The Federalists

Oregon’s physician-assisted suicide law was upheld by the Supreme Court by a 6-3 vote. The three dissenting votes came from the big government conservatives:

Justice Antonin Scalia, writing for himself, Roberts and Justice Clarence Thomas, said that federal officials have the power to regulate the doling out of medicine.

“If the term `legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death,” he wrote.

Scalia said the court’s ruling “is perhaps driven by a feeling that the subject of assisted suicide is none of the federal government’s business. It is easy to sympathize with that position.”

Were Alito on the court, I have seen nothing that would persuade me that he would not join the other ‘federalists’ in trying to strike down the ban.

All together now, conservatives- “States Rights!”

More here.

*** Update ***

Via Blue Oregon, this nugget:

Supreme Court nominee John Roberts declared that, in cases dealing with end-of-life care, he would “start with the supposition that one has the right to be left alone,” Sen. Ron Wyden, D-Ore., said after the two met for an hour Tuesday. …
Roberts told Wyden that he would look closely at the legislative history of federal laws and would be careful not to strip states of powers they traditionally have held — such as regulating the practice of medicine, Wyden said.

“You don’t get the impression from how he answered that he’d let somebody stretch a sweeping statute like the Controlled Substances Act,” Wyden said.

As Blue Oregon states, discuss.

*** Update ***

This makes sense:

It’s not primarily a question of federal vs. state law, but a question of branches in the federal government. It seems clear that the majority here would have followed Raich if Congress passed a specific law outlawing assisted suicide, but refused here to permit the Attorney General, an executive actor, to take that action unilaterally. They think the statute Congress passed doesn’t give him that authority. This is a question about executive power, not federalism.

This seems to make sense, and would indicate I don’t know my ass from a hole in the ground. maybe, like Pete Morelli, I shouldn’t be discussing things I don’t understand.

On the other hand, it seems to me that regardless the outcome of this case, it certainly appears that Scalia will vote whichever way the popular line of conservative thinking is at the time, particularly. Or maybe I am just pissed off about Raich.

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122 replies
  1. 1
    Otto Man says:

    I think we’re seeing that the concept of “conservative support for states’ rights” really means “support for states’ rights to be conservative.”

  2. 2
    capelza says:

    Yeah!!!!!! I noticed the “bloc” as well, actually figured out who they were when the 6-3 split came down. Hope they leave us alone now.

  3. 3
    Steve says:

    A little legal caveat here. This case was NOT about the question of whether the federal government can ban assisted suicide, even if a state wants to allow it. The case was actually about whether the federal government DID ban assisted suicide, or at least the use of prescription drugs to bring it about, when it enacted the Controlled Substances Act.

    The majority basically said that the CSA was intended to stop drug trafficking and that there’s no evidence Congress intended to interfere with the practice of medicine, traditionally an area regulated by the states. Since they determined Congress had never intended to ban assisted suicide, they didn’t have to get into the issue of whether Congress CAN ban assisted suicide. (Smart money says that as long as the states can ban it, the feds can too.)

    There is a legitimate question as to whether this is inconsistent with the medical marijuana case from a couple years back.

  4. 4

    Not surprised to see Scalia taking up this position, but I’m highly disappointed to see Thomas voting against states’ rights in this case. For as much as those two are always talked about in the same breath, cases like this tend to expose the differences in the judicial philosophies of the two.

    Should be interesting to see what kind of record Roberts begins to rack up.

  5. 5
    Krista says:

    I think we’re seeing that the concept of “conservative support for states’ rights” really means “support for states’ rights to be conservative.”

    Beautifully put. Spot on.

  6. 6

    How about an individual’s rights?

  7. 7
    Steve says:

    The hypothetical “right to assisted suicide” fits in very easily amidst the Supreme Court cases which say the government has no right to interfere in your most personal decisions (educating your child, birth control, etc) but that case simply hasn’t happened yet. Frankly, it’s a little bit strange that you have the right to end your unborn child’s life, but not your own.

    The best the Supreme Court has done is say that a competent individual has the right to refuse life-sustaining medical treatment (the Cruzan case). They’d probably prefer to let the political process sort it out, which would be great if you didn’t have the heavy-handed Bush Administration trying to interfere with Oregon’s experiment any way they can.

  8. 8

    So long to any right to privacy.

  9. 9
    Jill says:

    Just more of the same from the “up is down, black is white, right is wrong, in is out…” crowd.

  10. 10
    Lines says:

    My concern is with the Interstate Commerce laws and how it directly goes against State’s Rights. If someone from a Conservative state wanted to travel over state lines to receive this medical “care”, would the IC law stop them? How about the person(s) transporting the patient?

    This was brought up with abortion as well. Conservatives have said that they would use the IC law to stop interstate travel for women seeking and abortion in a friendlier state. Again, it also held the transporter(s) liable as well.

  11. 11
    Pb says:

    Lines, in this case it isn’t really an issue–you have to be a citizen of Oregon in the first place, and that’s just one of many requirements.

  12. 12
    neil says:

    Were Alito on the court, I have seen nothing that would persuade me that he would not join the other ‘federalists’ in trying to strike down the ban.

    I think this is exactly the point. With Alito hanging prominently in the balance, it’s important that the social conservatives who form his support continue to think ‘a justice in the model of Thomas or Scalia’ is a good thing.

    Oh wait, what am I thinking? Of course Supreme Court Justice are above letting politics factor into their decisions.

    Ha ha ha ha ha ha ha!

  13. 13
    Lines says:

    Pb, but looking forward in time, when Assisted Suicide may be more widely accepted, demand for such a service might increase. Oregon aside, this could be a foreshadow of a future without Roe v. Wade.

    What if Nevada legalizes Assisted Suicide and the demand from Conservative Arizona and New Mexico creates an Interstate dilema? Will the IC laws prohibit patients from other states regardless of the state law itself?

  14. 14
    chopper says:

    “If the term `legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death,” he wrote.

    one of the ‘legitimate medical purposes,’ indeed the main purpose of morphine is to reduce pain and suffering. to me, ending pain and suffering completely for someone who has no chance of ever being cured of that suffering fits that bill pretty well.

  15. 15
    Andrei says:

    “If the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death,” [Scalia] wrote.

    It surely excludes?

    Wow… that sounds to me like unadulterated judicial activism at its finest. Since when does Justice Scalia get to define what medicine’s purpose is at it’s core? Or at what medicine’s purpose is not?

