ASHCROFT V. OREGON:
Telling The States What To Do In Cases Of Physician-assisted Suicide

By MICHAEL C. DORF
Wednesday, Nov. 14, 2001

Last week, Attorney General John Ashcroft directed the Drug Enforcement Agency to investigate and prosecute Oregon doctors who prescribe life-ending medication to terminally ill patients. The action is to take place pursuant to the federal Controlled Substances Act. Yet state law makes physician-assisted suicide legal in Oregon.

Almost immediately, federal judge Robert Jones issued an order enjoining enforcement of the new policy until November 20, so that he could take evidence and hear further arguments about the policy.

Ashcroft's decision, which reverses the policy of former Attorney General Janet Reno, raises difficult questions of statutory and constitutional interpretation. However the courts ultimately resolve those issues, the decision is vulnerable as a matter of public policy. There can be legitimate grounds for federal law displacing state law. But the Oregon experience does not justify federal intervention on this issue.

The Supreme Court has decided to leave the physician-assisted suicide issue to the states, and Ashcroft, who is a proponent of federalism, ought to follow the Court's lead on this issue.

Physician-Assisted Suicide: The Court Stays Agnostic

In 1997, the U.S. Supreme Court rejected constitutional challenges to laws barring physician-assisted suicide in the states of New York and Washington.

In Washington v. Glucksberg, the Court concluded that the states had legitimate interests justifying their bans. Those interests include the sanctity of all human life, ensuring the integrity of the medical profession, and preventing patients from succumbing to the pressure to end their lives that might result from a regime of legalized assisted suicide.

Although the Court in Glucksberg did not find the arguments for physician-assisted suicide sufficient to establish a constitutional right, neither did it say that states are required to prohibit physician-assisted suicide. And indeed, there are sound policy grounds for thinking the practice should be legal.

Most fundamentally, libertarians object to the government imposing a conception of life's sanctity on a person whose very own life is at stake. In addition, there is an efficacy question: anonymous surveys show that doctors in most states already act to speed the deaths of their terminally ill patients, but clandestinely and without regulation; legalizing the practice could prevent the problems associated with secrecy. Finally, laws barring physician-assisted suicide can lead to inadequate pain medication by doctors who fear that their intent will be misinterpreted. Granted, most states formally permit doctors to prescribe sufficient doses of narcotics to treat a dying patient's pain even if that will have the "side effect" of hastening death. Yet despite this formal permission, doctors often undermedicate because they fear criminal penalties if they are deemed to have crossed the hazy line between treating pain and assisting suicide.

Because of the complexity of the issue, the Justices concluded that the Constitution does not dictate one answer or another. Writing for the majority in Glucksberg, Chief Justice Rehnquist observed: "Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society."

Oregon's Death With Dignity Act

So far, the debate over physician-assisted suicide has been rather one-sided. Forty-nine states prohibit doctors (or anyone else) from dispensing controlled substances for the purpose of ending a patient's life.

Oregon is the exception. In 1994, 51% of Oregon voters approved a referendum establishing the state's Death With Dignity Act.

Lawsuits delayed the Act's implementation for several years. The state legislature also sought the Act's repeal. But in 1997, 60% of Oregon voters opted to retain it. The Act has been in effect since then.

The Death With Dignity Act legalizes physician-assisted suicide, but only under tightly restricted circumstances. For example, it does not permit doctors themselves to administer lethal medication in the manner practiced by Dr. Jack Kevorkian.

Instead, a physician can prescribe a lethal dose of medication to a terminally ill patient who then decides if and when to use it. Self-administration, the law's defenders say, helps ensure that the patient is acting voluntarily.

There are other restrictions as well. For instance, a patient's request for lethal medication must be in writing and signed before two witnesses who confirm that the patient is acting voluntarily. Furthermore, the Act requires that before such a prescription can be given, two physicians must examine the patient and his or her medical records and confirm that the patient suffers from "an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months."

Even then, the prescription may not be written until 48 hours after the written request and fifteen days after the patient's first oral request — effectively creating waiting periods during which a patient can change his or her mind, and in which relatives or friends can intervene to argue against suicide if they choose.

A Conflict Between Federal Law and the Oregon Act?

Under the Supremacy Clause of the U.S. Constitution, when there is a conflict between federal law and state law, federal law prevails. Attorney General Ashcroft takes the position that Oregon's Death With Dignity Act must give way to the federal Controlled Substances Act or "CSA."

The CSA is the principal federal drug law. It classifies drugs into five "schedules." Some drugs, such as heroin and LSD, are placed in schedule I, meaning they have no legal uses.

