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.
As is typical, I am not interested in arguing what the law says or does not say. I am interested in what the law should or should not say. Therefore, I have nothing to say about Scalia's use of precedent. I am interested in whether, if he is right, if the law is as it should be.
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.
The only time that it is really possible to expect impartiality on the part of a judge is when he really does not care how a case turns out. Then, he or she may turn to the law to make up his own mind.
In this assisted suicide case, we see good evidence of this. The "liberal" side of the court defends their case, in part, by arguing in favor of state's rights, while the "conservative" side of the court argues for the government's authority to use its power to "protect the public morality." This reversal of roles suggests that principles such as "states' rights" are not used to judge the law, but the justice's desired conclusion with respect to the law is used to justify appeal to such things as states' rights.
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.