Gonzales v. Oregon *.

• Author: Bostrom, Barry A.
• Position: Nota Bene

HELD: The Controlled Substances Act does not allow the Attorney General to prohibit doctors from prescribing federally regulated drugs for use in physician-assisted suicide under state law permitting prescriptions of lethal drug overdoses upon the request of terminally ill patients.

The Controlled Substances Act (CSA or Act), which was enacted in 1970 with the main objectives of combating drug abuse and controlling legitimate and illegitimate traffic in controlled substances, criminalizes the unauthorized distribution and dispensation of substances classified in any of its five schedules. The Attorney General may add, remove, or reschedule substances only after making particular findings, and on scientific and medical matters, he must accept the findings of the Secretary of Health and Human Services (Secretary).

The dispute here involves controlled substances listed in Schedule II, which are generally available only by written prescription, 21 U.S.C. [section] 829(a). A 1971 regulation promulgated by the Attorney General requires that such prescriptions be used "for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." 21 CFR [section] 1306.04. To prevent diversion of controlled substances, the CSA regulates the activity of physicians, who must register in accordance with rules and regulations promulgated by the Attorney General. He may deny, suspend, or revoke a registration that, as relevant here, would be "inconsistent with the public interest." 21 U.S.C. [subsection] 824(a)(4), 822(a)(2). In determining consistency with the public interest, he must consider five factors, including the State's recommendation, compliance with state, federal, and local law regarding controlled substances, and "public health and safety." [section] 823(f). The CSA explicitly contemplates a role for the States in regulating controlled substances. See [section] 903.

The Oregon Death With Dignity Act (Oregon Act) exempts from civil or criminal liability state-licensed physicians who, in compliance with Oregon's specific safeguards, dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient. In 2001, the Attorney General issued an Interpretive Rule to address the implementation and enforcement of CSA with respect to the Oregon Act, declaring that using controlled substances to assist suicide Ks not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the CSA. The State, a physician, a pharmacist, and some terminally ill state residents challenged the Rule. The District Court permanently enjoined its enforcement. The Ninth Circuit invalidated the Rule, reasoning that, by making a medical procedure authorized under Oregon law a federal offense, it altered the balance between the States and the Federal Government without the requisite clear statement that the CSA authorized the action; and in the alternative, that the Rule could not be squared with the CSA's plain language, which targets only conventional drug abuse and excludes the Attorney General from medical policy decisions.

As the Court observed in Glucksberg, "Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide." Washington v. Glucksberg, 521 U.S. 702,735 (1997). This dispute is in part a product of this political and moral debate, 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.

In 1997, members of Congress concerned about the Oregon Act invited the Drug Enforcement Agency (DEA) to prosecute or revoke the CSA registration of Oregon physicians who assist suicide. They contended that hastening a patient's death is not legitimate medical practice, so prescribing controlled substances for that purpose violated the CSA. The letter received an initial, favorable response from the director of the DEA, but Attorney General Reno considered the matter and concluded that the DEA could not take the proposed action because the CSA did not authorize it 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 2001, John Ashcroft was appointed Attorney General. Perhaps because Mr. Aschcroft had supported efforts to curtail assisted suicide while serving as a Senator, Oregon Attorney General Hardy Myers wrote to him to request a meeting with Department of Justice officials should the Department decide to revisit the application of the CSA to assisted suicide. On November 9, 2001, the Attorney General Ashcroft issued an Interpretive Rule announcing his intent to restrict the use of controlled substances for physician-assisted suicide (PAS). Incorporating the legal analysis of a memorandum he had solicited from his Office of Legal Counsel, the Attorney General ruled:

[A]ssisting suicide is not a "legitimate medical purpose" within the meaning of 21 CFR 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the...