Not DEA'd Yet: Gonzales V. Oregon

Article excerpt

On January 17, the Oregon Death with Dignity Act beat back yet another attempt on its life. In Gonzales v. Oregon, the U.S. Supreme Court (by a six-to-three vote) affirmed decisions of two lower federal courts and made permanent a 2001 injunction against federal prosecution of physicians who prescribe narcotics under the terms of the act.

Media coverage of the decision both exaggerated and underplayed the decision's significance. On the one hand, the Court did not go so far as to decide that Oregon's regime of physician-assisted suicide could not be preempted by federal law. As Justice Scalia coyly notes in his dissent (in which he is joined by Justice Thomas and Chief Justice Roberts), the issue of federal power was simply not before the Court. Justice Kennedy's majority opinion merely held that existing federal law (the Controlled Substances Act) did not authorize former Attorney General Ashcroft's issuance of a rule that physicians prescribing schedule II drugs for patients under the Oregon act were subject to sanction by the Drug Enforcement Administration. This leaves open the possibility that Congress could amend the law to essentially overturn the decision.

On the other hand, the decision has implications for the practice of medicine that extend far beyond Oregon and the legalization of physician-assisted suicide. Ashcroft's ruling had been based on a claimed power of the attorney general to prohibit prescription of any schedule II drug that he determined not to be "for a legitimate medical purpose." This purported power to determine what medical purposes are and are not "legitimate" is one that DEA prosecutions against physicians resort to increasingly frequently. Rather than seeking criminal convictions only in cases that meet the CSA's requirement that drugs have been intentionally diverted outside "the course of professional practice," prosecutors have sought and in some cases achieved convictions where they have been able to prove that prescribing painkillers for a particular patient did not meet the civil standard of good medicine--situations constituting medical malpractice. This is just one of many DEA practices that have had a chilling effect on the delivery of adequate palliative care in the U.S.

The majority opinion in Gonzales seems to cut the ground out from under this strategy. Justice Kennedy, after noting the extraordinary nature of the authority that Ashcroft claimed the CSA delegated to him, goes on to say: "The importance of the issue of physician-assisted suicide, which has been the subject of an 'earnest and profound debate' across the country, makes the oblique form of the claimed delegation all the more suspect. …