physician assisted suicide and gonzalez v. oregon and dispositive question and degree of deference

The purpose of this essay is to walk through a number of questions that will, undoubtedly, be on the Court's mind as it considers the arguments of the AG and the State of Oregon in Gonzalez v. Oregon. I will list what I think are about ten crucial questions in the case (there may be others) but will conclude below with what I think the dispositive issue will be. The questions are not in any particular order of importance.

At the outset I think it important to stress that this case is not about the permissibility or constitutionality of assisted suicide. It does not deal with the question of Congress' power to pass a statute forbidding (or encouraging) the practice. Though those issues are always in the "background" of such a case, the focus will remain on whether the AG exceeded his authority in issuing the Nov. 2001 Directive.

Questions on the Court's Mind

1. First, let's consider the nature of the AG's action. Is it tantamount to issuing a new regulation or interpreting an existing regulation? If it is the former, isn't there a "notice and comment" period required for consideration of such a regulation, like it would be for countless other federal regulations? But if it is merely an interpretation, such notice and comment probably won't be required.

2. Is the AG here interpreting the statute (CSA) or the regulation or both? Does it matter? That is, is the AG given more deference when construing a statute or a regulation?

3. What is the effect of AG Reno's 1998 interpretation and action, which conflict directly with that of former AG Ashcroft? That is, is there less deference given to an AG if he is simply construing a regulation differently from his predecessor than if he is construing it the same way or construing a regulation that s/he didn't interpret?

4. Who defines what the legitimate practice of medicine is? Does the CSA really do this by virtue of references to medicine, health and controlled drug use throughout the statute? Or, is the regulation of the medical profession and, therefore the determination of the "legitimate practice of medicine" primarily a state concern? The State of Oregon rests its argument squarely on the point that the regulation of medicine has been, since time immemorial, a state prerogative.

5. What really is the role of the CSA in this case? Wasn't the CSA enacted in another period in American history, far before the debate over assisted suicide/dying had even emerged on the national scene? That is, wasn't it largely, if not solely, concerned with controlling the drug trade and, later, with making sure that professionals don't divert legal drugs into illicit channels? Wasn't the major purpose of the CSA to deal with the money and the addiction resulting from drug abuse/misuse? If so, how does it really relate to the facts of this case?

6. If indeed the regulations under the CSA talk about legitimate medical practice but the states have traditionally regulated the practice of medicine, how do these two realities overlap? Is there a kind of pre-emption provision in the statute or some kind of pre-emption analysis that will help us determine whether to defer to the federal or state law?

7. Earlier in 2005 the Supreme Court handed down a decision, Gonzalez v. Raich, which invalidated the CA statute permitting the use of medical marijuana. How does that decision affect this case? On the one hand, it appears that it condones the federal intervention into state affairs when it has to do with a drug regulated under the CSA. On the other hand, Oregon will argue that marijuana is a Schedule I drug (classified as having no medical use) and that the drugs in question in this case are largely, if not exclusively, legal and beneficial Schedule II drugs. Does that make a difference?

8. The previous question stimulates the general issue of federalism--the delicate balance between federal and state power that is at the heart of our constitutional system. In this connection an argument will be made that the Ashcroft Directive "upsets" the "delicate balance" between state and federal. If this is so, what is the test envisioned in the case law that would still permit this kind of "upset" of the balance, if indeed that is a proper characterization? Both sides will have to deal with the "clear statement" rule--that an upset of the balance requires a clearly expressed Congressional intent--but I think this issue remains fuzzy and will have to be developed considerably.

9. What role does Oregon's seven year history with assisted suicide have in determining whether to allow the AG's directive? Is it relevant at all? If so, how so?

Finally, the BIG QUESTION, for Me

I think the dispositive issue, whether or not it ever comes out in the actual opinion of the Court, has to do with how we as a nation debate important social issues in our country. Will the AG's action be perceived as a way to squelch debate on what is actually a live (pun intended) issue of public policy, and one that certainly shows every sign of becoming more and more of an issue as people's lives are extended by the wonders of medical technology? Will the Court tend to perceive the AG's action as a high-handed way to pursue his own political or even religious agenda at the expense of a democratic process that twice selected this experiment beginning more than a decade ago? I think that it has to be so perceived. But, I also realize that there are ideologues on the Court who will vote to sustain the AG. I am counting on a 5-4 or, at most, a 6-3 decision to affirm the Ninth Circuit on this one.*

[*As far as I know, Justice O'Connor will be hearing this case but whether she will be voting on it is anyone's guess.]

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