Former Attorney General John Ashcroft did not exceed his legal authority in 2001 when he said the federal Controlled Substances Act supersedes an Oregon law that allows physician-assisted suicide, attorneys for the Bush administration argued on Wednesday in opening arguments in the Supreme Court case Gonzales v. Oregon, the Washington Post reports (Lane, Washington Post, 10/6). The Death With Dignity Act, which became law in 1997, allows physicians to prescribe, but not administer, a lethal dose of prescription drugs to a terminally ill patient after two physicians agree that the patient has less than six months to live, has decided to die voluntarily and can make health care decisions (Greenhouse, New York Times, 10/6). In 2001, Ashcroft issued a directive that said assisted suicide serves "no legitimate medical purpose" and warned physicians who prescribe controlled narcotics to assist in patient suicides under the Oregon law that they could face criminal penalties and license suspension or revocation. U.S. District Judge Robert Jones in 2003 ruled that the federal government did not have the authority to overturn the law -- a decision upheld in May 2004 by a three-judge panel of the 9th U.S. Circuit Court of Appeals. In November 2004, Ashcroft asked the Supreme Court to reverse the decision (Kaiser Daily Health Policy Report, 10/3).

Justices Question Solicitor General
Justice Sandra Day O'Connor asked Clement why, under the Bush administration interpretation of CSA, the attorney general does not penalize physicians who administer lethal doses of medications to implement the death penalty. Clement said that the use of medications for lethal injections was "effectively ratified" by Congress in 1994 in a federal death penalty law. O'Connor said that Ashcroft in as a senator in 1998 attempted to pass legislation to block the Oregon law and asked then-Attorney General Janet Reno to use federal authority to block the law. O'Connor said that Reno did not have the authority to block the Oregon law because "the federal government's pursuit of adverse actions against Oregon physician who fully comply with ... the Death With Dignity Act would be beyond the purpose of the CSA." Clement replied, "This is an area where there are different approaches." Justice Ruth Bader Ginsberg asked Clement about the 1997 Supreme Court decision that found no constitutional right to die and determined that states should have authority over the issue (New York Times, 10/5). In that case, Ginsburg said that "everyone on this court assumed that assisted suicide was a matter for the states" (Washington Post, 10/5). Ginsberg said that the Bush administration at the time supported decision in a brief, adding, "Now you are rejecting that position." Clement said, "We stand by the brief" (New York Times, 10/5). According to Clement, the Bush administration supports "alternative methods" to assisted suicide not included in Oregon law. Ginsburg said, "We're told these methods are less gentle to the patient" (Washington Post, 10/5). Clement said that the regulation of controlled substances "falls within the authority of the attorney general." Justice David Souter said that a "bizarre result" could occur if the attorney general has the authority to "determine whether a state may or many not authorize assisted suicide and can flip back and forth" (Crawford Greenburg, Chicago Tribune, 10/6). Justice Anthony Kennedy told Clement, "For me, the case turns on the statute. And it's a hard case." Kennedy asked Clement about the "serious consequences" of limits on federal authority to regulate prescription drugs. Clement said, "If this court makes clear that state law can overtake the federal regime, I think it at least creates the potential for there to be a lot of holes in that regime" (Holland, AP/Chicago Tribune, 10/6).

Roberts Questions Clement
Clement said, "The most natural reading" of CSA is that regulation of prescription drugs "falls within the authority of the attorney general." Supreme Court Chief Justice John Roberts asked, "What's the closest analogue to this?" (Savage, Baltimore Sun, 10/6). Roberts told Clement to provide "the closest analogy you have, other than this case," in which the attorney general "impinged on" the authority of states to regulate the practice of medicine. Clement began to discuss an FDA action in 1988 related to a cancer medication called laetrile, but Roberts interrupted, saying, "That's the FDA. I'm talking about the attorney general under this statute." Clement responded that he could not provide an example (New York Times, 10/5).

Justices Question Oregon Attorney
Atkinson argued that congressional intent in the passage of CSA was to regulate recreational use of prescription drugs (Savage, Boston Globe, 10/6). He said, "They left the question of legitimate use to the state," adding, "What they had in mind was the traditional regulation of medicine by the states" (Henderson, Philadelphia Inquirer, 10/6). He said that Ashcroft had exceeded his authority as attorney general because states regulate the practice of medicine (Boston Globe, 10/6). However, Justice Antonin Scalia said that Congress did not anticipate the concept of physician-assisted suicide when CSA passed in 1970, adding, "I would have thought that a doctor using drugs to kill a patient was unthinkable" at the time. Atkinson argued that Congress passed CSA against the "backdrop of 200 years of responsible regulation of the practice of medicine" by states. He said that Congress intended to leave issues related to prescription drugs not addressed in CSA for states to decide. In addition, Congress anticipated that the practice of medicine would change, he argued, adding that the federal government does not interfere with state regulation of treatments such as acupuncture and Botox. Scalia said, "Assisting people to die is totally different." Atkinson said that the federal government has allowed states to regulate other "end-of-life issues," such as living wills and do-not-resuscitate orders.

Roberts Questions Atkinson
Roberts asked Atkinson, "Doesn't (Oregon's approach) undermine the uniformity of federal law?" (Biskupic, USA Today, 10/6). He continued, "If you have one state that allows the use of a drug the federal government has determined is illegal, how is the federal government supposed to enforce that prohibition?" Atkinson said that, if the federal government determines that a prescription drug is legal, state medical boards should regulate whether physicians properly prescribe medications (Chicago Tribune, 10/6). Roberts said that the federal government has the authority to determine "legitimate medical purpose" for medications. He said that CSA "suggests that the attorney general has the authority to interpret that phrase." Roberts said, "If one state can say it's legal for doctors to prescribe morphine to make people feel better, or to prescribe steroids for bodybuilding, doesn't that undermine the uniformity of the federal law and make enforcement impossible?" (AP/Chicago Tribune, 10/6).

"Reprinted with permission from kaisernetwork. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at kaisernetwork/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork, a free service of The Henry J. Kaiser Family Foundation . © 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.

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