Analysis: My Thoughts On The Assisted Suicide Argument
I thought I would follow up on Lyle’s excellent summary of the assisted suicide argument with my own sense of how things went.
It seems clear to me that Oregon will win when the Justices vote on Friday, but there is a reasonable chance the case will have to be reargued after Justice O’Connor leaves and is replaced (which is very likely to occur before the case is decided). All the usual caveats apply. The Justices will meet and talk about the case, and one may persuade another. But in high-profile cases like this one (particular one argued after the long summer recess has given them lots of time to think), they have considered the case a great deal by the time they come to argument and tend to show their hands there.
The State had four solid votes at the argument — Justices O’Connor, Souter, Ginsburg and Breyer. Based on his previous writings, it seems clear to me that Justice Stevens will vote with them as well.
The federal government had two solid votes at the argument — the Chief Justice and Justice Scalia.
That leaves in play Justices Kennedy and Thomas. AMK said relatively little. In questioning Paul Clement, he described it as a “hard” case, including particularly because it is hard to describe these facts as involving the drug “abuse” contemplated by the statute. (Because this is going to be the principal theory of the putative majority, I bet [without great confidence] that that AMK will vote to affirm.) AMK seemed attentive to the government’s concern that there would be a slippery slope towards permitting other exemptions from federal drug regulation. He also suggested that an international convention referring to the judgment of the medical community cut against the federal government’s position. In questioning the State’s lawyer, AMK said that it seemed that this activity fell “precisely” within the authority to regulate the “dispensing” of drugs.
Justice Thomas said nothing, as is his practice. There is some chance that he will concur alone in the judgment affirming on the ground that the application of the Controlled Substances Act in this context violates the Commerce Clause. But I expect he will vote to reverse.
Here are the principal questions by some of the Justices:
The Chief asked one question of Paul Clement and five of the State. (Note to self, if JGR asks you a bunch of questions, you probably don’t have his vote.) He asked Clement whether there were other instances in which the Attorney General is able to displace medical judgments; Clement tried to give three examples, the upshot of which was that there aren’t. JGR pointed out to the State that Congress had heavily regulated drugs and that things “have changed” a great deal since Gibbons v. Ogden. (Note to Rick Garnett and other states-rights conservatives: told you so; the federalism “revolution” was actually more of a “petty insurrection” and George Bush has now officially put it down with the change from WHR to JGR. Sorry.) JGR expressed great surprise — as did everyone else in the room — at the State’s answer that a doctor could prescribe morphine (a Schedule 2 controlled substance) to make his patients feel happier without regard to the CSA. JGR wondered how it would be possible to maintain a “uniform” scheme of regulation if that were the rule. (This may be the argument that has the best chance of bringing AMK over.) JGR asked a detailed question about a regulation issued in 1971 that showed an impressive level of preparation by him in the circumstances.
O’Connor was all over Paul Clement (always a depressing experience for the advocate in a case like this). She said nothing for about half of Clement’s time (getting his hopes up, as S’Oc often asks the first question of the side she doubts) then asked a series of pointed questions, the upshot of which was that medicine is traditional state function and that Congress had given no indication of an intention to override state judgments.
Some commentary has suggested that Justice Breyer was conflicted. I disagree. It seemed to me that he was solidly on the State’s side, and when SGB asked questions of the State that seemed difficult he was actually giving a roadmap of points that might worry other Justices. This is how the morphine exchange started, but it went south quickly because the State refused to draw a line. So SGB was reduced to repeatedly asking – “If I disagree with you on the morphine example, do you lose?”; the State’s lawyer kept basically saying “yes” and SGB would ask again in the hope that the lawyer would clue in that the correct answer was actually “no.” (JGR and AS probably couldn’t believe the gift they were being handed by the State; I’m sure SGB could have throttled the lawyer.) In general, SGB seemed to agree clearly with the sense of SO’c that Congress wasn’t intending to address this issue in the CSA.
A couple of notes about the lawyering. Paul Clement was very, very good. I now think that he may be the best in the S. Ct. bar. The SG’s office may have the top three in Clement, Michael Dreeben, and Ed Kneedler. The State’s lawyer was very good in most respects; bad in just one, but one that could matter greatly. He was very principled, had an excellent demeanor, and knew the case backwards and forwards. But as I’ve suggested, he was totally unwilling or unable to draw a line in his case separating the use of controlled substances for assisted suicide from a slippery slope of prescribing innumerable drugs in violation of the CSA. The Justices, however, tend to save lawyers from themselves in this context; they will draw the line for him.
