This past May, a divided panel of the U.S. Court of Appeals for the Ninth Circuit held that the federal government could not prohibit doctors from using prescription drugs for assisted suicide in Oregon. Specifically, the court invalidated a directive issued by Attorney General John Ashcroft in November 2001 declaring that assisted suicide was not a “legitimate medical purpose” under the Controlled Substances Act (CSA), and that doctors who wrote prescriptions to hasten their patients’ deaths could be subject to federal prosecution, even where such prescriptions are legal under state law. With the court’s ruling, doctors in Oregon are once again free to prescribe drugs in lethal doses to hasten the death of terminally ill patients pursuant to Oregon’s Death with Dignity Act. The federal government sought rehearing of the court’s opinion, but just last week the petition was denied. Apparently not a single judge voted for en banc review.
Opponents of doctor-assisted suicide, including many prominent conservatives, sternly denounced the Ninth Circuit’s ruling and hope the Justice Department takes the case to the Supreme Court. After all, any court decision paving the way for a generation of Dr. Kevorkians must be worthy of condemnation and reversal, particularly if issued by the Ninth Circuit. This is a predictable and understandable response to the court’s decision in Oregon v. Ashcroft. It is also wrong.
The question before the Ninth Circuit was not whether Oregon’s decision to allow doctor-assisted suicide is moral or wise. Nor was it whether the federal government has the power to preempt state policy choices concerning prescription drugs or medical practice. Rather, the narrow question before the court was whether the CSA authorizes the attorney general to prosecute or otherwise sanction doctors who help their patients to commit suicide where legal under state law. Given the lack of any language in the CSA authorizing such action, and the states’ traditional role in the regulation of medical practice, the court found the attorney general had overreached.
Under existing federal regulations, the attorney general may prosecute a doctor who prescribes a controlled substance for anything other than a “legitimate medical purpose.” States are primarily responsible for the licensing and regulation of medical professionals. Therefore, the definition of “legitimate medical purpose” has historically been a function of state law. Prior to 2001, the federal government never sought to define “legitimate medical purpose” beyond requiring that physicians only dispense prescriptions in the course of their “professional practice.” “The principle that state governments bear the primary responsibility for evaluating physician-assisted suicide follows from our concept of federalism, which requires that state lawmakers, not the federal government, are the primary regulators of professional medical conduct,” wrote Judge Richard Tallman for the court’s majority. Absent a clear statement from Congress, this traditional division of powers must remain.
It is neither for the courts nor the executive–whether represented by the attorney general or any other executive officer–to adopt uniform national rules proscribing private conduct absent a constitutional command or congressional authorization. This is particularly true where, as here, the executive seeks to extend federal regulation into an area traditionally left to the states. As offensive as it is when Congress extends federal regulatory authority beyond traditionally recognized constitutional limits, it is far worse–not to mention undemocratic–when the equivalent action is taken unilaterally by the executive or the courts. As the Supreme Court has noted time and again, the historic police powers of the states are not to be superseded unless it is “the clear and manifest purpose of Congress.”
It is likely that, under existing Commerce Clause precedent, the federal government could prohibit the use of controlled substances for doctor-assisted suicide if it so chose, yet the CSA does not do it. One can search the CSA’s language and legislative history and never find anything approaching a clear statement that Congress sought to prohibit doctor-assisted suicide. Indeed, Congress has never enacted a law to prohibit the practice. To the contrary, in 1999 and 2000 Congress explicitly considered–and failed to adopt–such legislation. Federal law prohibits the use of federal funds or facilities for doctor-assisted suicide, but Congress never took the next step. It has neither directly prohibited the use of controlled substances for such purposes nor delegated the authority to do so to the executive branch.
Whether or not one agrees that doctor-assisted suicide is a matter best left to the states, the only proper basis for federal preemption is the enactment of legislation. There is no justification for displacing the traditional state role in medical regulation through administrative fiat. Such unilateral executive action in the face of express congressional inaction was improper when the Food and Drug Administration sought to regulate tobacco as a drug, and when the Environmental Protection Agency suggested it could regulate carbon dioxide and other greenhouse gases as pollutants. It is no more proper here.
Writing on NRO, Wesley J. Smith suggested that Oregon v. Ashcroft “threatens the uniform enforcement of the CSA throughout the nation,” and that this “could lead to chaos” as different states adopt different approaches to doctor-assisted suicide. According to Smith, the decision suggests states “have the unlimited right to impose their views on the federal government as to what constitutes a legitimate medical use of federally controlled substances.” This is simply not the case: The decision does not allow state legislation to preempt federal law. Rather, in this one instance, it makes federal law dependent upon relevant state standards unless and until Congress specifies the contrary.
Smith conjured a bugaboo of variable state standards compromising the consistency of federal law, yet it is hardly revolutionary for federal crimes to be defined by applicable state laws. Under 27 U.S.C. 122, it is against federal law to transport alcoholic beverages into a state in violation of state law. This regulatory approach embraces federalism principles by enlisting the federal government only insofar as federal assistance is necessary to allow states to define local standards based upon community tastes and preferences without undue interference from neighboring jurisdictions. Whatever its other merits, this regulatory regime has hardly led to chaos.
The regulation of prescription drugs also varies more than Smith and others would suggest. As detailed in the June 1 Wall Street Journal, some states allow medical professionals other than doctors to prescribe certain controlled substances. Several states allow pharmacists to prescribe immunizations or smoking-cessation drugs without a doctor’s visit, while in other states psychologists may prescribe antidepressants and anti-anxiety drugs. Still other states authorize limited prescription powers to optometrists, midwives, and nurse practitioners. Even the CSA is less than uniform, as a state conviction for a drug-related offense or state suspension of a medical license is a sufficient basis for the federal government to revoke a doctor’s registration. In other words, whether a doctor is able to prescribe drugs under federal law is already a function the law and policy of the state in which he opts to practice.
Contrary to some conservative claims, Oregon v. Ashcroft is hardly an example of radical jurists run amok. Nonetheless, the decision may well be overturned by the Supreme Court. Administrative law Professor William Funk, of Oregon’s Northwestern Law School at Lewis & Clark College, observes that the majority opinion is poorly argued, even if correct on the merits. The Supreme Court has shown itself quite deferential to assertions of federal authority–a handful of recent federalism decisions notwithstanding–so it may well defer to the Justice Department’s claims.
Irrespective of the ultimate legal resolution in this case, it is important for conservatives to step back and consider the principles at issue. Doctor-assisted suicide may well be a grievous wrong. But this does not justify any and all legal doctrines to prohibit it. Federalism and separation of powers are the ultimate bulwarks against government tyranny. Without a doubt, these divisions of legal authority may frustrate the adoption of worthy policies, but they are necessary to prevent the excessive concentration of federal power. Granting states the freedom to experiment with better policies absent federal interference necessarily allows them the freedom to adopt unwise or immoral laws. On this issue, as in many others, we cannot enjoy the benefits of federalism without suffering the costs.
As the late Frank Meyer, one of National Review’s founding contributors and longtime senior editors, noted, “The genius of the American Constitution rests in the institutionalization of the limitation of power, in the division of power so that it is held by a number of separate and distinct organs.” This is the heart of federalism. Meyer argued time and again that to compromise this structure, even for the most noble policy goal, is shortsighted folly–if not itself suicidal. Conservatives should not be so blinded by their opposition to assisted suicide that they lose sight of this important truth.
–Contributing editor Jonathan H. Adler is an associate professor and associate director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.