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Oregon law that legalized assisted suicide, the so-called Death
with Dignity Act, may be having its own death throes now. On
November 6, 2001, Attorney General Ashcroft advised the DEA
that dispensing controlled substances for purposes of assisting
a suicide was not a "legitimate medical purpose" within
the meaning of the Controlled Substances Act (CSA), the federal
law that regulates the sale and dispensing of narcotics. Ashcroft
gave the DEA the green light to revoke a physician's DEA registration
if he writes a prescription for a massive dose of narcotics with
the intent of helping a person commit suicide, even if such conduct
is permitted under state law.
Hardy Myers,
the attorney general of Oregon, wasted no time in bringing a lawsuit
to have the directive declared unconstitutional. Additional plaintiffs
have intervened, including a doctor, a pharmacist, and three people
who may want to kill themselves with a doctor's help. The state
swiftly got an injunction from the federal district court in Oregon,
temporarily enjoining the federal government from enforcing Ashcroft's
interpretation of the CSA. The parties agreed in a court conference
on November 15 to continue the temporary order until the court rules
on the underlying preliminary injunction motion. A hearing is set
for November 20th.
Oregon's challenge
to Ashcroft's directive poses a dicey dilemma for conservatives.
Most would like to see an end to state-sanctioned mercy killing.
The American Medical Association, the American Psychiatric Association,
religious groups, and advocates for the disabled, which have spoken
out in opposition to euthanasia, would agree. The vast majority
of states have laws prohibiting assisted suicide. However, Oregon
claims that Ashcroft's directive unconstitutionally treads on states'
rights, raising federalism questions under the Commerce Clause and
the 10th Amendment.
The state's
federalism position may not hold up once the case gets to the Supreme
Court, where it is likely headed. Oregon argues that "the CSA,
and its implementing regulations, do not define what medical purposes
are 'legitimate.' Traditionally, that determination has been left
to the States," and that such authority goes beyond Congress's
intent in enacting the CSA. The state takes the position that if
Congress authorized the federal government to decide what constitutes
a legitimate medical purpose in enforcing the CSA, then Congress
overstepped its bounds and the CSA itself is unconstitutional.
The inquiry
into "traditional state's authority" according to Michael
Greve, the John G. Searle Scholar and director of the Federalism
Project at the American Enterprise Institute, "doesn't answer
the federalism question — ever." Just because Congress
didn't regulate an area in the past, "doesn't mean they couldn't
ever do it. The real question," he says, "is does Congress
have the authority, yes or no, under the Commerce Clause."
It has long been clear that medical practice impacts interstate
commerce and therefore may be regulated by the federal government
(as the CSA already does in part), although primary regulation
of medicine has been left largely to the states. However, Oregon
maintains that when a physician prescribes a controlled substance
for a patient to use in committing suicide, that act is so limited
and intimate that it is not a part of interstate commerce, and therefore
not subject to federal regulation. Oregon compares it to the question
of gun possession in United States v. Lopez. In Lopez,
the high court struck down a law making it a federal crime to carry
a gun within 100 yards of a school, finding the law beyond the scope
of the Commerce Clause, which does not regulate "things"
alone. But assisted suicide involves prescribing and dispensing
a drug from a pharmacy, quite arguably a commercial transaction
within the meaning of the Commerce Clause.
Anxiety is
already running high. Will Ashcroft's directive have an unintended
chilling effect on palliative care given by doctors to dying patients
all over the country? The directive expressly states there is to
be no change in enforcement policies outside of Oregon, and even
within Oregon only with respect to assisted suicide, not palliative
care. Some maintain, though, that it is a fine line between giving
morphine to a dying patient — without the intent to kill —
and assisted suicide. To nip this kind of hysteria in the bud requires
brutal honesty about the Oregon law. It allows doctors to prescribe
a lethal dose (e.g., 50 or 60 pills), to be taken all at once (outside
of a doctor's presence) by a patient who may yet have six months
to live. The pills can result in convulsions, vomiting, and a coma.
Websites on assisted suicide suggest having a plastic bag on hand,
large enough for asphyxiation, to finish the job. The death is obvious,
but where's the dignity? When the Supreme Court parses this out,
one hopes it keeps in mind the words of a 1963 case: "[W]hile
the Constitution protects against invasions of individual rights,
it is not a suicide pact."
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