Media reports about the assisted suicide case pending in the Supreme Court have been about as accurate as their stories about the “chaos” in New Orleans in the immediate aftermath of Hurricane Katrina: Much of what you were told is plain wrong.
We often read, for example, that the case is about “state’s rights” because the Bush Administration is seeking to “invalidate” Oregon’s law that permits physician-assisted suicide. False. Even if the U.S. prevails in Gonzales v. Oregon, assisted suicide will remain completely legal in Oregon.
Gonzales involves a lawsuit filed by Oregon (not the Bush Administration) after former Attorney General John Ashcroft declared that assisted suicide is not a “legitimate medical purpose” for the use of federally controlled substances (narcotics). These drugs (and marijuana) are regulated nationally by the federal government under the Controlled Substances Act (CSA).
The law prohibits drug abuse. But it recognizes that some of these substances have important medical uses. For example, morphine is a potent controller of pain. Barbiturates are potent sleep aids. Thus, the law permits doctors to prescribe controlled substances, but only for legitimate medical purposes.
But Ashcroft understood that treating pain or aiding sleep is not the same thing as killing. Thus, he published a notice in the Federal Register (known as an “interpretation”) declaring assisted suicide to be an illegitimate use of controlled substances and warning that doctors who prescribe them for the explicit purpose of causing death could face federal penalties.
Oregon sued on the basis that Ashcroft’s interpretation interfered with its right to control medical practice within Oregon’s borders. Lower courts agreed. But then the Supreme Court took the case and so now, all bets are off.
How will the case turn out? My crystal ball is cloudy but all things being equal, the Feds should win. The Supreme Court has twice ruled in medical marijuana cases that even if a state legalizes “medical marijuana,” that doesn’t prevent the federal government from enforcing its own laws against marijuana use. Thus in a state like California is free to permit medical use of cannabis, but at the same time, the federal government is free to pursue its own law enforcement policies unimpeded by state policies to the contrary.
If the Feds can enforce prohibitions against using marijuana, even though some claim it can alleviate pain, why in the world would the Court not similarly permit the government to preclude the use of other controlled substances when prescribed to intentionally kill?
It is true that there are some technical differences between the marijuana cases and the Oregon litigation: the CSA explicitly states that marijuana has no legitimate use, while the federal law says nothing about assisted suicide. Still, this should be a difference without a significant distinction. When a law is silent on an issue as crucial as assisted suicide, administrators are allowed to interpret the relevant statutes and regulations and the courts are duty-bound to give deference to these views absent clear abuse.
Of course, none of this means that the government will necessarily win. Assisted suicide, far more than medical marijuana, is deeply steeped in the politics of the “culture war.” As we have seen in past hyper-politicized cases, the result desired by justices sometimes counts more than judicial consistency, precedent, and even a proper application of the law and the Constitution. Perhaps the best advice is to follow the advice given by Betty Davis in the classic movie All About Eve: Fasten your seat belts. It is going to be a bumpy ride.
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