HLD, v. 32, n. 7 (July 2004)
Ninth Circuit Says AG Exceeded Authority In Issuing Rule That
Physician-Assisted Suicide Violates Controlled Substances Act
The state of Oregon, a physician, a pharmacist, and several terminally
ill people (plaintiffs) petitioned for review of Attorney General (AG) John
Ashcroft's interpretive rule (Ashcroft Directive) declaring that physician-assisted
suicide violates the Controlled Substances Act (CSA), 21 U.S.C. �� 801-904.
Oregon has a law, the Death with Dignity Act (Act), which allows for physician-assisted
suicide by authorizing a physician to prescribe lethal doses of controlled substances
for terminally ill patients.
The Ninth Circuit held the Ashcroft Directive was invalid because
it exceeded the AG's authority. As an initial matter, the appeals court noted
it has jurisdiction over any final determinations under the CSA, and the AG's
rule is a final determination because it provides sanctions for violations.
The appeals court said the Ashcroft Directive is intended to interpret and implement
the CSA, which Congress enacted to deal with drug abuse. The CSA criminalizes
the unlawful prescribing or dispensing of controlled substances without the
proper federal registration, and the AG can revoke a doctor's registration under
certain limited circumstances.
In 1984, Congress amended the CSA to give the AG broader authority
to revoke a physician's registration for acts that are "inconsistent with the
public interest," but provided for continued deference to state licensing authorities.
A court must look to Congress' intent in delegating power to the AG, said the
appeals court, but generally an AG "may not exercise control over an area of
law traditionally reserved for state authority, such as regulation of medical
The appeals court concluded the Ashcroft Directive violated the
CSA because Congress did not authorize the AG to regulate physician-assisted
suicide and the Directive exceeded the AG's power to revoke a physician's privilege
to write prescriptions. The CSA regulates the practice of medicine to a limited
extent in connection with drug abuse, and the AG's role and powers under the
CSA are very limited, said the appeals court. The CSA provides five factors
the AG must consider before determining whether to revoke a physician's prescription
writing privileges and in this case the AG only considered one factor in determining
that physician-assisted suicide was inconsistent with the public interest. The
appeals court found that the Ashcroft Directive conflicted with the CSA on at
least three of the factors, and therefore the AG exceeded the scope of his authority.
The AG ignored the plain language of the CSA, exceeded his delegated authority,
and attempted to regulate an area in which he should have deferred to the states,
said the appeals court. Accordingly, the appeals court granted the petition
for review. A dissent said that the AG's directive should have been given deference,
and that it did not exceed the AG's authority or incorrectly interpret the CSA.
Oregon v. Ashcroft, No. 02-35587 (9th Cir. May 26, 2004).