Oregon's assisted suicide law and the Supreme Court
Russell Sadler
Oregonians should be thankful Supreme Court Justice Sandra Day O’Connor conditioned her resignation on the confirmation of her successor. With self-styled conservatives congratulating themselves for tanking the Harriet Miers nomination, President George W. Bush will have to nominate someone else.
Oregonians have a large stake in any delays confirming O’Connor’s successor. The state’s voter-approved physician-assisted suicide law may well be hanging on O’Connor’s vote. If O’Connor leaves the bench before the Oregon case is decided, it will be decided by the eight remaining justices who heard oral argument earlier this month. If the remaining justices are split 4-4, the case will have to be reargued for the benefit of the court’s newest member.
Gonzales v. Oregon creates a dilemma for conservatives. Overturning Oregon’s physician-assisted suicide law requires conservative judges to behave like the liberal, activist judges conservatives love to hate.
Oregon’s law, first approved as an initiative in 1994, allows doctors to prescribe a lethal dose of barbiturates to mentally competent, terminally ill patients.
The Bush administration’s case against the Oregon law rests on the argument that physician-assisted suicide is not a “legitimate medical purpose” of federally controlled drugs.
The problem for conservatives is that they cannot find any authority in the U.S. Constitution enabling the federal government to determine which medical purposes are “legitimate” and which are not.
The Controlled Substances Act was written to stop illegal traffic in prescription drugs. The law derives its authority from the interstate commerce clause in the U.S. Constitution. Regulating commerce among the several states is one of the enumerated powers the original states gave to the federal government in 1787. Any powers not granted to Congress remain with the states, including the power to regulate the practice of medicine.
For example, most states allow -- even require -- physicians to administer the lethal dose of drugs during criminal executions.
Oregon -- alone so far among the states -- has extended that medical practice to providing a lethal dose of barbiturates to the mentally competent, terminally ill who request it.
While Oregonians were debating adopting physician-assisted suicide in the mid-1990s, voters in the State of Washington approved an initiative banning the practice. Both sides took the Washington ban all the way to the U.S. Supreme Court, arguing that the Due Process Clause of the Fourteenth Amendment granted a constitutionally protected right to die.
The U.S. Supreme Court ruled it could find no such right in the case of Washington v. Glucksberg in 1997.
In a concurring opinion and in public comments on the case, Justice O’Connor held that although there was no constitutionally protected right to die in the U.S. Constitution, there was also no prohibition against a state creating such a right for its citizens. That is what Oregonians did. That is why O’Connor’s vote in Gonzales v. Oregon is so important. Her principled conservatism is not what the Christian Conservatives want to hear.
The far right is more eager to hear Justice Antonin Scalia, who said during oral arguments that physician-assisted suicide falls “outside the scope” of medical practice. He called the practice ‘unthinkable.”
Scalia is expressing his personal opinion. It is also the opinion of the Roman Catholic Church, of which Scalia is a member. But Scalia’s dilemma is that his opinion is not the law. The law says the scope of medical practice is a matter for the states to decide.
To strike down the Oregon initiative, Scalia and his allies must discover some enumerated power in the U.S. Constitution giving the federal government authority. It’s going to be a hard search, because no such words are there to be found.
Perhaps Scalia will divine some authority emanating from the penumbra of a constitutional provision like the interstate commerce clause! Penumbras are where the late Justice William O. Douglas found a constitutional right of privacy the Court used to strike down a Connecticut law prohibiting the use or sale of contraceptives in the 1965 case of Griswold v. Connecticut.
“Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them their light and substance,” wrote Douglas.
But then Douglas never denied he was a liberal, activist judge determined to keep the pretentiously pious off your back and out of your bedroom.
For Scalia to impose his opinion about the limited scope of medical practice on Oregonians, he must legislate from the bench, creatively finding some undiscovered federal authority to override the state regulation of medicine.
It may be expedient for Scalia’s cause, but it is not conservative strict construction or judicial self-restraint. It is the kind of judicial activism that principled conservatives ostensibly oppose.
