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U.S. Supreme Court Says AG Lacks Authority Under Federal Drug Law To Block Oregon Statute Allowing Physician-Assisted Suicide


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 Thomas, dissented.

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 warranted.

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 opinion.

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 medical purpose.�

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 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.

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