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Jewish World Review Nov. 8, 1999 /27 Mar-Cheshvan, 5760

Charles Krauthammer

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Federalism's New Friends -- IN WASHINGTON, 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.

Two things may be said about this bill.

(1) 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." Note: even 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 excruciatingly 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:

(2) 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 are especially valuable when it comes to deep moral issues such as euthanasia. Such questions invite no happy answers, only tragic ones.

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's lusty attack on the House bill. Conyers, 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 property of Republicans 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 a shred of 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 v. 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. (In fact, it would no longer be a right had those two conservative New Hampshire geniuses, John Sununu and Warren B. Rudman, not given us David Souter as their gift to the Supreme Court.)

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 (and voted for it in a 1992 Maryland referendum on the question), 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.

Comment on Charles Karauthammer's column by clicking here.


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