BUSH ADMINISTRATION ASKS SUPREME COURT TO PREVENT DRUG USE FOR ASSISTED SUICIDE

By Burke J. Balch, J.D., Director,
NRLC's Powell Center for Medical Ethics

The Bush Administration has asked the U.S. Supreme Court to overturn a ruling by the Ninth Circuit Court of Appeals that has prevented implementation of Attorney General John Ashcroft's 2001 directive that federally controlled drugs not be used to assist suicides.

To date, only Oregon has specifically legalized prescribing lethal drugs to assist suicide. These drugs are all regulated by the federal Controlled Substances Act. The Attorney General ruled that causing a patient's death is not a "legitimate medical purpose," which regulations require in order for a doctor legally to prescribe these federally controlled drugs.

The state of Oregon sued, and convinced the district court and court of appeals that even though the Controlled Substances Act is a federal law, interpretation of what is a "legitimate medical purpose" should be left to state-by-state determination rather than a uniformly applied judgment made by the federal agency that enforces the law.

"That holding," the Bush Administration's petition to the Supreme Court in Ashcroft v. Oregon said, "stands the proper relationship between the federal and state governments under the Constitution on its head."

The Ninth Circuit said its holding was required in order to avoid the constitutional question whether Congress has authority, under the Constitution's "Inter-state Commerce Clause," to determine what is and is not legitimate medicine for the purpose of regulating the use of federally controlled drugs. That question may be greatly affected by another case now before the Supreme Court concerning "medical use" of marijuana.

On November 29, 2004, the Court heard oral arguments in Ashcroft v. Raitch, in which the same Ninth Circuit had ruled that the federal government cannot constitutionally prohibit or regulate the use of marijuana grown in a state for use solely in that state. While drawing conclusions from questions asked by the justices in oral arguments can be misleading, most press accounts suggested that the majority of the justices were hostile to the Ninth Circuit's conclusion.

If the Court's ultimate opinion in Raitch reiterates its precedents that even items grown or created wholly within a state affect interstate commerce, that would undermine a key part of the rationale for the Ninth Circuit's ruling in the suicide drug case.

At press time, the Supreme Court had not decided whether it would hear the federal government's Ashcroft v. Oregon appeal. Alternatively, perhaps after deciding the Raitch case, the High Court could issue a summary decision (rule without further briefing or oral argument), or perhaps send the case back to the Ninth Circuit for reconsideration in light of its Raitch opinion.

To date, euthanasia advocates have been promoting suicide legislation that legalizes killing only by prescription drugs, largely because they can argue that this supplies a "safeguard" that the suicide will be "voluntary" since the victim must choose to take the drugs himself or herself. Despite extensive research, they have so far been unable to find drugs that are both effective in causing death and purportedly "painless," other than those regulated under the Controlled Substances Act.

Thus, a favorable ruling on the Ashcroft Directive by the Supreme Court could have a significant impact in protecting vulnerable people from euthanasia.