Supreme Court Dispatches

They’re Dying in Oregon

Should the Supreme Court save them?

Some Supreme Court cases have odd or long-winded names that have nothing to do with what they’re remembered for. The case heard this morning, however, is satisfyingly direct. It’s called Gonzales v. Oregon, and it pits a state’s power to let doctors help terminally ill patients die against the attorney general’s power to stop them. It’s all life and death—no fun, no games—in the first major case for the term and for Chief Justice John Roberts.

In 1994 and then again in 1997, Oregon voters passed the Death With Dignity Act, which allows doctors to prescribe lethal doses of legal but regulated drugs to dying Oregonians who ask for them. John Ashcroft, who was then a senator, asked Janet Reno, who was then Clinton’s attorney general, to stop the Oregon doctors. Reno declined. In 1998 and 1999, Ashcroft introduced two bills in Congress that would have explicitly scuttled Death With Dignity. Both bills failed.

Then Ashcroft became President Bush’s attorney general. In 2001, he announced that the federal Controlled Substances Act—passed by Congress in 1970 to “conquer drug abuse” and control the trafficking of legal and illegal drugs—gave him the power to revoke the licenses of doctors who assisted suicide with a prescription drug. The doctors could also be criminally prosecuted. When Ashcroft made his move, Oregon squawked its way to court. (That’s why the name of today’s case could be improved on a bit—it should really be called Ashcroft v. Oregon.)

At oral argument this morning, the justices start off nervous about this abundance of AG power. What about “some very different attorney general who had a very different view of the death penalty” and decided to prosecute a doctor who prescribed a lethal injection at a state or federal execution, Sandra Day O’Connor asks. What would stop him? Solicitor General Paul Clement tries to reassure her that Congress ratified the use of lethal injections for execution in 1994. But O’Connor can’t be appeased. “But isn’t the reasoning the same?” she presses. David Souter and later Stephen Breyer join in. The full-court press backs Clement into a mistake. He says that doctors aren’t directly involved with lethal injections.

It’s the first of several such off-balance moments for Clement—not because he’s not his brilliant self, but because he’s got a tough set of facts and precedents to negotiate. A minute or two later, Ginsburg reminds him of the Justice Department’s position in Washington v. Glucksberg, the 1997 case in which the court found in the Constitution no right to die. “The government said then,” Ginsburg points out, that there is “every reason to believe that the state legislatures will address this issue in a fair and legitimate way.” It sounds like she is directly quoting. “You are rejecting that position,” she concludes, taking pains not to sound triumphant.

Clement has to disagree. The problem is where that takes him. A breath after standing by Glucksberg, he seems to be saying that doctors in Oregon can zap all the patients they want to as long as they don’t do it with federally regulated drugs. His poster boy is none other than Jack Kevorkian. Doctor Death “had no federal substances license for six years before his conviction,” Clements notes cheerfully.

Has the Bush administration really just invoked Dr. Kevorkian as a model of medical practice?

Clement reaches for a lifeboat. Even if the drugs that non-Kevorkian doctors can prescribe to assist suicide (barbiturates classified as Schedule II under the Controlled Substances Act) are the most effective means to that end, he continues, that wouldn’t make them OK. After all, if a state wanted to allow doctors to prescribe illegal drugs (Schedule I drugs like marijuana *), it wouldn’t be able to. Clement is paddling toward Ashcroft v. Raich. In that case last term, the court ruled that the federal government could prosecute sick Californians who were smoking pot with the blessing of their state’s medical marijuana law.

Then Ginsburg snatches the lifeboat away. “But Congress said when it made a drug Schedule I, ‘No. Never,’ ” she says. “With Schedule II, it’s OK with a doctor’s prescription.” Marijuana is definitely Schedule I. If Clement loses, this exchange will probably be why. The drugs that doctors prescribe to assist suicide are legal. Marijuana is illegal. The attorney general who is trying to nab Oregon doctors with a law that says nothing about assisted suicide is one executive appointee. Congress that passed a law explicitly criminalizing pot is the whole elected legislature.

But when Oregon’s lawyer, Robert Atkinson, takes his turn, he gets addled, too. What if a state wanted to, say, let doctors prescribe morphine for recreational use, Stephen Breyer asks. The attorney general would be able to do something about that, wouldn’t he?

The correct answer is clearly yes. Atkinson says no. The federal government should trust the states to regulate drugs responsibly and leave them alone, he argues. This is too much for Breyer, and for the rest of his team, too. “Far be it from me to suggest an argument,” Breyer says after Atkinson fails repeatedly to bail himself out. Breyer and Souter team up to propose that it’s one thing for a state to “gut” the Controlled Substances Act—by letting doctors be drug pushers—and another for that state to make provisions for physician-assisted suicide, a scenario that Congress didn’t envision when it passed the CSA.

“I don’t have any argument with that,” Atkinson says, relieved.

“Yes you do!” Scalia interrupts. Atkinson’s case, Scalia assures him, hinges on the argument that the boundaries of accepted medical practice are determined state by state. Atkinson agrees—falling into a trap that Scalia laid earlier. Congress chooses to regulate gambling and to set a national drinking age. These things “are none of the federal government’s business either,” Scalia says. But no one’s questioning Congress’ authority to take on gambling or drinking—or, generally, speaking, the prescription of drugs. And if that’s the case, and the Controlled Substances Act gives the attorney general broad power—as Scalia thinks it does—why shouldn’t Ashcroft and Gonzales string up any doctor they want?

Maybe this is federalism—the debate over how to balance federal and state power—come full circle. Breyer, Ginsburg, Souter, and John Paul Stevens often advocate for accommodating federal authority. But they’re with Oregon in this case, because they’re far more comfortable expanding Congressional power than they are enhancing the power of the attorney general. Scalia, revealed as federalism’s fair-weather friend last year when he joined the pro-Congress majority in Raich, is on the federal government’s side again. More power for the attorney general appears to be fine with him. John Roberts seems unhappy about the prospect of Oregon letting doctors dole out morphine to make patients happy. Anthony Kennedy seems unhappy generally. O’Connor, the court’s staunchest states’ rights advocate (William Rehnquist RIP), appears to be firmly on the side of Oregon. But her vote only counts if she’s still on the court when the ruling is handed down.

Count heads, and you figure out that this case could come down to O’Connor. And since the court is unlikely to decide any cases with O’Connor as the deciding vote, Clement and Atkinson may be back for a second round—with a new ninth justice. This, then, is what all the fuss over Harriet Miers’ confirmation is about.

*Correction, Oct. 6, 2005:The article originally gave cocaine as an example of a Schedule I drug because that was the example used during the oral argument. In fact, cocaine is a Schedule II drug because it has an accepted medical use as a topical anesthetic and so can be prescribed by a doctor. Click here to return to the corrected sentence.