News
Healthcare/Hospital Law
Oct. 7, 2005
Justices Divide on Assisted Suicide
WASHINGTON - The Supreme Court on Wednesday appeared closely divided on whether the Bush administration has the authority to block Oregon's physician assisted-suicide law. The justices acknowledged the states' traditional power to regulate the practice of medicine but questioned whether a ruling in Oregon's favor would undermine the federal government's drug regulations.
Wednesday's argument, one of the most anticipated of the term, was the first high-profile case for Chief Justice John G. Roberts Jr., and he asked a number of tough questions of Oregon's Assistant Attorney General Robert M. Atkinson but asked few of U.S. Solicitor General Paul D. Clement.
Roberts and other justices pressed Atkinson on the scope of Oregon's authority to regulate medicine, asking whether a state that had the power to allow assisted suicide also would have the power to allow doctors to prescribe morphine to patients who were depressed.
If the state has that authority, Roberts asked, "does that undermine the uniformity of federal law and make enforcement impossible?"
If Oregon allowed morphine use, Roberts asked, "how is the federal government supposed to enforce that prohibition elsewhere?"
Although Roberts and Justice Antonin Scalia appeared skeptical of Oregon's arguments, Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg appeared to favor them.
Ginsburg pointed to the court's earlier decision in Washington v. Glucksberg, 521 U.S. 702 (1997), in which the justices ruled that there was no constitutional right to assistance in committing suicide.
Every justice in that case, Ginsburg said, "seemed to assume that physician-assisted suicide was a matter for the states."
Justice Sandra Day O'Connor also seemed more inclined to favor Oregon, though with Harriet Miers nominated to replace her, O'Connor might not be on the bench when the court decides the case, raising the possibility of a 4-4 split.
Justices Anthony Kennedy and Stephen G. Breyer asked tough questions of both sides. Justice Clarence Thomas, as is his custom, was silent.
At issue is Oregon's Death With Dignity Act, passed by the state's voters in 1994, which is the only law in the nation that allows doctors to help terminally ill patients end their own lives. Gonzales v. Oregon, 04-623.
Under the law, terminally ill patients must make two requests for lethal drug doses, which must be reviewed by two doctors. The patient must take the fatal dose without the help of the doctor.
In 2001, Attorney General John Ashcroft issued a directive holding that prescribing, dispensing or administering controlled substances to assist suicide was a violation of the Controlled Substances Act, 21 U.S.C. Section 801-971.
Assisted suicide, Ashcroft said, was not a "legitimate medical purpose."
Because of his order, Oregon doctors who assisted terminally ill patients faced federal criminal sanctions and the revocation of their registrations with the Drug Enforcement Administration to prescribe certain drugs.
Ashcroft's predecessor, Janet Reno, had come to the opposite conclusion.
Reno held that Congress had not meant for the act "to displace the states as the primary regulators of the medical profession."
Oregon, along with a doctor, a pharmacist and a group of terminally ill patients, challenged Ashcroft's interpretation and prevailed at the San Francisco-based 9th U.S. Circuit Court of Appeals.
A divided three-judge panel, in an opinion by Judge Richard Tallman, ruled that Ashcroft's order exceeded his authority, violated the plain language of the Controlled Substances Act and interfered with Oregon's regulation of medicine within its borders.
Judge J. Clifford Wallace dissented.
Clement was first up before the justices Wednesday, arguing that Ashcroft was indeed acting within the authority of the act by promulgating interpretive rulings for its enforcement.
O'Connor, followed by Souter and Breyer, immediately threw Clement a curveball, asking whether an anti-death-penalty attorney general could use the act to go after doctors who assisted in executions.
Clement said he hadn't considered the issue thoroughly, but he said that another federal law would foreclose such a scenario. And doctors, he added, aren't directly involved in executions.
Breyer said his point was that the Controlled Substances Act "has nothing to do with the death penalty."
"And I would think the argument on the [Oregon] side is that the statute has nothing to do with assisted suicide," Breyer said.
