Prescription for Chaos

Understanding the Lethal Oregon Case That's Hitting the Supreme Court. Originally published at National Review

The Supreme Court had barely announced that it was accepting the federal government’s appeal of Oregon v. Ashcroft, and the mainstream media was already reporting the story incorrectly. For example, the Associated Press’s lead paragraph about the news stated:

The Supreme Court said Tuesday it will hear a challenge to the nation’s only assisted-suicide law, taking up the Bush administration’s appeal to stop doctors from helping terminally ill patients die more quickly.

If only. In actuality, the case does not challenge the Oregon law that permits physicians to write lethal prescriptions for patients who they believe to be likely to die within six months. Indeed, the Bush administration has never asked any court, anywhere, at any time, to overturn the Oregon law. Thus, even if the federal government prevails 9-0 in Gonzales v. Oregon (renamed because we have a new attorney general), assisted suicide will remain legal in Oregon.

So what’s the fuss all about? This case is actually less about assisted suicide than it is about “federalism.” And it’s more about “federal rights” than it is about “state’s rights” — the extent of the ability of the U.S. government to regulate and apply federal law when a state disagrees — an issue also litigated extensively in recent years with regard to “medical marijuana.”

Here’s how Gonzales v. Oregon came to be: When Oregon voters legalized assisted suicide in 1994, state regulators had a problem. They wanted to authorize doctors to prescribe barbiturates as killing agents. But the federal government regulates the use of these drugs under the Controlled Substances Act (CSA), and under the law, “controlled substances” can only be used for legitimate medical purposes. Thus, while it is generally illegal to possess morphine, it can be prescribed legally to control pain because the federal government deems it to be a legitimate medical use of this narcotic.

Assisted suicide was not even a dark cloud on the horizon when the CSA was passed and thus it doesn’t take assisted suicide into account. But once Oregon legalized assisted suicide, it became important to determine whether controlled substances could be prescribed in Oregon not only to alleviate pain or aid in sleep as in other states, but also to intentionally kill.

The Drug Enforcement Administration issued an opinion (known as an “interpretation”) that assisted suicide is not a legitimate medical use of these drugs with regard to the enforcement of federal law. But Janet Reno overturned this interpretation and issued one of her own in a letter to Representative Henry Hyde (R., Ill.), in which she stated that Oregon doctors who prescribed controlled substances for use in assisted suicide would not be prosecuted — so long as the doctors followed the guidelines established by the Oregon law. Reno also wrote, however, that doctors in other states who prescribed or used controlled substances to kill could still be prosecuted, as could Oregon doctors who violated the terms of Oregon’s assisted suicide law.

Reno’s interpretation was a prescription for anarchy, since, in effect, her approach would permit each state to regulate the CSA, within its borders, at least as it relates to assisted suicide. Consider the chaotic possibilities: Oregon might continue to allow assisted suicide, but only for terminally ill patients. Washington might continue to outlaw assisted suicide altogether. But California, Florida, Arizona, and Vermont might expand the concept to permit people who are disabled and the elderly who are “tired of living,” (a proposal now being debated in the Netherlands) to obtain physician-hastened death using federally controlled substances.

Under Reno’s interpretation, in Oregon, a doctor could issue a lethal prescription for a patient with a terminal illness, but if he prescribed a lethal dose of barbiturates for a nonterminally ill disabled person, the doctor could face federal prosecution. At the same time, in California, Vermont, Arizona, and Florida, his prescription for a similarly situated disabled person would be perfectly legal, while in Washington, prescribing a lethal dosage of a controlled substance for a terminally ill person could lead to federal prosecution.

Federal regulators would need quite a scorecard — theoretically there could be 50 different federal policies with regard to controlled substances and assisted suicide applying in each states.

Enter Attorney General John Ashcroft. Yes, he opposed assisted suicide personally, but he also believed that the CSA should be enforced uniformly throughout the country. Thus, after ordering an extensive legal review to determine whether the federal government has the power to regulate medical practice in the states as it relates to the enforcement of federal law, and learning that indeed there is a long history of the federal government acting in this limited way, Ashcroft issued a new “interpretation” reversing Reno’s and finding that assisted suicide is not a legitimate medical use of controlled substances. Oregon sued, and the rest is history in the making.

If Ashcroft acted wrongly, it was in his failure to promulgate a formal federal regulation to cover assisted suicide and the CSA through the normal administrative processes. That could have provided a solid federal rule, consisting of clear and precise terms to be reviewed by the courts, thereby avoiding the arcane issue that also permeates the case, concerning the level of respect courts must give to administrative interpretations.

Gonzales v. Oregon is one of the most important public-policy cases to come before the Supreme Court in recent years. But we should be clear about what it involves: It isn’t about whether states have the power to legalize assisted suicide. That issue is not before the court. Nor is it a dispute over “states’ rights,” as apologists for assisted-suicide assert. Rather, the Court’s ruling will determine whether the federal courts will resurrect John Calhoun’s long-discredited doctrine of state nullification by permitting states to opt their citizens out of generally applicable regulations with which they disagree.

— Wesley J. Smith is a senior fellow at the Discovery Institute and a special consultant to the Center for Bioethics and Culture. He is the author most recently of Consumer’s Guide to a Brave New World.

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.