The Supremes & assisted suicide

Last week, the U.S. Supreme Court issued a decision that was widely hailed as the first major victory for supporters of physician-assisted suicide since Jack Kevorkian was thrown in the slammer seven long years ago.

Twelve years ago, Oregon became the only state to legalize assisted suicide in any form, when voters decided to let doctors prescribe a lethal dose of drugs to terminally ill patients who wanted to end their lives.

That law's name, the Death with Dignity Act, was a perfectly accurate reflection of what it stood for. Very few Oregonians have actually used it to end their lives — on average, no more than a couple of dozen a year.

Some ask for the pills, get them — and then, secure in the knowledge that they have an out if things get too bad, just hang on and die naturally.

But from the start, that law enraged the nation's religious fanatics. They may have been more angry at this than they were at Kevorkian — possibly because they figured the Death with Dignity Act would be far more acceptable to the vast majority of Americans who dare to think for themselves.

So the nuts first forced another vote on the issue. That backfired. Oregonians, who narrowly passed the issue in 1994, resented outside interference and passed Death with Dignity again by a landslide in 1997.

Then John Ashcroft, the repellent religious nut who served a hitch as U.S. attorney general, tried to threaten doctors who prescribed prescription drugs to the terminally ill in full accordance with the law. He threatened to revoke their licenses. But he lost in court after court, every step of the way.

Last week, the U.S. Supreme Court agreed that he had no authority to do that. Even Anthony Kennedy, one of the Infamous Five who installed George Bush as president in December 2000, was scathing in his denunciation of Ashcroft's attempt to assert a phony claim of authority.

That would be enough to embarrass a normal human being, including even most lawyers. What Ashcroft's reaction was, however, is not known.

He may not even care. He was broomed out of the Bush administration after the first term, and now is a (surprise) sleazy lobbyist for various firms trying to peddle homeland security toys to the federal government.

We know he's raking in at least $90,000 a month, and probably much more. No one can remember any former attorney general, even those who went to jail, ever stooping quite this low before, but then this is John Ashcroft.

As they say, once you've run for re-election and been defeated by a corpse, it's hard to be humiliated further. But enough about Ashcroft.

What does this really mean? The good news is that for those who believe in personal freedom, the enemies of democracy have been defeated in Oregon — for the time being. There now may be a flurry of activity to legalize sane end-of-life choices in other progressive states — Vermont, for example, maybe even California.

But there's plenty to worry about too. Ten years ago, the Supremes ruled that there was no constitutional right to seek physician-assisted suicide. Nor did they say last week that Congress couldn't overrule assisted suicide laws. They only decided that Ashcroft's vulgar and ham-handed tactic wasn't legal. What really happened was that, in the final analysis, the high court reaffirmed its past decisions that indicate regulating medical practice is something that should be left to the states. That is, six of the nine did.

Everyone knew that Antonin Scalia, who in another life might have been a grand inquisitor, would rule against freedom of choice no matter what, as would his Mini-Me, Mr. Justice Intellectual Embarrassment Clarence Thomas.

But if you want a terrifying glimpse of the future, look at the new chief justice, John Roberts, the man so many thought was a well-groomed moderate.

Not only did he vote the wrong way, he didn't even bother to write his own dissenting opinion; he just signed the one Scalia wrote. That opinion is, at least, open and honest; it draws a line in the sand, and proclaims a cultural war.

This isn't about medicine at all, Scalia admits, but about "a naked value judgment." To him, he says in so many words, physician-assisted suicide has as much legitimacy as "polygamy or eugenic infanticide."

Chief Justice Roberts signed that opinion without comment.

By the way, he claimed during his confirmation hearings that his own feelings and values wouldn't be a factor in his court decisions. Now we know just how true that was. Do you remember his fervent anti-abortion activist wife? Does anyone now believe he wouldn't vote to overturn Roe v. Wade?

That may in fact become easier. Remember Anthony Kennedy's argument that regulating medical practice is something that should be left to the states? That's just what a Roberts-dominated court will do if it gets the chance — overturn Roe and then say abortion will be left up to the states. (Then, of course, they'd find a way to invalidate the law in any state that dared to make it legal.)

Things are going to get worse before they get better. The Democrats appear to have given up the idea of waging a major effort to block the appointment of Judge Samuel Alito Jr. to the high court. So in short order, the man they call "Scalito" will replace Sandra Day O'Connor, and that's when things will really start to become scary.

Alito has been far less cagey than the almost squeaky-clean Roberts, whose spookily serene countenance scares me more than Scalia's Joe McCarthy look-alike face. Alito openly wants to overturn Roe. God knows what he thinks about the Dred Scott decision.

Not too much we can do about this. Except ... hope and pray like hell that the oldest member of the court, Associate Justice John Paul Stevens, who's almost 86, stays healthy and on the court until at least late 2008.

Otherwise, George W. Bush will get to replace him too.

What that could mean is not simply the end of Roe v. Wade. If Dubya names enough justices, we may have to worry about Plessy v. Ferguson.

McPhailing Again: I am absolutely shocked — shocked beyond belief — that anyone would think there was anything political about Kwame Kilpatrick's appointment of Sharon McPhail as the city's general counsel at $126,000 a year.

True, the job had been vacant for years, mainly because it isn't much needed. The general counsel oversees the corporation counsel, who oversees all the lawyers in the Detroit Law Department.

True, hundreds of other lesser-paid city workers are being laid off. But how could anyone suggest the appointment is a reward for McPhail's dramatic about-face endorsement of Our Mayor, whom she formerly loudly and publicly despised, after she was clobbered in the primary election?

And how could anyone think that the poor residents would be better off if that money was wasted on a couple more cops, say, or reinstituting some bulk trash pickup? Hey, Detroit; this is the leadership you voted for.

Incidentally, I actually wasn't surprised. Dennis Archer predicted in a casual conversation with me on Nov. 19 that something like this would happen.