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September 30, 2002

A Federalism of Convenience

by Estelle H. Rogers

Last November, at the height of the public’s concern about the war on terrorism, few were paying attention to an Oregon law that permits the assistance of a physician in hastening the death of a terminally ill patient. The statute, in effect since 1997, has been used by only 100 or so Oregonians who met its stringent, carefully drafted qualifications. So it was particularly stunning when Attorney General John Ashcroft directed the Drug Enforcement Administration (DEA) to go after Oregon doctors and pharmacists prescribing under the state’s Death With Dignity law. Why he did it when he did has been the subject of voluminous editorial comment, some of it wryly amusing. ("Ashcroft: Not Busy Enough?" and "Suddenly Ashcroft Thinks He Is a Doctor" are two titles that come to mind.) But his motivation will not be examined here. Rather, the legal theory underpinning the directive, and its broader implications for other individual rights, are the subjects of this article.

A New Interpretation

The Ashcroft directive, published in the Federal Register at 66 Federal Register 56,608, was a new interpretation of regulations issued many years ago under the Controlled Substances Act (CSA). In particular, the attorney general focused on the regulations that create an exception to the CSA so that schedule II drugs may be used by licensed medical personnel for "legitimate medical purpose[s]." This policy arises from the recognition that some of the same substances that are understandable subjects of law enforcement concern as drugs of abuse are, in the right hands and in appropriate quantities, humane and effective pain relievers.

The directive was issued in the form of a memorandum to the administrator of the DEA, "Dispensing of Controlled Substances to Assist Suicide." Its stated legal basis was the recent U.S. Supreme Court decision in United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483 (2001), which held that a state could not create its own medical use exception to the CSA’s regulation of marijuana. The attorney general’s reliance on this precedent, however, is itself problematic. Marijuana is a schedule I substance, which is not subject to the "legitimate medical purpose" exception applicable to schedule II drugs, such as those used to hasten a death under the Oregon Death With Dignity law. The inclusion of marijuana in schedule I expressed a determination by Congress that it had no legitimate medical purpose. Nonetheless, the attorney general, seemingly ignoring the distinction between schedule I and schedule II, relied on the case as holding that the "application of federal law regulating controlled substances" must be uniform. Then he determined that assisting a suicide is not a legitimate medical purpose and cannot be deemed legitimate by the decision of an individual state.

Ashcroft’s interpretation was a reversal of the U.S. Department of Justice’s (DOJ) decision in the same matter less than four years before, when then-Attorney General Janet Reno concluded that the scope of "legitimate medical practice" remained a determination for the states to make, notwithstanding the unique posture of Oregon in end-of-life care." There is no evidence that Congress, in the CSA, intended to displace the states as the primary regulators of the medical profession, or to override a state’s determination as to what constitutes legitimate medical practice in the absence of a federal law prohibiting that practice," she wrote. "Indeed, the CSA is essentially silent with regard to regulating the practice of medicine that involves legally available drugs except for certain specific regulations dealing with the treatment of addicts."

Subsequently, two slightly different legislative "fixes" designed to override the Reno interpretation failed to achieve final passage in Congress, but the change in control of the White House in 2001 paved the way for a back-door administrative solution to the perceived problem. The mere existence of the Oregon Death With Dignity law, one state’s bold experiment in expanding alternatives available to the terminally ill, was anathema to the new executive branch, headed by an avowed opponent of end-of-life choice.

A New Impact

The impact of the Ashcroft directive would be to usurp the traditional state function of defining "legitimate medical purpose," by imposing a federal standard that trumps the Oregon Death With Dignity law. In other words, strict compliance with state law would be no defense to the doctor who ran afoul of the new federal "medical review board" that presumably would be run by drug enforcement agents with no medical expertise at all. By peremptorily excluding the Oregon law from the ambit of legitimate medical practice, the attorney general subjected the law-abiding Oregon doctor or pharmacist to loss of his or her prescribing license, as well as a mandatory minimum of twenty years in prison upon conviction of a drug crime.

Aside from the dubious wisdom of the policy change announced by Attorney General Ashcroft, we must marvel at the paradox of its sponsorship by a DOJ proclaiming its devotion to federalism, devolution, and laissez-faire enforcement of national standards. States’ rights, the argument goes, should reign supreme until the states get them wrong. Then the federal power crowd will step in and set things straight. Ashcroft’s is a federalism of convenience.

Not surprisingly, the State of Oregon immediately challenged the attorney general’s directive in federal court on various statutory and constitutional grounds. The papers filed in Oregon v. Ashcroft, Civ. No. 01-1647-JO, last November were a textbook lesson in alternative pleading:

1. Congress did not intend to delegate to the attorney general the authority to override a state’s determination as to the "legitimacy" of a medical practice;

2. If Congress intended to delegate that authority to the attorney general, it did not effectuate that intent in the CSA;

3. If Congress intended to delegate the authority to the attorney general and effectively did so in the CSA, then the directive is invalid because the attorney general failed to engage in formal rule-making procedures as necessary to exercise his delegated authority;

4. Congress has no constitutional authority under the Commerce Clause to regulate the medical practices of Oregon doctors and pharmacists; and

5. Any attempt by Congress to invalidate medical practices authorized by Oregon law impermissibly intrudes into areas reserved to the States in violation of the Tenth Amendment to the U.S. Constitution.

