Hospitals & Asylums    


Gonzalez v. Oregon No. 04-623 (2006) HA-17-1-06

1. The Oregon Death With Dignity Act (ODWDA) exempts from civil or criminal liability state-licensed physicians who, in compliance with ODWDA's specific safeguards, dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient. 9 November 2001, the Attorney General issued an Interpretive Rule to address the implementation and enforcement of the CSA with respect to ODWDA, declaring that using controlled substances to assist suicide is not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the CSA. The State, a physician, a pharmacist, and some terminally ill state residents challenged the Rule. The District Court permanently enjoined its enforcement. The Ninth Circuit invalidated the Rule, reasoning that, by making a medical procedure authorized under Oregon law a federal offense, it altered the balance between the States and the Federal Government without the requisite clear statement that the CSA authorized the action; and in the alternative, that the Rule could not be squared with the CSA's plain language, which targets only conventional drug abuse and excludes the Attorney General from medical policy decisions.

Held: The CSA does not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure.

2. Justice Kennedy delivered the opinion of the Court:  The question is whether the Controlled Substances Act allows the United States Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide, notwithstanding a state law permitting the procedure. As the Court has observed, "Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide."  The deference here is tempered by the Attorney General's lack of expertise in this area and the apparent absence of any consultation with anyone outside the Department of Justice who might aid in a reasoned judgment.   In the face of the CSA's silence on the practice of medicine generally and its recognition of state regulation of the medical profession it is difficult to defend the Attorney General's declaration that the statute impliedly criminalizes physician-assisted suicide.  The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality.


3. Justice Scallia with whom Chief Justice Roberts and Justice Thomas join dissenting:  The Directive purports to do three distinct things: (1) to interpret the phrase "legitimate medical purpose" in the Regulation to exclude physician-assisted suicide; (2) to determine that prescribing, dispensing, and administering federally controlled substances to assist suicide violates the CSA; and (3) to determine that participating in physician-assisted suicide may render a practitioner's registration "inconsistent with the public interest" within the meaning.  "A rule requiring the Secretary to construe his own regulations narrowly would make little sense, since he is free to write the regulations as broadly as he wishes, subject only to the limits imposed by the statute”. Indeed, the AMA has determined that "physician-assisted suicide is fundamentally incompatible with the physician's role as a healer.' "The overwhelming weight of authority in judicial decisions, the past and present policies of nearly all of the States and of the Federal Government, and the clear, firm and unequivocal views of the leading associations within the American medical and nursing professions, establish that assisting in suicide ... is not a legitimate medical purpose." The Court nevertheless holds that this triply unambiguous delegation cannot be given full effect because "the design of the statute," evinces the intent to grant the Secretary of Health and Human Services exclusive authority over scientific and medical determinations. This proposition is not remotely plausible. The Court cites as authority for the Secretary's exclusive authority two specific areas in which his medical determinations are said to be binding on the Attorney General--with regard to the "scientific and medical evaluation" of a drug's effects that precedes its scheduling, and with regard to "the appropriate methods of professional practice in the medical treatment of the narcotic addiction of various classes of narcotic addicts."


4. Justice Thomas dissenting: The majority's newfound understanding of the CSA as a statute of limited reach is all the more puzzling because it rests upon constitutional principles that the majority of the Court rejected in Raich.  The CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner." Gonzales v. Raich, 545 US(2005)


5. Sanders, Tony J. executing judgment: Typical of most Supreme Court rulings this decision fails in its prima facie – the Secretary of Health and Human Service is the single Executive officer and due to the fact that there was no consultation with the federal medical expert justice remains to be done – the abolition of the Oregon Death with Dignity Act.   Although this case establishes that the Attorney General is not the competent federal authority for regulating the medical professional it does not “legislate from the bench”, as was done during the civil rights era, to direct Congress to replace mentions of the Attorney General with Secretary of Health and Human Services in the CSA as done in the Independent Drug Enforcement Administration HA-9-11-01 that thoroughly analyzes the separation of powers between the medical and legal professionals and summarizes the information of the Ashcroft case.  Much like the Raich case the Supreme Court failed by naming the Attorney General petitioner for the case and was reduce therefore to limiting his authority.  This failure can be attributed to the compelling interest that this case regarding physician assisted suicide presents to a federal official wishing to impersonate a wise man, the willingness of the Attorney General to execute the corrupt practice of the Supreme Court that requires the plaintiff to pay money (rather than perform satisfactory research) for such humble status as the catalyst of judgment, and the reluctance of the Secretary of Health and Human Services to get involved in the shady business of the State police, stimulated that another profession might engage in an illegal practice similar to the death penalty and under the influence of the Bar of the United States Supreme Court that was so annoying that the Vice President went insane and was caught by the Ninth Circuit making illegal warfare from a California military base after the termination of emergency, at the time the case was dismissed there from.  Now that the Supreme Court case is concluded it should be safe for the Secretary to exercise his moral and medical authority under the CSA and with the state professional medical associations to ensure that the practice of physician assisted suicide is contained, condemned and ultimately censured.    