It is apparent that Justice O’Connor is the swing vote between these two factions on the court. It is in Oregon’s interest that she stay until the Gonzales case is decided.
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Oct 30, '05
Maybe I'm missing something, but in my view it's not an issue that has to be decided in the courts. At any time Congress can amend the CSA to prevent controlled drugs from being used for physician-assisted suicide. We don't have to try to figure out the congressional intent behind the law, because congress can change it whenever they want, and then we can have that debate and the the congressional intent, one way or another, will be clear.
9:52 a.m.
Oct 30, '05
Yup, analyst, you missed something.
The CSA was intended control traffic in improperly prescribed drugs. Congress has the authority to do this under the Interstate commerce Clause of the U.S. Constitution. It isone of the clearly enumerated powers given to the federal government by the originalstates in 1787.
But who may become a physician and what those physicians can do with the drugs they may legally prescribe has -- so far -- been regarded as one of the powers the states retained. So it is not clear that congress may use its authority to regulate interstate commerce to ban physician-assisted suicide by simply amending the CSA.
That is what Washington v. Glucksberg was all about.
And that is why Gonzales v. Oregon is so important.
The Christian Conservatives are hoping Scalia will stretch the meaning of the interstate commerece clause to permit just what you are suggesting. The problem is stetching the meaning of that clause is a liberal technique used by activist judges who believe the constitution is a "living document" that must be interpreted together with modern developments. Scalia is ostensibly a conservative, original intentionist judge who believes the constitution means what the founders meant in 1787 and no more.
For Scalia to do what his allies want him to do, he must act like the liberals he claims to despise.
What will win out in Scalia's mind -- priniple or political expediency?
Ironically, O'Connor and the "liberals" on the court are probably the five votes for a limited role for the federal government in the Gonzales case, which, of course, is the traditionally conservative position.
These are not easy issues to understand, I agree. Like the Measure 37 cases, it takes a bit of a background in constitutional law. to understand the analysis.
Hope that helps.
5:07 p.m.
Oct 30, '05
Actually, The Analyst is closer to the mark than Russell. This is about statutory construction, not constitutional authority. There is no question the federal government, under the commerce clause, has the power to limit the use of these controlled substances. The real question is whether the exception in the law for medicinal use includes suicide.
It's true that traditionally the federal goverment has left the definition of what is an appropriate medicinal use up to state medical boards. The harder question is whether the voters of the state can usurp the role of the state medical board and define what is an appropriate medicinal use through the initiative process.
Somehow, I doubt Russell would be waving the state's rights flag if voters approved an initiative declaring creationism a legitimate scientific theory.
The difficult position the Supreme Court is in now is to decide whose medical advice to take--the attorney general's or the voters of Oregon. I'm not sure there is a good answer to that question.
I actually agree with The Analyst (or at least, what I think The Analyst is suggesting): Congress should set standards for physician-assisted suicide and medical marijuana, even if states are utlimately allowed to opt in or opt out. But in a polarized political environment where you either have to be on one extreme or the other, that's unlikely to happen.
Oct 30, '05
Jack writes: "The harder question is whether the voters of the state can usurp the role of the state medical board and define what is an appropriate medicinal use through the initiative process."
I don't believe this is the kind of thing that Board of Medical Examiners would govern. The Death with Dignity act is covered in ORS 127.800 - 127.995. The only references to the BME are to the definitions of who is a physician and who has prescriptive rights. The act also states that participation in PAS cannot be the basis for disciplinary action.
The BME's responsibilities are covered in ORS 677. Without the Death with Dignity act I suppose a physican participating in PAS could be disciplined for endangering the health or safety of the patient, or failing to uphold the standards of acceptable medical practice. I don't believe that the BME would have any role in authorizing PAS. Going out on a limb here, but as I see it the MBE enforces acceptable medical standards, but does not set them. Those are defined either by statute or by what is widely accepted within the medical profession itself.
I'm neither a physician nor a lawyer, and so I'm happy to stand corrected if my perceptions are incorrect.
6:13 p.m.
Oct 30, '05
Jack,
I'm having trouble reading your lips here. You stated that "analyst" was closer to the mark, but your explanation certainly muddies the waters as to the accuracy of that statement.
