Academic journal article Issues in Law & Medicine

Oral Argument in Gonzales V. Oregon*

Academic journal article Issues in Law & Medicine

Oral Argument in Gonzales V. Oregon*

Article excerpt


CHIEF JUSTICE ROBERTS: The Court will now hear argument in Gonzales v. Oregon.

General Clement.

Oral Argument of Paul D. Clement On Behalf of Petitioners

GENERAL CLEMENT: Thank you, Mr. Chief Justice, and may it please the Court:

Before Oregon became the first State to authorize assisted suicide, the prescription of federally controlled substances to facilitate suicide generally violated State law and also violated Federal law.

Respondents contend that Oregon's decision to remove the State-law consequences from that conduct also operated to remove the Federal law consequences.

JUSTICE STEVENS: May I ask, what Federal law does it violate?

GENERAL CLEMENT: It violated the Controlled Substances Act. And the D.A. had taken the position, before Oregon acted, for example, that the fact that a doctor prescribed controlled substances for purposes of a suicide was a basis for revoking his license.

JUSTICE O'CONNOR: Well, now, would that be true also for any doctor who provided the substances to furnish an execution of a convicted death penalty convict?

GENERAL CLEMENT: No, Justice O'Connor, the death penalty situation, lethal injection, is different, for a number of reasons. Of course, the D.A. has long taken a position of nonenforcement in that context, which would be protected by this Court's decision in Heckler against Cheney.

JUSTICE O'CONNOR: But, otherwise, it would be the same reasoning-

GENERAL CLEMENT: I don't think it would, Justice O'Connor, at least not since 1994, because in 1994 Congress passed a statute that I think is best read as ratifying the practice of lethal injection. This is 18 U.S.C. 3596. And that statute authorizes the Federal Government to use the method of execution in the State of the sentencing court. And at the time that was passed, in 1994, the overwhelming majority-something like 25 of the 38 States-had already used lethal injection. So, I would read that as-

JUSTICE O'CONNOR: But would it be open-

GENERAL CLEMENT:-a ratification-

JUSTICE O'CONNOR:-to the Attorney General to pass a regulation like this one, and all of a sudden apply it-some new Attorney General, who had a very different view of the death penalty?

GENERAL CLEMENT: No, I don't think so, Justice O'Connor, and I think the reason is, at a minimum, 18 U.S.C. 3596, because I think that would now stand as an obstacle to that type of regulatory impression-


JUSTICE O'CONNOR: Well, not if it just refers back to the States, would it?

GENERAL CLEMENT: No, but this is a provision that dictates how the Federal Government shall do its executions. And I think, at that time, in 1994, it effectively ratified the practice of using lethal injection. I-

JUSTICE SOUTER: Does the statute-does the Federal statute specifically authorize doctors to do this? Or does it simply say that convicts may be executed by lethal injection?

GENERAL CLEMENT: Well, the statute itself says that the Federal Government shall use the method in the State in which the sentencing court sits, the Federal sentencing court.

JUSTICE SOUTER: No, but the method may simply be lethal injection. And, going back to Justice O'Connor's question, it might still be the case that, on the theory the Government is advancing this morning, it would be unlawful for a doctor to engage in that, because that was, in fact, not within the limits of the practice of medicine, the doctor was using a controlled substance for something outside the practice of medicine, and hence, it would be illegal.

GENERAL CLEMENT: And again, Justice Souter, I think the best reading is, that is now foreclosed-that interpretation would be foreclosed by Congress's action in 1994. There are also some technical differences-

JUSTICE SOUTER: But I take it Congress did not refer specifically to-or did not include a specific authorization of doctors, so that we'd have to do a little construction to get to your point. …

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