Courting the Right 

Supreme Court Debates Oregon's Way of Life—and Death

Considering how long Supreme Court justices tend to live, the effects of President Bush's choices for the US Supreme Court could stretch on for decades. But it will only take Oregonians a few months to see how the conservative court weighs in on two fronts—death with dignity and reproductive rights.

The Senate Judiciary Committee has scheduled nominee Samuel Alito's confirmation hearings for January, much to the chagrin of the Bush Administration, which wanted to fast track the process in order to have another arch-conservative voice on the bench for the handful of highly charged cases that will be heard by the end of the year.

Newly crowned Chief Justice John Roberts kicked off his Supreme Court tenure with Gonzales v. Oregon—a federal challenge to Oregon's Death With Dignity Act. Despite having been approved by an overwhelming majority of Oregonians on multiple occasions, the law has come under fire from the White House, which is using the Controlled Substances Act to assert federal control over how states regulate prescription medications—including the ones that Oregon physicians are allowed to prescribe in order to bring about death.

The case was heard in early October, while retiring Justice Sandra Day O'Connor was still on the bench. According to the Portland-based Death With Dignity National Center (DDNC), the Alito nomination draws a big question mark over the entire case.

DDNC Spokesperson Robert Kenneth is hopeful that Chief Justice Roberts will choose to fast track the decision in order to give O'Connor a chance to weigh in. But if he doesn't, and if the court doesn't issue a ruling before her replacement is sworn in, it will either issue an eight-justice ruling (risking the possibility of a 4/4 split) or ask both sides of the case to re-present their arguments some time next year with the new justice.

For death with dignity, the best hope is to have a decision handed down before Alito—or anyone else with equally conservative credentials—is sworn in.

"Alito on the bench will really tip the court to the right," Kenneth said. "I think his past writings would hint that he's more of an ideologue than a follower of judicial restraint."

If the law is overturned, Kenneth said, Oregon will likely see yet another ballot initiative to establish assisted suicide. But if the law is upheld, there could be a move in Congress to pass a national ban on physician-assisted suicide. But considering the Death with Dignity Act is widely supported in public opinion polls, that effort would likely face an uphill battle.

O'Connor will also still be around when the court hears two abortion-related cases later this month. The more notable of the two, Ayotte v. Planned Parenthood, will examine the legality of a New Hampshire law that required minors to have parental consent before having an abortion. Planned Parenthood has challenged the law, partly on the basis that it has no provision for circumstances in which the underage mother's health might be at risk.

The larger implication of the Ayotte case is that the court could use it to ultimately rule on whether the Constitution provides for a right to privacy—the concept that was used in Roe v. Wade to protect reproductive rights for the past three decades.

As with the death with dignity case, Roberts could potentially order a rehearing of the case when O'Connor's replacement is found. Local choice advocates are adamantly opposed to this scenario.

Rebecca Green, a spokesperson for the Oregon chapter of pro-choice group NARAL, is convinced that Alito won't uphold the right to privacy.

"Having Alito on the bench is not going to be good for Oregonians, who have always been on the leading edge of civil rights," Green said.

Last Monday, NARAL's fears were enforced with the release of a questionnaire Alito filled out as part of an application to a position at the Department of Justice during the Reagan administration. In it, he said he was proud of Supreme Court cases in which he argued "that the Constitution does not protect a right to an abortion."

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