Scalia, States Rights, and "Legitimate Medical Procedures"
Alonzo Fyfe printable version print page     Bookmark and Share
Mon Jan 23, 2006 at 11:59:56 AM EST
Scalia is not the "states rights" form of conservative that some people market him as being.

As can be shown from his opinion in Gonzales vs. Oregon, his willingness to overturn Oregon's "Death with Dignity" law, he sees the federal government as having the power to force a single moral code across the whole country -- and that moral code is the religious code he adheres to.

Scalia, States Rights, and "Legitimate Medical Procedures"

I have spent the last week mulling over Justice Scalia's dissent on the case of Ashcroft vs. Oregon and applied his remarks to the issue of abortion, with interesting results.

Ashcroft vs. Oregon (later, Gonzales vs. Oregon) is the case in which the Courts let stand an Oregon "death with dignity" law. This law allows terminally ill patients with less than 6 months to live, who jump through a long line of hoops, to obtain a lethal dose of medication so that they can end their own lives. Its purpose is to allow patients to avoid a period of extreme pain and debilitation before they die.

I do believe that the following interpretation of events is accurate.

Ashcroft is a religious zealot who believes that God has given him an infallible knowledge of right and wrong, that assisted suicide is wrong, and that he has a moral obligation to put an end to it. Furthermore, he will advance any interpretation of the law that gives him the power to impose his beliefs on the whole country.

The three justices who joined in this dissent, Scalia, Thomas, and Chief Justice Roberts, share the same affection for theocratic government. They also believe that their job is to impose their religious beliefs on the nation. For every case that comes before them, they begin with the assumption that their biblical beliefs are without error, and that the only interpretation of the law that "works" is the interpretation that would makes their religious beliefs the law of the land.

They claim to be strict constructionists. Yet, the simple evidence against this fact rests in how infrequently any of them ever reach a conclusion they do not like. This is proof enough that the justice starts by determining what he wants the conclusion to be and, from there, goes on to construct an argument that supports that conclusion.

On this assisted suicide case, there is no doubt that all three justices joining the dissent want it to be the case that assisted suicide is illegal. If they had lived in Oregon, they would have voted against the law.

This goes to the heart of Scalia's dissent. In it he writes, "If the term 'legitimate medical practice' has any meaning, it surely excludes the prescription of drugs to produce death."

Here, Scalia is accusing citizens of Oregon who voted in favor of the law, not with having a difference of opinion about right and wrong, but with being unable to speak English. They -- the citizens of Oregon -- do not know what the phrase 'legitimate medical practice' means, and he is going to set them straight.

Scalia also wrote, "From an early time in our national history, the Federal Government has used its enumerated powers...for the purpose of protecting public morality." Here, his argument is that the people of Oregon are suffering from a corruption in their moral character. It is up to the federal government to impose morality on them, whether they like it or not.

To see how well this reasoning works, let us apply it to the issue of abortion. Let us say that Ashcroft had wished to make abortion illegal. According to Scalia's decision, he could do so by offering an interpretive declaration that abortion is not a 'legitimate medical procedure'.

Scalia, and the two Justices who sided with him (probably 3 justices, after Alito is confirmed), would then write that 'If the term 'legitimate medical practice' means anything, it surely excludes the murder of an unborn person," and then use the federal government's authority to declare that no state may legalize abortion.

With respect to assisted suicide, Ashcroft used a prescription drug law. I do not know what laws would be available to use against the practice of abortion. However, given the tendency of members of the religious right to interpret the laws however they like (including laws against torture, spying on Americans, arrest and imprisonment without trial, etc.), there is reason to expect some ultra-religious attorney general to dictate to the country that abortion is an "illegitimate medical practice."

All of this is also consistent with a judicial philosophy that puts all power in the hands of the President, allowing him (or his secretaries) to rewrite legislation according to their will, thereby rendering the legislative branch of government impotent and irrelevant when it comes to making law.

So, we see in this decision a legal foundation for setting up a theocratic federalism centered around the Executive Branch of government. Government officials have a power to rewrite laws at will. In particular, this includes the power to give biblical interpretations to phrases such as "legitimate medical practice."

