X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The Supreme Court appeared closely divided last Wednesday over whether the U.S. attorney general can override the wishes of Oregon voters and ban the use of drugs to hasten the death of terminally ill patients, with retiring Justice Sandra Day O’Connor as perhaps the key swing vote. The case Gonzales v. Oregon drew demonstrators outside the Court on both sides of the highly charged debate over the right to die. But inside the Court the case was argued and debated mainly as a question of administrative law: whether former Attorney General John Ashcroft’s 2001 interpretation of the federal Controlled Substances Act to outlaw the use of drugs for assisted suicide is valid — or whether the Justice Department overstepped its regulatory powers. By the end of the hourlong arguments, it appeared possible that the outcome will depend in part on whether the justices issue a ruling before O’Connor leaves the bench. Though most justices did not clearly tip their hands, O’Connor could turn out to be the crucial vote, as she has been for years. But if she departs before a decision is issued, the case could be reargued before a Court that includes nominee Harriet Miers, who could be more likely than O’Connor to support the attorney general’s prerogatives in the case. The Oregon assisted-suicide case stems from the 1994 passage by state voters of the Death with Dignity Act, which allows mentally competent and terminally ill patients to obtain death-hastening medications. When the law, the only one of its kind nationwide, survived legal challenges and took effect in 1997, then-Attorney General Janet Reno decided she did not have the authority under the Controlled Substances Act to punish doctors or pharmacists for actions taken under the Oregon law. Reno’s successor, Ashcroft, was a longtime opponent of assisted-suicide measures. When he took office he reversed her determination, finding that assisting suicide is not the kind of “legitimate medical purpose” that allows for exceptions to be made under the federal law. The change was made without a public comment period or other procedures that usually accompany new regulations. Oregon challenged Ashcroft’s rule change, winning at both the district court and appeals court levels. On Wednesday, Solicitor General Paul Clement defended the Ashcroft decision, since adopted by Attorney General Alberto Gonzales, as part of a history of a strong federal role in drug enforcement. But he was immediately hit with skepticism, as several justices asked him if a future attorney general who opposes the death penalty could unilaterally ban use of the drugs needed for lethal injections in spite of state capital punishment procedures. Clement sidestepped the question by arguing that the possibility had been foreclosed by a 1994 federal death penalty law that adopts execution procedures that are in force in the various states. Clement also argued that the government’s position does not entirely stop Oregon from allowing assisted suicide. He noted that Dr. Jack Kevorkian, who was prosecuted for helping patients kill themselves, used drugs that are not forbidden under the CSA. But Justices David Souter, Ruth Bader Ginsburg, and Anthony Kennedy, along with O’Connor, seemed dubious, with Kennedy calling it “an odd statutory scheme” if the federal government can prohibit use of a drug that Oregon law allows to be prescribed. Justices seemed struck, also, that Ashcroft’s unilateral action seemed to be unique in the history of drug regulation. Making the state’s case, Oregon Senior Assistant Attorney General Robert Atkinson emphasized the “200-year history” of the pre-eminence of states in regulating the practice of medicine. But Roberts asked whether allowing different rules in different states would “undermine uniformity” of federal drug law enforcement. Atkinson said that state-by-state differences were not that uncommon. He noted that certain drugs used for palliative care are allowed in some states but not others. “There is no history,” Atkinson said, of the attorney general enforcing drug laws against “a doctor who acts according to state law.” But Justice John Paul Stevens seemed to think that, as written, the CSA has language that authorizes the attorney general to supersede state laws in the interest of “public safety.” Justice Antonin Scalia also seemed supportive of federal power in this instance. If Justices Stevens, Roberts, Scalia, and Clarence Thomas side with the government, O’Connor could hold the decisive vote.
Tony Mauro can be contacted at [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.