In the end, a precise prediction on the vote isn’t possible. The worst case for the State is reargument after SO’c leaves the Court. More likely, however, is that the decision is 5-3 with either AMK joining the majority or CT concurring separately on Commerce Clause grounds. I bet that JGR will decide to write himself and that this will be his first big dissent.
This comment, I believe, is wrong. Breyer, I think, will support the position of the federal government.
Comment by Commentator — October 6, 2005 @ 2:41 am
I do not see why the State’s counsel was wrong regarding the morphine question–if one assumes that State law specifically authorizes the medical use of morphine to make a patient “happier”.
Comment by Michael Wasserman — October 6, 2005 @ 5:05 am
If the State’s counsel was right on the morphine question, then surely the states could also permit doctors to prescribe marijuana and other Schedule I drugs. Unfortunately, the Court has already ruled that the states can’t do that, which is what makes this case thorny. For Oregon to win, the Justices must somehow distinguish this case from the medical marijuana case.
Comment by Marc Shepherd — October 6, 2005 @ 10:37 am
No, they don’t technically need to distinguish the marijuana case. That was about what Congress can do. This is about what the A.G. can do under the Controlled Substances Act. Right? (I could be wrong). So they could rule that federal government is constitutionally allowed to do what it’s doing but that Congress hasn’t authorized it.
More importantly, WHAT DID ROBERTS SAY that makes people so sure he will vote with feds? I keep reading that everybody thinks he will go with the feds, but the only coverage I’ve seen indicates that he questioned both sides aggressively. What did I miss? Thanks.
Comment by Quick — October 6, 2005 @ 11:04 am
I was at the argument yesterday and I kept scratching my head at the State’s counsel in his feeble attempt to answer Breyer’s question on this distinction.
Ultimately, I don’t see why it is a problem for him to claim that marijuana is a schedule 1 drug and morphine is schedule 2. Part of the argument rests on how the drugs were scheduled. It was not the AG that sat down one day and made several random list of drugs, rather it was a deliberative and group process. Further, for drugs that have FDA approval, docs can prescribe them for any medical purpose. While I disagree with the outcome in Raich, the case is distinguishable from the present case.
As for the first post, I disagree. While Breyer asked several tough questions, I think he will ultimately side with Oregon. As you may or may not know, his wife counsel’s young patients who are dying from cancer. This case hits very close for Breyer.
Comment by japhy — October 6, 2005 @ 11:16 am
I attended the argument after filing an amicus brief on the side of the state. I went in thinking that, if the justices framed the issue properly, that is, narrowly, that this would be 9-0 for the government. The case is not about invalidating the practice of assisted suicide. The people of Oregon simply cannot use federally controlled substances to do it.
O’C, Souter, and Ginsburg framed the case extremely broadly. O’C’s initial question about the death penalty set the tone for her. I agree that the chief and AS were supporting reversal, and I think Thomas and AK will join them. (The commerce clause was not even an issue below, and the state dropped it in at the end of their brief for the first time.) I think Stevens and Breyer will go with the US and reverse if JGR and AS can convince them that the issues are narrow. Congress granted the AG the power to interpret the statute, and he did so, concluding that the use of federally controlled substances to assist in death was neither a “legitimate medical practice” nor in the “public interest” nationally. To allow states to exempt themselves from the federal regulation of controlled substances, which has been under federal control for 90 years, is unprecedented.
Also interesting was the reluctance of any of the pro-Oregon justices to suggest answers to the tough questions from the Chief. Breyer and Souter were highly suggestive and offered their own answers to Scalia’s questions, but nobody jumped in the assist with the Chief’s questions.
Agree that Clement was brilliant. Also, Atkinson for the state was very good, but his inability to hit the softball from Breyer was damaging. That is the true slippery slope, with a potential patchwork enforcement of the CSA.
This will be an interesting decision.
Comment by BarrySanders20 — October 6, 2005 @ 11:27 am
Marc,
O’C already was attempting to show the distinction between Raich and this case by the different classifications (schedule I and schedule II) of the two drugs at issue. That is probably enough for her, Souter and Ginsburg.
Comment by BarrySanders20 — October 6, 2005 @ 11:31 am
In this case the controlled substances are Schedule II, which means they have high abuse potential but also have legitimate medical use.
Don’t states have the final control over how Schedule II substances are regulated?
Comment by John S. — October 6, 2005 @ 11:47 am
The intent of the Controlled Substances Act was to prevent drug abuse. It seems more clear cut that the morphine question could lead to widespread use and abuse than in the case of a terminally ill patient being prescribed the drugs one time.
