HealthLawProf Blog

Editor: Katharine Van Tassel
Creighton University School of Law

Wednesday, October 5, 2005

Death With Dignity

Today the Supreme Court heard arguments in the Oregon Death with Dignity case, Gonzales v. Oregon.   According to the Times

. . . .  lawyers for the federal government and for Oregon, the only state to have authorized physician-assisted suicide, argued over a single question: whether John Ashcroft acted within his authority as attorney general when he decided in 2001 that doctors would lose their federal prescription privileges if they followed the Oregon law's procedures and prescribed lethal doses of lawful medications for their terminally ill patients who wanted to end their own lives.

This is a straightforward question of federal administrative law, the bread and butter of the Supreme Court's docket. A federal appeals court ruled last year that in enacting the Controlled Substances Act in 1970, Congress did not give the attorney general the unilateral authority to sanction doctors who follow state law in prescribing federally regulated medications. The case, now known as Gonzales v. Oregon, No. 04-623, is the Bush administration's appeal.

Chief Justice John G. Roberts Jr. was an active participant in the questioning. He asked Solicitor General Paul D. Clement, who was defending the Ashcroft action, for "the closest analogy you have, other than this case," in which the attorney general had "impinged on" a state regulation of medical practice.

When Mr. Clement began to describe the Food and Drug Administration's effort some years ago to stop the use of laetrile, a purported anticancer drug that was permitted in 17 states, Chief Justice Roberts cut him off. "That's the F.D.A.," he said. "I'm talking about the attorney general under this statute."

Mr. Clement, an admired Supreme Court advocate who speaks without notes, at first said he could not think of an example. Then he offered the government's prohibition against using marijuana for medical purposes, which the Supreme Court upheld in June.

This drew an objection from Justice David H. Souter, who said Congress's desire to stop "drug pushing and drug abuse in the conventional sense" did not support the government's position on assisted suicide.

SCOTUSBlog has further updates on the divisions within the Court on this issue.  [bm]

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