Ashcroft Directive on Oregon Assisted Suicide Law Is Illegal

Thursday, May 27, 2004

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Ninth Circuit Rules:

Ashcroft Directive on Oregon Assisted Suicide Law Is Illegal

From Staff and Wire Service Reports

Attorney General John Ashcroft exceeded his authority in threatening sanctions under the federal Controlled Substances Act against doctors who assist patients in ending their lives as authorized by Oregon’s Death With Dignity Act, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Ashcroft’s 2001 “interpretive rule” declaring that assisted suicide is not a legitimate medical practice intruded without congressional authorization into an area of regulation reserved to the states, Judge Richard Tallman said.

Tallman’s opinion for the court was joined by Senior Judge Donald P. Lay of the Eighth Circuit, sitting by designation. Senior Judge J. Clifford Wallace dissented, saying Ashcroft’s determination of federal policy was entitled to deference in the absence of clear guidance on the issue from Congress.

Oregon’s is the nation’s only law that allows doctors to assist in hastening the death of a patient. It was enacted by ballot measure in 1994, and a bid to repeal it was defeated by voters in 1997.

Tallman said the attorney general’s action—the so-called “Ashcroft Directive”—could have been upheld only if there were an “unmistakably clear” indication of congressional intent to exert federal authority in an area historically left to the states. The legitimate scope of medical practice, including the issue of whether assisted suicide falls within that scope, is such an area, he declared.

In enacting the CSA, Congress provided “no indication—much less an ‘unmistakably clear’ indication—that it intended to authorize the Attorney General to regulate the practice of physician assisted suicide,” Tallman said.

“[T]he CSA was enacted to combat drug abuse,” the judge wrote. “To the extent that it authorizes the federal government to make decisions regarding the practice of medicine, those decisions are delegated to the Secretary of Heath and Human Services, not to the Attorney General. The Attorney General’s unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician assisted suicide and far exceeds the scope of his authority under federal law. We therefore hold that the Ashcroft Directive is invalid and may not be enforced.”

Tallman rejected the contention that Ashcroft’s action was justified under a provision of the CSA authorizing the attorney general to revoke a physician’s prescription privileges based on a finding that the doctor “committed—acts...inconsistent with the public interest.” Even if the CSA applied to assisted suicide, Ashcroft could have invoked that provision only after considering all of the five factors specified in the section as relevant, the judge said.

Instead, Tallman said, Ashcroft relied on only the last of the five: “Such other conduct which may threaten the public health and safety.”

Tallman cited Washington v. Glucksberg, 521 U.S. 702 (1997) for the proposition that governmental policy decisions about assisted suicide are for individual states to make. In that case, the Supreme Court overturned a Ninth Circuit ruling that there was a constitutional “right to die” which barred the state of Washington from prosecuting doctors who helped patients end their lives.

In dissent, Wallace said precedent demanded that the appeals court defer to Ashcroft’s interpretation of the CSA. The Death With Dignity Act “arguably draws Oregon law into tension” with the federal drug statute, he asserted.

The CSA was not intended only to address drug trafficking, but was enacted to deal with “any other improper drug use” that might adversely affect public health, Wallace said.

The dissenting jurist also took issue with the majority’s reliance on Glucksberg.

That case, he said, “addressed states’ authority to prohibit physician-assisted suicide in the absence of federal regulation; the case did not answer the question whether Congress may exercise its Commerce Clause power to deny physicians access to controlled substances for physician-assisted suicide.”

Noting that the Justice Department has yet to initiate any enforcement action based on the attorney general’s directive, Wallace said the majority was wrong to find that Ashcroft “sidestepped” the five-factor inquiry mandated by the CSA.

The directive “merely cautions” physicians that they could face the loss of their prescription privileges if they participate in assisted suicides, the dissenting judge asserted. It does not, he said, amount to a declaration that action against such physicians would necessarily occur.

“[T]he hour has not arrived for the Attorney General to consider” the effect of the other four factors, which include the views of state licensing or disciplinary authorities and the physician’s expertise and criminal history, Wallace said.

“Certainly, Congress is free to enact legislation limiting or counteracting the Ashcroft directive’s effects,” he added.

The court ordered that an injunction blocking the Justice Department from threatening to punish doctors, issued by U.S. District Judge Robert Jones of the District of Oregon, remain in effect. Oregon Attorney General Hardy Myers brought the challenge to the directive soon after its promulgation.

The Oregon law allows terminally ill patients with less than six months to live to request a lethal dose of drugs after two doctors confirm the diagnosis and determine the patient to be mentally competent to make the request.

Since 1998, at least 171 people have used the law to end their lives, according to state records. Most of them suffered from cancer.

“Certainly it’s a good ruling if you believe in this cause,” Kevin Neely, a Myers spokesman, said. “From our perspective, this is a clear defense not just of the Death With Dignity Act but a clear defense of the state’s authority to regulate its own medical practices.”

Justice Department spokesman Charles Miller said the government was reviewing the court’s decision, and was not prepared to comment on whether it would appeal to the Supreme Court or ask the Ninth Circuit to reconsider. “No determination has been made to what the government’s next step will be,” Miller said.

The decision is unlikely to immediately open the floodgates for similar legislation in other states. While Congress failed to pass measures banning assisted suicide in 1998 and 2000, the states have been unreceptive to the idea.

Hawaii lawmakers in March shelved a proposal and in Vermont, the only other state to recently grapple with it, lawmakers balked last week.

Scott Swenson, executive director of the Death With Dignity National Center, was optimistic the decision might get the attention of statehouse lawmakers. But, he noted, the moral questions the law raise make it a difficult sell that won’t happen overnight.

“This isn’t something that is going to rush out in 20 states tomorrow,” he said. “The onus is for us to secure a couple more states to prove it can work.”

Barbara Coombs Lee, the president of Portland-based Compassion in Dying, who co-wrote the law, said assisted suicide “improves care and greatly eases suffering of terminally ill people.”

With yesterday’s decision, she said, “politicians no longer have an excuse not to pass this law.”

Ashcroft’s directive, which reversed a 1998 opinion by former U.S. Attorney General Janet Reno, also banned any lethal prescriptions on grounds they did not qualify as medication under the federal Controlled Substances Act.

Sen. Ron Wyden, D-Oregon, called on Ashcroft “to finally accept ‘no’ for an answer and attend to the many more pressing challenges confronting the Department of Justice.”

The case is Oregon v. Ashcroft, 02-35587.