As the CSA recognizes, however, many other drugs have "a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people." Therefore, most controlled substances can be lawfully dispensed by physicians.

According to Attorney General Ashcroft, prescribing a controlled substance to facilitate a patient's suicide is not a "legitimate medical purpose" within the meaning of the CSA. Thus, his new policy would treat a doctor who fills a patient's request under Oregon's Death With Dignity Act as violating the terms of the federal license to prescribe controlled substances.

The immediate practical result for an Oregon physician would be the loss of the ability to prescribe medicine and the possibility of a prison sentence. In other words, the Attorney General's reading of the CSA would have the practical effect of voiding Oregon's Death With Dignity Act, because few if any Oregon physicians would be willing to risk delicensing and prison.

By temporarily enjoining enforcement of the new policy, Judge Jones signaled that there is a substantial possibility that, after a full hearing, he will reject Ashcroft's interpretation of the CSA, which is somewhat strained.

After all, former Attorney General Reno read the CSA differently. Even though the Clinton Administration generally opposed physician-assisted suicide, in 1998 Reno declared: "There 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."

Even if former Attorney General Reno had the better view of the CSA, there is still a chance that Attorney General Ashcroft will prevail before Judge Jones or on appeal to the Ninth Circuit Court of Appeals or the Supreme Court. In part, that is because executive officials charged with enforcing federal law are generally given some deference to interpret the law as they see fit, at least where the statutory language is ambiguous.

It would not be surprising, therefore, if further arguments over the CSA's effect on the Death With Dignity Act focus not so much on what the CSA means, as on whether that meaning is clear. If the courts hold that its meaning is not clear, then Ashcroft's interpretation could prevail because of the deference the law affords him (as would the possible contrary interpretation of a future attorney general, who would be entitled to the same deference in holding a different view).

We can also expect Oregon to argue that the CSA should be narrowly construed to protect state sovereignty. The state will likely invoke recent decisions of the Supreme Court that cut back on the scope of Congressional power to regulate interstate commerce.

When Should Federal Law Displace State Law?

Defenders of the Oregon law, including some people who personally oppose legalized physician-assisted suicide, have accused the Bush Administration of hypocrisy. Does the Attorney General only favor states' rights when the states are exercising their rights in a manner that pleases him and the President?

In order to evaluate the hypocrisy charge, one needs some way of distinguishing appropriate from inappropriate federal action. Even someone who believes strongly in state sovereignty will allow that there are circumstances when federal policy should prevail. The relevant question is whether those circumstances are present here.

Does Oregon's Act Affect Other States?

One valid reason for federal regulation is that actions in one state can have substantial effects on other states. For example, if heroin sales were completely legal in Oregon, other states' efforts to combat heroin sales would be severely undermined. Heroin legally sold in Oregon would become illegal heroin elsewhere in the country.

Is there a similar risk with the lethal medication prescribed under Oregon's Death With Dignity Act? Not really.

The Act's restrictions mean that a very small quantity of drugs is being dispensed and the Act's reporting requirements make it relatively easy to trace those drugs that are dispensed.

Nor is there a worry that Oregon will become a magnet for people who want to evade their own states' prohibitions on physician-assisted suicide. The Act only permits prescription of lethal medication to patients who can prove that they are Oregon residents.

Does Oregon's Act Contravene Fundamental National Values or Policies?

Federal legislation may also be desirable if a state policy contravenes some fundamental value. If Oregon were to legalize slavery, we would see nothing wrong with the federal government overriding that choice.

Of course, the Constitution itself prohibits slavery, and the federal government would be acting under its aegis. By contrast, as the Supreme Court recognized in Glucksberg, the Constitution is silent on the question of physician-assisted suicide.

Still, something can be a matter of fundamental national policy even if it is not in the Constitution. Federal statutes prohibiting private discrimination on the grounds of age, disability, national origin, race, religion, and sex all go further than the Constitution itself requires; yet no one now doubts their validity.

Here too, however, physician-assisted suicide is different. No federal statute clearly prohibits the practice. On the contrary, two years ago the House of Representatives passed a bill that would have directly superseded the Oregon law, but the bill died in the Senate.

That fact is significant. More than any other institution, the Senate is the federal body that represents the states. If federal law is to displace the choice of the Oregon voters, it should be through a federal law that has passed the Senate. In bypassing both the voters of Oregon and Congress, Attorney General Ashcroft is attempting to short-circuit the democratic process that the Supreme Court invited in Glucksberg.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University. In the Glucksberg case, he represented a group of state legislators that urged the Supreme Court to invalidate the Washington and New York blanket bans on physician-assisted suicide but also to leave the states with authority to regulate the practice in the manner of Oregon's Death With Dignity Act.

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