The Courts decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Governments business. It is easy to sympathize with that position

Justice Scalia’s dissent in Tuesday’s ruling in Gonzales v. Oregon is a searing argument in favor of broad executive powers of interpretation within Congressional limits. In Justice Scalias world, if Congress doesnt say no, the answer is yes. But his dissent reveals his dislike of the federal governments involvement in what the Court has said is an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide that belongs in the laboratory of the states (Washington v. Glucksburg).

The decision in Gonzales removed the threat of civil and criminal retribution from physicians in Oregon who have or will prescribe a lethal dose of medication to terminally ill, physically suffering patients. It is a victory for proponents of the Death With Dignity Model of assisted suicide, for those concerned with the ever-growing powers of the executive branch, for those in favor of states rights, and for Oregon voters who enacted and validated the law in two referenda.

In 2003, Attorney General Ashcroft abruptly reinterpreted Justice Department internal regulations such that Oregon physicians who prescribed a lethal dose of medication could be both deregistered (effectively preventing them from practicing medicine) and criminally prosecuted for violating CSA. Suits were filed, and both the District Court and Ninth Circuit ruled against the attorney general’s position (now Alberto Gonzales).

The attorney general’s interpretation of the CSA was the law of the land except in the Ninth, and would have stayed that way had the Court not intervened. Surprising many and with Justice Rehnquist ill and unable to vote, the eight remaining justices decided to hear the case in February of 2005. It will be many years before the notes of justices are released and there is a chance of knowing who voted for and against hearing the case, but regardless of the tally, this case was a toss-up as it headed to argument. The Court heard the case later that year, with a new chief justice and a seemingly temporary associate justice in Sandra Day OConnor having the potential to uproot the Courts potential precedent-making power.

The 6-3 ruling against the attorney general is a clinical dissection of his powers within the CSA and a full-force blow to the position of the Bush White House on this issue and what it was attempting to do by backhanded means. Justice Kennedys prose alternates between legalistic and statutory precision and broad commentary on the actions of the attorney general and the proper place of the assisted suicide debate. Kennedy walks a thin line between throwing open the doors of the CSA to all comers and allowing the federal government complete control of medical pharmacology. He points to Oregon’s careful construction of the law and its judicious use as a defense against the claims of the attorney general, and upbraids him for the manner in which he conducted his action inconsistently with the guidelines set out by Congress and Justice Department regulations. Scalia’s dissent, joined by Roberts and Thomas, is an equally impassioned critique of the Courts opinion and a scathing commentary on the practice of assisted suicide, but seems to share a preference for the states to settle the issue.

As of Jan. 17, 2006, doctors in any state with a law like Oregons can prescribe federally controlled substances in lethal doses without fear of federal recrimination. This case must have weighed heavy with the eight justices of the Rehnquist Court, who watched over the course of a year while their chief withered and died from an illness that might well have been covered by Oregons law. Note that the six justices who voted in the majority have an average age of 72, while the three dissenting averaged 58. Furthermore, personal ideology seeps through the cracks of the dissent. The excoriation of the Courts opinion focused not only on the technical question at hand but the question of assisted suicide itself, citing the opposition of the vast majority of states and professional associations to the practice. Clearly this dissent wasnt just about defending executive power.

This case is not a slam-dunk defense of states rights. Neither is it a ringing endorsement of the practice of assisted suicide. Like the issue of assisted suicide itself, this opinion and its dissents are complex, frustrating, multi-faceted and morally ambiguous. However, it is a proper rebuke of the attorney generals attempt to involve himself in the states regulating of medical practice. It is a curbing of the executive end-run around the legislative branch that this administration has made a hallmark. And it is a compliment to the people of Oregon, affirming that our states doctors, legislators and voters have more of a right to say whats right or wrong in medicine than any federal administration.