    Is there some legal definition of medicine and its purpose Justice Scalia was using to make this statement, or is it pure opinion?

  16. 16
    Darrell says:

    So everyone supporting this decision on the basis of state’s rights believes the same rationale holds for abortion too, right?

  17. 17
    Andrei says:

    Chopper, while a reasonable point, the counterpoint to that line of thinking relating specifically to Scalia’s comment is that morphine doesn’t kill, it just removes the pain from the parts of the brain that receive pain message from the body.

    IOW, the morphine is not the active agent in killing the person. The gunshot wound to the chest is, or the cancer eating away their lungs, etc etc etc.

    I think the more interesting discussion point is that Scalia has written a statement that smacks of judicial activism, something conservatives accuse liberals of all the time and related to the point Cole is making with this post about conservatives making (potentially) false claims to be strictly in favor for state’s rights.

  18. 18
    Ben says:

    They’re “federalists” except when religious dogma interferes (abortion, assisted suicide)…. except where it doesn’t (death penalty)… It’s funny how being a “strict constructionist” seems to match up with the Republican Party platform and the political whims of the far right. I guess I must be for judicial activism then,. It’s not the political position that is the most disturbing.. it’s the attempt to demonize others political positions… and to trump up their beliefs in a philosophy that’s clearly inconsistant with they way they rule.

  19. 19
    chopper says:

    Chopper, while a reasonable point, the counterpoint to that line of thinking relating specifically to Scalia’s comment is that morphine doesn’t kill, it just removes the pain from the parts of the brain that receive pain message from the body.

    true, but in the case of assisted suicide where morphine can be the agent that ends the life, it’s still fulfilling its primary goal of ending pain and suffering, albeit by a different mechanism than merely targeting receptors in the brain.

    i dunno. i’ve always been a proponent of assisted suicide having seen some family members in some bad shape. i know after being totally wrecked by chemo, my dad vowed to never go through with it again even if the cancer comes back. what then? should he suffer and die just because he doesn’t want to suffer another way and still probably die anyways? at least let the guy have the choice to take the path of least suffering if he wants to.

  20. 20
    DecidedFenceSitter says:

    You know what Darrell; if I could be reasonably assured of the facts as they stand; that states rights would actually happen, and not just for whatever political causes the powers that be in the Federal government would like to have enacted anyways; I’d be willing to let abortion be a state-by-state basis. Now, I’d like to put in a caveat, I’d also though, have any problem with a law that made going across state lines illegal for purpose of receiving said treatment. So just because Virginia outlaws something doesn’t mean that I can’t go into Maryland, take part in the activity (be it drinking to an abortion), and return and have the mere fact of the activity’s occurence be illegal.

    Not sure where that puts me in the states-rights arguments of civil rights debates. Much stickier argument, personally for me.

  21. 21
    Lines says:

    Darrell, I clearly spelled out the problem that this may become and why “state’s rights” may be more of a problem than a solution, for both this and abortion. Your comment was nothing more than pathetic troll bait with no request or need for discussion. Why? Why do you want to be such as asshole?

    Now feel free to comment on my earlier posts, as I attempted to encourage discussion and debate.

  22. 22
    neil says:

    Oh Darrell, you big kidder, you. I think you’ll have to do the heavy lifting on this one: what the hell does it have to do with abortion in any way?

  23. 23
    norbizness says:

    The case has nothing to do with states’ rights, but rather statutory interpretation of the Controlled Substances Act. If Congress passed an “anti-assisted suicide law” tomorrow, the Supreme Court wouldn’t overrule it in favor of a state law to the contrary. So you can all avoid the Darrell rabbit-hole.

  24. 24
    neil says:

    Norbizness, the case might not but I think the dissents, at least, tell us something about how Scalia, Thomas and Roberts view the constitutionality of the law barring euthanasia that Congress didn’t pass. While the other 6 can say they weren’t ruling on that issue, the 3 dissenters voted to strike down Oregon’s law, which must mean that they both thought it was contradicted by the federal law _and_ that the federal law was constitutional.

    Am I right?

  25. 25
    ImJohnGalt says:

    So just because Virginia outlaws something doesn’t mean that I can’t go into Maryland, take part in the activity (be it drinking to an abortion), and return and have the mere fact of the activity’s occurence be illegal.

    So now you want to drink to an abortion? Heartless murderer.

    <\snark>

  26. 26
    ImJohnGalt says:

    Um, I did have a snark tag in there that didn’t seem to work. Sorry.

  27. 27
    Andrei says:

    So everyone supporting this decision on the basis of state’s rights believes the same rationale holds for abortion too, right?

    Personally, I don’t have a problem with a stricter state right’s approach to many laws, even with regard to abortion. I’m fairly convinced a majority of the states would do the right thing in this regard. The problem is when states rights start to cross each other, like when gay couples want to move to a different state if recognized legally in one or when minors attempt to cross state lines to have an abortion done… then the issue gets very tricky I think. But I won’t go down that rathole in this thread.

    What I do have a problem with is when conservatives make the claim for state’s rights then reverse themselves openly and pretend like they didn’t. In this case, Ashcroft attempted to overstep the federal government’s bounds and use federal law as a means to override a state law that allows for doctor assisted suicide. That’s just hypocritical for anyone who claims anything with regard to state’s rights and you should be voicing your agreement that Scalia just made an error for the state’s rights team in his ruling on the issue.

    And yes, this is an issue that works in reverse. I don’t care about conservative or liberal, no matter how many times you think otherwise.

  28. 28
    Andrei says:

    To be clear Chopper, I am in favor of doctor assisted suicide as well. I was just pointing out that your line of counterpoint had a hole in it. Just offering a suggestion to reconsider the example you gave, that’s all.

  29. 29
    The Other Steve says:

    The case has nothing to do with states’ rights, but rather statutory interpretation of the Controlled Substances Act.

    Ok, by what Constitutional Authority was Congress given the authority to pass the Controlled Substances Act?

    Just curious. My guess is Commerce Clause.

  30. 30
    AustinRoth says:

    Angry Engineer said: “ot surprised to see Scalia taking up this position, but I’m highly disappointed to see Thomas voting against states’ rights in this case.”

