Preventing Use of Federally Controlled Drugs to Assist Suicide Doesn't Violate States' Rights

By Burke J. Balch, J.D.

The federal government and the states both have authority (concurrent jurisdiction) over dangerous drugs and other controlled substances. In any given state, a use of a drug might be:

 1) against both federal and state law

 2) against neither federal nor state law

 3) against state but not federal law

 4) against federal but not state law

If the Supreme Court upholds the Bush Administration policy, Case (4) will apply in Oregon to the use of federally controlled drugs to assist suicide.

It does not violate federal authority for a state to prohibit something federal law does not prohibit; it happens all the time (for example, laws against robbery or violations of zoning ordinances).

In the same way, it does not violate state authority for federal law to prohibit something state law does not prohibit, for example, evasion of federal taxes, or racial discrimination in public accommodations as specified in the Civil Rights Act of 1964).

Under the Bush Administration's directive, use of federally controlled drugs to assist suicide in Oregon simply violates federal law without violating state law. A Supreme Court ruling upholding it would not invalidate, supersede, or pre-empt Oregon's law. It would simply be the case that federally controlled drugs could no longer be used to facilitate assisting suicide in Oregon.

In 1984, Congress amended the Controlled Substances Act (CSA) specifically to authorize the Justice Department to revoke doctors' registrations to prescribe federally controlled drugs when the doctors did not violate state law. As the Senate Report on the amendments explained, the amendments were deemed necessary because, under the then-current CSA, "the Attorney General must presently grant a practitioner's registration application unless his State license has been revoked or he has been convicted of a felony drug offense, even though such action may clearly be contrary to the public interest."1

This federal authority fulfills the stated intent of Congress that, for the purpose of ensuring that an international treaty on the control of psychotropic substances be appropriately applied through the CSA, the scope of "ethical medical practice" be determined "on the basis of a consensus of views of the American medical and scientific community"—not on the basis of standards that vary from state to state.2

Notes 
1. S. Rep. No. 98-225, at 262 (1984).   2. 10. 21 U.S.C. § 801a (3).