What's more, you appear to be claiming that the issue is not about the right to determine what constitutes legitimate medicine but whether or not states get to decide how they make their state laws regarding the practice of medicine.
The harder question is whether the voters of the state can usurp the role of the state medical board and define what is an appropriate medicinal use through the initiative process. ... The difficult position the Supreme Court is in now is to decide whose medical advice to take--the attorney general's or the voters of Oregon.
As near as I can tell from media reports on the subject, you are the only person who thinks the decision hinges on this question. I can't find any evidence that any justice has suggested the fact that the Oregon law was adopted via a ballot measure rather than by the legislature or the Oregon Board of Medical Examiners is a problem or even that a justice has asked a question pertinent to that issue.
Can you point to any evidence that supports your assertion?
6:17 p.m.
Oct 30, '05
Sorry about the italics mess-up. Only the two sentences separated by the ... were Jack's comments. The rest is mine.
6:49 p.m.
Oct 30, '05
I don't think any of the Justices put it the way I did--"The difficult position the Supreme Court is in now is to decide whose medical advice to take--the attorney general's or the voters of Oregon"--but I think that is what the argument ultimately boils down to.
The Justices who seem to be leaning against Oregon's position are saying that the Controlled Substances Act prohibits using these drugs for assisted suicide. That is based on the theory that killing the patient is never a legitimate medical necessity. But that is based pn John Ashcroft's (and now Alberto Gonzales's) interpretation of the law, not the Surgeon General's or any other doctor's to the best of my knowledge.
The Justices who are leaning toward Oregon's position are saying that our law--which was passed by initiative--is either (a) legitimate under the medical necessity exception contained in the CSA, or (b) is a valid exercise of state sovereignty outside the CSA (an unlikely position to get 5 votes, in my opinion).
Historically, the federal government has deferred to state medical boards' definitions of medical necessity in this and other areas, in part because there is no federal medical board. My point is that the Supreme Court may (and peerhaps should) view this differently because it was a legislative determination, not a determination by medical professionals.
The Analyst is right in saying that the Death with Dignity Act doesn't assign the Board of Medical Examiners any role in deciding whether assisted suicide is a permissible use of drugs regulated under the CSA. That's my whole point. The Supreme Court could rule that determinations of what constitute a medically necessary use of a controlled subtance should be determined by doctors, not voters.
That is not necessarily a rejection of states rights, but more in line the Roe v. Wade which said abortion was a proper decision for a woman and her doctor, not the legislature (or voters through the initiative process). If that happens, Congress has it in its power to correct this and permit Oregon (and other states) to permit assisted suicide. But I won't hold my breath.
9:23 p.m.
Oct 30, '05
That is not necessarily a rejection of states rights, but more in line the Roe v. Wade which said abortion was a proper decision for a woman and her doctor, not the legislature (or voters through the initiative process).
I think you've got that upsidedown and backwards. Individuals have rights that supercede any rights that the states or the feds have to regulate them. Roe v. Wade says that under certain circumstances, abortion is one of those rights. A step up from there, states have rights that supercede any right that the feds have to regulate them. The assisted suicide case is not about the feds protecting the rights of individuals from being usurped by the states. It's a fight about whether or not the state can allow something the feds want to prevent--not like Roe v. Wade at all.
The Analyst is right in saying that the Death with Dignity Act doesn't assign the Board of Medical Examiners any role in deciding whether assisted suicide is a permissible use of drugs regulated under the CSA. That's my whole point. The Supreme Court could rule that determinations of what constitute a medically necessary use of a controlled subtance should be determined by doctors, not voters.
Many of Oregon's laws having to do with the practice of medicine, including those that give the Board of Medical Examiners their responsibilities, are contained in ORS Revised Statutes Chapter 677--which was presumably adopted by the legislature, most of whom are not doctors.
The Supremes may or may not decide this case on the basis of states rights but it seems to me that the notion that some legally adopted state laws may be considered more valid than others based on the mechanism by which they were adopted would in some sense be the ultimate states rights issue.
11:03 p.m.
