Tomorrow’s Argument: Gonzales v. Oregon
on Oct 4, 2005 at 9:33 pm
Note: This post was authored by Eric Tuttle, a third-year law student at Stanford.
While the arguments tomorrow in Gonzales v. Oregon invoke and evoke the “earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide,” Washington v. Glucksberg, this case doesnâ€™t ask the Court itself to decide the issue. Rather, the parties and the lower court all agree that this case is about who gets to decide.
What exactly that person gets to decide depends on who you ask. The Ninth Circuit asked “whether Congress authorized the Attorney General to determine that physician-assisted suicide violates the [Controlled Substance Act, or “CSA”].” The United States asks who gets to decide “whether a practitionerâ€™s conduct comports with [a] requirement of federal law — the Attorney General, pursuant to a uniform national standard, or each of the 50 states, according to 50 different views.” Oregon would ask whether the CSA “permits the U.S. Attorney General to ban any particular use of any scheduled drug,” overruling a stateâ€™s determination, and to “identify any disfavored medical practice and declare that no scheduled drug could be used for that purpose â€¦ without following any procedure or obtaining any scientific or medical input.” Each way of framing the issue gives a sense of the theme of the authorâ€™s argument.
Solicitor General Paul Clement will argue for the United States.
Robert Atkinson, Senior Assistant Attorney General of Oregon will argue for respondents.
The case turns on interpretations of the CSA, which Congress enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. According to its preamble, the CSAâ€™s purpose was “to provide increased research into, and prevention of, drug abuse and drug dependence . . . and to strengthen existing law enforcement authority in the field of drug abuse.” Under the CSA, practitioners must hold a valid registration with the federal government in order to prescribe or dispense a controlled substance. As originally enacted, the CSA piggybacked its registration requirements onto those of the states — the Attorney General could only revoke a federal registration if the state license was revoked or in other limited circumstances. The Attorney General in 1971 promulgated a regulation stating that “[a] prescription for a controlled substance to be effective must be issued for a legitimate medical purpose” (emphasis added) and that persons issuing or filling an illegitimate prescription “shall be subject to the penalties” of the Act. In 1984, Congress amended the Act to authorize the Attorney General to revoke a registration if he determines that a practitioner has “committed such acts as would render his prescription . . . inconsistent with the public interest.” Congress provided five factors for the AG to consider in reaching that conclusion, the last of which is any conduct “which may threaten the public health and safety.”
In 1994, the people of Oregon enacted an initiative measure known as the Oregon Death with Dignity Act (“DWDA”). The DWDA permits doctors and pharmacists to prescribe and dispense lethal doses of controlled substances to terminally ill patients under restricted circumstances, with a variety of procedural safeguards. Neither the physician nor the pharmacist may actually administer the lethal dosage. In 1997, the people of Oregon reaffirmed their support of the DWDA by defeating (with 60% of the vote) a measure that would have repealed it.
Meanwhile, the federal government also reacted to the DWDAâ€™s passage. Then-Senator Ashcroft and other Senators called upon Attorney General Janet Reno to issue a declaration that doctor-assisted suicide violates the CSA. Reno refused, instead issuing a letter in which she stated that the CSA was not meant to displace the states in determining what constitutes legitimate medical practice and does not authorize actions against doctors who comply with the DWDA. Congress then considered amendments explicitly authorizing such actions, but these failed. In 2001, Attorney General Ashcroft issued a directive (the “Ashcroft Directive”) declaring that doctor-assisted suicide serves no “legitimate medical purpose” within the meaning of the 1971 regulation, and that conduct authorized by the DWA may render a practitionerâ€™s registration “inconsistent with the public interest” and so subject to revocation.
The State of Oregon brought suit against Ashcroft in federal district court seeking an injunction against enforcement of the directive. Patients and a doctor and pharmacist intervened on the side of Oregon. The district court found for the plaintiffs and entered the injunction. On appeal, a panel of the Ninth Circuit held that it had original jurisdiction, but treated the district judgeâ€™s order as a transfer.
In a 2-1 decision, the panel agreed that the AG had exceeded Congressâ€™s authorization and ordered that the injunction be continued. The court relied heavily on notions of federalism, and began by citing Justice Oâ€™Connorâ€™s concurrence in Glucksberg, which emphasized that the difficult issue of assisted suicide was one entrusted to the “laboratory of the States.” Regulation of medical care is an area traditionally within the police powers of the states, and so Congressâ€™s intent to regulate in this area must be unmistakably clear. Alternatively, since the AGâ€™s interpretation of the Act would reach the bounds of Congressâ€™s authority under the Commerce Clause, the avoidance doctrine counsels against that interpretation unless Congress was explicit. The court found no such indication of Congressâ€™s clear intent. Instead, the court found the Directive to violate the plain language and legislative history of the CSA which limits itself to the problem of “drug abuse,” contains a non-preemption clause, carefully distributes enforcement authority between the AG and the Secretary of Health and Human Services, and requires consideration of all five factors in determining what physician conduct is inconsistent with the public interest. For these reasons, the AGâ€™s interpretations of the statute and the regulation were not entitled to agency deference under Chevron.
