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Ninth Circuit Says AG Exceeded Authority In Issuing Rule That Physician-Assisted Suicide Violates Controlled Substances Act


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 care."

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).


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