SCOTUS 2022: What If They Went All the Way?

June 2022’s Supreme Court decisions are embedded with the same reasoning, common law, traditions and precedents written into our Constitution as our nation’s operating system.

That logic-and-evidence combo is the kind of tool kit useful for uninstalling over a century of incompatible plug-ins.

West Virginia rules out a 2015 EPA plan to deploy expansive, implied jurisdiction dormant since 1970. For decades, EPA’s regulations to reduce emissions controlled retrofitting of existing energy plants and constructing new facilities to the highest standards. The Agency’s suddenly asserted authority to combat climate change would have enacted impossible-to-meet standards, forcing reductions of coal plants. The decision uses Gonzales v. Oregon, which stopped a state attorney general revoking licenses of doctors prescribing under assisted-suicide law.

Bruen ended New York’s 1911 system of gun licenses functioning as prohibition by requiring undefined but specifically individual “proper cause.” Living in a crime-filled area wasn’t sufficiently uniquely dangerous. Citing Heller and McDonald, the Court rejected restraining one activity to serve other goals. If a previous generation addressed a social problem without gun restrictions, targeting that problem with gun legislation isn’t constitutional. “To justify its regulation, government must not simply posit that the regulation promotes an important interest.” Remember that. The decision acknowledged centuries of statutes and court rulings showing gun ownership routine and restrictions few, proving our Second Amendment codified a long-existing right, not a novel approach.

Roe and Casey claiming abortion — or privacy enveloping abortion — among rights not enumerated in the Constitution was rejected in Dobbs. Endeavoring to locate abortion rights within the 14th Amendment’s due process clause was incompatible with the abortion prohibitions in every state when the amendment was ratified. Those restrictions that began at quickening weren’t confirming a right to abort before that point. “Deciding whether precedent should be overruled depends in part on whether the rule it imposes is workable — that is, whether it can be understood and applied in a consistent and predictable manner.”

Ruan sides with two MDs convicted of knowingly or intentionally prescribing outside generally accepted practice. The Controlled Substances Act outlaws distributing many drugs, makes an exception for licensed prescribers, and makes prescribing outside legitimate medical purpose is a crime. The ruling notes, “The conduct prohibited by such language (issuing invalid prescriptions) is thus ‘often difficult to distinguish from the gray zone of socially acceptable…conduct’ (issuing valid prescriptions).”

These recent decisions reject implicit mandates, expanding authority, regulating one activity for effects elsewhere, and bad precedent continuing to stand because it’s precedent. They recognize the opposition to arbitrary authority that manifested as common law, and blossomed into centuries of American self-determination.

Or should I say they recognize these American principles except for 108 years of federal drug prohibition?

Time to pull planks out of nine pairs of eyes.

The generations of Americans defending themselves with firearms, respectfully recalled in Bruen, were equally self-sufficient facing illnesses and injuries. Like all humans for all of history, including us, they handled almost all their afflictions with treatments chosen and administered at home. Remedies — homemade, purchased from apothecaries, or mail ordered — were developed mostly by guesswork. One ancient, readily-available and reliable treatment was opiates.

Today’s medications are produced in sterile conditions, with labels detailing active/inactive ingredients, recommended doses, side effects and manufacturers. With government manufacturing and labeling standards, and widespread access to data, it’s never been easier to make informed decisions about medication chosen by you or your doctor. We consult doctors more than ever in history, with medical transactions comprising 1/5 of our economy. But an appointment doesn’t always mean treatment will be chosen. The malady may be untreatable, or self-limiting. Medicine can have troubling side effects or expense. Half of prescriptions are not filled or not taken.  Even now, we still self-treat almost all of our afflictions, spending $28 billion on nonprescription treatments in 2020.

There is no singular standard of medical practice. Methods are multiple and ever-changing. In 1892, nobody was shocked that Lizzie Borden’s doctor gave her morphine before her trial to calm her nerves. In the 1970 Controlled Substances Act marijuana is listed Schedule 1 — no medical value, and a felony to possess. In 2021, Washington, D.C. offered free marijuana for taking a COVID vaccination.

Justice Samuel Alito’s opinion supporting Ruan is Schrodinger’s medicine cabinet — an act of prescribing is illegal/legal. The line is the doctor’s belief the drug serves a “medical purpose” treating injury or disease. But what treatment so purposed is served by cosmetic surgery, skin resurfacing, regrowing hair or eyelashes, or gender affirmation? Could assisted suicide be further from a medical purpose?

Another opposite-of-healthcare situation is 50 million law-abiding Americans suffering untreated pain. Criminal statutes are one obstacle to pain treatment, restrictive legislation targets pain physicians and patients, another. The rare patients receiving prescriptions endure parolee-level supervision (unannounced $200 urine tests, for example) under pain contracts developed by  the federal anti-drug abuse agency.

Recall the rulings’ repudiations of restricting one activity to address another, and a worthy goal being insufficient to justify legislation. Politicians promote prescription restrictions by reciting numbers of opiate violations and overdoses. Since 2016, as opiate prescriptions dropped  40%, tens of thousands of deaths  were attributed to opiates each year (mostly from illicit synthetics, with one to four other drugs on 80% of the death certificates). Dobbs’s formula for workability in consistent and predictable understanding and application of law is nowhere to be seen.

Prohibiting guns to address antisocial and criminal actions is explicitly rejected in Bruen, but the strategy for drug prohibition — a strategy not supported with long tradition or precedent. America has always prosecuted arson, assault, stealing, defamation, fraud, murder and any other intentional harm to another. The American Recovery and Reinvestment Act of 2009 hired 7,000 new police officers, and property crimes, robbery, larceny, auto theft — even murder —  declined. Without drug prohibition, all those crime would remain illegal, with more resources  available for policing. Without drug prohibition, we’d still be free to consult doctors before and during treatment. Meanwhile, the only drug removed from the illicit market in over a century was quaaludes. The company that owns the patent ceased manufacture. How could drug prohibition really reduce availability in a free society when positive drug tests among maximum security inmates are routine?

Our Founders, and today’s Supreme Court, robustly affirmed our right to own firearms designed to kill. We freely purchase potentially deadly detergents, iron supplements, antifreeze, etc. There’s no temperance-style movement to outlaw dangerous fun like skydiving, base jumping, luge, helicopter skiing, etc. Legal assisted suicide is a thing. But we have been increasingly refused certain painkillers, because we, or other people could get hooked, and there are people who are already and…crime. How much of a threat is there? A Cochrane Analysis examination of 26 studies following almost 5,000 long term chronic pain patients reported signs of addiction in 0.27% of participants. Opiates are banned for athletes as performance enhancers. And you may have heard of these opium users: Marcus Aurelius, Benjamin Franklin, Thomas Jefferson, Meriwether Lewis, Horatio Nelson, and William Wilberforce.

The one natural right so fundamental that it didn’t occur to the Founders to put it into the Constitution is freely choosing treatments for my or my family’s afflictions — especially the most frequent reason for seeking treatment: pain.

Image: Anthony Quintano, via Flickr // CC BY 2.0

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