The district court judge, announcing his decision on April 17, 2002, did not find it necessary to reach the constitutional issues. Judge Robert Jones found that the CSA was "never intended . . . to establish a national medical practice or act as a national medical board" and granted the state’s motion for summary judgment on purely statutory grounds. (In an earlier ruling from the bench, Jones had made short shrift of the United States’ reliance on Oakland Cannabis Buyers as a controlling precedent. It was relegated to a footnote in the Court’s opinion.) Ashcroft’s opportunistic antifederalist position was squarely rejected.

That the court ruled so narrowly should have provided significant comfort to those who feared more far-reaching repercussions from this decision. (Most obviously they include advocates of reproductive rights, an area where rights have been diminishing as the contours of the federal/state power-sharing arrangement have shifted in favor of the states, almost from the moment Roe v. Wade was decided.) Nonetheless, Judge Jones’s deference to state regulation of the medical profession has engendered concern among some civil libertarians. "Be careful what you wish for," these commentators would say, "because you may be sacrificing some really important rights in the name of one minor law in one small state." Their alarm, however, is largely based on a misunderstanding of the opinion and its implications.

The argument advanced is that state regulation of medicine, if carried to its logical conclusion, could permit a state to restrict or even ban any medical procedure it wished, abortion being the most likely target, of course. This reasoning is misguided on two grounds. First, it glosses over the statutory basis of the decision in Oregon v. Ashcroft. And second, it ignores the constitutional basis for Roe v. Wade and its progeny.

As noted previously, Judge Jones’s ruling in Oregon v. Ashcroft was on the narrowest possible grounds. In fact, out of all the alternatives offered in the State of Oregon’s pleadings, he rested on the first: that Congress did not intend to grant the attorney general the authority to override a state’s determination as to what constitutes a "legitimate medical practice." In a very real sense, then, this is a case about statutory construction and not about federalism at all. The court found that Congress, when it drafted, debated, and passed the CSA, intended to regulate drug trafficking—not prohibit assisted suicide. Ashcroft’s attempt to effectuate the latter purpose through an unrelated law by executive fiat would simply not withstand judicial scrutiny.

Having found ample justification for his decision in the plain language and legislative history of the CSA, Judge Jones went no further. He explicitly refused to revisit the moral, ethical, and religious debate surrounding assisted suicide. Likewise, he found it unnecessary to plumb the jurisprudential depths of federalism under our constitutional system. Ironically, at this stage of the litigation, Oregon v. Ashcroft may just be a minor case about the "original intent" of the CSA. Its future as a precedent of any broad applicability is highly questionable.

Reproductive Rights

Reproductive rights, however, are an entirely different matter. Roe v. Wade and all of the related cases since have underscored the central principle that the right to abortion (within certain parameters) is guaranteed under the constitutional right to privacy. (Although the right to abortion has been argued many times, including most famously by now-Justice Ruth Bader Ginsburg, as a concomitant to the right to gender equality, this notion has never been embraced by the Supreme Court.) But whatever the particular constitutional underpinnings of reproductive rights, the pivotal fact is that they are constitutional. The fear that state regulators of medical practice could eviscerate the right to abortion with a wave of the hand completely misses that point.

State laws and regulations regarding abortion are promulgated with regularity, but the courts must evaluate them in light of the U.S. Constitution and the Supreme Court’s requirements for analysis thereunder. One of the more recent and well-publicized examples of such litigation is the group of cases challenging state bans of the so-called "partial-birth abortion" procedure, and each of these laws was struck down as vague and overbroad. Other less familiar restrictions on abortion that have been rejected by various courts over the years include spousal consent, certain waiting periods, and some parental consent laws.

Autonomy vs. Diversity

Undeniably, abortion is a medical procedure, and the state oversight of medical practice does and should include it. But it is also a constitutional right, and its regulation must be viewed through that lens. This kind of protection was expressly declined in the Supreme Court’s 1997 rulings in the physician-assisted dying cases Vacco v. Quill, 521 U.S. 793 (1997), and Glucksberg v. Washington, 521 U.S. 702 (1997), which is why Judge Jones could forgo constitutional analysis altogether. The distinction between abortion rights and assisted dying is both as simple and as complicated as that.

True federalists should embrace the Supreme Court’s decisions in Quill and Glucksberg, and indeed, they were hailed by some of Attorney General Ashcroft’s conservative colleagues at the time. After all, the Court explicitly recognized the desirability of state autonomy and state diversity in a sensitive area of social policymaking where there is no overriding constitutional right. But autonomy and diversity are not acceptable in the result-oriented federalism of convenience. What counts is the "right" outcome at the end of the policy debate, and Oregon’s was wrong.

Achieving the perfect balance between our federal government and its constituent states is a process that began in the earliest days of this country’s heady civic dialogue. It is an important and legitimate debate in a society organized as ours is, but it should be conducted with honesty and integrity. This dialogue will not end with the resolution of the controversy between Attorney General Ashcroft and the State of Oregon. Whatever the courts ultimately decide will surely have ramifications for the citizens of Oregon; maybe it will have an impact beyond. But the rights of Oregonians to have one more option at the end of life need not be won at the price of reproductive freedom, women’s equality, or any of our other cherished rights. Such a sacrifice would be as unnecessary as it is unwise.

As published in Human Rights, Fall 2002, Vol. 29, No. 4, p.15-17.

Estelle H. Rogers

Estelle H. Rogers is executive director of the Death With Dignity National Center, an organization dedicated to expanding end-of-life choices and advancing the legalization of physician aid in dying.