End of Life Decisions and the Commerce Clause

JFN jfnbl at earthlink.com
Wed Jul 27 12:26:36 PDT 2005

At 10:23 AM -0700 7/27/05, John Parry wrote:
>Forgive me if the list already discussed this question in the wake 
>of the Schiavo litigation and legislation, but . . .
>Is there any doubt (pre or post Raich) that Congress could 
>regulate decisions to provide or refuse to provide life-sustaining 
>treatment, food, or hydration, etc. under the commerce clause? 
>People receiving care in a hospital, hospice, or nursing home are 
>engaging in a commercial transaction.  Many of those receiving care 
>in their homes are engaged in the commercial transaction of 
>employing a home health aide, visiting nurse, etc.  Even for those 
>receiving care from family members, arguably the rule of Raich 
>(whatever it is) allows regulation (for example, under the Scalia 
>theory that it is necessary to the success of the broader regulatory 
>program).  Congress could conclude that these transactions should 
>not be used in a way that hastens death, or it could require that 
>these transactions include the possibility of ending treatment to 
>allow death.
>All of this would be subject to any substantive due process right to 
>receive pain medication that would also hasten death (as per 
>O'Connor et al in Glucksberg -- but how would Roberts vote?).
>I guess my question is two-fold.  First, is there a flaw in this 
>commerce clause logic, and second, what are the best arguments 
>against this line of reasoning?

If there is any boundary at all to Congress's power to regulate 
commerce among the several states, I would have to think that it lies 
in the notion that an individual cannot be forced to engage in it. 
The right to die has to be distinguished from the right to assist. 
Your death, whenever and however it occurs, is not going to have a 
substantial effect on interstate commerce (unless you're enough of a 
celebrity to boost the Nielsen's on CNN). But the provision of 
assistance, like the provision of medical care generally, like the 
provision of any other service or product, introduces commerce and in 
gross might have a substantial effect on interstate commerce.

The rule of Raich is that the intrastate production and distribution 
of a pharmaceutical has a substantial effect on interstate commerce. 
This might have been more obvious if PhRMA had the nerve to file an 
amicus brief pointing out the effects upon the industry of the 
unregulated distribution of an unpatented pharmaceutical, which has 
no serious side-effects, and which effectively (at least for purposes 
of summary judgment) treats a host of physical and mental conditions. 
They might also have pointed out that contra O'Connor's ridiculous 
finding of fact, there are a lot of more or less effective, more or 
less dangerous, more or less fun drugs that could be produced in a 
California lab without direct engagement in interstate commerce. They 
might also have pointed out that the case wasn't about whether some 
sick old lady has as much of a right to garden her weed as she does 
to weed her garden, but about whether each of 50 states can establish 
separate legal regimes for the intrastate production and distribution 
of pharmaceuticals. Think therapeutic thalidomide instead of medical 

The distribution of voluntary death to end the suffering of 
terminally ill patients, like the distribution of medical marijuana, 
would probably have mostly beneficial effects on interstate commerce, 
but that doesn't mean they aren't substantial. I don't think the 
Commerce Clause authorizes legislation that would prohibit a 
terminally ill patient from putting a bullet through his brain, but 
whether they can pass a law against selling him the gun depends on 
how broadly you read Lopez.

John Noble

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