Assisted suicide: Court strikes down Ashcroft directive

In April 2002, a federal district judge in Oregon struck down a directive issued by U.S. Attorney General John Ashcroft declaring that assisting suicide is not a legitimate medical purpose under the Controlled Substances Act.1 In Oregon v. Ashcroft, Judge Robert E. Jones enjoined the Department of

Justice from enforcing, applying, or otherwise giving any legal effect to the Ashcroft directive.2 The case is currently on appeal to the Ninth Circuit. The Ashcroft directive would subject doctors and pharmacists who knowingly dispense controlled substances to assist patients who plan to commit suicide to penalties for violating the Controlled Substances Act. The directive, which was issued in an effort to nullify Oregon's controversial Death With Dignity Act, would have the additional effect of establishing a precedent for federal standards defining the legitimate practice of medicine.

The Controlled Substances Act

Congress enacted the Controlled Substances Act (CSA) in 1970 to create a comprehensive federal scheme for regulation of controlled substances in response to illegal drug trafficking.3 The Act categorizes controlled substances into five schedules based on their recognized medical uses4 and grants authority to the Attorney General to modify the schedules through specified procedures.5 Under the CSA, physicians and pharmacists must register with the Attorney General and the Drug Enforcement Agency (DEA) to get authorization to dispense controlled substances. Before 1984, state-licensed practitioners were entitled to registration as a matter of right6 and the Attorney General's power to revoke a practitioner's registration was strictly limited.7 Congress amended the CSA in 1984 to expand the Attorney General's authority by providing for denial, revocation, or suspension of a practitioner's registration if the Attorney General "determines that the issuance of such registration would be inconsistent with the public interest."8 A regulation promulgated by the Bureau of Narcotics and Dangerous Drugs (predecessor to the DEA) shortly after the CSA was enacted requires that a prescription for a controlled substance must be issued for a "legitimate medical purpose" and provides that practitioners who knowingly dispense a prescription that is not issued for a legitimate medical purpose will be subject to the penalties for violation of controlled substances laws.9 Depending on the particular controlled substance that a practitioner dispenses, the penalties under sec 841 (b) of the CSA can range from revocation of the practitioner's license to prescribe controlled substances up to "a term of imprisonment of not more than 20 years."10 If death or serious bodily injury results from the use of the dispensed substance, the penalty can range up to "a term of imprisonment of not less than twenty years or more than life," and a fine not more than one million dollars.11

The Oregon Death With Dignity Act

The Oregon Death With Dignity Act (Oregon Act) allows a mentally competent, terminally ill patient to file a written request for medication "for the purpose of ending his or her life in a humane and dignified manner."12 After proper documentation of the request and the expiration of a waiting period, the patient's doctor may prescribe, but not administer, medication that the patient can use to end his or her life. The Oregon Act provides immunity from civil and criminal liability as well as disciplinary action, for doctors and pharmacists who act in good faith compliance with the Oregon Act.

The Oregon Act was originally enacted by a narrow margin in a 1994 voter referendum. In 1995, the Act was stalled by a challenge based on the Equal Protection Clause of the U.S. Constitution.13 The suit alleged that because the Act failed to provide sufficient safeguards for terminally ill persons, it denied them equal protection. The argument was successful in the district court, but the Ninth Circuit Court of Appeals reversed the district court's decision based on lack of jurisdiction. After the Supreme Court denied certiorari, the Oregon Act was again put to a voter referendum in 1997 when voters considered whether to repeal the Act. This time, the Oregon Act was sustained by a decisive margin. After 3 years of legal and political battles, the Oregon Act became effective in 1997.(14) Since that time, approximately seventy terminally ill patients have used the law's procedures to get prescriptions for schedule II medications to end their lives.15

The Ashcroft directive

Shortly before the Oregon Act went into effect in 1997, Senator Orrin Hatch and Representative Henry Hyde began to advocate for an interpretation of the CSA that would allow for revocation of the DEA registrations of practitioners participating in the Oregon Act's procedures. Then-DEA Administrator Thomas Constantine agreed with Senator Hatch's and Representative Hyde's interpretation of the CSA, 6 but then-Attorney General Janet Reno concluded that "the federal government's pursuit of adverse actions against Oregon physicians who fully comply with [the Oregon Act] would be beyond the purpose of the CSA."17 In the next 2 years, critics of the Oregon Act twice attempted to preempt the Act with federal legislation and twice failed.18

On November 6, 2001, Attorney General Ashcroft reversed the position taken by Janet Reno by issuing a memorandum to DEA Administrator Asa Hutchinson determining that assisting suicide is not a legitimate medical purpose within the meaning of the CSA and that "prescribing, dispensing, or administering federally controlled substances to assist suicide violates the CSA."19 Attorney General Ashcroft directed the DEA to enforce and apply this determination upon its publication in the Federal Register.20

The opinion

The day after Attorney General Ashcroft issued his directive, the state of Oregon filed suit in federal district court seeking declaratory and injunctive relief. The plaintiffs asserted that the Ashcroft directive exceeded the Attorney General's authority under the CSA. They also challenged the lack of formal, or even informal, procedures that accompanied the issuance of the Ashcroft directive and raised challenges under the Commerce Clause, the Tenth Amendment, and the Fifth Amendment. Judge Jones entered a temporary restraining order and allowed Peter Rasmussen, David Hochhalter, and a number of individual terminally ill patients to join the suit as intervenors. Several organizations on both sides of the assisted suicide issue filed amici curiae briefs.

