JURIST Guest Columnist Valerie Vollmar of Willamette University College of Law says that the recent US Supreme Court ruling upholding Oregon's physician-assisted suicide law is a major step towards ensuring dignified choices to terminally ill Oregonians...
n January 17, 2006, the United States Supreme Court issued a 6-to-3 decision in Gonzales v. Oregon
upholding Oregon's physician-assisted suicide law against the latest in a series of challenges â an administrative rule issued by the U.S. Attorney General.
Although Oregon voters passed the Oregon Death With Dignity Act (ODWDA) more than 11 years ago, the opponents of physician-assisted suicide have been relentless in their efforts to overturn Oregon's law. A constitutional challenge in the federal courts delayed implementation of the ODWDA for three years. Just before the federal litigation ended, voters rejected a referendum measure from the Oregon legislature that would have repealed the new law.
Soon after, at the request of Congressional leaders, the director of the Drug Enforcement Administration ruled that physician-assisted suicide was not a "legitimate medical purpose" under the federal Controlled Substances Act (CSA). Thus, Oregon doctors and pharmacists who participated in physician-assisted suicide were at risk of losing their licenses to prescribe and dispense essential drugs such as morphine and barbiturates. Six months later, however, Attorney General Janet Reno reversed the DEA director's ruling.
Congress tried unsuccessfully in 1998 and 1999 to overturn the ODWDA by passing federal legislation. Senator John Ashcroft supported both bills. Within months after President Bush took office, Attorney General Ashcroft issued an interpretive rule (the Ashcroft Directive) declaring that physician-assisted suicide is not a "legitimate medical purpose" under the CSA. The Oregon Attorney General sued, and the court permitted a physician, a pharmacist, and several terminally ill patients to intervene.
The U.S. District Court (2002) and the Ninth Circuit Court of Appeals (2004) enjoined enforcement of the Ashcroft Directive. Both courts decided the case based on the CSA, finding it unnecessary to reach the parties' administrative and constitutional law arguments.
On January 17 of this year the US Supreme Court affirmed the lower courts. Justice Kennedy, who wrote the majority opinion, was joined by Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer. Justice Scalia was joined in his dissenting opinion by Chief Justice Roberts and Justice Thomas. Justice Thomas also wrote a separate dissenting opinion, arguing that the Court's decision was inconsistent with its recent opinion in the California medical marijuana case.
The majority and dissenting justices agreed that the question was whether the CSA allowed the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide, notwithstanding a state law permitting the practice. The two sides disagreed about everything else.
The opinions consist in large measure of a rather dry, technical discussion of the various levels of deference (Auer, Chevron, or Skidmore) that might be accorded to the Attorney General as an executive officer. The majority concluded that Ashcroft was not entitled to any level of deference in his decision to issue the Ashcroft Directive; moreover, the CSA did not give Ashcroft authority to regulate the practice of medicine generally. In contrast, the dissent concluded that the Ashcroft Directive was valid under both Auer and Chevron deference standards, was supported by the language of the CSA itself, and reflected the "overwhelming weight of authority" that physician-assisted suicide is not within the boundaries of medical practice.
The analysis of these issues in the majority and dissenting opinions is likely to be of great interest to administrative law scholars. The rest of us, though, may find other aspects of the opinions much more fascinating.
The majority opinion does not simply say that Ashcroft was misguided in interpreting the extent of his authority. Rather, the justices seem quite critical of Ashcroft's actions.
For example, the majority opinion quotes the statement in Washington v. Glucksberg
that "Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide," a debate that Ashcroft obviously tried to terminate. The opinion also notes that Ashcroft supported efforts to curtail assisted suicide while he was a Senator and that he did not consult with Oregon or anyone outside the Justice Department before issuing the Directive, even though he had promised Oregon's Attorney General an opportunity to participate in any discussion of the issue. The opinion further points out that the CSA places the responsibility for making medical judgments on the Secretary of Health and Human Services and not on the Attorney General, who "lacks medical expertise." Indeed, the opinion suggests that the Attorney General's understanding of whether physician-assisted suicide constitutes proper medical practice is not the only reasonable understanding of medical practice.
Other observations in the majority opinion are even more pointed. The justices say that the Attorney General "claims extraordinary authority" that would in effect allow him to criminalize even the actions of registered physicians, whenever they "engage in conduct he deems illegitimate." Moreover, according to the majority, Congress does not implicitly delegate such broad and unusual authority (Congress "does not, one might say, hide elephants in mouseholes").
Finally, the majority opinion cites the principles of federalism, which give the states great latitude under their police powers to regulate matters such as the practice of medicine. The concluding language of the opinion is especially interesting in light of the current struggle over the extent of executive powers:
The Government, in the end, maintains that the [CSA] delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it.
As always, the dissenting opinion shows Justice Scalia's gift for using engaging language in support of a detailed legal analysis. He criticizes the majority justices for their "unremitting failure to distinguish among [the] different propositions in the Directive," their creation of a new "parroting regulation" for Auer deference purposes, and their "demonstrably false," "irrelevant," and "manifestly erroneous" conclusions.
On the broader question of physician-assisted suicide itself, Justice Scalia is scathing in his criticism of the majority's view that physician-assisted suicide could be a reasonable understanding of medicine's boundaries, arguing that virtually every relevant authoritative source confirms that intentionally assisting suicide is not a "legitimate medical purpose." He acknowledges that the legitimacy of physician-assisted suicide ultimately rests on "a naked value judgment" but concludes that the federal government may use its powers for the purpose of "protecting public morality." The fact that Chief Justice Roberts joined in his first dissenting opinion in this case may be especially significant given the dissent's views on federalism and public morality.
For more than eight years, the Oregon Death With Dignity Act has provided choices to terminally ill Oregonians and has made Oregon a national leader in end-of-life care. The ODWDA is rarely used, but it has proven effective and safe for patients who choose physician-assisted suicide. These patients are well-educated, have health insurance, have hospice care available to them, and want to ensure a dignified death when they no longer can enjoy life. Congress may try yet again to overturn the Oregon law, but the current political climate may make it difficult to succeed in the attempt. Even if Gonzales v. Oregon
has not removed the final obstacle for the Oregon Death With Dignity Act, the decision goes a long way in that direction.Valerie J. Vollmar is a professor at Willamette University College of Law, where she writes and lectures extensively in the fields of estate planning, elder law and physician-assisted suicide. Her Web page at http://www.willamette.edu/wucl/pas/index.cgi is one of the most frequently visited sites on the topic.