Kagan: Overturning Oregon's death-with-dignity law "a fairly terrible idea"

Kari Chisholm FacebookTwitterWebsite

Late last week, the Clinton Library released several tens of thousands of pages of records related to the past White House service of Supreme Court nominee Elena Kagan.

Amongst the records, a note in which she advised President Bill Clinton on Oregon's death-with-dignity law. In particular, accourding to CNN, the Justice Department had decided that the federal government couldn't use the Controlled Substances Act to stop Oregon doctors. Some in the White House wanted to pair that announcement with a call for a federal law that would explicitly stop Oregon. Kagan disagreed:

"DOJ [Justice Department] is ready to opine that Oregon doctors who assist suicides are not violating the Controlled Substances Act (This is contrary to an initial DEA [Drug Enforcement Administration] ruling," wrote Kagan. "We need to decide whether to accompany this ruling with a request for new legislation making assisted suicide a federal crime. I think this is a fairly terrible idea, but I know Begala likes it."

Of course, the Bush administation decided to go the other way - to use the Controlled Substances Act to overturn Oregon's law. And, in 2006, they lost 6-3 at the Supreme Court.

That particular decision was especially troublesome, as it featured a vote by Chief Justice John Roberts to overturn Oregon's law -- even though he had led Senator Ron Wyden to believe that he'd be disinclined to do so. From the Oregonian in August 2005 (no longer online, boooo):

Supreme Court nominee John Roberts declared that, in cases dealing with end-of-life care, he would "start with the supposition that one has the right to be left alone," Sen. Ron Wyden, D-Ore., said after the two met for an hour Tuesday. ...

"You don't get the impression from how he answered that he'd let somebody stretch a sweeping statute like the Controlled Substances Act," Wyden said. ...

It's settled law now, but I feel quite a bit more comfortable with Elena Kagan, that's for sure.

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    Given the understandable lack of opinions written due to her background it is pleasant to learn she advocated for the federal government to stay out of the issue. Evetually we got a great outcome, but there never should have been federal meddling in the first place.

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      Wholeheartedly agree, Kurt.

      (Full disclosure: I work for Compassion & Choices, the national nonprofit organization which advocated for Oregon's law, as well as the those in Washington and Montana).

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