JUSTICES SHOW QUIET EMPATHY IN MATTERS OF POT AND DEATH

The Supreme Court just ruled against a woman with a brain tumor who
smokes pot to ease terrible pain. That's harsh.

The court also says terminally ill people don't have a constitutional
right to commit suicide with a doctor's help. That's equally hard to
doll up. On the surface, these justices seem as unsympathetic toward
the sick and dying as former Attorney General John Ashcroft and his
successor, Alberto Gonzales, both of whom want to gut the medical
marijuana laws in 11 states and the doctor-assisted suicide law in
Oregon.

But here's the good news: The court is a lot more compassionate than
it seems -- and in greater agreement with Americans about sickness and
death than the Bush administration or Congress.

And this fall, when the court hears Gonzales v. Oregon, the justices
might very well tell the feds to back off and leave Oregon's
doctor-assisted suicide program alone.

The court ruled 6-3 last week that using marijuana is a violation of
federal law, even in states where the drug is approved for medical
use. Pot grown and smoked locally by sick people may seem beyond the
federal government's reach. But the justices concluded that local
marijuana use of any kind affects the interstate market for the drug
and can be federally prosecuted under the Controlled Substances Act.

This tough-on-crime ruling had a very human side, however.

While the court agreed with Gonzales that all pot is illegal under
current federal law, a majority of the justices seemed to personally
support the notion that marijuana has medicinal value. The justices
noted the drug's "valid therapeutic purposes." They fretted over the
irreparable harm that the California woman with the brain tumor and
the other sick person in the case might face without it.

And they practically begged American citizens to get the federal
regulations governing medical marijuana changed.

Perhaps "the voices of voters . . . may one day be heard in the halls
of Congress," the court said, a little wistfully.

This fall, the Supreme Court is expected to hear arguments in Gonzales
v. Oregon. This is the court's first big assisted-suicide case since
1997, when the justices unanimously upheld Washington state's ban on
the practice.

In this new case, the Justice Department wants to punish Oregon
doctors who prescribe lethal doses of drugs to terminally ill people
who request the medicine. Such prescriptions are legal under Oregon
law, but the Bush administration opposes doctor-assisted suicide and
says it has the power under the Controlled Substances Act to yank
doctors' federal prescription licenses.

Some court-watchers think the justices will side with Gonzales --
especially after last week's pot ruling. I'm betting they'll side with
Oregon for two reasons.

First, the Justice Department's case against Oregon is
lame.

The Controlled Substances Act was passed to fight drug trafficking,
not to regulate medicine. Regulating doctors is traditionally the
states' job, as the courts have noted. Gonzales can't just run around
punishing things he dislikes without a law empowering him to do so.

Second, even as the justices upheld Washington state's ban on
doctor-assisted suicide, they seemed deeply sympathetic toward the
practice.

Chief Justice William Rehnquist wrote for the court that Washington
state had legitimate reasons for passing the ban, and that the
Constitution contains no explicit "right" to commit suicide with a
doctor's help. But he didn't say that doctor-assisted suicide should
be outlawed everywhere.

In fact, he encouraged the debate "to continue, as it should, in a
democratic society."

Five other justices stressed, in concurring opinions, that the court
has not yet resolved the constitutional issues around terminal illness
and suicide. Several expressed the opinion that dying people in
terrible pain should have the right to limit their suffering and
perhaps even hasten their deaths.

Rulings aside, these personal opinions put the court in line with
average Americans, the majority of whom support both medical marijuana
and doctor-assisted suicide.

Lately, grandstanders in Congress and in the Bush administration sound
awfully impersonal when they talk about sickness or quality of life.
They talk as if people died in principle rather than in practice; they
talk as if they've never buried a parent or pulled a plug.

Not so with the Supreme Court. The nine justices have 636 years of
living among them and know a thing or two about mortality. Rehnquist
is seriously ill with cancer. Others have battled life-threatening
health problems.

"Most of us have parents and other loved ones who have been through
the dying process," Justice Ruth Bader Ginsburg said during oral
arguments in 1997, "and we've thought about these things."

These black-robed justices don't write the laws. They can't fix every
injustice done by politicians or presidents. But they've thought about
these things. And somehow, in a ruling against a woman with a brain
tumor, they managed to show more pragmatism and compassion toward the
sick and dying than Congress and the White House have shown all year.