Alonzo Fyfe
The Atheist Ethicist




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By Frederick Clarkson (374 comments)
Will the Air Force Do Anything To Rein In Its Dynamic Duo of Gay-Bashing, Misogynistic Bloggers?
"I always get nervous when I see female pastors/chaplains. Here is why everyone should as well: "First, women are not called to be pastors,......
By Chris Rodda (199 comments)
The Legacy of Big Oil
The media is ablaze with the upcoming publication of David Grann's book, Killers of the Flower Moon. The shocking non fiction account of the......
By wilkyjr (111 comments)
Gimme That Old Time Dominionism Denial
Over the years, I have written a great deal here and in other venues about the explicitly theocratic movement called dominionism -- which has......
By Frederick Clarkson (101 comments)
History Advisor to Members of Congress Completely Twists Jefferson's Words to Support Muslim Ban
Pseudo-historian David Barton, best known for his misquoting of our country's founders to promote the notion that America was founded as a Christian nation,......
By Chris Rodda (113 comments)
"Christian Fighter Pilot" Calls First Lesbian Air Force Academy Commandant a Liar
In a new post on his "Christian Fighter Pilot" blog titled "BGen Kristin Goodwin and the USAFA Honor Code," Air Force Lieutenant Colonel Jonathan......
By Chris Rodda (144 comments)
Catholic Right Leader Unapologetic about Call for 'Death to Liberal Professors' -- UPDATED
Today, Donald Trump appointed C-FAM Executive Vice President Lisa Correnti to the US Delegation To UN Commission On Status Of Women. (C-FAM is a......
By Frederick Clarkson (126 comments)
Controlling Information
     Yesterday I listened to Russ Limbaugh.  Rush advised listeners it would be best that they not listen to CNN,MSNBC, ABC, CBS and......
By wilkyjr (118 comments)
Is Bannon Fifth-Columning the Pope?
In December 2016 I wrote about how White House chief strategist Steve Bannon, who likes to flash his Catholic credentials when it comes to......
By Frank Cocozzelli (251 comments)
Ross Douthat's Hackery on the Seemingly Incongruous Alliance of Bannon & Burke
Conservative Catholic writer Ross Douthat has dissembled again. This time, in a February 15, 2017 New York Times op-ed titled The Trump Era's Catholic......
By Frank Cocozzelli (64 comments)
`So-Called Patriots' Attack The Rule Of Law
Every so often, right-wing commentator Pat Buchanan lurches out of the far-right fever swamp where he has resided for the past 50 years to......
By Rob Boston (161 comments)
Bad Faith from Focus on the Family
Here is one from the archives, Feb 12, 2011, that serves as a reminder of how deeply disingenuous people can be. Appeals to seek......
By Frederick Clarkson (177 comments)
The Legacy of George Wallace
"One need not accept any of those views to agree that they had appealed to real concerns of real people, not to mindless, unreasoning......
By wilkyjr (70 comments)
Betsy DeVos's Mudsill View of Public Education
My Talk to Action colleague Rachel Tabachnick has been doing yeoman's work in explaining Betsy DeVos's long-term strategy for decimating universal public education. If......
By Frank Cocozzelli (80 comments)
Prince and DeVos Families at Intersection of Radical Free Market Privatizers and Religious Right
This post from 2011 surfaces important information about President-Elect Trump's nominee for Secretary of Education, Betsy DeVos. -- FC Erik Prince, Brother of Betsy......
By Rachel Tabachnick (218 comments)

Respect for Others? or Political Correctness?
The term "political correctness" as used by Conservatives and Republicans has often puzzled me: what exactly do they mean by it? After reading Chip Berlin's piece here-- http://www.talk2action.org/story/2016/7/21/04356/9417 I thought about what he explained......
MTOLincoln (253 comments)
Fear
What I'm feeling now is fear.  I swear that it seems my nightmares are coming true with this new "president".  I'm also frustrated because so many people are not connecting all the dots! I've......
ArchaeoBob (107 comments)
"America - love it or LEAVE!"
I've been hearing that and similar sentiments fairly frequently in the last few days - far FAR more often than ever before.  Hearing about "consequences for burning the flag (actions) from Trump is chilling!......
ArchaeoBob (211 comments)
"Faked!" Meme
Keep your eyes and ears open for a possible move to try to discredit the people openly opposing Trump and the bigots, especially people who have experienced terrorism from the "Right"  (Christian Terrorism is......
ArchaeoBob (165 comments)
More aggressive proselytizing
My wife told me today of an experience she had this last week, where she was proselytized by a McDonald's employee while in the store. ......
ArchaeoBob (163 comments)
See if you recognize names on this list
This comes from the local newspaper, which was conservative before and took a hard right turn after it was sold. Hint: Sarah Palin's name is on it!  (It's also connected to Trump.) ......
ArchaeoBob (169 comments)
Unions: A Labor Day Discussion
This is a revision of an article which I posted on my personal board and also on Dailykos. I had an interesting discussion on a discussion board concerning Unions. I tried to piece it......
Xulon (180 comments)
Extremely obnoxious protesters at WitchsFest NYC: connected to NAR?
In July of this year, some extremely loud, obnoxious Christian-identified protesters showed up at WitchsFest, an annual Pagan street fair here in NYC.  Here's an account of the protest by Pagan writer Heather Greene......
Diane Vera (130 comments)
Capitalism and the Attack on the Imago Dei
I joined this site today, having been linked here by Crooksandliars' Blog Roundup. I thought I'd put up something I put up previously on my Wordpress blog and also at the DailyKos. As will......
Xulon (331 comments)
History of attitudes towards poverty and the churches.
Jesus is said to have stated that "The Poor will always be with you" and some Christians have used that to refuse to try to help the poor, because "they will always be with......
ArchaeoBob (148 comments)
Alternate economy medical treatment
Dogemperor wrote several times about the alternate economy structure that dominionists have built.  Well, it's actually made the news.  Pretty good article, although it doesn't get into how bad people could be (have been)......
ArchaeoBob (90 comments)
Evidence violence is more common than believed
Think I've been making things up about experiencing Christian Terrorism or exaggerating, or that it was an isolated incident?  I suggest you read this article (linked below in body), which is about our great......
ArchaeoBob (214 comments)

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