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Servatius Redux

Gonzales and the Libertarian Mistake Original Article

Original Article

When Adolf Eichmann was on trial in Jerusalem, his attorney, Robert Servatius, insisted that Eichmann had not really borne responsibility for “killings by gas, and similar medical matters.” Judge Halevi thought that this reference to killings by gas as a “medical matter” must have been a slip of the tongue. No, replied Servatius: “It was indeed a medical matter, since it was prepared by physicians; it was a matter of killing, and killing, too, is a medical matter.”

Servatius’s obtuseness invited an obvious response — and U.S. Supreme Court Justice Antonin Scalia recently found himself having to make the very same kind of obvious response. The recent case of Gonzales v. Oregon concerned provisions the State of Oregon had made for the involvement of physicians in assisted suicide. John Ashcroft, as U.S. attorney general, invoked his responsibility under the federal Controlled Substances Act to find that the use of drugs in suicide was not a legitimate medical purpose.

Justice Anthony Kennedy wrote for a majority of the Court in overturning that reading of the federal statute, and upholding the authority of Oregon to take a more accommodating position on the role of physicians in suicide. Kennedy also questioned the propriety of having decisions on the use of drugs made by the attorney general, rather than by government officials who deal with the regulation of medicine. To which Scalia was forced to offer the obvious rejoinder: A decision about the rightness or wrongness of suicide is not a medical question, nor is it a question to which “science” is a source of answers. Whether people have lives worth living, and whether the reasons for which they are taking their own lives are justified or unjustified, are distinctly moral questions. The principles that provide the ground of judgment form a discipline that has not been, these days, a discipline in which scientists have been tutored.

Scalia has made clear his own judgment that the states have wide latitude in accommodating suicide or in forbidding it. But the problem here is taken into another register as soon as we have found compelling reasons for regarding the regulation of drugs as a scheme that must have a national, or federal, sweep. Once we have made that judgment, the question of regulating drugs simply cannot be detached from the question of what is a legitimate or illegitimate use of drugs. And that in turn cannot be separated from the question of the rightful and wrongful ends of medicine.

In this respect, Scalia followed the brief for the government as he leaned on the traditional understanding that has enveloped the practice of medicine since the time of the Hippocratic oath. Medicine involves the task of healing or treating the sick — according to Webster, it is the “science and art of dealing with the prevention, cure, or alleviation of disease.” And as Scalia observed, “virtually every medical authority from Hippocrates to the current American Medical Association (AMA) confirms that assisting suicide has seldom or never been viewed as a form of ‘prevention, cure, or alleviation of disease,’ and (even more so) that assisting suicide is not a ‘legitimate’ branch of that ‘science and art.'”

Justice Kennedy, ever adaptive, showed an obtuseness to the problem at every level. He remarked that nothing in the federal statute gave the attorney general an “authority to define diversion [of drugs] based on his view of legitimate medical practice.” In the first place, this was not simply “his view,” any more than it was a view legislated by Congress: It was an understanding that has ever attached to medicine. Even if Congress had not made explicit this ancient understanding of the ends of medicine, there was no way for an officer of the law to evade that kind of question. The philosopher Wittgenstein once had an example of people leaving a child in the hands of a babysitter with the instruction, “teach that child a game.” When the parents returned, the sitter had taught the child how to shoot craps. The sitter might have been invited to show the child a movie, and he might have decided to play for the child an X-rated porn movie. The sitter could not have been instructed in advance of all the things he should not do. We rely on people understanding, even in the most prosaic matters, that there are certain things they should not do. We expect them, in virtually every activity, to be attentive to the chain of rightful and wrongful ends in which their acts may form a part.

So the laws did not confer upon the attorney general a responsibility that ran beyond the responsibility that a baby sitter, a bus driver, or a plumber would have. Anyone given responsibility, in the federal scheme for the regulation of drugs, could not avoid the question of the legitimate or illegitimate use of drugs; and on that question, the attorney general did not fall back on his own personal views. The tradition of laws had already incorporated a moral understanding long settled.

Our libertarian friends have shown an indecorous enthusiasm for this decision on the case from Oregon. It is not, in many cases, because they welcome the involvement of doctors in suicide, but because of their attachment to federalism. I share the attachment to federalism, but we run the risk there of replicating Justice Kennedy’s mistake. When we talk about the regulation of commerce or anything else, we may easily overlook the fact that the regulation of commerce cannot be detached from a sense of what is rightful or wrongful commerce. As Scalia has recognized, the regulation of commerce encompassed, quite early, the regulation of lottery tickets, and, in later years, the barring of prostitution; Congress has been drawn in persistently to mark off the boundaries of rightful and wrongful commerce.

The libertarians are headed on a path of incoherence if they think that federalism offers a way to put aside the moral questions that vex our politics. The scheme offered to us in the Oregon decision asks us, in the name of federalism, to incorporate the view that assisted suicide is just another, tenable view about the proper ends of doctors and medicine. Justice Kennedy plants the premise when he remarks that the attorney general had sought to bar a policy in Oregon merely “because it may be inconsistent with one reasonable understanding of medical practice.” The aversion to self-killing or self-murder, the enduring concern about doctors using their powers to end life — all of that is simply diminished now as “one reasonable understanding of medical practice,” no more right or wrong than any other. To incorporate that understanding at the top of the state, in the national government, is to do nothing less than to erode the conviction that has underpinned all laws for the protection of life. If the assistance of suicide is regarded as just another “reasonable understanding of medical practice,” why shouldn’t that view of things begin to seep into parts of the federal establishment? Why should it not come to affect the understandings that prevail in military hospitals or in divisions of the National Institutes of Health?

To recall an older example, we might have lived for a while with a federalism that allowed slavery in some of the states. But Lincoln posed a crucial question: What would happen to us, as a people, if we came to incorporate a certain indifference on this point — when we came to think that there was nothing exactly wrong in principle with some men ruling others, as property, without their consent? I am not putting assisted suicide on the same plane as slavery; I am simply trying to remind us of the way in which we may talk ourselves out of moral understandings quite central to the laws as we talk ourselves into the view that one version of the uses of medicine are quite as reasonable as another.

What the Court offered, in Gonzales, was a statutory interpretation. If this had happened before the GOP’s current time of troubles, there would already have been a move underway to amend the statute and make the ban on assisted suicide explicit. But even at the GOP’s high point, it was hard to summon the votes for that kind of move — and it becomes ever harder once the Republicans are given the facile concept that we are dealing simply with “one reasonable view” among others. The Republicans, already besieged, may think they have about as many troubles as they have time for; meanwhile, moral understandings — once firmly settled — become unsettled.

We should not deceive ourselves about the reach of that supposedly small change the Court brought forth in Gonzales.

—Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and a senior fellow at the Ethics and Public Policy Center in Washington