    Actually, he didn’t. He had a seperate dissent, where he pointed out that the precedence set in the majority opinion of Reich, on which he dissented, forced dissent on this case. Had Reich been ruled otherwise, based on his disent, he would have joined the majority on this case.

  31. 31
    The Other Steve says:

    Personally, I don’t have a problem with a stricter state right’s approach to many laws, even with regard to abortion.

    I don’t either. It was one thing when Federal Law was being used to lift up states. Now that they’re using Federal Law to tear down states and make them more like Alabama…

    I think States Rights sounds like a good thing.

  32. 32
    Don says:

    The problem is when states rights start to cross each other, like when gay couples want to move to a different state if recognized legally in one or when minors attempt to cross state lines to have an abortion done… then the issue gets very tricky I think.

    I don’t think it’s tricky at all. The states are forbidden to restrict travel across state lines. Unless you mean tricky in that the restrictive states will try to stop it even though they are clearly forbidden. ‘The tricky’ is, in my opinion, when you get into states recognizing each other’s contracts, a la marriage.

  33. 33
    norbizness says:

    Still a red herring. Here, the commerce clause findings that Congress used are being read against the scope of the law, which was fighting the illicit drug trade, not withholding medical treatment (insofar as there is no national accreditation or licensing of doctors).

  34. 34
    Lines says:

    norbizness: they’ve attempted to use the Commerce Clause to stop teens from going from a state where parental notification is manditory to a state where its optional. As far as I remember, they were somewhat successful in that its still pretty open for interpretation.

  35. 35
    The Other Steve says:

    Actually, he didn’t. He had a seperate dissent, where he pointed out that the precedence set in the majority opinion of Reich, on which he dissented, forced dissent on this case. Had Reich been ruled otherwise, based on his disent, he would have joined the majority on this case.

    That’s a rather bizarre dissent.

    It does seem to confirm my opinion of judges like Thomas, Alito, etc. that much of their dissent is just to make assinine political posturing points.

  36. 36
    Steve says:

    Actually, he didn’t. He had a seperate dissent, where he pointed out that the precedence set in the majority opinion of Reich, on which he dissented, forced dissent on this case. Had Reich been ruled otherwise, based on his disent, he would have joined the majority on this case.

    Thomas must be joking. When has he ever had any respect for stare decisis? His judicial philosophy says that he doesn’t have to follow any case he believes was decided incorrectly, period. Why he suddenly feels constrained to follow Raich, with which he strongly disagreed, is beyond me.

  37. 37
    slickdpdx says:

    Read the opinion. I assumed Scalia had taken an inconsistent position too, until I read it. The dissent is not saying doctors can’t assist suicides. It doesn’t advocate striking down an Oregon law. Its about upholding the right of the Congress to pass (and the executive to implement) a federal law restricting the use of controlled substances.

    Under the dissent, Oregon’s law permitting assisted suicide would remain viable as would the federal law restricting the use of controlled substances to legitimate purposes. What a state believes is a legitimate purpose for those drugs subject to federal regulation might be relevant but it is hardly dispositive. It seems right to me. The states don’t get to make federal law.

  38. 38
    AustinRoth says:

    Steve – because a foolish consistancy is the hobgoblin of little minds?

    Seriously though, it is a curious rationalization. This does smack of wanting to object for moral reasons rather than legal reasons, which is not allowed by his professed philosphy. so, not wanting to object on Federalism issues (would make his Raich dissent a parody), he turned the tables and used Raich as his basis via stare decisis. Perhaps his attempt at irony.

  39. 39
    SoCalJustice says:

    John,

    If the Utah legislature voted to (re-)legalize polygamy and also lowered the age of consent to 14, would you support both laws based on a theory of “States’ Rights.”

    Or would you support a (very unlikely, given the hypothetical – but in theory…) SCOTUS opinion that affirmed both laws under that theory?

  40. 40
    slickdpdx says:

    I was ready to go nuts on this, too. I’d advise you to read the opinion. Reading the majority’s efforts to distinguish Auer and Chevron is like watching the Circ Du Soliel it is so contorted.

    Regarding the Scalia statement that prescribing a lethal dose is “surely” illegitimate: as a general proposition it surely is. The question is – does the federal agency charged with implementing the law have to recognize Oregon’s opinion about an exception to that general principle? Where does Oregon get that power?

  41. 41
    John Cole says:

    If the Utah legislature voted to (re-)legalize polygamy and also lowered the age of consent to 14, would you support both laws based on a theory of “States’ Rights.”

    First, the age of consent is 14-16 in almost every state in the union as it is, and I am not freaking out about it, and second, I am ready for the government to get COMPLETELY out of the marriage business, and really don’t care about ploygamy.

    Really, you are asking the wrong person.

    Slick- The fact of the matter remains, our states rights advocates always find a way to rule against the state and for the feds whenever a moral issue they care about is involved.

  42. 42
    Krista says:

    The fact of the matter reamins, our states rights advocates always find a way to rule against the state and for the feds whenever there a moral issue they care about is involved.

    They’ll basically just root for whoever agrees with their own moral stance.

  43. 43
    kenB says:

    Do conservatives still make a habit of waving the “States’ Rights” banner anyway? I don’t think I’ve seen much of it ever since Bush v. Gore, but maybe I’m just not turning over the right rocks.

  44. 44
    Andrei says:

    Regarding the Scalia statement that prescribing a lethal dose is “surely” illegitimate: as a general proposition it surely is.

    In order for you to come to that conclusion, you have to have an agreed on and scoped definition of the purpose of medicine. Medicine, and its purpose, are not something you measure like the weight of water. It’s not as clear cut as you, and imho Scalia, are making it out to be. Medicine’s “purpose” is by definition a human construction, where its definition is more of an agreed definition by a large group of people.

    The issue at hand, imho, is that a lot of people, including many in the medical field itself, view assisting a person with a terminal condition in the transition from life to death in the most painless fashion possible as very much in the realm of an accpetable purpose of medicine.

    So I ask again, is there some legal definition of medicine and its purpose that Justice Scalia was using to make this statement? Can you find one? And if not, then how can we not consider Scalia’s dissent as nothing more than judicial activism?

  45. 45

    All together now, conservatives- “States Rights!”

    It has never been about States Rights. It’s always been about “I’m Right You’re Wrong” with these jokers.

    Arrogance trumps Ideology every time.

