The Future of Assisted Suicide and Euthanasia

By Neil M. Gorsuch | Go to book overview

Epilogue

AS THIS book wends its way through the editorial process, the contours of the assisted suicide debate continue to evolve. While it is impossible to elaborate on every significant new fact or issue in such an active international debate, some of the more salient recent developments are worth noting before the opportunity slips away.

Perhaps foremost among these, at least in the short term, is the Supreme Court's recent decision in Gonzales v. Oregon.1 By a 6-3 vote, the Court affirmed two lower court decisions and rejected an interpretative regulation issued by former Attorney General John Ashcroft under the Controlled Substances Act (CSA). The so-called Ashcroft Directive sought to preclude doctors from using controlled substances to aid suicides intentionally, reasoning that assisted suicide does not qualify as a “legitimate medical practice,” as that term is used in regulations enacted shortly after the CSA's enactment many years ago. Significantly, the Supreme Court's opinion rejecting the Ashcroft Directive offered no endorsement of assisted suicide or euthanasia but instead focused on a different (and perhaps comparatively arcane) set of questions about the balance of authority between the states and federal government in the arena of medical regulation, as well as on whether and to what extent the Attorney General is due heightened deference in his interpretation of the CSA and CSArelated regulations under federal administrative law principles.

Lurking just beneath the surface of the Court's federalism and administrative law analysis, however, is a clearly discernible message for the future of the assisted suicide debate. At the outset of its opinion, the Court recalled its recognition in Glucksberg that “Americans are engaged in an earnest and profound debate” about assisted suicide, a phrase that suggests a judicial hesitance to tamper with or pretermit that debate. On each subsequent page of the Court's opinion that same hesitance seemed to reappear. Time after time, the Court cast doubt on the Attorney General's suggestion that the CSA somehow affords a “single Executive officer” the authority to issue an interpretive regulation that would, in the Court's words,“substantially disrupt” the Oregon experiment and the debate it has provoked.2 To be sure, the Court held that the Attorney General's view—that assisted suicide doesn't qualify as a “legitimate medical prac

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