Oregon Death With Dignity Decision

Earlier today, the U.S. Supreme Court issued its opinion in GONZALES V. OREGON (04-623), the case involving the Oregon Death with Dignity Act, which allows excempts physicians from civil and criminal liability when the prescribe lethal doses of controlled substances subject to very constrained requirements.  The U.S. Attorney General had issued and Interpretive Rule under federal controlled substances legislation (21 USC 824(a)(4), 882(a)(2)), ditermining that physicians who prescribed schedule II controlled substances under the Oregon legislation were acting "inconsistent with the public interest" and could have their authority to prescribe such medication revoked. 

In an opinion by Justice Kennedy (joined by Justices O'Connor, Bryer, Stevens, Ginsberg, and Souter), the Court concluded that Controlled Substances Act did not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure. The Attorney General's rule was not entitled to deference since it was not issued pursuant to Congresial delegated authority to issue rules having the fource of law (and was instead only effective to the extent it had the power to persuade).  The rule was also not entitled to deference under the Auer line of reasoning, since the Attorney General did not have the kind of specialized experience and expertise required.  Nor was it entitled to deference under Chevron since the "specific respects in which the Attorney General is authorized to make rules under the CSA show that he is not authorized to make a rule declaring illegitimate a medical standard for patient care and treatment specifically authorized under state law. Congress delegated to the Attorney General only the authority to promulgate rules relating to “registration” and “control” of the dispensing of controlled substances, 21 U.S.C. A. §821, and “for the efficient execution of his [statutory] functions,” 21 U.S.C. § 871(b)."

The Court also found the rule unpersuasive, citing the role of the states in regulating medical practice and the purpose of the federal statute as addressing primarily recreational drug use.  As stated in the Syllabus:

"The CSA’s structure and operation presume and rely upon a functioning medical profession regulated under the States’ police powers. The Federal Government can set uniform standards for regulating health and safety. In connection with the CSA, however, the only provision in which Congress set general, uniform medical practice standards, 42 U.S.C. § 2990bb2a, strengthens the understanding of the CSA as a statute combating recreational drug abuse, and also indicates that when Congress wants to regulate medical practice in the given scheme, it does so by explicit statutory language. The difficulty in defending the Attorney General’s declaration that the CSA impliedly criminalizes physician-assisted suicide is compounded by the Act’s consistent delegation of medical judgments to the Secretary and its otherwise careful allocation of powers for enforcing the CSA’s limited objectives. The Government’s contention that the terms “medical” or “medicine” refer to a healing or curative art, and thus cannot embrace the intentional hastening of a patient’s death, rests on a reading of 21 U.S.C. § 829(a)’s prescription requirement without the illumination of the rest of the statute. Viewed in context, that requirement is better understood as ensuring that patients use controlled substances under a doctor’s supervision so as to prevent addiction and recreational abuse. To read prescriptions for assisted suicide as “drug abuse” under the CSA is discordant with the phrase’s consistent use throughout the Act, not to mention its ordinary meaning. The Government’s interpretation of the prescription requirement also fails under the objection that the Attorney General is an unlikely recipient of such broad authority, given the Secretary’s primacy in shaping medical policy under the CSA and the Act’s otherwise careful allocation of decisionmaking powers."

Justices Scalia, Thomas and Chief Justice Roberts dissented. 

It's too bad that Justice O'Connor won't be staying.  It surely looks as though the "moderate middle" is coalescing in some key areas with implications for more balanced approaches to federalism.

Additional background on the case is available from Cornell's excellent LII site.