If you're planning to kill yourself under the aegis of Oregon's Death with Dignity Act, you'd better get a prescription for the needed medications now. Why? Because the U.S. Supreme Court heard Gonzales v. Oregon yesterday and is likely to rule in favor the U.S. Attorney General's assertion that he can regulate the prescription of barbiturates used in assisted suicide.
University of Redlands government professor Arthur Svenson argues, on the basis of recent precedents, that the Supreme Court is likely to effectively gut the Oregon law this term. Svenson's legal analysis, offered during a panel at the annual conference of the Association of Politics and Life Sciences, turns on the precedent established in the medical marijuana case Gonzales v. Raich, decided by the court earlier this year.
The majority opinion in Raich, written by Justice John Paul Stevens, concluded that the government need only show a rational basis for laws regulating interstate commerce. It doesn't have to prove that what it is regulating is actually in interstate commerce. So in the case of Raich, Congress established a rational basis according to Justice Stevens because (1) marijuana is fungible; (2) the war on drugs is not over; and (3) California established no limit on how much marijuana a patient can own.
In his opinion, Stevens cited the 1942 case Wickard v. Filburn, in which the Court ruled that the Federal government could, under the Commerce Clause, regulate how much wheat a farmer grew, even if he was growing it just for home consumption, because it could have an effect on interstate commerce. Clearly, if patients grow their own marijuana for medicinal use in California, it could mean that they are not buying marijuana produced by growers in, say, Oregon, thus affecting interstate commerce in illegal hemp products. In his blistering dissent in Raich, Justice Clarence Thomas observed, "If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States." He's right.
In 2001, former U.S. Attorney General John Ashcroft, who has long opposed the Oregon Death with Dignity Act, argued that the Controlled Substances Act gives him the authority to revoke a physician's registration to distribute controlled substances if he determines that it is in the public interest to do so. The Feds are arguing that their interpretation of the Controlled Substances Act meets the standard set in Chevron v. Natural Resources Defense Council in 1984. Specifically, Stevens wrote the unanimous opinion in that case, which found that if a "statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." So, the Attorney General is arguing that it is reasonable to conclude under the Controlled Substances Act that "taking of drugs to commit suicide is 'drug abuse.'"
Ashcroft further argued that all prescriptions must be for legitimate medical purposes only. The final step in his argument was that physician assisted suicide is not a legitimate medical purpose. The Feds claim that physician assisted suicide is clearly illegitimate because 49 out of 50 states forbid it. Furthermore, they cite the fact that leading medical associations oppose it. Finally, they note that it is a crime to assist suicides in nearly all states. This reasoning is reminiscent of the Court's recent ruling that it is unconstiutional to execute murderers who committed their crimes when they were juveniles, in part on the grounds that a majority of the states were against it.
Oregon responded with a two part argument in the Ninth Circuit Court of Appeals. The first argument is that the Controlled Substances Act does not explicitly authorize the U.S. Attorney General to regulate controlled substances used in physician assisted suicides. The second is that the Attorney General is seeking to displace the traditional exercise of police power which gives states, not the federal government, the power to license and control the practice of medicine. Oregon also argued that the amount of controlled substances at issue is not remarkable and has no discernible effect on interstate commerce.
Svenson argues that the Supreme Court's decision in Raich guarantees that the it will rule in favor the Attorney General's interpretation of the Controlled Substances Act. Why? If homegrown medical marijuana is in interstate commerce, then surely so too are the barbiturates, which are clearly commercial and move across state lines, patients use to end their lives.
As Svenson puts it, "The Attorney General is saying that you can kill yourself if you want, but you can't get the drugs that would help you to do it. It's like telling someone that they can play the violin, but refusing to give them a bow."
I am personally conflicted about legally sanctioned physician assisted suicide. The creation of a formal legal procedure gives the government an opportunity to start down the slippery slope toward meddling in this most personal of decisions. I fear that some future government concerned about rising Medicare expenses will seek to establish rules that encourage physicians to "assist" their most desperately ill and expensive patients to shuffle off this mortal coil a bit earlier. On the other hand, denying patients access to drugs that they feel will give them control over their lives and their deaths also seems wrong. Many people who never actually use the drugs may just want access to them in case their suffering becomes unbearable. Since 1994, only 208 Oregonians have resorted to officially sanctioned physician assisted suicide.
If Svenson is right and the Supreme Court rules against Oregon, physician assisted suicide in the United States is nevertheless going to increase. Over the next couple of decades, medicine will become better and better at rescuing people from immediate death. That means that many will survive mortal illness, only to endure a slow, painful, and inevitable decline. They will no longer be able count on medical crises such as a heart attack or pneumonia, to end their sufferings. Instead, they will have to make conscious decisions to end their lives either slowly by discontinuing medical care or more directly by committing suicide. Whatever the Supreme Court decides in Gonzales v. Oregon, patients and physicians will be having more and more quiet conversations about what to do when the awful time comes to each of us when we are beyond the help of modern medicine.