Supreme Court Agrees to Hear Oregon Assisted Suicide Case
By Dave Andrusko

When the United States Supreme Court hears the case of Gonzales v. Oregon, the justices will review a split decision of a three-judge panel that struck down a directive banning the use of federally controlled drugs in assisted suicides.

The Court will hear the case in the term that begins next October, the first time the justices will have addressed the assisted suicide issue since 1997. In Washington v. Glucksberg, a unanimous Court held there is no right to assisted suicide in the United States Constitution.

At issue in Gonzales is not the "right" to assisted suicide, although that is a misleading shorthand description found in a number of early news accounts. The issue is rather whether a state, in this case Oregon, can unilaterally override what had been uniform federal policy against allowing the use of federally controlled drugs to kill patients. The case has been in the courts since November 2001.

Background

Oregon voters first legalized assisted suicide in 1994, but the law did not finally take effect until November 1997. The law, as bioethicist Wesley Smith has written, presented state regulators with a problem: "They wanted to authorize doctors to prescribe barbiturates as killing agents."

But under the Controlled Substances Act the use of narcotics and other dangerous drugs is generally prohibited except 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, a mere 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 was and is the only state whose law specifically authorizes lethal prescriptions.

Faced with regulatory anarchy, then-Attorney General John Ashcroft ordered an extensive review of the question whether federally controlled drugs ought legally to be used to facilitate euthanasia. Concluding that they should not, Attorney General Ashcroft issued a decision November 6, 2001, reversing Reno and reinstating the prior uniform federal policy against the prescription of federally controlled drugs to kill patients.

However, this policy never took effect. The state of Oregon secured an immediate temporary injunction against it from a federal district court in Portland, which was made permanent by Judge Robert E. Jones in April 2002.

Last May a divided three-judge panel of the 9th Circuit Court of Appeals upheld the injunction. Writing for Judge Donald Lay and himself, Judge Richard Tallman alluded to an observation made in the 1997 Glucksberg case. "The attorney general's unilateral attempt to regulate general medical practices historically entrusted to state lawmakers," he wrote, "interferes with the democratic debate about physician-assisted suicide and far exceeds the scope of his authority under federal law."

However, Judge J. Clifford Wallace's thoughtful dissent carefully rebutted many of the points raised by the majority opinion.

Ashcroft's order neither exceeds his authority under the Controlled Substances 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 concluded.

As part of his dissent, Judge Wallace referred to the majority's use of the Supreme Court's Glucksberg decision. 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 that, "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 further argued, "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."

Understandably, the case will be closely watched. NRLC Executive Director David N. O'Steen, Ph.D., told NRL News, "The American people do not want their federal government to facilitate euthanasia. We strongly support the position of the Attorney General's office and the Bush Administration that federally controlled drugs should be used to cure and relieve pain, not to kill."