  46. 46
    slickdpdx says:

    Andrei:
    I understand your position, but to me the question is “Who gets to decide what is a legitimate purpose under the federal law regulating the use of controlled substances?” The natural answer would be “The federal agnecy tasked with implementing the law.” Not “Oregon.”

  47. 47
    kenB says:

    The natural answer would be “The federal agnecy tasked with implementing the law.”

    Are you saying that there’s no check on an agency’s power to interpret what is meant by a given federal law? what if a bunch of Christian Scientists take over the reins of the FDA, do they have full power to impose their definition of what the proper domain of medicine is?

  48. 48
    The Other Steve says:

    If the Utah legislature voted to (re-)legalize polygamy and also lowered the age of consent to 14, would you support both laws based on a theory of “States’ Rights.”

    Actually age of consent is totally up to the State, and it varies per state. Just like the age at which you can get married varies.

    As for polygamy. If a man wants to have more than one wife nagging him, then God help him. But I don’t care.

    Next you’ll ask… What if Texas made it legal to murder someone cause they deserved it. Would you be for that?

  49. 49
    SoCalJustice says:

    First, the age of consent is 14-16 in almost every state in the union as it is

    Most are at 16 and above. Only 3 go as low as 14 – which is pretty creepy, State’s Rights or not.

    Really, you are asking the wrong person.

    Am I asking the wrong person if they wanted to lower the age of consent to 11 or 12?

    Or if they wanted to abandon a drinking age?

    The larger point is, the reason why SCOTUS judicial “conservatives” abandon their supposed States’ Rights policy so frequently is because it’s about policy and drawing lines, and before “States’ Rights” generally helped their points of views. Suddenly with medical marijuana and assisted suicide laws (not to mention Presidential elections), it no longer does.

    I’m not necessarily against that type of inconsistency, because some State laws are idiotic and unconstitutional.

    I actually like decisions like this, and “conservative” rebellion against them, highlighting that the general conservative movement is not inherently pro-States’ Rights, just pro-what they want, like everyone else.

    But everyone has policy lines. And I would have thought that Brown v. Board of Education would be enough to get most people from thinking that “State’s Rights” was a good starting point.

  50. 50
    SoCalJustice says:

    Next you’ll ask… What if Texas made it legal to murder someone cause they deserved it. Would you be for that?

    No, next I’ll ask what I did in the post right above this one.

    Remember how we discussed you ignoring me?

    Please give it another thought.

  51. 51
    Andrei says:

    slidedpdx, you’re ignoring my question. Why? I’m not sure. Last time I’ll ask so as not to pollute the thread anymore than I already have.

    Is there some legal definition of medicine and its purpose that Justice Scalia was using to make this statement? Can you find one? And if not, then how can we not consider Scalia’s dissent as nothing more than judicial activism?

  52. 52
    Darrell says:

    I actually like decisions like this, and “conservative” rebellion against them, highlighting that the general conservative movement is not inherently pro-States’ Rights, just pro-what they want, like everyone else.

    I think that’s a pretty fair summary. Which is why I brought up the abortion issue above, an issue the left generally doesn’t want left up to the states. Both sides really are pretty much pro-what they want

  53. 53
    Steve says:

    I won’t claim to speak for all the liberals, but I am not in favor of states’ rights, nor am I in favor of federal rights. I am in favor of individual rights.

    In my opinion, people have a right to decide when they want to die with dignity, and it violates their rights for the government to tell them they can’t do it. This is a personal decision and the government’s only interest is to make sure it’s a well-informed and competent decision.

  54. 54
    Darrell says:

    I am in favor of individual rights.

    Does your neighbor have the individual right run a porn studio on his front lawn in front of the neighborhood? A whorehouse on his property? Does a baby/fetus have individual rights on the issue of abortion?

    Depending on the issue, it’s not as cut and dried as you are suggesting

  55. 55
    Dodd says:

    Pace Andre’s question, as was pointed out already, the case was not about whether the Feds can ban assisted suicide, but rather, on whether or not they has. This is a case in which the Court is acting as an interpreter of an existing statute. Congress is free to over-rule the Court here, if it desires, by clarifying the definition of the phrase legitimate medical use.

    Myself, I am very much a federalist and support the right of individuals to end their own lives (which, after all, belong to them, not the State), with or without assistance. But, given that the Hypocratic Oath is “first, do no harm”, in the context of interpreting a statute (which it is the Court’s job to do), and absent a clear indication from Congress as to its intent, this logic is difficult to argue with:

    “If the term `legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death,” [Scalia] wrote.

  56. 56
    Steve says:

    Well, of course it’s not cut and dried. I believe there are certain decisions that are so personal that the government should not be getting involved. Marriage, procreation, death with dignity, those are easy calls to me. How to educate your kids. These are deeply personal matters. That doesn’t mean I believe that you have a right to do anything at all you feel like doing, but I do believe there is a personal sphere the government should stay out of.

  57. 57
    slickdpdx says:

    Andrei: I take Scalia’s statement to mean that a guideline that forbids the prescription of drugs in lethal or harmful amounts is well within the “legitimate purpose” provision. If it wasn’t, that might have afforded another objection to the federal action.

    I hope my reading of the case is not ‘polluting’ this thread. Why so hostile? Have you read the decision?

  58. 58
    Pb says:

    SoCalJustice, Andrei, Darrell, etc.:

    My personal favorite example (pro-what they want): Scalia the alleged ‘originalist’ gets it wrong on abortion.

  59. 59
    tzs says:

    Steve, but what about if “educating your kids” means keeping your girl-children from any education at all?

    It seems to me that “personal limits” are different for every different person.

    Me–I think anything I do to myself is off-limits and the gov’t can butt out. When it comes to my interactions with everyone around me (or the environment), well, that’s when it gets tricky.

  60. 60
    Steve says:

    The government allows for home schooling, right? One of the earliest “right to privacy” cases decided by the Supreme Court was a case saying that you have a Constitutional right to send your kid to private school if you don’t like the public schools. Another case said that the government cannot prohibit private schools from teaching a particular subject.

    I don’t claim that these rights have to be absolute. For example, I think it’s entirely appropriate for the government to say that assisted suicide has to be performed by a physician (as opposed to your helpful cousin who gets everything in the will), that you have to go through a psych exam first, etc, so long as at the end of the day you have the right to die with dignity. Similarly, government has an interest in seeing your kids get an education, but it should be as permissive as possible in terms of letting you provide that education in the manner you see fit. It’s ok for birth control to be only available with a prescription, even though you have a Constitutional right to it… and so forth.