The district judge resolved the case in favor of Oregon and the intervening practitioners and patients based on his interpretation of the CSA. He held that "Congress never intended, through the CSA or through any other current federal law, to grant blanket authority to the Attorney General or the DEA to define, as a matter of federal policy, what constitutes the legitimate practice of medicine."21 The judge examined the plain language of the statute and reviewed the legislative history of the Oregon Act and ultimately rejected the Attorney General's argument that "the CSA authorizes the Ashcroft directive because provisions of the statute `plainly contemplate the existence of federal standards.'"22 The court found that "the core objective of the CSA was to permit federal prosecution of drug dealers, drug abusers, and 'practitioners' who engage in the illegal diversion and distribution of drugs" and that Congress intended to leave determinations as to what constitutes legitimate medical practice to the states.23

Although he declined to address the administrative and constitutional issues raised by the case directly,24 Judge Jones was critical of Attorney General Ashcroft's attempt to circumvent Congress's failure to restrict assisted suicide.25 The judge also expressed his desire that the "ongoing earnest and profound debate in the various states concerning physician-assisted suicide" be allowed to continue.26

Significance

In addition to adding yet another chapter to the political and legal history of the Oregon Death with Dignity Act, the district court's decision in Oregon v. Ashcroft takes a strong stand against federal regulation of medical ethics. As Edward Lowenstein and Sidney H. Wanzer noted in the New England Journal of Medicine, the federal government has "never before ... attempted to override a state's determination that a drug may be used in a manner consistent with the physician's best medical judgment when that drug has been authorized for use under the Controlled Substances Act."27 Determinations as to what constitutes legitimate medical practice have traditionally been left to the states. If the district court's decision is reversed on appeal to the Ninth Circuit or on certiorari to the Supreme Court, the Ashcroft directive could stand as an important precedent for federal intervention into practitioners' and state governments' decisions about controversial medical practices. As Justice O'Connor noted in her concurring opinion in Washington v. Glucksberg, "[s]tates are presently undertaking extensive and serious evaluation of physician-assisted suicide and other related issues.... In such circumstances, the challenging task of crafting appropriate procedures for safeguarding ... liberty interests is entrusted to the 'laboratory' of the states ... in the first instance."28

Lindsay E Wiley

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References

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1. 21 U.S.C. SS 801-950 (1994).

2. Oregon v. Ashcroft, 192 F.Supp.2d 1077 (D. Or. 2002).

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3. See 21 U.S.C. 811.

4. See 21 U.S.C. SS 812, 841. 5. 21 U.S.C. 811.

6. Oregon, 192 F.Supp.2d. at 1081 (citing 21 U.S.C. 5 823(f) (1983) ("Practitioners shall be registered to dispense ... controlled substances in schedule II, III, IV, or V if they are authorized to dispense ... under the law of the State in which they practice"); see also United States v. Moore, 423 U.S. 122, 140-41 (1975).

7. Id. (citing 21 U.S.C. 5 824(a) (1983)).

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8. Id. (quoting 21 U.S.C. S 823(f) and also citing 21 U.S.C. S 824(a)(1)(4)) (internal quotation marks omitted).

9. Id. (citing 21 C.F.R. S 1306.04). 10. 21 U.S.C. 841(b) (1994).

11. Id.

12. Id. at 1081-82 (quoting Or. Rev. Stat. 127.805(1)).

13. See Lee v. State of Oregon, 891 F. Supp. 1429 (D. Or. 1995), vacated 107 EM 1382 (9th Cir. 1997).

14. Oregon, 192 F.Supp.2d. at 1082. 15. Id.

16. Id. 17. Id.

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18. See Lethal Drug Abuse and Prevention Act, H.R. 4006, 105th Cong. (1998), and Pain Relief Promotion Act, H.R. 2260, 106th Cong. (1999).

19. Oregon, 192 F.Supp.2d. at 1083. 20. Id.

21. Id. at 1084.

22. Id. at 1088 (quoting the defendants' memorandum, at 20).

23. Id. at 1090-91. 24. See id. at 1084-85. 25. See id. at 1092. 26. Id. at 1078.

27. E. Lowenstein and S.H. Wanzer,

REFERENCE

"The U.S. Attorney General's Intrusion into Medical Practice," New Engl. J. Med., 346 (2002): 447-48.

28. Washington v. Glucksberg, 521 U.S. 702, 737 (1997) (O'Connor, I., concurring) (internal quotation marks and citations omitted).