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Supreme Court Upholds Physician-Assisted Suicide Law

by TChris

The Supreme Court today delivered a blow to the Bush administration’s desire for an all-powerful federal government, ruling in favor of Oregon’s right to enact and implement a physician-assisted suicide law despite the administration’s insistence that federal drug laws prohibit physicians from dispensing federally regulated drugs for that purpose. When TalkLeft wrote about the case here, the outcome looked bleak for Oregon, particularly in light of the Court’s unwillingness to let state medical marijuana laws trump the federal prohibition of marijuana use. By a vote of 6-3 (with Chief Justice Roberts joining Thomas and Scalia in dissent), however, the administration went down to defeat.

As we said earlier:

Janet Reno declined to prosecute Oregon doctors who acted in accordance with state law, but John Ashcroft quickly changed course when he became Attorney General. He issued the Ashcroft Directive, concluding that "assisting suicide is not a legitimate medical purpose."

The Court’s response delivered a nice slap to Ashcroft:

Tuesday's decision is a reprimand of sorts for Ashcroft. Kennedy said the "authority claimed by the attorney general is both beyond his expertise and incongruous with the statutory purposes and design."

"The authority desired by the government is inconsistent with the design of the statute in other fundamental respects. The attorney general does not have the sole delegated authority under the (law)," Kennedy wrote for himself, retiring Justice Sandra Day O'Connor and Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg, and Stephen Breyer.

The Court’s decision is here.

The decision begins with a reminder: “Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide.” Setting aside the Court’s lengthy discussion of the degree to which the Attorney General’s interpretation of federal drug laws is entitled to deference, the heart of the decision is an affirmation of the political process as the best means of resolving that debate. State legislators, rather than an unelected Attorney General, should consider the “morality, legality, and practicality of physician-assisted suicide.”

The Court concluded that Ashcroft overstepped his authority -- “to make regulations for the ‘control’ of drugs” -- by attempting “to define standards of medical practice.” While the AG can establish controls “against diversion” of drugs, that power does “not give him authority to define diversion based on his view of legitimate medical practice.” In other words, leave medical issues to the doctors, Johnny.

Under the Government’s theory, moreover, the medical judgments the Attorney General could make are not limited to physician-assisted suicide. Were this argument accepted, he could decide whether any particular drug may be used for any particular purpose, or indeed whether a physician who administers any controversial treatment could be deregistered.

Similarly, the AG’s authority to “deregister” physicians, depriving them of the authority to prescribe federally regulated drugs, can’t be extended to criminalize a particular use of a drug.

The [AG’s] Interpretive Rule thus purports to declare that using controlled substances for physician-assisted suicide is a crime, an authority that goes well beyond the Attorney General’s statutory power to register or deregister. …

If the Attorney General’s argument were correct, his power to deregister necessarily would include the greater power to criminalize even the actions of registered physicians, whenever they engage in conduct he deems illegitimate. This power to criminalize … would be unrestrained.

Unrestrained power to criminalize conduct is exactly the kind of power Ashcroft craved, and it isn’t surprising that his successor agrees with the Ashcroft power grab.

The Court distinguished Raich (the medical marijuana law) because the sale of marijuana is pervasively regulated by federal law, leaving no room for states to enact a law that is inconsistent with that regulatory scheme. In contrast, physician-assisted suicide isn’t addressed by federal law, except in the AG’s imagination.

In the face of the CSA’s silence on the practice of medicine generally and its recognition of state regulation of the medical profession it is difficult to defend the Attorney General’s declaration that the statute impliedly criminalizes physician-assisted suicide.

In the absence of federal legislation to regulate suicide to the exclusion of states, the AG should have deferred to Oregon’s right to enact its own law. States are supposed to be the laboratories of new ideas, after all.

The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality.

The bottom line: this is the United States of America, not the United State of Ashcroft.

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    At least this reaffirms that Kennedy is the new swing vote. Even if Alito were on board, the law would have been upheld. We just have to hope that Stevens and Ginsburg can hold on until January 2009.

    Of course, John Roberts told Senator Ron Wyden that he would NOT overturn it. Not in so many words, but it appears that he misled the Senator. See BlueOregon.com for details.

    There never was a reasonable leg upon which Ashcroft's pet project against Oregon could stand. Watching one set of oral arguments before a Federal court here in Portland, it was almost painful to watch them try to make their case. Which basically means there's only one reason for dissenting: Personal or political opposition to our state's law. Given that Roberts told the Senate that he would not rule ideologically, doesn't this dissent, in fact, make him an activist judge?

    I'm happy about the ruling, but also a little confused: So it's okay for doctors to kill people, but not for them to recommend medical marijuana? What a country!