  61. 61
    Zifnab says:

    …and second, I am ready for the government to get COMPLETELY out of the marriage business, and really don’t care about ploygamy.

    This brings up the age old Santorum hypothetical – if you let men starting marrying men and women marrying women, what’s to stop people from marrying their dogs. Which then raises a much more liberal and libertarian question – Why do you give a damn?

    The only reason to ban suicide – assisted or otherwise – is on the assumption that the person committing suicide is not acting under his own, sane, cognative self-control. Fortunately, the Oregon law buffers against that. So what’s the big deal?

    Yes yes, I know. “Culture of Life”. The Republican philosophy that what matters is not the quality of an individual’s life, but the quantity of it. Today we have a party obsessed with control. It’s not enough that they control your tax dollars, your telephones, or your sex life, but they demand final say as to the duration of your stay on this earth. I honestly don’t know where the Republican Party gets off nuzzling up to the libertarian. I’m just not seeing it.

  62. 62
    Pb says:

    Steve,

    I’m generally with you, except perhaps for the birth control–especially in light of the activist pharmacists out there who apparently think they have some superior moral authority over both the doctor *and* the patient that prevents them (the pharmacists) from doing their *job*.

  63. 63
    Lines says:

    By the way, Polygamy is a codeword for legalizing sex with young girls. They call it marriage, but when the older wives are shoved out of bed to make room for a 12 year old, thats predatory.

  64. 64
    Pb says:

    Zifnab,

    I feel obligated to point out that culture of life is actually a Catholic catch-phrase that was cynically co-opted by the GOP. The difference being, of course, that the Catholics are actually opposed to the death penalty and to unjust wars, whereas the GOP is for saying whatever it takes to squeeze out a few extra votes whereever and however they can…

  65. 65
    Pooh says:

    Where is Disenfranchised Voter to claim that the whole CSA is unconstitutional?

  66. 66
    Darrell says:

    Pb, if a pharmacist has moral problems with filling out prescriptions for the morning-after pill or whatever other drug, the customers are free to use another pharmacy. Why would you call for the govt to get involved to force them to fill prescriptions they choose not to fill?

    That’s what I don’t understand about all the angry protests outside these pharmacies. Don’t pharmacists and companies have their own rights to choose what to sell and what not to sell?

  67. 67
    Steve says:

    Don’t the people outside the pharmacy have the right to protest?

  68. 68
    Pb says:

    Darrell, if a pharmacist doesn’t want to do his job, he can get another job. Seriously–he should have thought of that before he signed up to dispense medication to people.

  69. 69
    Davebo says:

    Pb, if a pharmacist has moral problems with filling out prescriptions for the morning-after pill or whatever other drug, the customers are free to use another pharmacy. Why would you call for the govt to get involved to force them to fill prescriptions they choose not to fill?

    Well, if you were talking about a mechanic that has moral problems working on Pontiacs I’d agree with you.

    But Pharmacists are licensed and regulated by the state, and as such they should fullfill their duties and, if their beliefs, religious or otherwise interfere with fullfilling those duties, they should find another line of work.

    Or are we to believe you would support the right of a police officer refusing to arrest a man for murdering an abortionist? Let me guess, just go find another cop right?

  70. 70
    The Other Steve says:

    Depending on the issue, it’s not as cut and dried as you are suggesting

    I believe you’re making the same stupid mistake as SolCalJustice, in thinking I’m going to be outraged by your examples.

    But you are somewhat correct in that it depends on the issue.

    Does your neighbor have the individual right run a porn studio on his front lawn in front of the neighborhood?

    If a neighbor wants to operate a website out of his house where he has a webcam in his bedroom. You know, I probably don’t care.

    Where we get into the grey zone is when it starts infringing upon me.

    If he’s operating a business, any business porn or otherwise, which results in a large amount of traffic and parking problems in the neighborhood… then I probably care.

    If he’s running a porn studio on the front lawn, then I probably care. Not because I don’t like b00bies, but because such an operation would drive property values down. It’d be similar to him not mowing his lawn and letting it all turn up as weeds. It starts affecting me.

    A whorehouse on his property?

    Goes back to the traffic issue.

    Does a baby/fetus have individual rights on the issue of abortion?

    Is the child going to block my driveway?

    Seriously. I regard individual rights as something important until and up to the point where those rights begin to infringe on other people.

    The difference is, when I say infringe… I mean physically something happens. Republicans misinterpret this to mean “I don’t like it, therefore it is infringing upon me.” That is, they can’t fathom the concept if they didn’t watch or they didn’t think about it, it wouldn’t exist in their little minds.

    For instance, if A Republicans’s neighbor wears blue dresses every day and he can’t stand the color blue, he will feel it within his right to get a law passed banning the wearing of blue dresses.

    That’s largely what we’re talking about here.

    So in the case of Oregon, you know… if a patient wants to die, they ought to have that choice. Whether it means Do-Not-Ressucitate, or committing suicide.

    Now one of my best friends father died at the age of 78 because someone decided he wanted to die. That someone took his car, and drove into the left lane as my friend’s father was driving down the road.

    The Oregon method is preferable to that solution, as it allows the individual to do something without effecting other people like my friends father.

  71. 71

    Where is Disenfranchised Voter to claim that the whole CSA is unconstitutional?

    Right here.

    The status quo view of the commerce clause is absolutely ridiculous. It is purposely abused to grant the federal government power it does not actually hold.

  72. 72
    Lines says:

    If a pharmacist decides they don’t want to provide medications they determine are “morally questionable”, they should move somewhere where no one needs those specific medications. I’m thinking that since the Red States are such paragons of morality, they should move there. Problem solved.

  73. 73

    Darrell, if a pharmacist doesn’t want to do his job, he can get another job. Seriously—he should have thought of that before he signed up to dispense medication to people

    Exactly.

    I mean what’s next–Pharmacists who refuse to fill any prescription because they are a Christian Scientist?

  74. 74
    The Other Steve says:

    That’s what I don’t understand about all the angry protests outside these pharmacies. Don’t pharmacists and companies have their own rights to choose what to sell and what not to sell?

    There are two ways to get a company to recognize they need to change. One is take your business elsewhere. The second is to let them know.

