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Every so often, a decision comes down that you really want to like — until you read it. Ruth Bader Ginsburg once suggested (before she became a justice) that the U.S. Supreme Court might have better protected abortion rights in Roe v. Wade by relying on equal protection instead of substantive due process. Supporters of racial integration in the 1950s found themselves wondering about the Court’s explicit reliance on shaky sociological evidence in Brown v. Board of Education. And now we have Oregon v. Ashcroft. That’s the federal district court case, decided in April, that blocked Attorney General John Ashcroft from interpreting the Controlled Substances Act in a way that would prohibit physicians from using federally regulated drugs to comply with Oregon’s law permitting assisted suicide. As a result of his handiwork, Judge Robert Jones — who was appointed by the first President George Bush — has become something of a minor hero among a certain set. Jones “got it exactly right,” according to The New York Times editorial board. According to a Washington Post editorial, Ashcroft had “bent federal drug law entirely out of shape.” Actually, he didn’t. I don’t like it, but the federal law at issue seems broad enough to strangle state experiments with assisted suicide. Still, what’s far more disturbing than Judge Jones’ sketchy opinion — which, after all, can be appealed — is Ashcroft’s decision to target Oregon’s law in the first place. Because even if federal law allows Ashcroft to kill assisted-suicide experiments, it doesn’t require him to. And the way to stop that from happening isn’t to rely on well-meaning but clumsy judicial opinions — it’s to keep people with Ashcroft’s views away from the reins of power in the first place. LEGITIMATE PURPOSE? First, more on Judge Jones’ opinion. It deals with Oregon’s 1994 Death With Dignity Act. The law permits a terminally ill, mentally competent patient to initiate a review of a decision to commit suicide; and if that review is successful, the law allows physicians to (as Judge Jones wrote) “prescribe, but not administer, medication to enable the patient to take his or her own life.” The prescribing physician is immune from civil, criminal, and disciplinary actions. The medications that physicians prescribe in these circumstances are drugs that are heavily regulated by the federal Controlled Substances Act of 1970. Doctors and others may dispense regulated drugs “in the course of a professional practice,” so long as the Drug Enforcement Administration grants them permission. The DEA can refuse permission to a doctor if that refusal is in “the public interest.” The predecessor to the DEA issued regulations implementing the CSA, which let doctors prescribe regulated drugs only for a “legitimate medical purpose.” And that’s where the trouble began. Last November, Ashcroft sent a directive to the DEA stating, “I hereby determine that assisting suicide is not a ‘legitimate medical purpose’ within the meaning of [the regulations], and that the prescribing, dispensing, or administering [of] federally controlled substances to assist suicide violates the CSA.” Oregon sued. In his opinion, Jones offers three grounds for holding against Ashcroft: the plain text of the federal statute, its legislative history, and cases brought pursuant to it. The plain language of the CSA nowhere “demonstrates or even suggests that Congress intended to delegate to the Attorney General or the DEA the authority to decide, as a matter of national policy, a question of such magnitude as whether physician-assisted suicide constitutes a legitimate medical purpose or practice.” Similarly, “[n]othing in the legislative history suggests … that anyone in Congress intended the CSA to restrict or proscribe prescriptions for controlled substances that might be used legitimately under state law to assist suicide or hasten death.” And, regarding the particular previous cases brought under the CSA that the federal government cited, Judge Jones states, “In none of the cases was a doctor or pharmacist prosecuted and convicted under the CSA for legal medical actions taken in compliance with state law.” THE WRONG BATTLE The appropriate response, on all three grounds, is, “So what?” The relevant question is not whether the statute explicitly speaks to — or was meant to speak to, or has been used in court cases to speak to — assisted suicide. “Of course Congress did not intend to do that. What Congress plainly did intend to do was to give the Attorney General (and, accordingly, his or her delegate, the DEA) the authority to ‘promulgate rules and regulations … relating to the … dispensing of controlled substances and control of regulated persons.’ That is precisely what the DEA did,” states a memo from the Justice Department’s Office of Legal Counsel. Which is to say, Judge Jones asked too specific a question. The broader and correct question is whether Congress gave the attorney general the power to decide which doctors may prescribe federally regulated drugs. The answer to that is yes — even if it means that assisted suicide gets pulled within the law’s reach. Once this proper question is asked and answered, the legal controversy about Ashcroft’s actions should die away. He didn’t brush aside federalism or states’ rights concerns, because Congress did that by passing the CSA in the first place. Maybe Ashcroft’s discretion would be limited where the legitimacy of a medical procedure is well-established — like that of heart transplants (which, interestingly, used to be controversial). But assisted suicide is clearly not humdrum yet. And Ashcroft’s memo to the DEA didn’t technically outlaw assisted suicide overall. Rather, it sought to establish that the practice is illegitimate for the purpose of interpreting the CSA. The broader issue, though, is whether Ashcroft’s action did in fact make assisted suicide illegal. How can doctors assist in a suicide in any meaningful way if the federal government deprives them of the drugs needed to make death dignified? With a prescription for hemlock? Or for a handgun? That’s not what Oregon’s voters had in mind — or presumably what Oregon’s criminal laws would allow. The Supreme Court in Washington v. Glucksberg (1997) acknowledged the legitimacy of the ongoing debate in the states about assisted suicide. How can that debate continue if Ashcroft locks up the drugstore? The Office of Legal Counsel’s contention — that the “Attorney General’s interpretation forecloses one, but only one, method of assisting suicide in a manner consistent with Oregon law” — simply ignores reality. Ashcroft’s mistake, then, wasn’t arguing that federal law permits him to do what he did. His mistake was going ahead and doing it. He could have looked the other way. A CHOICE TO MAKE That’s exactly what Janet Reno did when she was the attorney general. She stated (according to Judge Jones’ opinion) that “the federal government’s pursuit of adverse actions against Oregon physicians who fully comply with that state’s Death with Dignity Act would be beyond the purpose of the CSA.” Maybe it was, maybe it wasn’t. But it was her call to make. When it comes to such administrative decisions not to enforce a law, the Supreme Court has made clear that courts should not step in to second-guess. In Heckler v. Chaney (1985), the Supreme Court held, “This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” The facts of that case are instructive. Prison inmates on death row sued to compel the federal government to enforce the Food, Drug, and Cosmetic Act against states using regulated drugs for executions by lethal injection — not a purpose anticipated by the Food and Drug Administration when it cleared those drugs for medical use under the statute. The result? All nine justices voted against the prisoners. There’s no doubt that our attorney general today understands how to exercise prosecutorial discretion. He hasn’t applied the Controlled Substances Act to prison personnel involved in using regulated drugs for executions that probably do not constitute a “legitimate medical purpose.” I haven’t heard any reports that Ashcroft is wielding the Food, Drug, and Cosmetic Act to hinder executions by lethal injection. In the wake of Sept. 11, he decided not to interpret a federal gun control law in a way that would have let FBI agents check whether suspected terrorists had tried to buy handguns. And, also in the wake of Sept. 11, he has used novel interpretations of a federal law allowing detention of material witnesses — a practice that just the other week was successfully challenged in a federal court in New York. Ashcroft generally has the law on his side to attack practices he abhors, and to permit those he favors. He used that discretionary power to make it harder for people in Oregon to die with dignity. Judge Jones wrote a tenuous legal decision to stop the attorney general, which supporters of assisted suicide have rallied around. But those who think that Ashcroft has exercised his discretion deplorably can do better. They can remember that the judiciary is only one of three branches of government — and that elections for the other two are coming. Evan P. Schultz is associate opinion editor at Legal Times.

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