List of contributions

the authors of “The Philosophers’ Brief” and argues for a federal constitutional due process liberty right to physician-assisted suicide. The second alternative favors state-by-state determination of the issue but also from what might be described as a broadly

“liberal” perspective but one consistent with aspects of subsidiarity.

II. Assisted Suicide in Oregon: A Test Case for Federalism

The Controlled Substances Act (CSA), which is primarily directed at drug trafficking, prohibits “dispens[ing] a controlled substance” unless authorized under the statute. Physicians can obtain authorization (and register with the federal government) under the statute to dispense drugs “to the extent authorized by their registration and in conformity with the other provisions of this subchapter.”²⁷ According both to case law interpreting the CSA and Drug Enforcement Administration (DEA) regulations

implementing the statute, one such limitation on physicians is that prescriptions must be in accord with “legitimate medical purposes”: “A prescription issued for a controlled substance must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”²⁸ The extent to which a federal determination (made by the Attorney General) of what constitutes a “legitimate medical

27 21 U.S.C. § 822(b).

28 21 C.F.R. § 1306.04(a). See also United States v. Moore, 423 U.S. 122, 140-42 (1975):

[T]he scheme of the [CSA], viewed against the background of the legislative history, reveals an intent to limit a registered physician’s dispensing authority to the course of his

“professional practice.”…Implicit in the registration of a physician is the understanding that he is authorized only to act “as a physician.”…[R]egistration is limited to the dispensing and use of drugs “in the course of professional practice or research.” Other provisions throughout the Act reflect the intent of Congress to confine authorized medical practice within accepted limits.

purpose” can preempt a state’s determination was at the center of the dispute over federal intervention in Oregon.

In November of 1994, Oregon voters passed by ballot initiative the Death with Dignity Act (DDA), thereby becoming the first state to legalize a form of physician-assisted suicide. After rejecting a second ballot proposal to repeal the Act in 1997, the law went into effect after those challenging the statute failed to convince the Ninth Circuit that the statute violated the equal protection guarantee of the Fourteenth

Amendment.²⁹ The DDA provides, in relevant part, that “[a]n adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner.”³⁰

Even before the 1997 ballot initiative and Ninth Circuit decision, however, Senator Orrin Hatch (Republican of Utah) and Congressman Henry Hyde (Republican of Illinois)—the then-chairmen of the Senate and House Judiciary Committees,

respectively—sent a letter to the DEA advocating the position that the DEA is authorized under the CSA to revoke the registration of physicians and pharmacists who prescribe death-causing medication under the Oregon statute: “In our view, assisting in a suicide by prescribing or filling a prescription for a controlled substance cannot be a ‘legitimate medical purpose’ under DEA regulations, especially when the practice is not reasonable

29 Lee v. Oregon, 107 F.3d 1382 (9th Cir. 1997), cert. denied, 522 U.S. 927 (1997).

30 OR.REV.STAT. § 127.805 (1997).

and necessary to the diagnosis and treatment of disease and injury, legitimate health care, or compatible with the physician’s role as healer.”³¹

On November 5, 1997, DEA Administrator Thomas Constantine agreed and concluded in his response to the Hatch/Hyde letter “that delivering, dispensing or prescribing a controlled substance with the intent of assisting a suicide would not be under any current definition a ‘legitimate medical purpose.’”³² The state of Oregon, acting through its deputy attorney general, asked the Department of Justice to reconsider the DEA opinion by Administrator Constantine. On June 5, 1998, Attorney General Janet Reno reversed the decision of the DEA Administrator and determined that “[t]here is no evidence that Congress, in the CSA, intended to displace the states as the primary regulators of the medical profession, or to override a state’s determination as to what constitutes legitimate medical practice in the absence of a federal law prohibiting that practice.”³³

In an effort to clarify congressional intent, the Pain Relief Promotion Act (PRPA) was introduced in Congress in the summer of 1999. If enacted, the PRPA would have amended the CSA to give the DEA authority to prohibit the use of controlled substances

31 Letter from Orrin G. Hatch, Chairman of the Comm. on the Judiciary, U.S. Senate & Henry J.

Hyde, Chairman of the Comm. on the Judiciary, U.S. House of Representatives, to The Honorable Thomas A. Constantine, Adm’r, Drug Enforcement Admin. of the U.S. (July 29, 1997).

32 Letter from The Honorable Thomas A. Constantine, Adm’r, Drug Enforcement Admin. of the U.S., to Henry J. Hyde, Chairman of the Comm. on the Judiciary, U.S. House of Representatives, (Nov. 5, 1997), at 1-2.