    Angry protests outside these pharmacies are the Invisible Hand of the economy. They are the customers airing their greviances towards the stores business practices.

    I don’t understand why you think it’s ok for a Pharmacist to have an opinion, but it is wrong for customers.

  75. 75
    The Other Steve says:

    I mean what’s next—Pharmacists who refuse to fill any prescription because they are a Christian Scientist?

    Exactly.

    Frankly, I think a Pharmacist has a right to not fill any prescription that comes there way.

    But so too does the Pharmacy have a right to fire their ass for not performing their job.

    And so too does the Customer have a right to protest outside their store and let people know about the companies business practices.

  76. 76
    Steve says:

    And Darrell has a right to queer the thread, which all of you have dutifully upheld.

    We can argue over this pharmacist issue all day, but the bottom line is that your personal choice of whether or not to have a child is a lot different from the choice a store or a pharmacist makes regarding whether to sell you a product.

  77. 77
    Lines says:

    The hazards of a capitalistic model in that instance, The Other Steve, is that it takes time for market forces to work that way. Instead of shielding a woman’s body from a pregnancy, you now have a more potential for abortion and all the problems that brings.

    However, should employers be allowed to request a potential hire to determine if they would not be able to fulfill their duties before even hiring them? How about going back and checking current employees and firing them if they say they would refuse to distribute certain medicines?

  78. 78
    Darrell says:

    Or are we to believe you would support the right of a police officer refusing to arrest a man for murdering an abortionist? Let me guess, just go find another cop right?

    A police officer is an employee of the government. A pharmacist is not. But thanks for playing. I love how you ‘libertartians’ on the left are in near-unanimity in having the govt. dictate to the pharmacists what they can and cannot sell

  79. 79
    Darrell says:

    I don’t understand why you think it’s ok for a Pharmacist to have an opinion, but it is wrong for customers.

    Protesters certainly have a right to protest. What I don’t understand is why they’re so angry and indignant about it. If a store doesn’t sell what I want to buy or offers me poor service, I don’t protest, I stop doing business there. It’s not as if pharmacies are in scarce supply.

  80. 80
    Lines says:

    Any of you live in a small town with one Pharmacy? How about a single pharmacy supplying a 200 mile radius. They do exist in places throughout America. What is your solution there? I figure Darrell will blame the woman, what about the rest of you?

  81. 81
    Pb says:

    Lines,

    If I ran into a ‘pharmacist’ like that, I would hope that all of his would-be customers would subsequently boycott *him* in their respective jobs. (Waitress: I’m sorry, but I can’t in good conscience serve you food, we have standards here; Nurse: my moral values don’t allow me to help the doctor operate on you, etc., etc.)

  82. 82
    Darrell says:

    Lines Says:

    Any of you live in a small town with one Pharmacy? How about a single pharmacy supplying a 200 mile radius

    If there is only a single pharmacy supplying a 200 mile radius, then there are plenty of other items in short supply in that area too. Hardware store doesn’t sell what you want? Have the govt. dictate to them what to sell, right you ‘libertarian’ hypocrites? Ever hear of mail order?

  83. 83
    Pb says:

    Apparently Darrell doesn’t understand the difference between medicine and nails. In the penalty box with you, troll.

  84. 84
    a guy called larry says:

    The only reason to ban suicide – assisted or otherwise – is on the assumption that the person committing suicide is not acting under his own, sane, cognative self-control. Fortunately, the Oregon law buffers against that.

    That’s what they say about … um … capital punishment, too. I’m just sayin’.

  85. 85
    slickdpdx says:

    The majority opinion acts like Ashcroft arbitrarily reached a decision unsupported by medicine: that the prescription/use of controlled drugs to assist a suicide is not a ‘legitimate medical purpose’. (Look beginning at page 10 of the majority opinion). However, the AMA Code of Ethics states the same. E-2.211 Physician-Assisted Suicide I understand that people would like this case to come out differently, but it really seems like the majority stretched to reach this result. Either way, it hardly justifies the cries of hypocrisy directed at Scalia.

  86. 86
    Darrell says:

    Pb Says:

    Apparently Darrell doesn’t understand the difference between medicine and nails. In the penalty box with you, troll.

    Only the pharmacists aren’t refusing to sell medicine to cure the sick, they are refusing to sell certain kinds of birth control. You don’t like, buy from another pharmacist who is willing to sell

    It’s the same as you hypocrites getting up in arms trying to make the govt force all plastic surgeons to do sex change operations even if they don’t want to.

  87. 87
    Pb says:

    Darrell,

    “you hypocrites”? I’ve never heard of such a thing. Go fuck yourself.

  88. 88
    Steve says:

    Darrell isn’t really addressing the issue, which is whether the state should make laws prohibiting stores from firing pharmacists for refusing to sell birth control. Republicans are trying to push through laws like this in any number of states.

    If a store doesn’t want to stock a product, not much you can do about it, other than call attention to it and see if the public wants to continue to do business with that store. But if a salesperson refuses to do their job, the employer should be free to fire them.

  89. 89
    SoCalJustice says:

    Wow, a stalker.

    Stupid argument = States’ Rights isn’t, and shouldn’t be, the end all be all Constitutional position. Exhibit A: Brown v. Board of Education. And “conservative” justices routinely prove that States’ Rights is a meaningless doctrine that they trot out only when convenient.

    What a stupid argument.

    As you’ve shown again, when you assumed only Republicans think it’s a bad thing that there is a former klansmen in the Senate, you have no problem reaching the wrong conclusion about someone because of a narrow point they make in a single blog post.

    I think the ODWDA is a perfectly good law that the CSA was not designed to preempt in the first place and that, even if it were designed to do so, the DOJ did not go through the proper procedures to make an issue of the use of the State sanctioned use of the legal, prescription drugs in question. Gonzalez’s attempt to do so is an abuse of the CSA.

    That does not mean that the conservative battle cry of “States’ Rights” isn’t hollow.

    Resume stalking.

  90. 90

    It’s the same as you hypocrites getting up in arms trying to make the govt force all plastic surgeons to do sex change operations even if they don’t want to.

    W-T-F?

    LOL.

    Darrell, that statement confirms that you are truly a delusional nutjob.

