The debate over Oregon.
November 19, 2001 8:45 a.m.
By Carla T. Main, an attorney and an associate editor/legal at The National Law Journal.
he Oregon law that legalized assisted suicide, the so-called Death with Dignity Act, may be having its own death throes now. On November 6, 2001, Attorney General Ashcroft advised the DEA that dispensing controlled substances for purposes of assisting a suicide was not a "legitimate medical purpose" within the meaning of the Controlled Substances Act (CSA), the federal law that regulates the sale and dispensing of narcotics. Ashcroft gave the DEA the green light to revoke a physician's DEA registration if he writes a prescription for a massive dose of narcotics with the intent of helping a person commit suicide, even if such conduct is permitted under state law.
Hardy Myers, the attorney general of Oregon, wasted no time in bringing a lawsuit to have the directive declared unconstitutional. Additional plaintiffs have intervened, including a doctor, a pharmacist, and three people who may want to kill themselves with a doctor's help. The state swiftly got an injunction from the federal district court in Oregon, temporarily enjoining the federal government from enforcing Ashcroft's interpretation of the CSA. The parties agreed in a court conference on November 15 to continue the temporary order until the court rules on the underlying preliminary injunction motion. A hearing is set for November 20th.
Oregon's challenge to Ashcroft's directive poses a dicey dilemma for conservatives. Most would like to see an end to state-sanctioned mercy killing. The American Medical Association, the American Psychiatric Association, religious groups, and advocates for the disabled, which have spoken out in opposition to euthanasia, would agree. The vast majority of states have laws prohibiting assisted suicide. However, Oregon claims that Ashcroft's directive unconstitutionally treads on states' rights, raising federalism questions under the Commerce Clause and the 10th Amendment.
The state's federalism position may not hold up once the case gets to the Supreme Court, where it is likely headed. Oregon argues that "the CSA, and its implementing regulations, do not define what medical purposes are 'legitimate.' Traditionally, that determination has been left to the States," and that such authority goes beyond Congress's intent in enacting the CSA. The state takes the position that if Congress authorized the federal government to decide what constitutes a legitimate medical purpose in enforcing the CSA, then Congress overstepped its bounds and the CSA itself is unconstitutional.
The inquiry into "traditional state's authority" according to Michael Greve, the John G. Searle Scholar and director of the Federalism Project at the American Enterprise Institute, "doesn't answer the federalism question — ever." Just because Congress didn't regulate an area in the past, "doesn't mean they couldn't ever do it. The real question," he says, "is does Congress have the authority, yes or no, under the Commerce Clause." It has long been clear that medical practice impacts interstate commerce and therefore may be regulated by the federal government (as the CSA already does in part), although primary regulation of medicine has been left largely to the states. However, Oregon maintains that when a physician prescribes a controlled substance for a patient to use in committing suicide, that act is so limited and intimate that it is not a part of interstate commerce, and therefore not subject to federal regulation. Oregon compares it to the question of gun possession in United States v. Lopez. In Lopez, the high court struck down a law making it a federal crime to carry a gun within 100 yards of a school, finding the law beyond the scope of the Commerce Clause, which does not regulate "things" alone. But assisted suicide involves prescribing and dispensing a drug from a pharmacy, quite arguably a commercial transaction within the meaning of the Commerce Clause.
Anxiety is already running high. Will Ashcroft's directive have an unintended chilling effect on palliative care given by doctors to dying patients all over the country? The directive expressly states there is to be no change in enforcement policies outside of Oregon, and even within Oregon only with respect to assisted suicide, not palliative care. Some maintain, though, that it is a fine line between giving morphine to a dying patient — without the intent to kill — and assisted suicide. To nip this kind of hysteria in the bud requires brutal honesty about the Oregon law. It allows doctors to prescribe a lethal dose (e.g., 50 or 60 pills), to be taken all at once (outside of a doctor's presence) by a patient who may yet have six months to live. The pills can result in convulsions, vomiting, and a coma. Websites on assisted suicide suggest having a plastic bag on hand, large enough for asphyxiation, to finish the job. The death is obvious, but where's the dignity? When the Supreme Court parses this out, one hopes it keeps in mind the words of a 1963 case: "[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact."