The conferences and their votes are super secret. You can’t find out (and neither can the rest of us), unless you have some major espionage resources.

We will all know when the Court announces its opinion, sometime between now and June.

Normally, I would expect it in a few months, but they might hurry this one up to get it out before Justice O’Connor leave the Court, for the reasons discussed above.

“The language in statutes about lethal injection clearly expresses a desire to set it apart from other medical procedures. Currently, twenty-five states use lethal injection (fourteen as the sole method and eleven as an option). Eleven of these statutes declare outright that lethal injection is not a medical procedure. Seven also authorize pharmacists to dispense lethal drugs to the Commissioner (or designee) without a prescription.”

HRW also found that in practice, doctors were directly involved in executions. For example, in Nevada, the prison’s Medical Director is required prescribe and procure the drugs for the lethal injection.

You can find the report at http://www.hrw.org/reports/pdfs/g/general/general943.pdf

Based on John Roberts’ questions during the oral arguments over assisted suicide, Tom Goldstein of SCOTUSblog has declared “Note to…

The AG himself has framed the question presented without referring to doctors at all:

Whether the Attorney General has permissibly construed
the Controlled Substances Act, 21 U.S.C. 801 et seq., and its
implementing regulations to prohibit the distribution of federally
controlled substances for the purpose of facilitating an
individual’s suicide, regardless of any state law purporting to
authorize such distribution.

As I understand it, the AG’s argument turns on the phrase “legitimate medical purpose” in the regulations. The AG claims it was reasonable for Ashcroft to reverse previous administration policy and rule that assisted suicide is not a “legitimate medical purpose”. If so, it is clearly no “legitimate medical purpose” to administer drugs to kill a prisoner against his will.

If the distinction were truly between whether a doctor or an executioner is prescribing or administering the lethal dose, then that leaves an easy out for the State: simply designate an official to do the administering.

Of course, the distinction cannot be drawn, because the statute defines “practitioner” to include persons, such as executioners, who are legally authorized to administer controlled substances, 21 U.S.C. sec. 802(21) (emphases added):

The term “practitioner” means a physician, dentist,
veterinarian, scientific investigator, pharmacy,
hospital, or other person licensed, registered, or otherwise
permitted, by the United States or the jurisdiction
in which he practices or does research, to distribute,
dispense, conduct research with respect to, administer,
or use in teaching or chemical analysis, a controlled
substance in the course of professional practice or
research.

Essentially, the Administration is doing no different than the Iraqi Parliament did in construing “voters” two different ways, when it ruled that “two-thirds of the voters” meant two-thirds of registered voters and “majority of the voters” meant majority of voters casting ballots. The words mean exactly what they want them to mean, and when they want them to have that meaning.

The case is indeed about states’ rights, but as others have noted, the Rehnquist Court’s federalism revolution is now over.

The Court will not, because it need not, address the constitutional question. If there is the political will, Congress can pass a new statute banning the use of controlled substances for the purpose of assisting suicide. The Court will then likely uphold it under the commerce clause, unless the interstitial privacy right should rear its head yet again. But that is not this case. My read is that Congress did not intend to make the AG the arbiter of what is, and what is not, a medical practice, and that should end the case.