U.S. Supreme Court Says AG Lacks Authority Under Federal Drug Law
To Block Oregon Statute Allowing Physician-Assisted Suicide
In a 6-3 decision issued January 17, the Supreme Court held the U.S.
Attorney General lacked the power to declare physician-assisted suicide
violates a federal law aimed at preventing drug trafficking.
The controversial ruling essentially clears the way for physicians in
Oregon to provide such aid under a state law that immunizes them from
civil or criminal liability for prescribing lethal doses of certain
drugs to terminally ill patients who want to end their lives.
Affirming a Ninth Circuit decision, the U.S. Supreme Court, in an
opinion authored by Justice Anthony Kennedy, held the U.S. Attorney
General (AG) overstepped his authority in issuing an interpretative rule
declaring that physician-assisted suicide violates the federal
Controlled Substances Act (CSA), 21 U.S.C. �� 801-904.
Oregon has a law on the books�the Death With Dignity
Act�that allows physicians to prescribe lethal drug doses provided
certain conditions are met to help their terminally ill patients
die without fear of legal repercussions.
Former AG John Ashcroft took aim at the Oregon law by issuing a
directive in November 2001 saying physicians could be subject to
possible suspension or revocation of their drug registration if they
prescribed or dispensed Schedule II drugs to terminally ill patients for
the purpose of suicide �regardless of whether state law authorizes
or permits such conduct.�
The state of Oregon, along with a physician, a pharmacist, and some
terminally ill patients challenged the AG's interpretative rule.
Oregon�s Death With Dignity Act was passed in 1994 and reaffirmed
in 1997. A divided panel of the Ninth Circuit concluded the directive
could not stand because it ignored the plain language of the CSA,
exceeded the AG�s delegated authority, and attempted to regulate
an area that should have been left to the states.
The U.S. Supreme Court affirmed, with retiring Justice Sandra Day
O�Conner, and Justices John Paul Stevens, David Souter, Ruth Bader
Ginsburg, and Stephen Breyer joining in the majority opinion. Justice
Antonin Scalia, joined by Chief Justice John Roberts, Jr. and Clarence
The High Court first determined that the interpretative rule was not
entitled to substantial deference. Although the government argued that
the interpretative rule should be given deference under Auer v.
Robbins, 519 U.S. 452 (1997), because it provided further
elaboration on AG regulations already in place that require
prescriptions be issued �for a legitimate medical purpose,�
the High Court disagreed. According to the opinion, the underlying
regulation essentially �parrot[s]� the language of the CSA
itself and therefore special deference under Auer was not
The High Court also found the rule was not entitled to deference
under Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), because it was not promulgated in
accordance with the authority delegated by Congress to the AG in the
CSA. Under the CSA, the AG has authority to promulgate rules concerning
�control,� �registration,� and �for the
efficient execution of his functions� with respect to the statute,
the Court noted. The interpretive rule flows from none of these
enumerated bases for issuing rules under the CSA, said the majority's
In particular, the Court noted that the directive could not be
justified based on 1984 amendments to the CSA that gave the AG broader
authority to revoke a physician's registration for acts that are
"inconsistent with the public interest.�
�The Interpretive Rule thus purports to declare that using
controlled substances for physician-assisted suicide is a crime, an
authority that goes well beyond the Attorney General�s statutory
power to register or deregister,� the opinion found. To hold
otherwise, said the Court, would give the AG far-reaching power
�to criminalize even the actions of registered physicians,
whenever they engage in conduct he deems illegitimate.�
Moreover, the Court noted, the CSA splits authority under the statute
between the AG and the Department of Health and Human Services
Secretary, which further supports the conclusion that the AG does not
have unfettered authority under the law.
�The structure of the CSA, then, conveys unwillingness to cede
medical judgments to an Executive official who lacks medical
expertise,� Kennedy wrote. And the interpretative rule involves
extensive reliance on medical judgments and the views of the medical
community in concluding that assisted suicide is not a �legitimate
After determining the interpretative rule was not entitled to
heightened deference, the Court found the AG�s interpretation
unpersuasive. Congress� intent in the CSA was to bar doctors from
using their prescription-writing power for drug trafficking. The statute
is silent on general regulation of the practice of medicine and gives
states wide berth in this area, noted the opinion.
�The text and structure of the CSA show that Congress did not
have this far-reaching intent to alter the federal-state balance and the
congressional role in maintaining it,� the majority concluded.
In his dissenting opinion, Scalia argued that the AG�s
interpretation of �legitimate medical purpose� was clearly
valid. Scalia concluded that the directive was entitled to substantial
deference, and added that regardless of whether any deference was
accorded the rule, the AG�s interpretation was valid even
under de novo review.
�In sum, the Directive�s construction of
�legitimate medical purpose� is a perfectly valid agency
interpretation of its own regulation; and if not that, a perfectly valid
agency interpretation of the statute.�
Gonzales v. Oregon, No. 04-623 (U.S. Jan. 17, 2006). To read
the case, go to http://www.healthlawyers.org/News Center/Health Lawyers Weekly&CONTENTFILEID=7133&TEMPLATE=/MembersOnly.cfm.
See also Gonzales v. Oregon, No. 04-623 (U.S. Jan. 17,
2006), under INDIVIDUAL/PATIENT RIGHTS for a decision holding U.S. AG
lacks authority under federal drug law to block to block Oregon statute
allowing physician-assisted suicide.