When 'life' and liberty clash.

In Gonzales v. Oregon, the Supreme Court upheld Oregon's assisted-suicide law against a Department of Justice (DOJ) attempt to thwart it. The DOJ had suspended the federal prescription-writing privileges of doctors who prescribed lethal drugs to their patients under the new law. (1)

While the Court's 6-3 decision seemed to hinge on dry principles of administrative law (as did the main dissent), it was "clearly influenced by the majority's view that the regulation of medical practice belonged, as a general matter, to the states," as the New York Times wrote. (2) But the decision also paved the way for Congress--rather than the attorney general--to invalidate similar laws in the future.

Last term, in Gonzales v. Raich, (3) the Court acknowledged Congress's power under the Controlled Substances Act (CSA) to ban personal possession of marijuana for medical use, even if such possession is legal under state law, as part of a federal law-enforcement scheme against "dangerous" drugs. (4) (Congress's power to ban possession of marijuana with the intent to distribute was not in question.)

Unlike Raich, the Oregon decision involved prescription drugs that were legal under the CSA when prescribed by a physician "for legitimate medical purposes." (5) The essence of the dispute was that Oregon declared that helping terminally ill patients commit suicide was a legitimate medical purpose under the CSA, but then-Attorney General John Ashcroft--and his successor, Alberto Gonzalez--said it was not. The Raich case hinged on the narrow issue of the attorney general's authority to make that determination on his own. The Court ruled that he could not.

The majority opinion, written by Justice Anthony Kennedy, began by observing that in Washington v. Glucksberg, (6) the Court held that there was no constitutional "right to die." States could criminalize both suicide and assisting suicide. Oregon considers the opposite side of that coin: whether states can, over federal opposition, permit doctors to help their terminally ill patients commit suicide. The Oregon ruling's clear implication is that if federal opposition is clearly stated in a statute, then the federal government can forbid use of federally controlled drugs for the purpose of assisting suicide. But the Court also affirmed that the CSA does not let the attorney general take that step on his own authority.

In particular, the Court noted, "the CSA explicitly contemplates a role for the states in regulating controlled substances," providing that state law should govern unless there is a "positive conflict" between state law and the CSA. (7) Nevertheless, on November 9, 2001, Ashcroft, "without consulting Oregon or apparently anyone outside his department," issued an interpretive rule declaring that the drugs in question could not be used to help patients commit suicide. (8)

The state, joined by physicians and other affected parties, sought to enjoin enforcement of the attorney general's rule in federal court. The Oregon district court issued an injunction, (9) the Ninth Circuit affirmed, (10) and the case proceeded to the Supreme Court.

Is deference due?

The DOJ argued that the attorney general's interpretive rule was entitled to deference under established principles of administrative law. The Court rejected this argument, noting that "deference ... is warranted only 'when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.'" (11)

While the Court agreed that the phrase "legitimate medical purpose" was ambiguous, it held that the attorney general could not "make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law." (12) The Court's language is not ambiguous at all. "The structure of the CSA," the opinion concluded, "conveys unwillingness to cede medical judgments to an executive official who lacks medical expertise." (13)

In a dissent joined by Chief Justice John Roberts and Justice Clarence Thomas, Justice Antonin Scalia also relied on principles of administrative law. In his view, "the attorney general's interpretation of 'legitimate medical purpose' ... is clearly valid, given the substantial deference we must accord it under [previous cases]." (14) And even if the interpretation warrants no deference, "it provides the most natural interpretation of the regulation" (which also uses the term "legitimate medical purpose"). (15) Scalia argued convincingly that "the overwhelming weight of authority in judicial decisions, the past and present policies of nearly all of the states and of the federal government, and the clear, firm, and unequivocal views of the leading associations within the American medical and nursing professions, establish that assisting in suicide ... is not a legitimate medical purpose." (16)

The state of Oregon clearly has a contrary view. As it argued, and the Court agreed, the CSA's intention is to cede such judgments to the states, not the attorney general. This finding is what led former Attorney General Janet Reno, under pressure from certain members of Congress to stop Oregon physicians from prescribing lethal doses of drugs, to declare that the CSA did not authorize her 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." (17) Indeed, as the majority opinion notes, legislation was introduced in Congress to give the attorney general this authority, but it did not pass. (18) Under these circumstances, it is difficult to sustain the DOJ's argument.