Responding to questions about states' rights to regulate medicine, Clement said Ashcroft's directive did not foreclose states' ability to authorize assisted suicide.
Jack Kevorkian, Clement said, assisted suicides without using controlled substances.
Ginsburg, however, pointed to amicus briefs in the case suggesting that, from a patient's point of view, the process was "less upsetting" if he or she took drugs that were regulated as controlled substances.
Kennedy described the dispute as "a hard case," and asked Clement, "If we rule against you, do you think there will be some other consequences?"
"It at least creates the potential for there to be a lot of holes in the regime," Clement said.
Those holes, he said, could undermine the government's efforts to enforce the nation's drug laws.
O'Connor said that nothing in the act puts the regulation of medicine in the hands of federal authorities, and she noted that Reno "had a different interpretation" of the act than Ashcroft did.
Clement responded that the Drug Enforcement Administration in an earlier interpretation had reached the same conclusion as Ashcroft did.
Clement also noted that the federal government had exercised a "prominent role in the regulation of controlled substances" for 90 years.
But Souter said that federal drug regulations were designed for "the purpose of stopping drug pushing and drug abuse."
The notion that attorneys general could flip-flop on whether Oregon's law violated federal law "seems like a bizarre result," Souter said.
Clement said that physician-assisted suicide would have been unthinkable in 1970, when Congress passed the Controlled Substances Act.
It would be odd, Clement said, to think that a Congress concerned about drug overdoses and drug addiction "would be indifferent or agnostic" about assisted suicide.
When Atkinson rose to argue Oregon's case, he ran into a barrage of questions from liberal and conservative justices alike about whether the attorney general would have statutory authority to block state laws that directly undermined the act, such the hypothetical in which a state authorized morphine use for the depressed.
What if states, Ginsburg asked, said that prescribing morphine makes people happy?
"That is permissible?" Roberts asked.
Yes, Atkinson answered.
"How about steroids for body builders?" O'Connor asked.
Could the attorney general block a law allowing that?
No, Atkinson said, "not if it's permitted by state law."
"Suppose I disagree with you," Breyer said. "Do you lose the case?"
"I certainly lose ground, Your Honor," Atkinson responded.
Ashcroft's action in this case, Atkinson said, was not reasonable within the scope of authority he was granted by the act.
Roberts, however, pointed to the regulatory language on allowing the use of controlled substances for a "legitimate medical purpose."
That language, Roberts said, "suggests that the attorney general has the authority to interpret that phrase."
And Kennedy said the statute clearly gave the attorney general authority over the dispensing of drugs.
Atkinson said that the case was not about the dispensing of drugs but about the medical purposes for those drugs.
It was odd, Kennedy responded, that Ashcroft would have authority over dispensing without being allowed to consider the purpose for the drugs' use.
It would be even odder, Atkinson said, to think that Congress had meant to give "a single unelected official" the power to make a federal policy determination on assisted-suicide on his own.
Congress, he said, has not spoken on the issue.
The court's liberal wing appeared to be seeking a way to side with Oregon without holding that the attorney general was powerless to stop the states from gutting the federal drug law.
Souter suggested that all Oregon needed to do to win on statutory grounds was to show that Congress authorized federal interference with state medical regulations only to the extent that state laws would gut the act, and Oregon's law would not do so.
Last term, the court ruled in Gonzales v. Raich that federal authorities could enforce the Controlled Substances Act against seriously ill California patients who used marijuana as authorized by the state's 1996 Compassionate Use Act.
The justices ruled 6-3 that the Commerce Clause gives Congress the power to prohibit the cultivation and use of marijuana even if California and other states allow it for medical purposes.
Wednesday's assisted-suicide argument, however, focused predominantly on the statutory questions of whether Ashcroft had the authority to issue his order.
Both sides discussed the constitutional questions only briefly.
Atkinson said Oregon's law did not have "any significant effect on interstate commerce."
Clement disagreed, saying that "Congress' Commerce Clause power is more robust here" than in Raich.
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Brent Kendall
Daily Journal Staff Writer
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