Court nullifies ban on assisted suicide
The Supreme Court on Tuesday cleared the way for Oregon to continue to allow doctors to provide the drugs that terminally ill patients may use to take their own lives. The Court, saying that the U.S. attorney general had sought to make “a radical shift” of power from state to federal government, ruled that the head of the Justice Department does not have the power to bar doctors from prescribing lethal drugs for suicides. So far, Oregon is the only state to permit that medical practice.
“The authority claimed by the Attorney General is both beyond his expertise and incongruous with the statutory purposes and design” of federal drug control law, the Court said. Congress, it added, was unwilling “to cede medical judgments to an Executive official who lacks medical expertise.”
The ruling divided the Court 6-3; Chief Justice John G. Roberts, Jr., was one of the dissenters — his first dissent, although he did not personally write an opinion.
The Court conceded that the attorney general does have the authority to write rules for enforcing federal laws on illegal drugs. But, it said, federal law “does not authorize the Attorney General to bar dispensing coontrolled substances for assisted suicide in the face of a state medical regime permitting such conduct.”
While allowing doctor-aided suicide to continue when a state allows it, the Court made no sweeping declarations about patients’ or doctors’ rights. The decision, rather, was based almost entirely upon the Court’s interpretation of what Congress had done in giving the federal government the authority to regulate the prescription of drugs by doctors.
In a bow to states’ rights, the majority commented: “The background principles of our federal system…belie the notion that Congress would use such an obscure grant of authority to regulate areas traditionally supervised by the states’ police power.” Thus, the Court said, it was unnecessary to determine whether Congress had made a clear statement of intent to interfere with state authority over medical practice, or whether Congress had intended to preempt that state authority.
The federal Controlled Substances Act “and our case law,” the Court said, “amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally….Tbe structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the State’s police powers.”
“It is difficult,” the Court added, “to defend the Attorney General’s declaration that the statute impliedly criminalizes physician-assisted suicide.”
Justice Anthony M. Kennedy wrote the majority opinion, thus illustrating that he will continue to have a major role to play as a centrist on the Court after Justice Sandra Day O’Connor’s retirement, which appears to be imminent. O’Connor joined in the Kennedy opinion. Others on the opinion were the Court’s more liberal members, Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.
Dissenting, along with Roberts, were the Court’s two most conservative members, Justices Antonin Scalia and Clarence Thomas. Scalia, in an opinion joined by the other two dissenters, said the Court distorted the Controlled Substances Act and disregarded “settled principles” on how to interpret statutes. Thomas, in a separate opinion speaking only for himself, accused the majority of making a constitutional decision “under the guise of statutory interpretation.”
Thus, even if the conservative judge apparently on the way to becoming a Justice — Samuel A. Alito — had sided with Scalia and Thomas, that would not have made a difference in the outcome of Gonzales v. Oregon (04-623).
The Court also ruled — in a unanimous decision — that a national bank is a citizen of the state in which it has its main officed, and not where it operates individual branch banks. The ruling spelled out the citizenship definition to resolve a conflict among lower courts on the issue for purposes of federal court “diversity” jurisdiction. The decision in Wachovia Bank v. Schmidt (04-1186) was unanimous, although Justice Thomas took no part in the ruling.
There were only these two rulings on pending cases Tuesday. Further decisions are expected Wednesday.
The Court also issued orders in pending cases on Tuesday, but the list did not show any action on the war-on-terrorism case, Padilla v. Hanft (05-533). No new cases were granted review. The Court has one space left on its April argument calendar, unless it decides to hear one or more cases in afternoon sessions. For now, only morning sessions are scheduled.
The decision in the assisted-suicide case apparently settles — at least for the time being — the question of whether the Bush Administration can effectively put a stop to doctor-aided suicide. Only if Congress were to enact new legislation, filling the gap that the Congress found on Tuesday, could a new assault be made on that practice.
There is, of course, no constitutional right for a patient to get a doctor’s aid in taking the patient’s life; the Supreme Court decided that issue in 1997 in Washington v. Glucksberg.
Since the Oregon experiment began in November 1997, more than 175 patients have chosen to end their lives with doctor-prescribed drugs. The state’s “Death with Dignity Act” does not make it easy for a commit to end his or her life.
