Arkes on Oregon, federalism, and euthanasia

Over at the First Things blog, Professor Hadley Arkes has a long post (scroll down a bit) on the Court's recent decision in Oregon v. Gonzales.  He addresses, among other things, the disagreement between Justices Kennedy and Scalia on the question whether (and how one should decide whether) assisted suicide is a "legitimate" medical purpose.  As Professor Solum would put it, here's a taste:

Our libertarian friends have shown an indecorous enthusiasm for this decision on the case from Oregon. It is not, in many cases, because they welcome the involvement of doctors in suicide, but because of their attachment to federalism. I share the attachment to federalism, but we run the risk there of replicating Justice Kennedy’s mistake on the large question. When we talk about the regulation of commerce or anything else, we may easily overlook the fact that the regulation of commerce cannot be detached from a sense of what is rightful or wrongful commerce.

As Scalia has recognized, the regulation of commerce encompassed, quite early, the regulation of lottery tickets, and in later years, the barring of prostitution, as the Congress has been drawn in persistently to mark off the boundaries of rightful and wrongful commerce. We’ll save for another day the tangled question of federalism; I’d simply post a caution that the libertarians are headed on a path of incoherence if they think that federalism offers a way of putting aside the moral questions that vex our politics.

Still, what has not been fully appreciated by the votaries of federalism is the way in which this decision by the Court cannot be cabined in Oregon. The scheme offered to us in the name of federalism asks us to incorporate the view that assisted suicide is just another, tenable view about the proper ends of doctors and medicine. Justice Kennedy plants the premise when he remarks that the Attorney General had sought to bar a policy in Oregon merely “because it may be inconsistent with one reasonable understanding of medical practice.”

The aversion to self-killing or self-murder, the enduring concern about doctors using their powers to end life—all of that is simply diminished now as “one reasonable understanding of medical practice,” no more right or wrong than anything else. To incorporate that understanding at the top of the State, in the national government, is to do nothing less than to erode the conviction that has firmed up the laws for the protection of life at the center and the periphery in this country. If the assistance of suicide is regarded as just another “reasonable understanding of medical practice,” why should that view of things not begin to seep into parts of the federal establishment? Why should it not come to affect the understandings that prevail in military hospitals or in divisions of the National Institutes of Health?