What distinguishes Raich is that marijauana is Schedule I and thus has no medical use (which is entirely debateable but another subject altogether). In this case the controlled substances are Schedule II and haven’t states historically had the ultimate say on how the medical use of such substances is controlled?
Given that the Controlled Substances Act is constitutional on commerce grounds, it comes down to legislative intent. The legislation itself is silent on what medical exemptions are permissable.
It is clear Roberts will give broad deference to the Congress on issues like this. This is in sharp contrast to O’Connor who has great deference for state legislatures. The Rehnquist Court’s federalist awakening seems to be dead.
Comment by John S. — October 6, 2005 @ 11:54 am
I agree that JGR’s confirmation signals the end of the “federalism” revolution and suggest that Miers will be another strong supporter of fed powers. She with JGR will greatly expand the powers of the executive branch. If CT affirms based on a violation of the Commerce Clause, he will be the only one who gets it right.
Comment by Ignatius Reilly — October 6, 2005 @ 12:05 pm
What about lethal injection for capital punishment?
Comment by Stella — October 6, 2005 @ 12:11 pm
Stella asked, “What about lethal injection for capital punishment?”
That’s a red herring. The regulation in question is a restriction on doctors’ ability to write prescriptions. There is no prescription at an execution.
Comment by Marc Shepherd — October 6, 2005 @ 12:48 pm
Predicting Justice Kennedy’s vote from oral argument is dicey. I left the argument in Roper v. Simmons thinking he was in the state’s camp. Wrong.
Comment by Kent Scheidegger — October 6, 2005 @ 12:50 pm
Marc,
I think the argument over lethal injection is one over state’s rights though, isn’t it? The state can distribute lethal doses of medication to end life as a punishment, but not to alleviate terminal pain and suffering? Justice O’Conner posed similar questioning early in arguments.
Comment by Stella — October 6, 2005 @ 2:03 pm
Having attended the argument, and with no other knowledge, it appears to me that there are two issues at play: (1) does the Controlled Substances Act authorize the AG to define what is, and what is not, a medical practice, such that he can ban the use of controlled substances in instances where he has unilaterally determined that the purpose of the prescription does not comport with his notion of a medical practice; and (2) could Congress proscribe assisted suicide, and did they do so here? The former question, I predict, will be answered in the negative. Contrary to popular belief, physicians CAN and DO prescribe drugs to make people feel better. Congress can make this practice illegal in certain defined circumstances, but it must be manifest in the terms of the statute, and the statute must be constitutional.
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.
Comment by commentator — October 6, 2005 @ 3:59 pm
Stella, I think you’ve misread the case. The regulation in question is a limit on doctors, not executioners. Hence, there is no legal contradiction that the rule prevents doctor-assisted suicide while permitting capital punishment using the very same drugs. There may well be a *moral* contradiction, but but it isn’t the Court’s job to solve that problem.
The case is indeed about states’ rights, but as others have noted, the Rehnquist Court’s federalism revolution is now over.
Comment by Marc Shepherd — October 6, 2005 @ 4:52 pm
If state-authorized “executioners” can use CSA-scheduled drugs to kill people against their will with the AG’s blessing, then I cannot see how it could be that the AG can withhold that blessing from state-authorized doctors assisting a patient to kill himself.
The AG himself has framed the question presented without referring to doctors at all:
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):
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.
Comment by Michael Wasserman — October 6, 2005 @ 7:25 pm
Federalism Revolution Over
Based on John Roberts’ questions during the oral arguments over assisted suicide, Tom Goldstein of SCOTUSblog has declared “Note to…
Comment by NathanNewman.org — October 6, 2005 @ 11:23 pm
Human Rights Watch and Physicians for Human Rights did a report in 1994 about doctors and the death penalty. Obviously the research needs to be updated, but back then HRW found that:
“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
Comment by MJD — October 7, 2005 @ 1:21 pm
you said they vote ‘on friday’. where can i find how the vote went on the web[question mark]. sorry – my shift key’s on strike.
Comment by crazybaldman — October 7, 2005 @ 9:51 pm
Crazybaldman,
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.
Comment by Kent Scheidegger — October 9, 2005 @ 7:46 pm
Unless I’m radically mistaked Thomas voted for the states in Raich. Given such a vote and his general reluctance to follow precedent I don’t see how a vote for the federal government in this case is plausible.
Comment by logicnazi — October 9, 2005 @ 8:45 pm