The federal government argues that in enacting the CSA, Congress established a comprehensive and uniform regulatory system for controlled substances. The CSA bans all prescriptions of controlled substances except those issued for a “legitimate medical purpose,” and entrusts to the AG the legal interpretation of that phrase. The AGâ€™s interpretation on this issue is reasonable because it comports with the plain language of the statute — “medical” pertains to concepts such as healing and treating, not killing, and “drug abuse” includes intentional overdoses — and with tradition and most state, federal, and professional authority on the issue of whether assisted suicide is compatible with medicine. Further, Congress did not intend to make the application of the CSA depend upon state law, but rather intended a uniform federal standard. Such an intention is to be presumed as a matter of legislative construction, and the legislative history shows that Congress was particularly motivated by the need for federal control of the traffic of controlled substances. The Court made this clear in United States v. Oakland Cannabis Buyersâ€™ Coop., which upheld a prosecution relying on the federal classification of marijuana as a Schedule I drug (one not recognized to have any legitimate medical use) despite a California law purporting to recognize and allow certain medicinal uses of marijuana. The AG claims he could reclassify drugs used for assisted suicide as Schedule I drugs, and then clearly Oregon could not permit its doctors to prescribe them as a matter of federal law (although in fact the Secretary for Health and Human Services would have to consent). Put another way, Oregon is not using physicians as physicians, but simply as federally authorized distributors of drugs that happen to be on Schedule II because they have other uses. Allowing each state to define the standards of legitimate medical use of controlled substances would create an unworkable system and defeat Congressâ€™s intentions.
The federal government also disparages the “clear statement” precedent cited below as inapposite or discredited. Indeed, the Courtâ€™s recent decision in Gonzales v. Raich (rejecting a commerce clause challenge to the CSA as applied to homegrown medicinal-marijuana users in California) made clear that Congress could properly regulate this area, and so the avoidance doctrine is unnecessary. Further, the Directive does not preempt Oregon law, as Oregon remains free to permit such conduct under state law, and patients are free to follow the law using non-controlled substances.
Oregon argues that the AG has taken an unprecedented step to federally regulate the doctor-patient relationship in total frustration of state health policy. Oregon first notes that the Directive nullifies the DWDA because controlled substances are by far the best means for physician-assisted suicide, and because the AGâ€™s interpretation that assisted suicide is “inconsistent with the public interest” is not limited to the use of controlled substances. It then argues that nothing in the text, history, or judicial interpretation of the CSA establishes that Congress meant to prohibit (or allow the AG to prohibit) the use of medically approved drugs for physician-assisted suicide. The CSA is primarily concerned with constraining controlled substances to legitimate channels, and stopping doctors who are effectively drug “pushers.” It was not meant to give the AG authority to single out particular medical practices and ban the use of drugs in connection therewith, or to regulate such medical policy decisions as whether to permit assisted suicide. This is reinforced by the Actâ€™s provision for power-sharing between the AG and the Secretary of Health and Human Services and in various provisions evincing deference to state law (including its non-preemption clause).
Oregon relies on avoidance and the clear statement principle, which it argues applies whenever the federal government significantly alters the federal-state balance by regulating areas traditionally left to the states. The word “medical” is insufficient to show clear intent, because decisions such as removing artificial life support or respecting “do not resuscitate orders” are surely medical, but also result in death. The AGâ€™s interpretation of the CSA displaces traditional state regulation of medical practice, and implicates the outer limits of the Commerce Clause. Unlike the situation with marijuana in Raich, there is no serious potential for the diversion of the controlled substance into the illegal market, and so no serious claim that the drugs have a substantial impact on interstate commerce.
It remains unclear whether the Directive purports to interpret the CSA directly, or the 1971 regulation, or both, and the deference to which the interpretation is entitled. The patient-respondents tackle this issue most thoroughly.
The lower court opinion can be found here.
The brief of the United States can be found here.
Oregonâ€™s brief can be found here.
The patientsâ€™ brief can be found here.
The doctorâ€™s brief can be found here.
The reply brief of the United States can be found here.
The Ashcroft Directive and supporting OLC memo (plus lower court opinions, statutes, and regs) can be found in the Pet. App. available here.