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Euthanizing The Csa
Ready for 50 different drug-control regimes?


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Wesley J. Smith

By now it has been widely reported that the Ninth Circuit Court of Appeals “upheld” the assisted-suicide law in Oregon by a vote of 2-1 in Oregon v. Ashcroft yesterday. Not so: The validity of the Oregon law was never at stake in the case. Regardless of whether Ashcroft or the State of Oregon prevailed in the case, physician-assisted suicide would have remained legal within Oregon’s borders.

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The case is actually very narrow and arcane, but important nonetheless–in a way that transcends the pros and cons of assisted suicide. The question before the court was whether Ashcroft exceeded his legal authority when, in 2001, he interpreted the federal Controlled Substances Act (CSA) as prohibiting doctors from prescribing federally regulated drugs for use in assisted suicide on the basis that hastening death is not a “legitimate medical purpose” for the use of drugs under federal law.

The majority ruled that he did. First, it found that the states have the near-exclusive right to regulate medical practice within their borders and that Ashcroft’s directive violated that constitutional principle of federalism. But as dissenting justice J. Clifford Wallace pointed out, even Ashcroft conceded that Oregon physicians would still have been free to use lethal substances not regulated by the CSA to help kill patients without running afoul of federal law. They would merely have been precluded from using substances regulated by the feds under the purview of the CSA.

The majority next found that the sole purpose of the CSA is to prevent “drug abuse,” interpreting that term to mean addiction. But Wallace’s dissent points out, quite accurately, that controlled substances can be abused in ways besides being taken as addicting substances. “The Act targets all ‘improper use of controlled substances,’” Wallace wrote, “and gives the Attorney General discretion to decide whether registering a physician to dispense drugs ‘is consistent with public health and safety.’ Reasonable minds might disagree as to whether physician-assisted suicide constitutes an ‘improper use’ of a controlled substance, but nothing in the Controlled Substances Act precludes its application to physician-assisted suicide.”

Finally, the majority ruled that if the federal government was going to act to prevent the use of federally controlled substances in assisted suicide, the secretary of Health and Human Services should have undertaken the action rather than the attorney general. Wallace disagreed. Now there’s an issue to get the blood boiling!

Even though the scope of decision itself was quite narrow, its impact could be disturbingly broad. For one thing, it seems to fly in the face of the United States Supreme Court’s unanimous approval of federal policy over “medical marijuana.” In United States v. Oakland Cannabis Buyers’ Cooperative, the high court ruled that while California was certainly free to legalize medical marijuana under state law, this did not prevent the federal government from enforcing the anti-marijuana Controlled Substances Act. If federal law is not nullified by a state declaring it a legitimate medical act for a physician to recommend cannabis to patients to palliate pain, how can the federal government be prohibited from enforcing the CSA against doctors who use controlled substances to intentionally kill patients?

Of greater concern is that the majority’s decision threatens the uniform enforcement of the CSA throughout the nation. Under the ruling, the states in effect have the power to determine what constitutes legitimate medical uses of controlled substances under federal law as part of their power to regulate the practice of medicine within their borders. This could lead to chaos, since it could conceivably mean that the federal government would be forced to adopt 50 different approaches to enforcing the medical aspects of the CSA.

Consider the following hypothetical–but not fanciful–situation: Oregon allows physicians to participate in assisted suicide, but only for terminally ill patients. Washington State prohibits physicians from participating in any assisted suicide. But California and Florida pass laws permitting assisted suicide for the disabled and for the elderly who are “tired of living,” as well as the terminally ill. In Oregon, a doctor who prescribed barbiturates in lethal dosage for a non-terminally ill disabled person would have broken Oregon law, and hence, could also be prosecuted for violating the CSA. But if the same doctor prescribed the same drugs to the same person in California, no federal law would have been broken. Yet, if she prescribed controlled substances to a dying person in Washington, once again, she would have violated federal law because her prescribing would not be a legitimate medical act in that state.

Nor, it is important to stress, would such chaos be limited to the use of controlled substances for assisted suicide. What if a state passed a law permitting morphine to be used to create euphoria as a “treatment” for depression or anxiety? If states truly have the unlimited right to impose their views on the federal government as to what constitutes a legitimate medical use of federally controlled substances, the federal government would be bound to respect even the most idiosyncratic policy. The result could be the utter disintegration of the CSA and a total fracturing of national drug policy, at least as it relates to the medical use of narcotics.

What to do? Ashcroft might be tempted to request the full Ninth Circuit Court of Appeal to review the decision, a process known as an en banc hearing. This would be a mistake, in my view. The Ninth Circuit is often quite radical in its rulings, but the majority decision was appropriately narrow in scope. Moreover, Judge Wallace issued a powerfully reasoned dissent. It is unlikely that another bite at the apple would garner a better result.

No, the best bet is for Ashcroft to try and take the case directly to the United States Supreme Court. The importance of this case far exceeds the public-policy pros and cons of assisted suicide. At stake is whether the federal government can retain ultimate authority over federal regulations promulgated under the Controlled Substances Act or whether we are in the midst of devolving regulatory power over drug policy to each of the 50 states.

Attorney Wesley J. Smith is a senior fellow with the Discovery Institute, an attorney for the International Task Force on Euthanasia and Assisted Suicide, and a special consultant to the Center for Bioethics and Culture. He filed an amicus curiae brief in Oregon v. Ashcroft on behalf of Physicians for Compassionate Care.



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