Saturday, January 21, 2006

Steve and Nino . . .

Ol’ Spotty was trying to figure out how to introduce a discussion of Gonzales v. Oregon, the recent assisted-suicide decision by the US Supreme Court. Steve Calvin, a Minneapolis doctor, provided the perfect beginning with this commentary in the Minneaolis Star Tribune:
It was no surprise that the Jan. 19 Star Tribune editorial lauded the Supreme Court's decision to uphold Oregon's Death with Dignity Act. However, the logic behind the editorial and the decision itself may come back to haunt the pro-choice crowd.

Steve Calvin

It was no surprise that the Jan. 19 Star Tribune editorial lauded the Supreme Court's decision to uphold Oregon's Death with Dignity Act. However, the logic behind the editorial and the decision itself may come back to haunt the pro-choice crowd.
The 6-3 majority opinion was praised for standing up to what was characterized as a Bush administration attempt to, in the words of Justice Anthony Kennedy, "effect a radical shift of authority from the states to the federal government to define general standards of medical practice in every locality."
The editorial gratefully concludes that "citizens remain free to settle life's hard questions -- how to live and how to die -- for themselves." Well.
In a year, or five, or 10, I expect to see the same breathless editorial logic employed to laud the inevitable Supreme Court ruling effectively overruling Roe vs. Wade. Such a ruling will be the affirmation of some (likely red) state's law protecting unborn Americans.
Sometimes it seems as if we are reading radically different Constitutions. The Preamble that I read says the purpose of the document is "to promote the general welfare, and secure the Blessing of Liberty to ourselves and our Posterity."
So what is welfare? Isn't it health and happiness in a state of well-being? Death really doesn't seem to figure into the Constitution unless we torture the "Blessings of Liberty" into a right to have assistance in killing ourselves. Though I disagree with Oregon's law, at least I see the constitutional basis for deferring to states' rights in this decision.
The 200 poor souls who availed themselves of lethal prescriptions exercised what is, for now, their constitutional right. But that is nothing compared with the manufactured right to abortion.
The essence of Roe was the use of raw federal (judicial) power to find a constitutional right to exercise prenatal lethal violence. Roe overturned medical practice laws restricting abortion in the majority of the states and short-circuited the legislative process that was the legitimate forum for resolution.
Thirty-three years later, after the tragic and unnecessary deaths of tens of millions of America's "posterity," we are still hotly debating abortion. It is what the political theater of the Alito confirmation hearings was all about.
The debate over the Oregon law was cast as one over the right for local control of medical practice and standards. This raises an important question. Will the editors still support federal attempts to force training and participation in abortion on practitioners and hospitals? Will they support Rights of Conscience laws prohibiting discrimination for health care providers who oppose abortion? We will see.
Twenty-five years of medical practice has shown me the complex and deeply personal reasons that underlie support and demand for unrestricted abortion by many of my fellow citizens. I wish that we were not divided in this way. Thankfully, the moral tide is flowing in a life-affirming direction. Maybe the Death with Dignity Act will inadvertently give birth to the Life for All Act.
Steve Calvin is a Minneapolis physician.

Well, Doc, that was pretty passionate. Completely clueless, but passionate. Roe v. Wade and Gonzales v. Oregon have nothing to do with each other. They are Pat Robertson and Grand Ayatollah Ali Sistani. Come to think of it, these two are both religious fundamentalist nutjobs, so maybe the comparison isn’t so good. But Spot thinks his readers know what he means.

Spotty just hopes the doc’s brand of medicine is better than his brand of constitutional quackery. Spot has written before that the federal right of privacy, as announced in Griswold v. Connecticut, was found to exist in the sum of the first eight amendments to the Constitution, and made applicable to the states by the 14th Amendment. Griswold is the forerunner of Roe v. Wade as well as Lawrence v. Texas, the latter being the recent decision striking down the prohibition of same-sex sexual relations between consenting adults with the majority opinion written by the turncoat Justice Kennedy.

On the other hand, Gonzales v. Oregon was not even decided on a constitutional principle! That’s right, Doc, it was a thrill-a-minute, nail-biting administrative law case! Really, Doc, it was gripping. But it had zero to do with Roe v. Wade.

The issue in Gonzales was whether a rule issued by Gonzales’ predecessor, John (Ban the Boob) Ashcroft, could subject Oregon medical practitioners to deregistration to prescribe controlled substances and possible criminal prosecution for prescribing lethal dosages of drugs subject to the federal Controlled Substances Act (CSA).

To make a long story extremely short, the Court said 6 – 3, in an opinion written by that darn Justice Kennedy again, NO. The majority said that the Congress had intended to regulate the distribution of potentially illicit drugs, not the practice of medicine, and therefore Ashcroft’s rule was beyond the scope of his authority under the CSA. The Court found that Ashcroft was not trying to stem the flow of illicit drugs, the purpose of the CSA. The Supreme Court did not even award points to Ashcroft for ingenuity or effort.

What is the constitutional underpinning of the CSA anyway? Well, it’s the ability of the Congress to regulate interstate commerce under the Commerce Clause. You know, the same toothless Commerce Clause that according to jurists like Scalia and Alito cannot support the federal prohibition of guns near schools or prohibit the private ownership of machine guns.

It’s funny though, Scalia didn’t even mention the Commerce Clause in his dissent. You would think Nino would have gone out of his way to rein in federal government abuse of a state’s legislative authority. He didn’t though, because it didn’t square with his own agenda. So, instead Nino pages frantically through a dictionary to find some support for the result he wants. Remember this, gentle readers, the next time that somebody points to Scalia as an example of judicial restraint.

So Doctor Steve, what have we learned today? We learned that the right of privacy supporting Roe v. Wade is a federal right belonging to all citizens of these United States. We learned that Gonzales v. Oregon was decided on an entirely different constitutional principle, or rather a lack of one, and that Nino can go both ways on judicial activism. We also learned never to take legal advice from a doctor!


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