Oct 30, '05
Jack, do you find a legal distinction between laws created by the Oregon Legislature and ones created by a popular vote of the People? Does one or the other have more weight, legally-speaking?
6:48 a.m.
Oct 31, '05
Kari, the distinction I'm making is not between laws passed by the initiative and laws passed by the legislature. What I'm suggesting is that under the Controlled Substances Act, certain controlled substnces can be made available only for medical reasons. Who decides the medical basis for permitted those uses? Is it doctors and medical boards, or is it the legislature and the voters?
Remembers, while Washington v. Glucksberg said there is no constitutiona right to assisted suicide, the opinions (and there were several concurring opinions) suggested strongly states can experiment with that right. But then Gonzles v. Raisch overturned California's medical marijuana law because, under the Controlled Substances Act, marijuana was a Schedule I drug for which no medicinal use was authorized.
The question now with Oregon's assisted suicide law is whether a doctor can prescribe a lethal dose of a non-Schedule I drug for medicinal purposes. I think this will turn on whether a majority of justices think suicide is a valid medicinal purpose. While the feds traditionally defer to state medical boards and doctors to make the determination of what is a valid medicinal purpose, does that mean they have to defer to the state political body (whether the legislature or the voters acting through the initiative process) to make that case.
Washington V. Glucksberg suggest Oregonians have the right to allow physician-assisted suicide. But that doesn't mean we have the right to overrule the Controlled Substances Act. So can we fit the process described in our Death With Dignity Act within the exception set forth in the CSA? That, in my opinion, is what the decision of the Supreme Court will ultimately come down to.
Oct 31, '05
Jack Roberts writes:
"The Supreme Court could rule that determinations of what constitute a medically necessary use of a controlled subtance should be determined by doctors, not voters."
So does this mean that since doctors didn't get a voice in the use of lethal injections for capital punishment that this, too, should then be sent back to state medical boards for their approval, which wouldn't be very likely? It seems to me that since the courts have permitted capital punishment via lethal injection without medical board approval (and, by the same logic, in violation of the CSA), they would have a hard time arguing against the use of the very same drugs for assisted suicide. This sword cuts both ways.
7:26 a.m.
Oct 31, '05
And Doretta, the analogy to Roe v. Wade is simply that the original decision was careful not to say that abortion was simply a woman's choice. As originally framed by Justice Blackmun, it was a decision to be made by a woman and her doctor. Deference was given to a doctor's medical decision about whether an abortion was warranted. That view is perhaps understandable since Justice Blackmun reportedly reached that decision after consulting with his friends from the Mayo Clinic.
Since then, of course, the right to abortion has evolved into a woman's choice issue rather than a medical choice issue, as I expect assisted suicide will if it is upheld.
7:31 a.m.
Oct 31, '05
And Doretta, my analogy to Roe v. Wade is simply that the original decision there was careful not to make abortion simply the woman's choice, but rather a decision to be reached jointly by a woman and her doctor. Considerable deference was paid to the doctor's decision that an abortion was warranted, perhaps understandably since Justice Blackmun was said to have reached his decision after consulting with his friends at the Mayo Clinic.
Of course, abortion soon evolved into a woman's right to decide rather than a doctor's right to prescribe, as I suspect assisted suicide will should it be upheld by the Supreme Court.
7:58 a.m.
Oct 31, '05
Mr. Fearless, I think you're right: Lethal injections are probably the weakest links in the anti-assisted suicide case. I'm not aware of any exception to the CSA allowing lethal objections (although I'm certainly not holding myself out as an expert on any of this, by the way). And the analogy here is pretty apt.
For instance, I suppose it could be argued that, since the Supreme Court has authorized capital punishment, and the alternatives to lethal injection are arguably less humane (electrocution, gas, hanging or firing squad), a doctor could claim a medical reason for giving a lethal injection. But then, by the same analysis, why shouldn't a doctor be able to assist a terminally ill patient choose a more humane exit as well?
Ultimtely, I think that's the best argument for upholding Oregon's assisted suicide law within the terms of the Controlled Substances Act. Although a lot of people have been assuming they know how the votes will come down on the court, remember it was O'Connor, Rehnquist and Thomas who dissented on medical marijuana and would have upheld the California law.