6. The Hippocratic Oath varies somewhat according to the particular translation, but in any translation the content is clear: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion," or "I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.”  Contemporary medical ethics has however arrived at divergent opinions regarding both rights to life issues.  Euthanasia and physician assisted suicide and any counsel to such effect are condemned except when it involves the termination of life support for a person who can reasonably be determined to never regain consciousness and is absolutely without any moral  support for their continuing life support.  Abortion on the other hand is considered the pregnant woman’s right and so long as she aborts the child before it has developed to the stage where it might live on its own in the third trimester when the woman must justify that the abortion would save her life, is acceptable.  Resistance to both suicide and abortion is however widespread as anathema to the purpose of life and reproduction even in the face of adversity.  Abortion has been satisfactorily justified whereas euthanasia remains a prohibited and condemned practice the counsel for which is considered mean, subversive and detrimental to the mental health of terminally ill patients who need positive moral and medical support and care to live out their natural life.  Refraining from euthanasia and abortion is encouraged in the Hippocratic Oath to protect the “pure and holy way I will guard my life and teaching”.               


7. Euthanasia is the administration of a lethal agent by another person to a patient for the purpose of relieving the patient’s intolerable and incurable suffering. It is understandable, though tragic, that some patients in extreme duress--such as those suffering from a terminal, painful, debilitating illness--may come to decide that death is preferable to life. However, permitting physicians to engage in euthanasia would ultimately cause more harm than good. Euthanasia is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks. The involvement of physicians in euthanasia heightens the significance of its ethical prohibition. The physician who performs euthanasia assumes unique responsibility for the act of ending the patient’s life. Euthanasia could also readily be extended to incompetent patients and other vulnerable populations. Instead of engaging in euthanasia, physicians must aggressively respond to the needs of patients at the end of life. Patients should not be abandoned once it is determined that cure is impossible. Patients near the end of life must continue to receive emotional support, comfort care, adequate pain control, respect for patient autonomy, and good communication Opinion E-2.21 of the AMA Code of Ethics.


8. Whereas the federal government is prohibited from any sort of interference with the medical profession the enforcement of medical 
ethics by the government is limited to the termination of financing.  The Assisted Suicide Funding Restriction Act of 1997 finds that 
assisted suicide, euthanasia, and mercy killing have been criminal offenses throughout the United States and, under current law, it 
would be unlawful to provide services in support of such illegal activities wherefore some areas might begin funding such activities 
Congress makes provisions to prohibit the furnishing of assistance for these practices. In medical cases, or those affecting other 
professional specializations the Attorney General should give greater deference to the federal representative of such profession for the 
interests of the consumers to be more professionally represented and enjoy larger success and lighten the burden upon the judiciary in 
hopes that the agencies would render professional judgments of their own for the Court or with independently equal authority.  The 
misbehavior of the State police somewhat justifies the presence of the Attorney General and absence of the Secretary on the grounds 
of security but should not be used as precedence by a philosophical government that wishes not to give in to the fear that encourages 
them to pretend like the State police do not wreck the best laid plans of mice and men and give everyone of whatever status a bad day.  
That is what the Court is there to remedy and it is therefore not necessary, or recommended, to hire an Attorney General for the 
security of the medical establishment or other professional society whose federal official should brave the discrimination with faith 
that justice would be happy to protect them from such third party action and promote the will of the profession in consultation with 
patients to a higher level than consultation with a generalist justifies.  


9. Essentially the Attorney General has overextended his authority in regards to the CSA that belongs instead to the Secretary of Health and Human Services.  In the future the Secretary should be more prepared to represent the medical profession (1) before the Supreme Court and, (2) now, before Congress, in regards to the assumption of authority under the CSA (3) before Oregon Department of Human Services in regards to the abolition of the Death with Dignity Act and (4) to the Attorney General in regards to incorporating the DEA in the DHHS. 


Sanders, Tony J. Hospitals & Asylums.  Independent Drug Enforcement Administration. HA-9-11-01.