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In a ruling that re-energizes the debate over federalism and the right to die, the Supreme Court on Tuesday said the federal Controlled Substances Act does not give the Bush administration the authority to thwart Oregon’s law allowing physician-assisted suicide. “Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it,” wrote Justice Anthony Kennedy for the 6-3 majority in Gonzales v. Oregon. “The Supreme Court’s ruling today affirms the right of Oregonians to govern their own end-of-life, pain management and palliative care choices,” said Peg Sandeen, executive director of the Death with Dignity National Center, which has defended the Oregon law since voters approved it in 1994. “ Gonzales v. Oregon is a historic milestone that will protect the people’s rights as patients.” The ruling is a setback for the Bush administration and could spur other states to follow Oregon, currently the only state allowing physician-assisted suicide. Sandeen cautioned, however, that Congress could try to cripple the law in other ways with new legislation. A Department of Justice spokeswoman, Tasia Scolinos, expressed the administration’s disappointment with the ruling, but added that the department “remains committed to enforcing our nation’s laws and ensuring that drugs are not diverted to unlawful uses.” The decision featured Chief Justice John Roberts Jr.’s first dissent, and also echoed some of the debate over executive power heard just last week over the nomination of Samuel Alito Jr. to replace Justice Sandra Day O’Connor. Kennedy articulated a limited view of the power of the executive branch to tinker with acts of Congress — unless Congress permits it. The Oregon Death With Dignity Act allows doctors to prescribe death-hastening drugs to terminally ill patients in limited circumstances. The Clinton administration did not move to stop Oregon, but in November 2001, then-Attorney General John Ashcroft, who had opposed assisted suicide as a senator, issued an “interpretive rule” interpreting the Controlled Substances Act and announcing that assisted suicide was not a “legitimate medical purpose” that would allow doctors to prescribe Schedule II drugs under the act. Oregon, joined by physicians and terminally ill patients, challenged the rule, and the U.S. Court of Appeals for the 9th Circuit struck it down as overstepping federal authority. The high court on Tuesday upheld the 9th Circuit — itself a notable event — in a ruling written by Kennedy, once a member of the 9th Circuit. Once again, the Reagan-appointed Kennedy was in the position of announcing a Supreme Court decision that ran counter to conservative views on a hot-button issue. In 2003 Kennedy announced Lawrence v. Texas, upholding gay rights, and in 2005 he wrote Roper v. Simmons, striking down the juvenile death penalty. But unlike his other controversial rulings, Kennedy’s decision on Tuesday was devoid of soaring constitutional language, focusing instead on statutory interpretation and how much deference rules issued by the attorney general should be given. “This ruling will probably be read in the future as an administrative law event rather than a political event or a constitutional one,” said Greg Castanias, a partner in Jones Day’s D.C. office, who authored a brief in the case on behalf of religious groups supporting the Oregon law. Castanias added that the ruling followed the teaching of the Court’s 1997 Washington v. Glucksberg decision that found no constitutional right to assisted suicide but allowed states to legislate in the area. Kennedy said the deference that an executive branch official is usually given in implementing laws through regulation did not apply here, because when it passed the Controlled Substances Act, Congress did not give the attorney general the authority to promulgate rules like Ashcroft’s. The structure of the law, Kennedy said, “conveys unwillingness to cede medical judgments to an executive official who lacks medical expertise.” The Bush administration’s claim was also weakened, Kennedy said, by the fact that it intruded on the regulation of physicians and medical care, usually the province of states. Ashcroft’s rule said Oregon physicians who continued to prescribe Schedule II drugs risked losing their federal registration that allows them to prescribe controlled substances. “The background principles of our federal system also belie the notion that Congress would use such an obscure grant of authority to regulate areas traditionally supervised by the states’ police power,” wrote Kennedy. Dissenters said Ashcroft’s rule fits well under the powers given him by the Controlled Substances Act. “If the term �legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death,” Justice Antonin Scalia wrote, joined by Roberts and Clarence Thomas. Roberts did not write separately, but his vote marked the first time since he joined the Court in September that he dissented. Thomas also chided the majority for upholding states’ rights when, just last term in Gonzales v. Raich, it upheld federal power under the same law to forbid California’s medical marijuana initiative. The majority barely mentioned the Raich ruling, but appeared to suggest that the attorney general had greater authority to regulate drugs associated with abuse and criminal behavior than he does in restricting physicians’ practices at issue in the Oregon case. “The Court’s reliance upon the constitutional principles it rejected in Raich,” said Thomas, “is perplexing to say the least.”
Tony Mauro can be contacted at [email protected].

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