    Re: Supreme Court Upholds Physician-Assisted Suici (none / 0) (#5)
    by pigwiggle on Tue Jan 17, 2006 at 09:27:45 AM EST
    I’m disappointed with Justice Thomas’ concurrence in Scalia’s dissent; his own asks some pointed questions.
    “ … the majority of this Court (a mere seven months ago) determined that the CSA effectively invalidated California’s law … Today the court beats a hasty retreat from these conclusions. … The majority’s newfound understanding of the CSA as a statute of limited reach is all the more puzzling because it rests upon constitutional principles that the majority of the Court rejected in Raich.”
    Yah, WTF? It is puzzling. More puzzling; opiates used for suicide isn’t interstate commerce but marijuana used for pain relief is? And when did Justice Thomas gain this newfound respect for precedent, let alone 7-month-old precedent?

    Re: Supreme Court Upholds Physician-Assisted Suici (none / 0) (#6)
    by roy on Tue Jan 17, 2006 at 10:55:58 AM EST
    After skimming (OK, scrolling through) the actual decision (PDF), I think this'll be a short-lived victory. The Court determined that the Controlled Substanced Act doesn't give the AG the authority to overriden Oregon's law. The Court did not say that anything in the Constitution prevent the feds from passing a law overriding Oregon's law. So a Raich-style federal power grab isn't ruled out; they'll just need to try a new law.

    Re: Supreme Court Upholds Physician-Assisted Suici (none / 0) (#7)
    by Patrick on Tue Jan 17, 2006 at 12:19:26 PM EST
    Lethal injection for our old and infirm, but not the worst convicted criminals. Gotta love it.

    Lethal injection for our old and infirm, but not the worst convicted criminals. Gotta love it.
    Capital punishment has not been abolished. And please explain how the right to die (assisted suicide) has anything at all to do with capital punishment?

    Re: Supreme Court Upholds Physician-Assisted Suici (none / 0) (#9)
    by kdog on Tue Jan 17, 2006 at 12:55:12 PM EST
    Lethal injection for our old and infirm
    If the old and infirm so choose. Choice is good. I know that if and when I break down and life loses its quality, I will take a long look at all my options, including a massive dose of morphine.

    Re: Supreme Court Upholds Physician-Assisted Suici (none / 0) (#10)
    by Edger on Tue Jan 17, 2006 at 01:15:05 PM EST
    This is a welcome decision, and is perhaps a recognition of sorts of the fact that people who so choose will make their own decisions regarding their life, and I hope a recognition that those decisons are no one elses business, regardless of anyone wishing to force a professed morality on them. It recognizes individual human responsibility for and ownership of 'self', and frees them to choose methods that enable dignity in death.

    Re: Supreme Court Upholds Physician-Assisted Suici (none / 0) (#11)
    by roy on Tue Jan 17, 2006 at 01:19:16 PM EST
    Lethal injection for our old and infirm, but not the worst convicted criminals. Gotta love it.
    You think there's a conflict between wanting to A) let some people choose a particular time and means of dying, and B) not impose a particular time and means of dying on some other people? Seems consistent to me: don't let the state decide when or how people die. Your statement is not only idealistically counter-intuitive, it's factually wrong. The "worst convicted criminals" recieve the same consideration under the Oregon law in question. If a convicted criminal is terminally ill but rational, he can ask his doctor for a lethal prescription, and the doctor won't go to prison for cooperating.

    The majority argued that, unlike in Raich, Congress did not intend to give the executive the power to administer the statute at issue in such a fashion. Raich tried to limit congressional power; OR, executive power. As to Thomas' respect for precedent ("that's water under the bridge"), yeah, how johnny come lately. I recall he was dubious about Calder v. Bull (1798), but suddenly he thinks it deciding. As with Scalia's dissent, this just welcomes cynicism.

    Patrick, I wouldn't worry, you're not in danger in Oregon of being considered in either of the first two catagories you mentioned, unless they see some of your writings here ;)

    Re: Supreme Court Upholds Physician-Assisted Suici (none / 0) (#14)
    by Patrick on Wed Jan 18, 2006 at 04:38:25 PM EST
    Dark, That was good, thankfully even if they read em, I live in California, but now I won't even go there, just in case. As an aside, how long before the right to die will become the responsibility to die so you don't become a burden on your family, friends, insurance co, etc? Not all slopes are slippery, but this one has some potential.

    As an aside, how long before the right to die will become the responsibility to die so you don't become a burden on your family, friends, insurance co, etc? You're actually arguing for a single-payer health care system if you're really afraid of the scenario you envision taking place. Can you give a conter-argument as to why people shouldn't be allowed to determine when and how they die, if it doesn't affect those who would make a different choice in this area?