33 Letter from The Honorable Janet Reno, Att’y Gen. of the U.S., to The Honorable Henry J. Hyde, Chairman of the Comm. on the Judiciary, U.S. House of Representatives, (June 5, 1998), at 1.

for the purpose of hastening the death of a terminally ill patient. Specifically, the bill provided:

For purposes of this Act and any regulations to implement this Act, alleviating pain or discomfort in the usual course of professional practice is a legitimate medical purpose for the dispensing, distributing, or administering of a controlled substance that is consistent with public health and safety, even if he use of such a substance may increase the risk of death. Nothing in this section authorizes intentionally dispensing, distributing, or administering a controlled substance for the purpose of causing death or assisting another person in causing death.³⁴

The PRPA passed the House but languished in the Senate. As the end of the 106th Congress approached, Senator Ron Wyden (Democrat of Oregon) announced his

intention to filibuster the PRPA if it reached the Senate floor. Wyden, though claiming to be personally opposed to physician-assisted suicide and an opponent of the Oregon ballot measure, raised federalism concerns about the PRPA in his testimony to the Senate Judiciary Committee.³⁵ “[W]hen it comes to determining legitimate medical purposes of these controlled substances, these drugs have always fallen under the supervision of the states,” Wyden said, “….These state approaches differ from state to state and exist solely under state, not federal authority, without disturbing the federal government’s

jurisdiction.”³⁶ Despite efforts by the chief sponsor of the PRPA in the Senate, Senator Don Nickles (Republican of Oklahoma), to attach the bill to an appropriation measure, Congress adjourned on December 15, 2000, without enacting the PRPA.

34 Pain Relief Promotion Act of 1999, H.R. 2260, 106th Cong. § 101 (1999).

35 Testimony of U.S. Senator Ron Wyden before the Senate Committee on the Judiciary Regarding the Pain Relief Promotion Act, April 25, 2000.

36 Id.

With control of the Senate shifting to the Democrats in the spring of 2001,

opponents of Oregon’s physician-assisted suicide statute shifted strategy and moved from seeking a legislative nullification of the DDA to seeking an administrative reversal of Reno’s earlier interpretation of the CSA. On June 27, 2001, Deputy Assistant Attorney General Sheldon Bradshaw and Special Counsel Robert Delahunty in the Office of Legal Counsel submitted a legal memorandum to Attorney General John Ashcroft concluding that practices authorized by the Oregon DDA do not constitute a “legitimate medical purpose” and therefore violate the CSA.³⁷ On November 6, 2001, Attorney General Ashcroft informed the Administrator of the DEA, Asa Hutchinson, that prescribing drugs intended to kill a terminally ill patient does not constitute a “legitimate medical purpose”

under the Controlled Substances Act, and “prescribing, dispensing, or administering federally controlled substances to assist suicide may render [a physician’s]

registration…inconsistent with the public interest and therefore subject to possible suspension or revocation under [the CSA].”³⁸ Oregon filed suit in federal district court the next day challenging the Ashcroft directive and seeking a temporary restraining order.

The TRO was issued on November 8, and a preliminary injunction followed in two weeks.

37 Memorandum from Sheldon Bradshaw, Deputy Assistant Att’y Gen. & Robert J. Delahunty, Special Counsel, to the Attorney General, U.S. Dep’t of Justice, Washington, D.C. (June 27, 2001).

38 66 Fed. Reg. 56608 (Nov. 9, 2001).

On April 17, 2002, Judge Robert E. Jones granted Oregon’s motion for summary judgment.³⁹ Interestingly, the decision by Judge Jones avoided confronting any major federalism questions, such as the scope of Congress’s power under the Commerce Clause or the reservation of powers to the states under the Tenth Amendment, though the Oregon did argue both points in its briefing to the court. Instead, the court rested its decision entirely on administrative law and statutory interpretation issues, arguing that the statutory language, the legislative history, and the case law surrounding the CSA did not support the Attorney General’s view that he can provide his own interpretation of

“legitimate medical purpose” over and against a state’s regulation of medical practice. “I resolve this case as a matter of statutory interpretation,” wrote Judge Jones, “and my interpretation of the statutory text and meaning is that the CSA does not prohibit

practitioners from prescribing and dispensing controlled substances in compliance with a carefully-worded state legislative act.”⁴⁰

The Ninth Circuit affirmed the district court’s holding that the Attorney General’s directive exceeded the scope of his authority under the CSA, and the Supreme Court agreed. Writing for the Court, Justice Kennedy began by noting that the case involved the underlying moral and political question of assisted suicide, “but its resolution requires an inquiry familiar to the courts: interpreting a federal statute to determine whether

Executive action is authorized by, or otherwise consistent with, the enactment.”⁴¹ After

39 Oregon v. Ashcroft, 192 F. Supp. 2d 1077 (D. Or. 2002).

40 Id. at 1093.

41 Gonzales v. Oregon, 546 U.S. 243, 249 (2006).

summarizing the history of the Interpretive Rule, the Court discussed the thorny

administrative law issues in the case. Most importantly, the Court concluded that the CSA provided the Attorney General with “limited powers, to be exercised in specific ways.”⁴²

Furthermore, the regulatory aims of the CSA are, the Court argued, limited to combating illicit drug trafficking: “Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the [CSA]

manifests no intent to regulate the practice of medicine generally.”⁴³ And while most of Justice Kennedy’s opinion for the Court steered clear of the substantive dispute over physician-assisted suicide, he did conclude on a federalism note: “Just as the conventions of expression indicate that Congress is unlikely to alter a statute’s obvious scope and division of authority through muffled hints, 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.”⁴⁴