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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.”