and the majority of the Court has made it.

The Reaction

Sadly, many Press Reports fed the growing practice of attributing to those who objected to this opinion the labels of “conservative” or “religious right”, disregarding both the prominence of the disabilities community in their opposition as well as the wide variance on other issues that is represented in the growing coalition that opposes both abortion and euthanasia. I am an example of how their caricature is decidedly inaccurate. I refer to myself as “whole life/pro-life”. I oppose abortion, euthanasia, capital punishment and the War in Iraq. I reject the labels of “conservative” or “liberal”.  Yet, such distinctions matter little to mush of the Press.

Then, there were the “spin-masters”, those who tried to marginalize the implications of this opinion. They were all over the media, trying to assure people that it is “limited” and will have little effect. Make no mistake, it will. As a practicing lawyer for twenty five years, most of those years spent in pro-life, pro-marriage and pro-religious freedom constitutional law, I know that this is n opinion that will have devastating effects. It also underscores the importance of who sits on the U.S. Supreme Court. Finally there was the bizarre effort to frame the decision as a “States Rights” issue and so attempt to turn the conservative argument upside down. This trap was set when some advocates of the dignity of every human life from conception to natural death allowed themselves to be used by the conservative movement, even adopting much of its rhetoric.

A few comments in the Press are worth noting. First - from activists and then from elected officials.

Jay Sekulow, Chief Counsel of the American Center for Law and Justice, an impassioned defender of life who I had the privilege of serving with as co-counsel in four cases before the High Court stated "This is a disappointing decision that is likely to result in a troubling movement by states to pass their own assisted suicide laws." Barbara Coombs Lee, the president of the “Compassion in Dying Federation”, a pro-euthanasia group which sponsored the Oregon law and has mastered the Orwellian art of newspeak stated "This is a watershed decision [that] reaffirms the liberty, dignity and privacy Americans cherish at the end of life."

Sen. Tom Coburn (R-Okla.), himself a physician found the decision to be troubling, noting astutely and correctly that it created "another class of human beings whose lives have no value…. Nowhere does our Constitution give doctors the right to take the lives of their patients." Sen. Ron Wyden (R. OR.) praised the ruling "The court's decision has stopped, for now, the administration's attempts to wrest control of decisions rightfully left to the states and individuals," he said. "I will fight tooth and nail any congressional attempt to overturn this court ruling." The Spokesman for the White House, Scott McClellan said that President Bush was “disappointed by the decision…The president remains fully committed to building a culture of life — a culture of life that is built on valuing life at all stages."

Conclusion

Like many, I feel like I have been attending the March for Life for far too many years. I know that I am not alone in saying that I would be happy to not have to march again. However, this recent decision of the Supreme Court must re-enkindle our resolve. The Culture of death has advanced once again through the actions of a United States Supreme Court that is out of control. Our struggle has not borne the fruit that we had hoped. This horrid opinion is a bookend to the sad story that is the expansion of the Culture of Death.

It is time for all who are pro-life to make an honest assessment of our efforts, our language, our alliances and our goals. We have marched a lot of miles but covered little ground.

In Gonzalez v Oregon, the Supreme Court expanded the reach of the Culture of Death. We must oppose this expansion. We must do much more. We must build a new culture of life and a civilization of love.

________________________________________________________________
Deacon Keith Fournier, a married Catholic Deacon, is a graduate of Franciscan University of Steubenville, the University Of Pittsburgh School Of Law and the John Paul II Institute of the Lateran University. He is currently a PHD student at the catholic University of America. Long active in pro-life work, Fournier practiced law for twenty five years and served as the first Executive Director of the American Center for Law and Justice.  The author of numerous books and widely published articles, he is a contributing editor of Traditional Catholic Reflections and Reports