Under the law, a capable adult Oregon resident who has been disagnosed with a terminal illness by a doctor may request in writing a lethal dose of medication. The request must be confirmed by two witnesses, one of whom cannot be related to the patient, or otherwise be linked to the patient. A second doctor must confirm the diagnosis that the patient is dying. If the request is authorized, the patient must wait at least 15 days and make a second, oral request before the prescription may be written. The law protects doctors from liability for participating in the practice.
Although Oregon voters approved so-called Measure 16, legalizing doctor-aided suicide, in November 1994, implementation was delayed by a series of challenges. At one point, the state legislature attempted to repeal the Act, but the state’s voters vetoed that in 1997. Some members of Congress also tried to block its implementation, but those proposals failed. Among those making the attempt were then-Sen. John Aschroft, Missouri Republican.
After Aschcroft became attorney general in the Bush Administration, he moved in November 2001 to stop the practice, overturning a prior ruling by former Attorney General Janet Reno. Ashcroft issued a “directive” declaring that doctor-assisted suicide serves no “legitimate medical purpose” under federal drug control law, and that doctors who prescribed lethal drugs for this purpose risked their registration to prescribe drugs for their patients.
Ashcroft’s order — a move that the Court noted was taken “without consulting Oregon or apparently anyone outside his Department” — was challenged in federal court by the state and by a doctor, a pharmacist and several terminally ill patients. A federal judge barred the directive, and the Ninth Circuit held it was invalid in May 2004, and the case then went on to the Supreme Court in an appeal by Attorney General Alberto R. Gonzales.
The Court, in affirming the Ninth Circuit decision, did not even attempt to answer the criticism of Justice Thomas, in dissent, that the ruling could not be squared with the decision last year (Gonzales v. Raich), allowing the federal government to block an individual’s possession and use of marijuana for medical purposes. Instead, it confined Kennedy’s 28-page opinion to an interpretation of the Controlled Substances Act and, in particular, the provisions dealing doctors’ federal licenses to prescribe controlled drugs. “We look to the statute’s text and design,” it said.
The opinion, however, contained sharply critical language about a reach for power by the attorney general. “If the Attorney General’s argument were correct, his power to deregister [doctors] 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. It would be anomalous for Congress to have so painstakingly described the Attorney General’s limited authority to deregister a single physician or schedule a single drug, but to have given him, just by implication, authority to declare an entire class of activity outside ‘the course of professional practice,’ and therefore a criminal violation of the CSA.”
Well, that certainly clears up the question of whether federalism is dead!
The only member of the Court to take a consistent stand against federal power in Lopez, Raich, and Oregon was Justice O’Connor, and she is retiring. Even if Roberts follows in Rehnquist’s footsteps as a staunch supporter of federalism, the bulk of the Court is all over the map on this issue.
Back when Democrats controlled Congress for decades, political conservatives argued passionately for the importance of federalism. Now that Republicans are in control of federal legislation, you don’t hear those passionate arguments quite as often. (The reverse, of course, is true with respect to liberals; many of them have now become devout champions of states’ rights.) It seems the same developments are being mirrored in the voting patterns of the Court.
You’d like to think that a Supreme Court Justice, of all people, has a pretty consistent view with respect to the balance of power between the Federal and State governments. And yet, we see the “conservative” Justices voting to uphold conservative actions at the federal level, and we see the “liberal” Justices voting to uphold liberal actions and strike down conservative ones. Funny how that works.
It’s ironic that Justice O’Connor, so often criticized for deciding cases on a fact-specific basis without any overarching judicial philosophy, stands out as the only Justice who held true to her principles across the board in this case.
Comment by Steve M — January 17, 2006 @ 10:52 am
It’s also worth noting that Tom basically nailed the voting patterns on this one.
Comment by Steve M — January 17, 2006 @ 11:08 am
Um, how does this decision square with Raich? Are the arguments not essentially the same? How is it that if it’s morphine, the federal government cannot prevent a state from allowing doctors to dispense it pursuant to that state’s law to end someone’s terminal suffering, but if it’s cannabis, it’s different?
I’m a lay person with no legal education whatsoever, but the inconsistency rankles me, especially as I saw Raich as a horrible decision by the fairweather federalists on the bench.
Comment by chikin — January 17, 2006 @ 11:30 am
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.
