Ninth Circuit Panel Rebuffs Ashcroft

By Dave Andrusko

A divided 9th Circuit Court of Appeals panel ruled May 26 that the federal government must facilitate assisted suicide in Oregon by authorizing the use of federally controlled narcotics and other dangerous drugs to kill patients. The 2-1 decision, written by Judge Richard Tallman, struck down a ruling that such misuse of federally controlled drugs violated federal law. An appeal to the U.S. Supreme Court is likely.

Tallman, joined by Judge Donald Lay, leveled particularly harsh criticism at Attorney General John Ashcroft. At the same time, J. Clifford Wallace, in his thoughtful dissent, laid out a persuasive case upholding Ashcroft's application of the federal Controlled Substances Act to the Oregon "Death with Dignity" law.

Burke Balch, J.D., director of the National Right to Life Committee's Robert Powell Center for Medical Ethics, criticized the decision, saying, "The American people do not want their federal government to facilitate euthanasia." The 9th Circuit majority's "odd decision," he added, "is that state law controls federal law."

The use of narcotics and other dangerous drugs is generally prohibited by federal law. The exception is when a doctor prescribes them for a "legitimate medical purpose."

On November 5, 1997, then-Drug Enforcement Administrator Thomas Constantine announced that since assisting suicide is not "a legitimate medical purpose [,] . . . prescribing a controlled substance with the intent of assisting a suicide" violates federal law.

However, seven months later, Clinton Administration Attorney General Janet Reno partially overruled Constantine's decision. She agreed that "adverse action" might be warranted "where a physician assists in a suicide in a state that has not authorized the practice under any conditions, or where a physician fails to comply with state procedures in doing so."

However, she said federally controlled drugs could be prescribed to kill patients when it is legal under state law. Oregon is the only state whose law specifically authorizes lethal prescriptions.

On November 6, 2001, Attorney General Ashcroft issued a decision reversing Reno. In so doing he reinstated the prior uniform federal policy against the prescription of federally controlled drugs to kill patients. This policy never took effect, because of court orders by U.S. District Judge Robert Jones.

In unusually sharp language, Judge Tallman wrote, "The Attorney General's unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide and far exceeds the scope of his authority." Tallman said the court was expressing no opinion on whether physician-assisted suicide "is inconsistent with the public interest or constitutes illegitimate medical care. This case is simply about who gets to decide."

"The court - - often described as the most liberal appeals panel in the country - - found that Ashcroft has no such right," the Washington Post reported.

Cathy Cleaver Ruse, a spokeswoman for the Pro-Life Secretariat of the United States Conference of Catholic Bishops, took sharp issue with the ruling.

"This is not about an attempt by the Attorney General to control Oregon law," Ruse said. "Rather, it's about whether Oregon should be able to ignore federal law and at the same time co-opt the federal government into facilitating assisted suicides by providing federal prescribing licenses and federally controlled drugs."

Dr. N. Gregory Hamilton, spokesman for the Oregon-based Physicians for Compassionate Care and a strong critic of assisted suicide, criticized the panel for allowing the state to "nullify federal regulatory authority and federal law."

Hamilton echoed Balch's concern. "The Ninth Circuit Court misinterpreted the Controlled Substances Act when it claimed that federal authority over controlled substances was limited to drug abuse." In fact, Dr. Hamilton explained, "the Controlled Substances Act clearly required the Department of Justice to disallow any non-medical use of federally controlled substances - - and that includes overdosing patients with these drugs."

Hamilton said, "The abuses of assisted suicide in Oregon, including giving depressed patients, and mentally ill patients with questionable competence, lethal overdoses, as happened in the case of Michael Freeland, make it clear that the federal government was right to protect patients by declaring that assisted suicide is a violation of the Controlled Substances Act." (See story, page 16.)

Illustrating how potentially far-reaching is the panel's reasoning, Dr. Hamilton also said, "If Oregon is allowed to exempt itself from federal law about the misuse of controlled substances for the purposes of overdosing patients, what is to stop any state from exempting itself from other important federal regulations and laws?"

Judge J. Clifford Wallace's dissent addressed many of the points raised by the majority opinion. Ashcroft's order neither exceeds his authority under the Controlled Substance Act nor challenges the will of Congress and should, therefore, be given "substantial deference," Wallace wrote.

"There is simply no textual support for the majority's conclusion that 'the field of drug abuse,' as discussed in the Controlled Substances Act, does not encompass drug-induced, physician-assisted suicide," Judge Wallace wrote.

"Reasonable minds might disagree as to whether physician-assisted suicide constitutes an 'improper use' of a controlled substance, but nothing in the Controlled Substances Act's text precludes its application to physician-assisted suicide," he wrote.

As part of his dissent, Judge Wallace referred to the majority's use of the 1997 Supreme Court case, Washington v. Glucksberg. Tallman and Lay argued that Ashcroft must defer to the Oregon law because "[p]hysician-assisted suicide is an unregulated, general medical practice to be regulated by the States in the first instance."

Wallace observed, "Glucksberg, however, addressed states' authority to prohibit physician-assisted suicide in the absence of federal regulation; the case did not answer the question whether Congress may exercise its Commerce Clause power to deny physicians access to controlled substances for physician-assisted suicide." (Emphasis in original.)

Glucksberg, Wallace wrote, "stands for the broader proposition that federal courts generally should keep their distance, allowing the political process to decide whether and how to regulate physician-assisted suicide. The majority's shortsighted decision to declare the Ashcroft Directive invalid has precisely the opposite effect."

Balch said NRLC is "confident that the U.S. Supreme Court, on appeal, will ultimately uphold the position of Attorney General Ashcroft and the Bush Administration that federally controlled drugs should be used to cure and relieve pain, not to kill."