  91. 91
    Steve says:

    The majority opinion acts like Ashcroft arbitrarily reached a decision unsupported by medicine: that the prescription/use of controlled drugs to assist a suicide is not a ‘legitimate medical purpose’. (Look beginning at page 10 of the majority opinion). However, the AMA Code of Ethics states the same. E-2.211 Physician-Assisted Suicide I understand that people would like this case to come out differently, but it really seems like the majority stretched to reach this result. Either way, it hardly justifies the cries of hypocrisy directed at Scalia.

    What you’re missing is that the majority opinion held that the Attorney General simply wasn’t given the power, under the statute, to decide what is a legitimate medical purpose and what isn’t. It was Scalia, and not the majority, who decided to play legislator by stating that physician-assisted suicide is “surely” not a legitimate medical purpose.

  92. 92
    Darrell says:

    If a store doesn’t want to stock a product, not much you can do about it, other than call attention to it and see if the public wants to continue to do business with that store. But if a salesperson refuses to do their job, the employer should be free to fire them

    More strawmen Steve? Of course the employer should be free to fire a pharmacist or any other employee who isn’t doing their job. But that hasn’t been the issue in the news, has it?

    The issue has been companies who choose not to sell certain drugs. Mom and pop pharmacies fall under that umbrella too. Amazing the number of self proclaimed libertarians on this site who want to use the power of govt to dictate to the pharmacists what they can and cannot sell.

  93. 93
    Pb says:

    Darrell,

    Actually, that *has* been the issue in the news, which you’d know if you could read. See above. Troll.

  94. 94
    Darrell says:

    Re John’s update via Blue Oregon, seems the conservative jurists are saying: “Hey, you dufuses aleady decided in Raich that the CSA gives the govt. power to do whatever it wants with regards to regulating drugs, so aren’t you being inconsistent now to suddenly change your mind here? We’re just agreeing with your first dumbass decision because of stare decisis”

    Looks like a lot of people agree with that take. A bit more nuanced than the suggestion that this case was all about conservatives being hypocrites over ‘states rights’, no?

  95. 95
    Jack Roy says:

    Well, Darrell, yes, but I fear you mistake the actual issue. The authority of the AG to ban certain drugs, irrespective of state decriminalization, under the authority of the -Controlled Substances- Act, is quite a different bird than the authority of the AG to leave certain drugs legal, but to prohibit doctors from prescribing them for one specific purpose under that same Act. In the way that the former is specifically what the statute was about, and the latter is definitely outside the ambit of the statute.

    Oy, I can’t believe I’m feeding the troll. Look, I pretended you were making serious points, so please play nice from now on.

  96. 96
    Jack Roy says:

    Whoops. “Controlled Substances” was meant to be underlined, not struck through.

  97. 97
    slickdpdx says:

    Steve: You have it backwards. Scalia didn’t play legislator, he deferred to Congress and the agencies charged with implementing the legislation. Scalia didn’t define legitimate purpose, the AG did. Its the majority opinion that decides that prohibting this particular use of “controlled substances” was not a legitimate medical purpose.

    It was somewhat disingenuous of the majority to conduct their analysis as if Ashcroft made up his agenda and there was no medical basis for the AG’s position when it is supported by a pre-existing Code of Ethics promulgated by the AMA.

  98. 98
    Darrell says:

    Oy, I can’t believe I’m feeding the troll. Look, I pretended you were making serious points, so please play nice from now on.

    I see. First you call me a troll, then tell me to play nice. I guess being a whackjob means never having to be consistent right?

    Justice Thomas said he agreed with the concept of limiting CSA, but with Raich having already been decided, it was too late for that. It was “water under the dam” in his words. The argument appears to be that the majority was being inconsistent and hypocritical… not an argument over ‘right to die’ or states rights as has been asserted

  99. 99
    Steve says:

    Steve: You have it backwards. Scalia didn’t play legislator, he deferred to Congress and the agencies charged with implementing the legislation. Scalia didn’t define legitimate purpose, the AG did. Its the majority opinion that decides that prohibting this particular use of “controlled substances” was not a legitimate medical purpose.

    It was somewhat disingenuous of the majority to conduct their analysis as if Ashcroft made up his agenda and there was no medical basis for the AG’s position when it is supported by a pre-existing Code of Ethics promulgated by the AMA.

    It doesn’t matter if there was a medical basis for the AG’s position. Congress didn’t give the AG the right to determine what a “legitimate medical purpose” is. That’s traditionally an issue that’s up to the States to decide, and the majority saw no evidence that Congress had intended to undo that long-standing tradition.

    I don’t understand how you can say Scalia “deferred to Congress” when he tries to read into the CSA something that Congress didn’t put there and never intended to put there; namely, a delegation of authority to the Attorney General to criminalize assisted suicide.

  100. 100
    slickdpdx says:

    Steve: Ashcroft didn’t criminalize assisted suicide, he interpreted the regulation of controlled substances which required a legitimate medical purpose for the use of those substances on the list. Under the regulation you could assist a suicide in Oregon, assuming you act within the statute, you just couldn’t use a drug on the federal controlled substance list to do it.
    I read the supposed lack of a medical basis for Ashcroft’s position as an important part of the majority opinion. I guess we differ on that. Regardless, I can’t imagine the majority was unaware of the fact that a medical basis for the interpretation DID exist. Hence the Scalia statement about legitimate purpose that has everyone up in arms.

    I’ve enjoyed this discussion, I’ll bow out now. Thanks!

  101. 101
    Drug WarRant says:

    Supreme Court Turns Back Feds and Upholds Oregon’s Assisted Suicide Law

  102. 102
    Zifnab says:

    I don’t understand how you can say Scalia “deferred to Congress” when he tries to read into the CSA something that Congress didn’t put there and never intended to put there;

    This is a classic problem in the division of powers. The Legislature is given the authority to pass laws while the Executive branch is charged with upholding them. However, how the executive branch upholds those laws – who is prosecuted and to what extent of the law – is generally left up to the executive branch until it comes before a court of law.

    So the whole idea that Ashcroft could or should “defer to Congress” in any way on enforcement seems a bit disingenious unless Scalia was somehow implying that Ashcroft was going above and beyond the call of duty in his strict and literal interpretation of the CSA. Certainly, I haven’t heard any reports of Ashcroft consulting with Senators or Congressmen as to the best interpretation of the legislation and its enforcement. But maybe Scalia heard something I didn’t. It’s definately possible.

