The Ashford Zone Blog

I wanted to get into the habit of analyzing constitutional Supreme Court cases on this blog, as I have done in the past, for a couple of reasons:

(1) it interests me; and

(2) as part of my job, it has fallen upon me to write — once a year — a summary of leading constitutional law cases for use in continuing legal education classes, so I need to keep abreast of this stuff (translation: I get "credit" for researching this).

Sadly, more pressing matters occupy my time at the moment, so this analysis will be hastily written.

The first case to come along this term is Gonzales v Oregon.

The papers are covering it today for two reasons: (1) it’s Chief Justice John Roberts’ first case on the Big Bench; and (2) it deals with physician-assisted suicide.

Many of the papers are getting the case wrong.  The issue is not about whether or not physician-assisted suicide is constitutional, legal, moral or ethical.  The issue is who gets to decide whether it is legal, moral, or ethical.

In 1970, Congress passed the Controlled Substance Act (or "CSA"), the purpose of which was "to provide increased research into, and prevention of, drug abuse and drug dependence . . . and to strengthen existing law enforcement authority in the field of drug abuse."  The CSA required, among other things, that anyone who dispenses drugs (i.e., medical practitioners) be registered.

The Attorney General was authorized to proscribe specific regulations in support of the CSA.

In 1971, the then-Attorney General promulgated a regulation under the CSA stating that "[a] prescription for a controlled substance to be effective must be issued for a legitimate medical purpose".

That’s a key phrase in this case: "a legitimate medical purpose"

In 1984, Congress amended the CSA to authorize the Attorney General to revoke a registration if he determines that a practitioner has "committed such acts as would render his prescription . . . inconsistent with the public interest." Congress provided five factors for the AG to consider in reaching that conclusion, the last of which is any conduct "which may threaten the public health and safety."

That’s another key phrase in this case: "public health and safety".

In 1996, Oregon passed a law called the Death with Dignity Act ("DWDA"). The DWDA permits doctors and pharmacists to prescribe and dispense lethal doses of controlled substances to terminally ill patients under restricted circumstances, with a variety of procedural safeguards. Neither the physician nor the pharmacist may actually administer the lethal dosage.

When Oregon did this, John Ashcroft (then, a Senator) called upon Attorney General Janet Reno to to issue a declaration that Oregon’s doctor-assisted suicide statute violated the CSA.  She declined.  So, when Ashcroft himself became Attorney General in Bush’s administration, he issued a directive (the "Ashcroft Directive") declaring that doctor-assisted suicide served no "legitimate medical purpose" within the meaning of the 1971 regulation, and that conduct authorized by the DWDA might render a practitioner’s registration "inconsistent with the public interest" and so subject to revocation.

Oregon challenged the Ashcroft Directive in court (the case is named Oregon v. Gonzales to reflect the fact that Gonzales is currently the Attorney General).  Oregon won in the lower courts.

Now, again, it’s important to understand the issue.  The Court is not being asked to decide whether or not physician-assisted suicide is/isn’t constitutional.  That particular issue was central in a 1997 case, Washington v. Glucksberg.  In Glucksberg, the state of Washington banned physician-assisted suicide, and the Supreme Court said that doing so did not violate Due Process.  Importantly (for the Oregon case), Justice O’Connor wrote that the difficult issue of assisted suicide should be entrusted to the "laboratory of the states" without federal involvement.

And that’s what Oregon is essentially arguing here.  It says that health policies are essentially the province of states.  It also argues that by enacting the CSA, Congress was primarily concerned with constraining controlled substances to legitimate channels, and stopping doctors who are effectively drug "pushers".  Furthermore, Oregon says, nothing in the text, history, or judicial interpretation of the CSA establishes that Congress meant to prohibit (or allow the Attorney General to prohibit) the use of medically approved drugs for physician-assisted suicide.  The CSA was not meant to give the Attorney General the authority to single out particular medical practices and ban the use of drugs in connection therewith, or to regulate such medical policy decisions as whether to permit assisted suicide.

The federal government ("Gonzales") argues the opposite.  It says that the CSA bans all prescriptions of controlled substances except those issued for a "legitimate medical purpose", and that it entrusts the Attorney General to make the legal interpretation of that phrase.  A Court can overturn the Attorney General’s interpretation only if the interpretation is "unreasonable" (as opposed to the Court merely disagreeing with the interpretation).  In addition, the federal government argues, the CSA was intended to create a federal standard with regard to the dispensation of drugs, so it can’t be left to individual states.  (As law students know, when the federal government intends to create a comprehensive regulatory scheme in a particular area, it trumps state interests).

So this case, while appearing on first blush to be about the right-to-die, is really about federalism.

UPDATE:  Lyle Denniston of the excellent SCOTUSBlog attended the oral arguments this morning.  Some snippets from his "review":

"The ebb-and-flow of questions and comments by the Justices made any prediction too uncertain."

"New Chief Justice John G. Roberts, Jr., however, gave a number of quite strong hints that he is inclined to support the government’s authority to forbid doctors to prescribe the drugs that terminally ill patients would use to end their lives. This is the most controversial case he has faced, and among the most controversial he will face, in his new role."

"Solicitor General Paul D. Clement encountered a mostly skeptical bloc of Justices on his claim that the U.S. Attorney General had clear authority to order doctors not to prescribe the drugs used under Oregon’s “Death with Dignity” procedures… that claim was questioned aggressively by Justices O’Connor, Ruth Bader Ginsburg and David H. Souter, and less rigorously by Justice John Paul Stevens."

"Clarence Thomas, asked no questions, as is his usual practice. Thomas presumably shared the strongly negative statements that Justice Antonin Scalia made repeatedly about helping people to die, something that Scalia said Congress could not possibly have thought it was allowing when it passed the Controlled Substances Act."

"Chief Justice Roberts several times questioned how the federal government could carry out uniform enforcement of the federal drug laws if states, on a theory of regulating the practice of medicine, were free to allow doctors to dispense controlled substances despite the federal law."

"Justice Anthony M. Kennedy seemed somewhat conflicted by the case, but the thrust of most of his questions and comments seemed to be favorable toward the government."

MY PREDICTION:  Scalia talks a good game of "states rights", but only when it suits him.  On hot button issues like this one, he will back the side he likes regardless of the federalism issue.  I’m not as convinced that Thomas will follow Scalia, however, as he has been showing more independence these past few years.

I think Denniston’s comments reflect something we are going to see a lot more of: the rise of Kennedy as the swing vote (he always was, but in O’Connor’s absence, it will be more prominent).

Still, my prediction-guess is 5-4 in favor of Oregon (the five being O’Connor, Ginsburg, Souter, Stevens and Breyer).  If O’Connor is off the Court by the time they convene to "vote", it will be 4-4, in which case Oregon still wins (since they prevailed in the lower court).  Watch for Roberts making a big deal in his first dissent.

RESOURCES:

The lower court opinion can be found here.
The brief of the United States can be found here.
Oregon’s brief can be found here.
The patients’ brief can be found here.
The doctor’s brief can be found here.
The reply brief of the United States can be found here.
The Ashcroft Directive and supporting OLC memo (plus lower court opinions, statutes, and regs) can be found in the Pet. App. available here.