Incidentally, I hope no one is assuming that I want the Oregon law overturned. I don't. I just think the legal analysis is trickier than the simple "states rights" argument some folks are making.
P.S. Sorry about the duplicate post above. I didn't think the first one went through.
10:03 a.m.
Oct 31, '05
But then Gonzles v. Raisch overturned California's medical marijuana law because, under the Controlled Substances Act, marijuana was a Schedule I drug for which no medicinal use was authorized.
This is not true of the drugs used for assisted suicide, of course. They do have other medical uses. Doctors are free to prescribe drugs for multiple purposes, even for purposes that haven't been vetted by regulating agencies. We've glossed over the fact in this discussion that Oregon's law does require an individual to make this decision with his or her doctor. There are even heightened safeguards in the law that it's up to the doctor to follow before a patient gets a prescription.
It seems to me a perverse argument to claim that doctors should be making these decisions as a rationale for nine judges, none of whom are doctors, to take that choice away from patients and their doctors.
Jack, I appreciate your comments and actually agree with you that the immediate outcome of the case does not necessarily hinge on states rights. In fact, too strong a reliance on the states rights argument by the state may end up as the cause of the state losing the case.
The reality is, the US AG is trying to shoe horn assisted suicide under the CSA, which was not written with assisted suicide in mind, precisely because the administration has been unsuccessful at getting Congress to pass legislation that explicitly outlaws it. That's probably the easiest argument against the AG. Having read some of their questions, I agree with Jack that a majority of the court may well think that Congress does have the right to outlaw that particular use of drugs. If they rule in favor of the state, it seems to me most likely that they will avoid setting any kind of broad precendent by ruling based on the original intent of the Congress when they passed the CSA.
However, even if the court does duck the issue by ruling in Oregon's favor on other grounds, that doesn't make Russell wrong about the heart of the case. It really is about states rights. As I recall the media reports, it's the states rights argument that our congressional representatives have used to persuade Congress not to pass a law aimed at explicitly nullifying Oregon's law. I don't see how the court can rule against the state in this case without ruling that the feds can supercede the states in defining what constitutes medical use. That will have ramifications that potentially go far beyond this case and that is probably the court's strongest incentive not to go that way for precisely the reasons Russell states.
Oct 31, '05
The Death with dignity act does not hinge on a medical decision, but on a philosophical one. The people of Oregon are a more valid judge of this than either the Legislature or the Medical Board.
Though arguments can be made that assisted suicide is a slippery slope to forced euthanasia, there is no evidence of this in Oregon. The bigger issue here is the struggle of the people to wrestle sovereignty over their own bodies from state [federal in this case] control.
The government has employed many mechanisms to justify this control, and the Supreme Court has often supported these. In the end, what matters is not the precedence of specific decisions on federal authority, but the evolving view on the balance between personal autonomy and the compelling need of government to curtail it.
My sense is that the American people will demand control over there own end of life care, and the Supreme Court, eventually, find a way to conform to public values. Standing in the way of this are religious authoritarians who would have government act as a proxy for church authority.
Oct 31, '05
Russell Sadler writes:
"But who may become a physician and what those physicians can do with the drugs they may legally prescribe has -- so far -- been regarded as one of the powers the states retained. So it is not clear that congress may use its authority to regulate interstate commerce to ban physician-assisted suicide by simply amending the CSA."
Keep in mind that it is the Drug Enforcement Administration that issues the licenses authorizing physicians to prescribe controlled substances. In Oregon, there is no separate "controlled substance" license that authorizes a physician to specifically prescribe scheduled drugs. So, Oregon's Legislature and BME have already ceded some authority to the federal government in this area. It is also the case that no doctor in the US can prescribe controlled substances legally without a Federal DEA "drug number" whether the states have their own or not.
This is where the feds involvement in this case gets a bit tricky. So, while this might, at its root, be a state's rights issue, in Oregon the authority for controlled substances comes solely from the state's deference to the DEA in granting that prerogative.