In the days of Daniel Webster and John Calhoun, when the Senate was debating the Oregon bill, Calhoun anticipated the argument that would be made later in the Dred Scott case: American citizens should have the right to carry their property in slaves into the territories of the United States. After all, the territories were under the exclusive governance of Congress, and the Fifth Amendment provided that persons should not be deprived of their property without due process of law. To which Webster replied, quizzically, “Their ‘property’? What do they mean by ‘property’?” The Constitution cast its protection on property, but that formula would have to be filled in with an understanding of what constitutes legitimate property:
[The Southerners] have, in their own States, peculiar laws, which create property in persons. They have a system of local legislation on which slavery rests; while everybody agrees that it is against natural law.
Webster expressed here the settled understanding that the natural law was the residual law, which would be in place if it were not superseded by the positive law in any territory. As the old saying used to go, slavery was so wrong, so contrary to natural law, that it could be sustained only by positive law. But this understanding encompassed the classic sense of prudence: that we cannot expect perfect justice or a life purged of all vice and that it may be necessary at times for statesmen to accommodate evils for the sake of lessening them and moving events, even gently, in another direction.
All of this has suddenly been replayed in a curious way over the issue of assisted suicide in Oregon. But now, we find the Democrats and Janet Reno taking the place of Webster in this new version of the Oregon bill. Before Oregon moved to install a policy of assisted suicide, the federal laws on “controlled substances” sought to insure that those drugs would be used only to secure the health of patients. The drugs could not be used to sustain addictions or speed the death of a patient in a suicide. Those federal laws seemed to offer, then, a serious bar to the policy on assisted suicide enacted in Oregon.
And that sense of things was rein-forced in 1997, when Congress passed, almost unanimously, the Assisted Suicide Funding Restriction Act. That measure, signed by President Clinton, sought to insure that federal funds and facilities would not be used for assisted suicide or euthanasia. Mr. Clinton remarked that the bill would allow the federal government to “speak with a clear voice in opposing these practices.”
But the executive, under Bill Clinton, rarely speaks with a clear voice— unless it is promoting abortion rights. Yet abortion rights have been bound up with a notion of “autonomy,” and many judges have understood the same principle to be at work in the right of people to dispose of their own bodies in a suicide. Mr. Clinton affected not to see that connection, a posture that allowed him to sound, in public, the traditional concern for protecting life. But his attorney general later reflected the deeper character of the administration and made an accommodation with the policy in Oregon.
Through Ms. Reno, the administration announced a new respect for federalism and the rights of states by allowing Oregon, in effect, to amend the federal law. The state had now determined that assisted suicide could be part of a legitimate medical procedure. The Department of Justice would respect that judgment, and so it would recede from any enforcement of the federal laws that barred the use of drugs for that purpose. The federal government would claim the authority to intervene in Oregon only if physicians did not comply with the rules set up by the state to hedge in, or constrain, this new franchise of doctors in administering death.
Janet Reno might strike the pose here of Daniel Webster: the federal government would not endorse the “peculiar law” in Oregon, but it would accommodate that law with a respect for federalism and a sense of prudence. And yet, where was the compelling need for prudence in making an accommodation with this policy of promoting death? Nothing seems to account for this new reverence for federalism except the underlying principle that begins with the private right to make lethal decisions about one’s own body and the child who might be borne in that body.
Congress sought to counter this move of the attorney general in 1998, but the legislation ran into opposition from groups of physicians. Their ostensible concern was that the firming up of the federal rules might have a pro-found, discouraging effect on doctors as they prescribed drugs for the sake of relieving pain. But now Henry Hyde and his colleagues have come forth with a new bill that has removed that concern—and recruited wide support in the medical profession. The new accent of the bill is reflected in the title: the Pain Relief Promotion Act of 1999.
Richard Doerflinger of the National Conference of Catholic Bishops has been, for years, one of the savviest people tracking this issue in all of its layers of subtlety, and he has been one of the leading figures in shaping— and shepherding—this new legislation. As Doerflinger pointed out in his congressional testimony, this new bill “underscores the federal policy that pain control is an important and legitimate purpose for the use of federally regulated drugs—a policy that has never before been so explicitly stated in federal statutes.” Evidently, the bill also adopts the doctrine of double-effect: A patient may die as a result of medication administered to relieve his pain, but the intention of the doctor is to relieve the pain and minister to his patient, not to procure, or will, the death of the patient.
But in addition to making that point clear, the current bill also offers grants for the sake of promoting palliative care and cultivating, with a new seriousness, the relief of pain for patients. One of the striking, curious things to come out of our experience over the last several years is that assisted suicide and the relief of pain may be inversely related. When Rhode Island considered a ban on assisted suicide in 1996, a group of doctors warned that the bill would discourage physicians in using drugs like morphine to relieve pain. Just the opposite happened: When the bill passed, and the laws rejected assisted suicide, the doctors cultivated a more serious interest in relieving pain. In the next year, Rhode Island more than doubled its per capita use of morphine in controlling pain. Similar accounts have come from California and other places, and they seem to come along with a heightened interest also in hospices, or the care of the dying. The upshot seems so obvious that we may wonder how people have failed to see it: A policy of assisted suicide diverts doctors from the task of relieving pain and securing the comfort of patients; for it holds out the chance of dealing ever more swiftly and cheaply with the problem through the expedient simply of removing the patient.
The new bill, with its accent on relieving the pain of patients, gained some remarkable support at first among liberals. Congressman Jerry Nadler (D-N.Y.) had made a show of breathing contempt for Republicans during the crisis over impeachment, but now he turned for a while into a pussycat. He voted for the new bill in the subcommittee. But by the time of the markup on the bill, the Democratic caucus had conveyed its sense of things, and Nadler switched. He argued, though, that if he had been a legislator in Oregon, he would have voted against the policy of assisted suicide. But since Democrats must regard that as a plausible policy, he was now reluctant to invoke the powers of the federal government to prevent the people of Oregon from having the policy they voted.
The same sentiment was expressed in a catty way by the Democratic staff of the House Committee on the Judiciary. The staff twitted the Republicans, who seem to “think that state referenda are wonderful ideas … when they do things like eliminate affirmative action in California, but apparently referenda lose their noble function when they authorize things with which the Republicans do not agree.” In this, as in other things, the Democrats seem utterly oblivious to the principle they profess to be affirming. They are the ones more likely to come into court to overturn referenda on gay rights or partial-birth abortion; and their newly found concern for “running things from Washington” has never applied to abortion. The Democratic staff have not shown the slightest interest in removing that matter from the control of the federal courts and returning it to the people in the separate states.
And what they miss, beyond every-thing else, is that this is not a matter of procedure but substance: The voters of California, in a referendum, had reaffirmed the Civil Rights Act of 1964 and the principle of “color-blindness.” There is no inconsistency between supporting the right of the voters to choose that policy and, on the other hand, invoking the powers of the federal government when the protection of life is endangered by a local majority. There is, in this stance, no hypocrisy or contrivance. It is a reflection of what the federal government was meant to do from its beginning. And as in the days of Webster and Calhoun, the question of what federalism enjoins us to do will have to pivot, finally, on the moral substance of the case at hand.