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Medical Federalism: Where Are We Headed?
Neal Peirce | NORML | date

Bedrock American federalism -- separation of powers, the basic rights of states to make their own decisions -- got a big boost from the state and federal courts' refusal to bend to Congress' impetuous lawmaking in the Terri Schiavo case.

Now a slump in presidential poll approval ratings suggests that the Bush White House -- having forsaken ideals of states' rights and limited federal power trumpeted by conservatives for decades -- is paying a political price.

But the case is hardly an exception. On issue after issue, notes former Maine Attorney General James Tierney, the Bush administration has ignored states' rights to play to its religious right and corporate constituencies.

"The president is so confident he believes he can sweep all opposition aside," Tierney says. "But that's why we have federalism and a Constitution carefully constructed to stop excessive power, whether it's a Roosevelt or a Bush."

Following in the wake of the Schiavo case, two highly emotional, medical and life-choice issues -- both presently on the Supreme Court's docket-- are likely to test the limits of federal power. Each involves the federal Controlled Substances Act.

First is medical marijuana, in a case challenging states' rights to allow the use of cannabis for people who are either dying or suffering severe, chronic pain. Medical marijuana use is now the law in 10 states -- Alaska, Arizona, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington -- and is currently before other state legislatures.

Apparently moved by heart-rending stories of people relieved from nightmarishly extreme pain by use of marijuana, up to 80 percent of Americans, in polls, endorse medical marijuana use. But federal policymakers, apparently still wed to the country's decades-long, clearly failed "War on Drugs," remain adamantly opposed to any form of marijuana legalization.

The Justice Department, relying on Congress' right to regulate trade among the states, argues that even small amounts of marijuana obtained for free are somehow part of a national market for illicit drugs.

Advocates of experimentation in the states were encouraged when the Supreme Court, under Chief Justice William Rehnquist, a states' rights advocate, struck down two seemingly far-fetched efforts to use the interstate commerce clause to assert federal jurisdiction. One case was a federal law criminalizing the possession of guns near schools; another was national legislation giving rape victims the right to sue attackers in federal court.

Similarly, common sense would seem to say that small amounts of marijuana grown and used locally have negligible impact on interstate commerce. But when the court heard the marijuana case in November, several of the justices were skeptical about the state laws.

Later this year the Supreme Court also will hear arguments on Oregon's celebrated Death With Dignity Law, the physician-assisted suicide statute twice approved by Oregon voters. The law allows a doctor to prescribe lethal drugs for a resident who has an incurable disease, is likely to die within six months and is mentally competent to make the choice. A second physician must approve.

The Bush Justice Department has tried to overturn Oregon's law, claiming there's "no legitimate medical purpose" for prescribing drugs that could end a patient's life. But two lower federal courts have sided with Oregon's contention that regulation of medical practice has historically been a state, not a federal, prerogative. And now the Supreme Court gets to decide.

An ironic question is raised by both the medical marijuana and assisted suicide cases: Will the "activist judges" of the high court override the right of the states to experiment and make judgments on tough pain-control and end-of-life issues?

And second, shouldn't the core principle be: let states, and in turn individuals and their families, decide for themselves?

Results of the Oregon law show what may happen. Fears of thousands of assisted suicide decisions haven't materialized: Over seven years, just 208 Oregonians have elected to end their lives under the law.

And a culture of end-of-life death with thoughtfulness and care has developed. Among the states, Oregon has one of the highest rates of people dying at home, the lowest percentages dying in hospitals. Morphine use for control of extreme pain is the highest of any state. Oregon medical schools and doctors are focusing on comfort care for the dying.

What's to dislike -- or illegal -- about that?

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StewScum

Its really quite amazing to see such a public outcry of disaproval for Bush's polices, especially for the brain dead woman who had her feeding tube removed. Aparently the administration is taking all american's lives into their own incompedent hands, ready to have a daily say in what a person can and cannot do. Our lives are becoming less and less of our own, but at least our vague constitution is still holding strong keeping some power away from the executive branch.

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Life is like a pot of stew, if you don't stir it up every once and a while, all the scum rises to the top -Still Life with Woodpecker by Tom Robbins.