GONZALEZ V. OREGON
Oral Argument
Oct. 5, 2005
Health Law Express Special Report
On October 5, 2005, the U.S. Supreme Court heard oral argument in Gonzalez v. Oregon, a case involving physician-assisted suicide. Although physician-assisted suicide raises broad issues of fundamental importance to society, the issue before the Court was a relatively narrow one. The Court was not being asked to determine whether there is a constitutional right to physician-assisted suicide – that issue was already decided in the negative in 1997 with the decision in Washington v. Glucksberg. Instead, the Court was merely being asked to determine whether the Attorney General has the authority to determine that physician-assisted suicide is not a "legitimate medical purpose" under the federal Controlled Substances Act, or whether that decision must be made by Congress or the states. Nonetheless, it was clear from the intense, rapid-fire questioning that this narrow question of statutory interpretation has extremely important implications.
Justice Ginsburg pointed out that the Court's decision in Glucksberg indicated that the legality of physician-assisted suicide was an issue to be decided by the states, and that there was no reason to think that state legislatures were not capable of doing so in a fair and effective manner. In fact, Justice Ginsburg continued, the federal government had represented as much in 1997 in its brief in Glucksberg. She then asked why the federal government now appeared to be changing its position, and taking action that would nullify state law.
In response, counsel for Attorney General Gonzalez (who replaced Attorney General Ashcroft as petitioner in the case) stated that the federal government's action does not nullify the Oregon Act. Physicians in Oregon would be precluded from using federally regulated controlled substances to assist with a patient's suicide, but they could still use other methods. Upon hearing this, Justice Ginsburg objected that these other methods of inducing death are known to be "less gentle" to patients.
With respect to determining whether the Attorney General had the authority to determine that physician-assisted suicide is not a "legitimate medical purpose" under the Controlled Substances Act, much of the questioning focused on the purpose for which the Act had been passed. Counsel for Oregon argued that the Act was intended to prevent drug addiction by precluding the diversion of drugs out of legal channels and into illegal markets. According to Oregon, the Controlled Substances Act was not intended to affect the manner in which physicians use controlled substances if that use is unrelated to drug addiction. Accordingly, the Attorney General does not have the authority to issue a new regulation (or interpret an existing regulation) to prohibit the prescription of controlled substances for physician-assisted suicide.
In response to this argument, Justice Breyer posed a hypothetical question: If a state determined that it was appropriate to permit a physician to prescribe morphine for recreational use, would the Attorney General have the authority to determine that such use violated the Controlled Substances Act? Counsel for Oregon did not attempt to distinguish such prescriptions from those used for physician-assisted suicide. Instead, he maintained logical consistency and simply stated that the Controlled Substances Act would not give the Attorney General the authority to nullify such state determinations.
Counsel for Attorney General Gonzalez took a broader view of the purpose of the Controlled Substances Act. He argued that the Act had been passed to combat the evils of drug abuse generally, and pointed to a provision in the legislative history ("for those of you willing to read legislative history," in a nod to Justice Scalia's distaste for reviewing anything other than the text of a statute or regulation) that referred to "suicides" resulting from drug abuse. Justice Souter rejected this comparison. He noted that the reference to suicide in the legislative history involved those resulting from drug abuse and depression, not from physician-assisted suicide of terminally ill patients.
A number of Justices observed that, regardless of the purpose for which Congress passed the Controlled Substances Act, it clearly did not anticipate the issues raised by physician-assisted suicide. Accepting this, the key question will be whether the Controlled Substances Act nonetheless grants the Attorney General the authority to determine whether physician-assisted suicide constitutes a "legitimate medical practice," or whether such power lies with the states (absent more explicit action by Congress). The answer to this question will no doubt be influenced by the Justices' perceptions of the propriety of physician-assisted suicide and their views on federalism.
One of Justice Kennedy's comments illustrated some of the competing interests members of the Court will be forced to weigh as they reach their decision. He observed that this is a "hard case," but then asked "isn't it odd" that the Attorney General can find that prescriptions for physician-assisted suicide violate the Controlled Substances Act when such prescriptions are specifically authorized by Oregon law.
The Justices asked about a host of related issues as well. Chief Justice Roberts expressed concern over how the federal government would enforce the Controlled Substances Act if the definition of what constitutes a "legitimate medical purpose" depends on the actions of 50 states rather than a single federal actor. Justice Kennedy raised concerns over a "slippery slope" that could result if Oregon is permitted to decide that physician-assisted suicide constitutes a "legitimate medical purpose" under the Controlled Substances Act. For example, other states could attempt to regulate the manner in which controlled substances are used for abortions or capital punishment, with a variety of conflicting rules that impinge on federal law.
Mark Twain or Yogi Berra (two of this author's favorite philosophers) probably said something once about the perils of prognostication, but with a deadline looming there is no time for the crack HLE staff to verify this. Our guess is that the vote will be close, but that the Supreme Court will uphold the Oregon law that permits physicians to prescribe controlled substances for terminally ill patients. Stay tuned.