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State of Chaos

An Assisted-Suicide Ruling Creates Deadly Confusion Published in National Review

A wise man once said, “Don’t believe everything you read in the papers.” That is good advice, especially for stories that involve assisted suicide.

Take the media’s reporting about the lawsuit between the State of Oregon and United States Attorney General John Ashcroft (Oregon v. Ashcroft), which has generally been abysmal. With reporters generally looking with favor upon legalizing assisted suicide and perhaps motivated by a desire to simplify the complex and popularize arcane issues involved in the litigation, media reports almost always manage to get the gist of the case utterly wrong.

A classic example of this phenomenon occurred earlier this month. When the Department of Justice filed an appellate brief in the case (a non news event), the Associated Press misreported the story from the very first sentence, which read, “The Bush Administration asked a federal appeals court Monday to strike down Oregon’s assisted suicide law.”

Not only did the Bush administration not ask the federal appeals court to overturn the Oregon law, it has never asked any court anywhere to strike down Oregon’s law. Indeed, even if Ashcroft prevails in the case, doctors could still assist patient suicides under state law. Moreover, if doctors prescribed drugs to cause death not covered by the Controlled Substances Act (CSA), they would face no federal administrative sanction.

So if the case isn’t the legality of assisted suicide in Oregon, what is it about? No, not “states’ rights” as the media and assisted-suicide advocates claim, but something we don’t often hear much about — “federal rights” — specifically the ability of the United States government to enforce a uniform and nationally consistent standard governing the legitimate medical use of narcotics regulated under the CSA.

Here’s the history: When Oregon’s assisted-suicide-legalization statute went into effect in 1997, it soon became clear that doctors in the state intended to prescribe federally controlled substances — not to treat patients or palliate their pain as the medical uses of these drugs were traditionally permitted under federal law — but to intentionally kill.

Not surprisingly, the Drug Enforcement Administration (DEA) reacted negatively. One of the purposes for regulating drugs controlled by the CSA is to ensure that their use is limited to legitimate medical purposes, which has never heretofore included ending patient lives by intentional prescribed overdose. But because the wording of the regulations do not actually mention assisted suicide, the DEA issued a regulatory “interpretation” informing doctors that prescribing federally regulated substances to assist suicides would not be a “legitimate medical purpose” under federal law. (An administrative interpretation establishes official policy for enforcing government regulations when the words of a pertinent regulation are unspecific or vague about the matter being interpreted.)

But Attorney General Janet Reno disagreed with the DEA. Pulling rank, which was her right, she wrote a letter to Representative Henry Hyde, via which she issued a new and different regulatory interpretation. Under Reno’s policy, a doctor who prescribed controlled substances to facilitate a suicide in a state that had “not authorized the practice,” would be subject to federal sanction under the CSA — just as the DEA had stated. However, Reno permitted states to opt their doctors out of the general federal approach by expressly legalizing assisted suicide. Thus, in effect, Reno permitted each state to regulate federal law, meaning that there could be different federal regulatory policies in effect under the CSA in different states. Congress never contemplated this state-by-state approach to regulation when it created the CSA.

Relying on Reno’s interpretation, a handful of Oregon physicians began to prescribe federally controlled substances for use in assisted suicide. Then two events occurred in 2001 that induced the new attorney general, John Ashcroft, to revise Reno’s regulatory interpretation. First, in a case clearly pertinent to the case at hand, the U.S. Supreme Court of the United States handed down a unanimous ruling (United States v. Oakland Cannabis Buyers Cooperative), which permitted the federal government to enforce the CSA statutory provision outlawing the use of marijuana in California — even though California had explicitly legalized “medical marijuana.” Second, Ashcroft ordered the Justice Department’s Office of Legal Counsel (OLC), to determine whether the Reno or the DEA interpretation to the use of federally controlled substances in assisted suicide was legally correct.

The OLC performed masterfully, producing a 23-page, single-spaced memorandum that extensively reviewed the history and law of suicide and assisted suicide. Yes, the report concluded, “the States are the primary regulators of the practice of medicine,” but “they are not its exclusive regulators.” Since federal public policy and almost all state laws have long opposed assisted suicide, the report opined, prescribing federally controlled substances to intentionally end life was not a “legitimate medical purpose ” for the use of drugs regulated by the CSA. (The OLC Opinion has been published in full in the Spring 2002 Issues in Law and Medicine.) Proving that the Ashcroft approach would not nullify the Oregon law, the OLC memo also conceded that “methods of assisting in suicides in which an Oregon physician does not dispense a controlled substance entails no violation of the CSA.” (Emphasis within the text.)

Relying on Oakland Cannabis Buyers Cooperative and the OLC opinion, Ashcroft decided that the proper legal course was to return national uniformity to the federal enforcement of the CSA, which, after all, is a federal law. Toward that end, he published an interpretation in the Federal Register, informing doctors that, henceforth, prescribing federally controlled substances for use in assisted suicide could cost them their federal privilege to prescribe CSA-regulated drugs. Moreover, in letters to medical associations, Ashcroft made it clear that doctors who had relied on Reno’s previous interpretation would not face federal sanction for previous acts of prescribing federally controlled substances for use in assisted suicide.

To the surprise of no one, Oregon filed suit. The trial court ruled that as a matter of law, Ashcroft was wrong, that the states have the exclusive right to control the practice of medicine within their borders. And since Oregon had legalized assisted suicide, that determination must prevail over any federal view to the contrary — even with regard to determining the proper medical uses of federally controlled substances.

This is no small matter. If the trial-court ruling is upheld on appeal, the power to determine what constitutes a “legitimate medical purpose” for the use of federally controlled substances will be stripped from the federal government and handed to each of the 50 states. Such a result could lead to chaos — at least in the medical context — since there could be 50 different federal policies with regard to controlled substances and assisted suicide applying in each of the 50 different states.

For example, assume the Oregon Death With Dignity Act remained in effect unchanged, allowing assisted suicide for terminally ill patients. Assume further that Washington State continued to outlaw assisted suicide altogether but that California and Florida permitted assisted suicide not only for the terminally ill but also for the severely disabled and for the elderly who are “tired of living.” In Oregon, a doctor could lethally prescribe for a patient with a terminal illness, but if she prescribed barbiturates in lethal dosage for a non-terminally ill disabled person, she could face adverse action from the DEA. At the same time, in California her prescribing for a similarly situated disabled person would not lead to trouble, while in Washington State, prescribing a lethal dosage of a controlled substance for a terminally ill person could result in the doctor losing her prescribing privileges under the CSA.

Nor, it is important to stress, would such chaos be limited to the use of controlled substances for assisted suicide. For example, what if a state passed a law permitting morphine to be used to create euphoria as a “treatment” for depression or anxiety. If states truly have the unlimited right to impose their view on the federal government as to what constitutes a legitimate medical use of federally controlled substances, the federal government would be bound to respect even the most idiosyncratic policy. The result could be the utter disintegration of the CSA and a total fracturing of national drug policy.

Oregon v. Ashcroft is one of the most important public-policy cases in recent years. It isn’t in the least about the legality of assisted suicide in Oregon. It isn’t a fight over “states’ rights.” Rather, the ultimate ruling in this case will determine whether the courts will impose upon the nation John Calhoun’s long-discredited doctrine of state nullification by permitting states to pass laws opting their citizens out of federal laws and regulations with which state lawmakers happen to disagree.

—Wesley J. Smith, an attorney, is a senior fellow with the Discovery Institute and a consultant to the International Task Force on Euthanasia and Assisted Suicide. He recently filed amicus curiae brief in Oregon v. Ashcroft on behalf of Physicians for Compassionate Care.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.