WASHINGTON — You have an incurable illness. Your doctor estimates you have just a few months to live. You want to kill yourself.
Your doctor is willing to help: he’ll write a prescription for a drug that will kill you.
If you’re a resident of Oregon, state law allows you and your doctor to end your life. Since 1998, when Oregon became the only state to enact such a law, more than 200 people have killed themselves with the aid of their doctors.
Will the United States Supreme Court let the law stand? In a case to be argued before the justices Wednesday morning, Solicitor General Paul Clement will contend that a 1970 federal law, the Controlled Substances Act (CSA), forbids a doctor from prescribing drugs such as Seconal for the purpose of helping a person kill himself, no matter what any state law says to the contrary.
What's a 'legitimate medical purpose'?
A 1971 federal regulation says that a prescription must be for a “legitimate medical purpose.” But who gets to decide whether assisting suicide is a legitimate medical purpose — the federal government or the state?
“The federal government, rather than the States, normally defines the terms in federal laws, giving them a single, nationwide definition,” Clement argued in his brief filed with the court.
Clement, however, suggested that doctors in Oregon could “dispense substances other than those regulated under the CSA to hasten their patients’ deaths.”
But in its argument to the justices next week, the state of Oregon will frame the issue as the people of a state having the right to govern themselves and to regulate how physicians in their state practice medicine.
Oregon argues that its voters, by enacting the Death with Dignity Act, have decided that the practice of medicine, at least in their state, now includes helping people die. And it is not up to former Attorney General John Ashcroft or his successor Alberto Gonzales to second-guess Oregon’s judgment, the state contends.
In 2001 Ashcroft threatened to remove Oregon doctors’ ability to prescribe controlled substances and to prosecute them if they assist suicide. The state of Oregon went to court to uphold its law.
The Supreme Court has confronted the issue of assisted suicide before. In a decision handed down eight years ago, the justices upheld state laws making assisted suicide a crime. In that case, a group of doctors had asked the high court to overturn Washington state’s ban on assisting suicide, but the court rebuffed them.
“For over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide,” Chief Justice William Rehnquist said in Washington v. Glucksberg.
In that same year, President Clinton signed into law a measure which banned the use of federal funds to support physician-assisted suicide.
Reaction from Oregon's senators
Even though he opposes his state’s assisted suicide law on moral grounds, Sen. Gordon Smith, R-Ore., said he thinks the law is working as intended. “I think Oregon has very responsibly administered this law. It has not, as I once feared, been subject to abuse.”
Sen. Ron Wyden, D-Ore., a strong supporter of the law, said, “if you look at the Tenth Amendment, matters that aren’t specifically designated for the federal government are left to the states. I’m very hopeful that the court will continue to give Oregon and other states a very wide berth in terms of medical practice.”
Wyden added, “No one could ever prove it, but my guess is that there are fewer assisted suicides in my state where there’s an assisted suicide law than in most parts of the country where there is no statute. We have seen in our state a dramatic increase in the number of individuals spending their last days at home, the utilization of hospice programs, comfort care and palliative care. I think it is a result of all the awareness generated in Oregon about these end-of-life services like hospice and comfort care.”
The Oregon case will be only the third case Chief Justice John Roberts will hear in his new career on the high court. The court will hear two cases on Monday.
Wyden said, “I spent a great deal of time discussing end of life care with Judge Roberts. Of course I did not get into the Oregon case.” But Wyden hopefully pointed to a comment Roberts made about Washington v. Glucksberg in 1997.
"The right that was protected in the assisted-suicide case was the right of the people through their legislatures to articulate their own views . . . and not to have the court interfering with those policy decisions," Roberts said in 1997. In that case Roberts was endorsing the right of a state to ban assisted suicide, not the right of a state to permit it.
“I am hopeful that Judge Roberts’s principle of limited government and his sense, as reflected in his comment on the Glucksberg case, will leave him open to letting Oregon voters decide this,” Wyden said.
What did Congress intend in 1970?
Oregon contends that when Congress passed the Controlled Substances Act in 1970, it sought to deter drug trafficking and abuse, not to prevent doctors from helping patients commit suicide.
Solicitor General Clement, representing the Bush administration, counters that by saying, “the taking of drugs to commit suicide is a form of ‘drug abuse.’”
Even though the Supreme Court hasn’t recognized any right under the U.S. Constitution for a person to kill himself or to get a doctor’s help to do so, the justices left open the question of whether states could enact laws permitting assisted suicide.
By saying Oregon law must yield to federal law the Bush administration has taken too narrow a view of states right, Oregon argues. It's an "affront to the state's sovereignty," Oregon says.
“States’ rights” is a catchphrase that has been used to defend everything from California’s medicinal marijuana law (which was undercut by a Supreme Court decision last June), to a state’s ability to enact its own death penalty laws without having them overturned by the Supreme Court.
The concept is rooted in federalism, the Constitution’s division of authority between the national government and the state governments.
State as a 'laboratory'
Oregon’s brief in the assisted suicide case cites Justice Louis Brandeis, who in a 1932 case said “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
Oregon is the “laboratory” of doctor-assisted suicide. Depending on the court’s ruling in this case, other states may follow.
Currently, 47 states make assisted suicide a crime. The Vermont legislature is considering an assisted suicide law and a bill has been introduced in the Wisconsin legislature to allow individuals to make written requests for medication to kill themselves.
Edward Whelan, a former official in the Justice Department in the Bush administration, who is now president of the Ethics and Public Policy Center in Washington, said the Oregon case is really about neither ethics nor states’ rights.
Instead it is a matter of correctly interpreting a rule enacted by the Drug Enforcement Agency.
“Since 1971 the Drug Enforcement Agency has had in effect a regulation (implementing the Controlled Substances Act) that requires that a doctor’s prescription be for a ‘legitimate medical purpose,’” he said. “The narrow legal question is whether the longstanding regulation is lawful and whether DEA has correctly applied it. Under established principles, the courts owe substantial deference to the agency’s application of its own regulation.”
He added, “The federalism issue here is a false one. The DEA regulation is an essential part of a comprehensive federal scheme. If every state were free to define what a ‘legitimate medical purpose’ was, that scheme would be easily undermined. A libertarian state could, for example, authorize doctors to prescribe cocaine for the common cold and thereby negate federal controls over the flow of cocaine.”