Comment by Kari Chisholm — January 17, 2006 @ 11:49 am
chikin,
I do have legal education and am equally confused, especially when the CSA Reguations exempt from the statute’s reach doctor issued prescriptions having a legitimate medical purpose. One would think that prescribing marijuana for medicinal purposes would be valid, but prescribing morphine to cause death would not. . . .
Comment by Boojum — January 17, 2006 @ 12:49 pm
I haven’t read the opinion, so this is mere speculation, but this decision seems quite easy to square with Raich.
In Raich, there was a federal statute (the Controlled Substances Act) that gave the federal government power to regulate cannabis. But here, the opinion seems to suggest that Ashcroft usurped his grant of power, and was relying on an implied grant of power to deregister the doctors. If Congress passes a statute addressing this issue, then the AG would have the power that Ashcroft attempted to exercise.
Comment by alex — January 17, 2006 @ 12:51 pm
It seems that “our federalism”, like the 4th amendment, has a drug exception.
Comment by r.friedman — January 17, 2006 @ 1:23 pm
Chikin asks, “how does this decision square with Raich?” Quite easily, actually. Congress has unambiguously prohibited marijuana for any purpose, and the question was whether it had the constitutional authority to do so. The Controlled Substances Act does not address the subject of physician assisted suicide at all, and the question here was whether the Attorney General could stretch it to do so. That is an entirely different question.
Comment by Kent Scheidegger — January 17, 2006 @ 1:48 pm
THE NUTSHELL VERSION: HASH HISH - NON; HARI KARI- SI
Comment by diapalino — January 17, 2006 @ 1:56 pm
I think Justice Scalia got it right in this case as well as in Raich. While I don’t love the Federal policy in either, I do think that both instances are within the regulatory reach of the Federal government. I wonder how the majority will go when a state votes itself out of the Federal regulatory scheme in an instance that is not intangled with the culture wars.
Comment by The NJ Annuitant — January 17, 2006 @ 3:31 pm
Thomas seems to have written a separate dissent in order to make his comment about the inconsistency of the majority. Oddly his position now seems inconsistent with where he stood on Raich. Is there a reason why he couldn’t have wrote a concurring opinion and still made his comment regarding majority wishy-washyness?
Comment by learning — January 17, 2006 @ 4:36 pm
learning, I think you answered your own question. He was more interested in pointing out the inconsistency with Raich than recreating his dissent. I think Thomas hits the nail on the head - the decisions don’t square at all. His contrast between the CSA of Raich (a doctor cannot prescribe the commonly abused cannabis) and the CSA of today (a doctor can prescribe the commonly abused morphine) is stark.
Comment by Ben Kennedy — January 17, 2006 @ 7:21 pm
I do however find it odd that Thomas joined Scalia’s dissent
Comment by Ben Kennedy — January 17, 2006 @ 8:46 pm
Haven’t read the opinion yet either but from what I read hear there is no inconsistancy with Raich. In Raich there were specific congressional statues making even medical marijuanna illegal (either statue or FDA has deemed it a schedule 1 drug) and there was a broad inter-state regulatory framework to completely ban marijuanna. Conversly in this case there was no broad regulatory scheme of assisted suicide and it seems pretty silly to argue that somehow preventing this type of treatment is related to the underlying goals of the CSA but I think they just decided the CSA didn’t give the AG this power in the first place.
What I have trouble understanding is how Scalia’s deciscion here can be made consistant with his deciscion in the case stricking down no gun zones around schools. I mean if the CSA can be used to stop assisted suicide just because it is a broad framework to regulate drugs (no way can you claim it is a broad framework to regulate assisted suicide) why could you not ban guns in 500 feet of schools as part of the broad regulatory framework to prevent people from doing ‘bad things with guns.’
Comment by logicnazi — January 17, 2006 @ 9:50 pm
Thomas explains why his dissent in Gonzales is not inconsistent with his dissent in Raich. Unlike Raich, Gonzales did not raise the issue of whether the particular application of the CSA fell within Congress’ enumerated powers. The case was, in his view, strictly a matter of statutory interpretation, and the issue of Congress’ power was, as he says, “water over the dam.” Although Thomas undoubtedly would agree that Congress has no power to prohibit Oregon doctors from proscribing lethal doses of morphine, he could not concur with the majority on that basis because the scope of Congressional power was not an issue presented to the Court.
Comment by Sine Metu — January 18, 2006 @ 12:45 am