MEDICAL FEDERALISM: WHERE ARE WE HEADED?

Bedrock American federalism -- separation of powers, the basic rights
of states to make their own decisions -- got a big boost from the
state and federal courts' refusal to bend to Congress' impetuous
lawmaking in the Terri Schiavo case.

Now a slump in presidential poll approval ratings suggests that the
Bush White House -- having forsaken ideals of states' rights and
limited federal power trumpeted by conservatives for decades -- is
paying a political price.

But the case is hardly an exception. On issue after issue, notes
former Maine Attorney General James Tierney, the Bush administration
has ignored states' rights to play to its religious right and
corporate constituencies.

"The president is so confident he believes he can sweep all opposition
aside," Tierney says. "But that's why we have federalism and a
Constitution carefully constructed to stop excessive power, whether
it's a Roosevelt or a Bush."

Following in the wake of the Schiavo case, two highly emotional,
medical and life-choice issues -- both presently on the Supreme
Court's docket-- are likely to test the limits of federal power. Each
involves the federal Controlled Substances Act.

First is medical marijuana, in a case challenging states' rights to
allow the use of cannabis for people who are either dying or suffering
severe, chronic pain. Medical marijuana use is now the law in 10
states -- Alaska, Arizona, Colorado, Hawaii, Maine, Montana, Nevada,
Oregon, Vermont and Washington -- and is currently before other state
legislatures.

Apparently moved by heart-rending stories of people relieved from
nightmarishly extreme pain by use of marijuana, up to 80 percent of
Americans, in polls, endorse medical marijuana use. But federal
policymakers, apparently still wed to the country's decades-long,
clearly failed "war on drugs," remain adamantly opposed to any form of
marijuana legalization.

The Justice Department, relying on Congress' right to regulate trade
among the states, argues that even small amounts of marijuana obtained
for free are somehow part of a national market for illicit drugs.

Advocates of experimentation in the states were encouraged when the
Supreme Court, under Chief Justice William Rehnquist, a states' rights
advocate, struck down two seemingly far-fetched efforts to use the
interstate commerce clause to assert federal jurisdiction. One case
was a federal law criminalizing the possession of guns near schools;
another was national legislation giving rape victims the right to sue
attackers in federal court.

Similarly, common sense would seem to say that small amounts of
marijuana grown and used locally have negligible impact on interstate
commerce. But when the court heard the marijuana case in November,
several of the justices were skeptical about the state laws.

Later this year the Supreme Court also will hear arguments on Oregon's
celebrated Death With Dignity Law, the physician-assisted suicide
statute twice approved by Oregon voters. The law allows a doctor to
prescribe lethal drugs for a resident who has an incurable disease, is
likely to die within six months and is mentally competent to make the
choice. A second physician must approve.

The Bush Justice Department has tried to overturn Oregon's law,
claiming there's "no legitimate medical purpose" for prescribing drugs
that could end a patient's life. But two lower federal courts have
sided with Oregon's contention that regulation of medical practice has
historically been a state, not a federal, prerogative. And now the
Supreme Court gets to decide.

An ironic question is raised by both the medical marijuana and
assisted suicide cases: Will the "activist judges" of the high court
override the right of the states to experiment and make judgments on
tough pain-control and end-of-life issues?

And second, shouldn't the core principle be: let states, and in turn
individuals and their families, decide for themselves?

Results of the Oregon law show what may happen. Fears of thousands of
assisted suicide decisions haven't materialized: Over seven years,
just 208 Oregonians have elected to end their lives under the law.

And a culture of end-of-life death with thoughtfulness and care has
developed. Among the states, Oregon has one of the highest rates of
people dying at home, the lowest percentages dying in hospitals.
Morphine use for control of extreme pain is the highest of any state.
Oregon medical schools and doctors are focusing on comfort care for
the dying.

What's to dislike -- or illegal -- about that?