PLAYING POLITICS WITH FEDERALISM AND STATES' RIGHTS

In Washington, D.C., the annals of hypocrisy are rich. But it doesn't get
much richer than this: Democrats excoriating Republicans for disrespecting
states' rights.

This is the story. In 1994, Oregon approved a referendum legalizing
doctor-assisted suicide for the terminally ill. A bill is now making its
way through Congress, having passed the House on Oct. 27, that would
essentially void that law. It provides jail sentences for doctors who use
pain medication to cause death.

There are two things to be said about this bill.

* It is correct in principle. There is a reason why the Hippocratic oath,
sworn to by doctors for 2,500 years, specifically states: "I will give no
deadly medicine to anyone if asked." Doctors, possessors of unique power
and esoteric knowledge, ought never be permitted to administer death.

Crossing that line between healing and killing is simply too dangerous. It
perverts medicine's mission. And it creates an unavoidable slippery slope:
There is no reason in logic why, if people with terminal illness may have
doctors kill them, people suffering from nonterminal illness -- or from no
illness at all, say, from inconsolable sorrow -- should not be allowed to
have their doctors kill them too.

* Nonetheless, this bill should be defeated. Though its sentiments are
sound and the principle correct, this is a federal republic. And one of the
premises of a federal republic is that power is dispersed under the
assumption that no one has a monopoly on wisdom and truth. Power is
dispersed functionally through the separation of powers, and geographically
through the hierarchy of jurisdictions.

Dispersion of power and respect for community autonomy is especially
valuable when it comes to moral issues such as euthanasia.

In the face of such vexing dilemmas (the death penalty, for example) the
central government should exercise some humility. That was the theme of
Rep. John Conyers' lusty attack on the House bill. Conyers, D-Mich., an
outspoken liberal, denounced the "Washington-knows-best solution," defended
states' rights, and championed the 10th Amendment that "has reserved to the
states those rights not given to the federal government" -- a cause
normally the sole property of Republican candidates on the stump.

Here is where the annals of hypocrisy are so stunningly enriched. This
respect among Democrats for the limits of federalism and the autonomy of
communities, for states' rights and for legislative humility, is newfound.
One doesn't find it in the equally wrenching and ambiguous moral issue of
abortion.

Democrats insist as a matter of high principle that the fiat permitting
abortion should be absolute -- and national. In every campaign they
fiercely attack any opponent who would dare abolish Roe vs. Wade and return
the abortion decision to the individual states -- the proper place, they
insisted by 2 to 1 in the House, for deciding euthanasia.

Yes, comes the reply, but abortion is a constitutional right, whereas
euthanasia is not.

But this is not just sophistry. It is tautology. A constitutional right is
whatever the Supreme Court says is a constitutional right. For two
centuries under the very same Constitution, abortion was not a right. And
it will not be a constitutional right if the composition of the court
changes ever so slightly.

The right to free assembly, for example, is not subject to debate in any
serious constitutional democracy. The right to abortion, which the court
itself said it found only in the "penumbra" of the Bill of Rights, is the
subject of such debate -- and possible abolition.

To hide from that debate by claiming that abortion is now a right is to
dodge the question: Should it be?

I happen to oppose physician-assisted suicide, but I believe it ought to be
left to the states to decide on their own. I happen to favor legalized
abortion, but I similarly believe that states should determine whether and
to what extent abortion ought to be legal in their communities.

Are we serious about federalism, about not issuing national fiats on moral
issues about which Americans are deeply divided and conflicted? Then,
instead of crying "federalism" and "states' rights" at our selective
convenience, we should leave to the states the morally perplexing questions
not just of euthanasia, but of abortion too -- of taking life not just at
the bitter end, but at the beginning.