  103. 103
    Steve says:

    No one said Ashcroft could or should have deferred to Congress. What the majority said is that Ashcroft can’t enforce a law which Congress didn’t pass.

    My sentence you quoted was about whether Scalia, not Ashcroft, deferred to Congress.

  104. 104
    The Other Steve says:

    Protesters certainly have a right to protest. What I don’t understand is why they’re so angry and indignant about it. If a store doesn’t sell what I want to buy or offers me poor service, I don’t protest, I stop doing business there. It’s not as if pharmacies are in scarce supply.

    Why do people protest outside Abortion clinics? It’s not like clinics are in scarce supply. If they don’t like what they do there, they can always go find another clinic.

  105. 105
    The Other Steve says:

    Wow, a stalker.

    Stalker? My post wasn’t even directed at you. I was responding to someone else. Yet you just felt a need to butt in and throw insults at me.

    Remember how we discussed you ignoring me?

    Please give it another thought.

    LOL!

  106. 106
    The Other Steve says:

    What the majority said is that Ashcroft can’t enforce a law which Congress didn’t pass.

    You forget the famous Ashcroft quote… “I AM THE LAW!”

    Or maybe that was Bush?

  107. 107
    SoCalJustice says:

    Butt in?

    You may have been responding to someone else, but you couldn’t help yourself from naming me in that post.

    That’s stalking.

    And you’re going to whine about insults after throwing around the word stupid?

    A stalker and crazy.

    An exercise in self-parody, though. Which is fun.

  108. 108
    SoCalJustice says:

    Referring to someone for absolutely no good reason (especially after being asked to ignore me) = stalking.

    When you stop stalking me, I’ll stop calling you a stalker.

  109. 109
    Andrei says:

    “I hope my reading of the case is not ‘polluting’ this thread. Why so hostile?”

    No… I actually wasn’t referring to you… I had repeated the same question three times, and I find that a distasteful thing to do in threads. I was actually, in all honesty, referring to myself in that regard.

  110. 110
    ppGaz says:

    Only the pharmacists aren’t refusing to sell medicine to cure the sick, they are refusing to sell certain kinds of birth control. You don’t like, buy from another pharmacist who is willing to sell

    Pharmacists are not merchants. They are licensed practitioners, required to dispense to legal prescritions. They do not decide what to sell. They are there to dispense. The practice is regulated tightly.
    A pharmacy not the same thing as a drug store. A drug store sells aspirins and magazines and Baby Ruths. A pharmacy dispenses according to strict and comprehensive law.

  111. 111
    Pb says:

    SoCalJustice,

    I don’t have anything more to add, really, just felt like mentioning your name for no good reason… :)

    But seriously, are you jjayson, or do you know him? He’s probably the only person I know from SoCal who’d be at all likely to post here. Also, did you see the story on here a while back about stalking laws being extended to the internet? I don’t think that [whatever it is you’re having a hissy fit about] really qualifies, but under some reading or another of that law, who knows, it may come close.

  112. 112
    Pb says:

    ppGaz,

    Good points about pharmacists, as usual. But another substantive point (one of many, none of which would ever occur to Darrell) is that pharmacists don’t actually know why a doctor prescribed a given medicine, and some medication (such as birth control pills) has other functions above and beyond birth control to regulate a woman’s health. It’s the height of unprofessional arrogance for them to think that they know better than both the doctor and the patient in these matters. Also, it disgusts me to see people use capitalistic arguments allegedly based on the ‘free market’ to defend such un-free draconian social meddling in the private medical affairs of others.

  113. 113
    SoCalJustice says:

    Pb,

    No, I’m not that person.

    And I’m not accusing anyone of breaking any law – on the internet or otherwise.

    I’ve asked him several times to scroll by my posts and ignore them. He’d rather not, apparently.

    He can do whatever he wants.

  114. 114
    Kimmitt says:

    So everyone supporting this decision on the basis of state’s rights believes the same rationale holds for abortion too, right?

    Here’s how I think about it:

    1) In my opinion, privacy protects end-of-life decisions. I see a Constitutional right to die with dignity.

    2) Even if one does not accept a Constitutional right to die with dignity, Federalism concerns place this issue squarely at the state level.

    My thoughts regarding abortion run along similar lines. If Roe is ever overturned, I will be very much against Federal regulation of abortions.

  115. 115
    chopper says:

    Hardware store doesn’t sell what you want? Have the govt. dictate to them what to sell, right you ‘libertarian’ hypocrites?

    pharmacists are licensed by the state. hardware stores are not. if pop of pop’s hardware doesn’t want to stock ladders because they’re the instrument of the devil, too bad. but when someone licensed and bonded by the state to dispense medicine refuses to do so for religious purposes, they are doing so as an agent of the state and there’s a problem.

  116. 116
    chopper says:

    But another substantive point (one of many, none of which would ever occur to Darrell) is that pharmacists don’t actually know why a doctor prescribed a given medicine, and some medication (such as birth control pills) has other functions above and beyond birth control to regulate a woman’s health.

    right on. i’ve met numerous women who had to take BC when they were very young to deal with horrible reactions their body had with their period. some wackjob pharmacist is going to see mom come in looking for BC for her 14-year old daughter and freak out, and screw the whole thing up.

  117. 117
    TallDave says:

    This just shows again we need libertarian justices, not conservative ones.

  118. 118
    Ben says:

    what if a bunch of Christian Scientists take over the reins of the FDA, do they have full power to impose their definition of what the proper domain of medicine is?

    You mean like if a bunch of evangelical Christians are appointed into the governance of the FDA and start making decisions about which drugs they allow to be sold over the counter based entirely on their own personal religious beliefs and not on any sound medical reason, against the opinion of the medical advisory board, and breaking with any precedence? I think it’s the opinion of this administration that they do “have full power to impose their definition of what the proper domain of medicine is.”

  119. 119
    The Other Steve says:

    SoCalJustice – Remember how we discussed you ignoring me?

    Please give it another thought.

    You’re such a tool. :-)

  120. 120
    SoCalJustice says:

    And so the stalking continues. Obsessions aren’t pretty. They have medication for it, you should really look into it.

    But since you never fail to demonstrate that you’ve missed the point completely, whenever you chime in, your obsession is somewhat entertaining.

  121. 121
    slickdpdx says:

    Andrei: Sorry if I took offense when I shouldn’t have.

  122. 122

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