Thomas issued a separate dissenting opinion that missed, or ignored, the distinction between this case and Raich, which concerned medical marijuana. He claimed that Oregon was inconsistent with Raich and represented a "hasty retreat" from the Raich holding. (19)

But Oregon is consistent with Raich, because it implicitly concedes that Congress has the power to criminalize the prescription of certain drugs--whatever Oregon's views may be on that subject--which is exactly what Raich held. The implicit holding seems to extend federal power even further than Raich did. The latter involved federal prohibition of drugs that have always been illegal, while Oregon involves legal drugs. The holding in Oregon, therefore, invites Congress to interfere with physicians' prescribing authority, perhaps by banning these drugs entirely because of their lethal potential. This is much more than Raich authorized.

Those celebrating the Oregon ruling as a triumph of personal liberty over the government's attempts to advance "a culture of life," as the White House puts it, (20) should keep their champagne bottles corked. Still, as of this writing, there doesn't seem to he any movement afoot in Congress to amend the CSA.

Voting patterns

The differences between Raich and Oregon also explain the very different voting patterns in the two cases. Raich was all about federalism and the continuing vitality of the limits on congressional power imposed by two earlier cases, United States v. Lopez (21) and United States v. Morrison. (22) In those cases, the Court held that congressional statutes based on the Commerce Clause must actually involve commerce.

In Raich, the socially conservative justices--surely those most opposed to any legalization of drugs--were put in the odd position of voting to uphold the California medical-marijuana scheme on states' rights grounds. By contrast, the more liberal justices, anxious to weaken Lopez, voted against the California scheme. Only Kennedy and Scalia voted with the majority in both Lopez and Raich, presumably because their distaste for legalizing marijuana outweighed their concerns about federalism.

In this case, the big federalism questions were not at stake. Congressional power was conceded by all, and the justices felt free to vote according to their social predilections. (I can't believe that the voting lineup in this case simply reflected differing views about statutory interpretation, as the opinions claimed.) As a result, the most socially conservative justices, including the new chief justice, were happy to defer to Ashcroft's determination that assisted suicide was not a "legitimate medical purpose."

By contrast, the social liberals, including Justices Sandra Day O'Connor and Kennedy, who don't like to interfere with states' laws unless they have to, were pleased to reject Ashcroft's views and uphold Oregon's assisted-suicide scheme on the narrow grounds of administrative law.

Notes

(1.) 126 S. Ct. 904 (2006).

(2.) Linda Greenhouse, Justices Reject U.S. Bid to Block Assisted Suicide, N.Y. TIMES, Jan. 18, 2006, at A1.

(3.) 125 S. Ct. 2195 (2005).

(4.) See Craig M. Bradley, What Ever Happened to Federalism?, TRIAL, Aug. 2005, at 52 (criticizing this holding).

(5.) 21 U.S.C. [section] 830 (b) (3) (A) (ii) (2000).

(6.) 521 U.S. 702 (1997).

(7.) Oregon, 126 S. Ct. 904, 912.

(8.) Id. at 913.

(9.) Id. at 914.

(10.) Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004).

(11.) Oregon, 126 S. Ct. 904, 914-15 (quoting United States v. Mead Corp., 533 U.S. 218,226-27 (2001)).

(12.) Id. at 916.

(13.) Id. at 921.

(14.) Id. at 926 (Scalia, J., dissenting) (citations omitted).

(15.) Id. at 931. See also 21 C.F.R. [section] 1306.04 (2005).

(16.) Oregon, 126 S. Ct. 904, 932 (quoting a Justice Department memo).

(17.) Id. at 913 (majority opinion) (quoting letter from Attorney General Janet Reno to Sen. Orrin Hatch (R-Utah)).

(18.) Id.

(19.) Id. at 939 (Thomas, J, dissenting).

(20.) Scott McClellan, White House Press Secretary, Statement in Response to Gonzales v. Oregon, quoted by Greenhouse, supra note 2.

(21.) 514 U.S. 549 (1995).

(22.) 529 U.S. 598 (2000).

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].