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Last month in Oregon v. Ashcroft, a federal district court rebuffed U.S. Attorney General John Ashcroft’s attempt to use the federal Controlled Substances Act to override Oregon’s decision to legalize physician-assisted suicide. The court announced that nothing in the text or history of that law indicates that Congress intended to give the attorney general the authority to set national policy on assisted suicide. Many in the academy (including me) have been deeply concerned about Ashcroft’s conservative political maneuverings. It is thus not surprising that the District Court’s opinion — viewed as a straightforward matter of statutory interpretation and a slap on an overreaching attorney general’s wrist — drew a good deal of applause. But at least some defenders of Oregon’s assisted suicide law refused to let it go at that. Instead, they plumbed and praised the ruling for what they saw as its deeper shades of meaning. The court’s opinion, they declared, confirmed that it is the responsibility of the states, and not the federal government, to regulate the practice of medicine, including physician-assisted suicide. According to Compassion in Dying, a national pro-assisted suicide advocacy organization, the federal court’s opinion in Oregon v. Ashcroft “confirms that the regulation of medical practice is the state’s job.” Sadly, in their rush to celebrate this latest affirmation of states’ rights, these proponents of legalized assisted suicide appear to have lost their liberal bearings, and missed an important truth about the opinion: It is a threat to women, women’s equality, and equality rights generally. To be sure, it may be savvy lawyering to maintain, as advocates of assisted suicide have, that it is the plenary responsibility of the states to regulate medical practice. If credited, this suggestion presumably would protect Oregon’s physician-assisted suicide experiment against a federal mandate that it be shut down. HURTING WOMEN But that is not all. Should it really be the state’s job to regulate the practice of medicine, it is difficult to see why, for example, a state should not be allowed to regulate or even prohibit abortion, which is a medical practice, after all. The same holds true for a range of reproductive choices, which require medical intervention, that women make for themselves as women. Taken seriously, the idea that medical practice falls within the states’ regulatory purview implies that states should ultimately decide how to handle women’s medically mediated reproductive choices. Of course, one might object that there is something special about abortion and other physician-assisted reproductive choices that women make. Building on Justice Ruth Bader Ginsburg’s observation that Planned Parenthood v. Casey (1992) “acknowledged the intimate connection between a woman’s ‘ability to control her reproductive life’ and her ‘ability … to participate equally in the economic and social life of the Nation[,]‘” one might reasonably maintain that women’s reproductive choices are constitutionally guaranteed as sex equality rights. If so, one might conclude that states are not at liberty to limit women’s reproductive choices too much and that they certainly cannot regulate those choices away. This objection makes a good deal of sense, and has much to commend it. But it misses the point. To stand behind state authority over the practice of medicine, as assisted suicide advocates now do, draws into question whether women’s medically assisted reproductive choices should be constitutionally protected against sexually discriminatory regulation of them — at all. If Oregon v. Ashcroft does, indeed, affirm that medical practice rules are within the states’ purview, it strengthens — even calcifies — a line of judicial thinking about states’ rights that is eminently capable of uprooting and overturning the constitutional sex equality rights the Court may be said to have promised women in Casey (and, read in light of Casey, Roe v. Wade (1973)). In this way, at least, a states’ rights victory for Oregon’s assisted suicide law in Oregon v. Ashcroft may actually help the attorney general to launch the frontal assault on women’s reproductive equality rights that many of us have been expecting (and preparing for) for some time. These concerns about a states’ rights ruling for Oregon in Oregon v. Ashcroft are concrete and urgent, not hypothetical. Underlining their importance in the current litigation is the willingness that defenders of Oregon’s law have shown to offer up women’s equality rights in life in order to secure ostensibly gender-neutral rights to “dignity” in death. In papers submitted to the District Court, for instance, guardians of Oregon’s assisted suicide law chose to stake their case, in part, on the Supreme Court’s recent decision in United States v. Morrison (2000). That decision, drawing on ideas about states’ rights, dealt a staggering blow to the federal government’s ability to address the national problem of gender-based sexual violence. Protectors of Oregon’s permissive assisted suicide law have brandished Morrison as a weapon to beat back the attorney general’s attempt to deliver the law its coup de gr�ce. As a mode of legal strategy, there is nothing wrong with using Morrison in this fashion. Doing so violates no existing rule of professional ethics of which I am aware. But that does not mean this is how Morrison should be used. And it should not be — unless one is prepared to accept and capitalize on the constitutional protections Morrison effectively accorded to sexual violence (violence that regularly results in women’s deaths) — as a predicate for the “right” to end one’s life. Not everyone is. A FOUL PEDIGREE To those familiar with the political lineage of states’ rights, it should come as no shock that defending Oregon’s assisted suicide law in the name of the states’ authority to control medical practice may set back the movement for women’s equality. States’ rights have a foul pedigree. Both over the years and recently, they have provided a safe-harbor for a range of unjust social practices and conditions. Among other things, deference to states’ rights, including the right to regulate the practice of medicine, has kept women in fear of physical and sexual violation in both the so-called public and private spheres. In reality, states’ rights have been much more of an impediment to women’s equality than a tool to achieve it. To strengthen them in order to safeguard Oregon’s assisted suicide law does not change that. And it moves in the wrong direction. What states’ rights have generally meant for women and women’s equality is emblematic of what states’ rights have generally meant for members of socially subordinated groups. States’ rights have been used to uphold slavery and, later, racial segregation. They have operated to allow enforcement of local sodomy laws to the detriment of the gay male community (a community that, at least so far, has been quite supportive of efforts to legalize assisted suicide). Moreover, states’ rights have been a roadblock to federal efforts designed to address age and disability discrimination. As a matter of practice, if not necessity, states’ rights have been an instrument of social subordination. In light of this history, it is not hard to see why invoking “states’ rights” to defend Oregon’s assisted suicide law is likely to undermine the federal government’s ability to promote equality and equality rights. Understood as a defeat for the attorney general, the District Court’s opinion in Oregon v. Ashcroft may be a cause for celebration. Understood as a pro-states’ rights decision, it most certainly is not. Marc Spindelman is an assistant professor at Ohio State University Moritz College of Law in Columbus, Ohio, where he teaches classes in health law, bioethics, and family law.

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