Supreme Court upholds Oregon's assisted suicide law.

January 17, 2006 9:51 AM

Supreme Court upholds Oregon's assisted suicide law. Justice Kenedy wrote the opinion for the majority, concluding that Ashcroft did not have the authority to sanction doctors under the Controlled Substances Act. Justice Scalia dissented, joined by Justice Thomas and Chief Justice Roberts. Thomas also wrote a separate dissent. The Washington Post has the opinions, and you can get the pdf from the Supreme Court's website.
posted by monju_bosatsu (44 comments total)

.

er, Yay! Sanity!
posted by twsf at 9:57 AM on January 17, 2006

The oral argument (another PDF) for the case is also worth a read (SCOTUS oral arguments alway are, in my opnion).
posted by Gator at 9:59 AM on January 17, 2006

Yay!!
posted by bshort at 10:00 AM on January 17, 2006

Is there an mp3 for the oral argument?
posted by bshort at 10:05 AM on January 17, 2006

Awesome. Interesting that Scalia and Roberts would vote against states rights, being proponents of "non-activist", federalist interpretations of the Constitution and all.
posted by Rothko at 10:12 AM on January 17, 2006

Oyez is the only source I know of for mp3s of oral arguments in the Supreme Court, but they don't have any up yet for Gonzales v. Oregon.
posted by monju_bosatsu at 10:14 AM on January 17, 2006

In another month, it would have been 5-4, methinks.
posted by Danf at 10:18 AM on January 17, 2006

federalist interpretations of the Constitution
posted by matteo at 10:19 AM on January 17, 2006

Sanity from the 70 and 80 year-old justices, nuttiness from the 50 and 60 year olds. Roberts sided with the forces of evil here and Alito will soon be his mini-me. Claims of moderation from judicial hearings were clearly wrong.

I thought conservatives were supposed to believe in state's rights? I guess any pretense of judicial philosophy trumping politics was abandoned with Bush v Gore.
posted by efbrazil at 10:27 AM on January 17, 2006

Danf, my thoughts exactly
posted by poppo at 10:28 AM on January 17, 2006

JURIST has links to a bunch of the relevant documents and some more background on the case.
posted by monju_bosatsu at 10:32 AM on January 17, 2006

SCOTUSblog also has a summary of the opinion and some insightful analysis.
posted by monju_bosatsu at 10:38 AM on January 17, 2006

What's interesting is that Thomas dissented, while voting for states' rights in Raich. His reasoning seems to be that since the CSA applies to Raich where the "interstate commerce" aspect was negligible, it is applicable here, given the obvious interstate commerce.

His second footnote:

"Notably, respondents have not seriously pressed a constitutional claim here, conceding at oral argument that their ``point is not necessarily that [the CSA] would be unconstitutional.' Tr. of Oral Arg. 44. In any event, to the extent respondents do present a constitutional claim, they do so solely within the framework of Raich. Framed in this manner, the claim must fail. The respondents in Raich were ``local growers and users of state-authorized, medical marijuana,' who stood ``outside the interstate drug market' and possessed `` `medicinal marijuana . . . not intended for . . . the stream of commerce.' ' 545U. S., at ___, ___, (slip op., at 5, 16) (THOMAS, J., dissenting). Here, by contrast, the respondent-physicians are active participants in the interstate controlled substances market, and the drugs they prescribe for assisting suicide have likely traveled in interstate commerce. If the respondents in Raich could not sustain a constitutional claim, then a fortiori respondents here cannot sustain one. Respondents' acceptance of Raich forecloses their constitutional challenge.
posted by Gyan at 10:41 AM on January 17, 2006

monju's recent link has an interesting comment in it:

It seems that "our federalism", like the 4th amendment, has a drug exception.

Which seems to be validated by Scalia's dissent:

The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is withinthe realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers...

If the term “legitimate medical purpose” has any meaning, it surely excludes the prescription of drugs to produce death.

Federalism when it suits a political or moral agenda, it seems. Who's the activist judge now?
posted by Rothko at 10:45 AM on January 17, 2006

although I agree that assisted suicide should be legal, the decision here that upholds Oregon's assisted suicide law seems shaky to me.

In writing the Court's opinion, Justice Kennedy explains, in an obfuscated way, that the federal laws in place do not trump state's rights in this case. And, although I have strong feelings on the rights of the individual states, and a strict reading of the Controlled Substances Act may lead one to find vagueness regarding a physician who describes a drug for the purpose of ceasing another's life, the idea that the federal government cannot set guidelines for states in regards to the practice of physicians seems tenuous to me.

Otherwise, it opens the door for a few states to have no oversight regarding their physicians and other states to regulate them to death (pardon the pun).

I don't know what the rememdy should be. Although I agree with the ultimate outcome of the Court's decision, they have left the door open for the Federal Government to revisit the case under different interpretations of more than a few laws. And by that time, the look of the court will most likely be different.
posted by WhipSmart at 10:46 AM on January 17, 2006

"I thought conservatives were supposed to believe in state's rights?"

That's only when civil rights workers are being beaten and murdered.
posted by 2sheets at 10:59 AM on January 17, 2006

Gyan writes "What's interesting is that Thomas dissented, while voting for states' rights in Raich. His reasoning seems to be that since the CSA applies to Raich where the "interstate commerce" aspect was negligible, it is applicable here, given the obvious interstate commerce."

Yeah, Thomas' dissent is really interesting. Essentially, he's bowing to the precedent established in Raich, even though he dissented with that decision. I've gotta say: I agreed with him in Raich, and he's making sense here, too. Raich was a bad decision, and if the precedent established there had been faithfully carried through in this case, this would have been a bad decision too. Which might be Thomas' (slightly passive aggressive) point.
posted by mr_roboto at 11:11 AM on January 17, 2006

A poster over on Balloon Juice quipped pretty accurately I think, with "I think we’re seeing that the concept of “conservative support for states’ rights” really means “support for states’ rights to be conservative.”"
posted by phearlez at 11:34 AM on January 17, 2006

Indeed, roboto:

From Thomas' dissent: "While the scope of the CSA and the Attorney General’s power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administrative agencies are merely the inevitable and inexorable consequence of this Court’s Commerce Clause and separation-of-powers jurisprudence."
posted by Kwantsar at 11:42 AM on January 17, 2006

Yeah, that's downright catty.
posted by mr_roboto at 11:46 AM on January 17, 2006

Holy crap.

I was quite surprised, Anyone think Alito would have let that through?

Plus, wtf is up with Thomas? "Well, it's a bad Idea, but since we've had all these liberal rulings for expanded federal scope we have to go and do it this way! Don't blame us!" And yet all the conservatives decent.

Still what exactly is the difference between this and the medical MJ case in California that it needed to be denied.
posted by delmoi at 11:49 AM on January 17, 2006

Note that while this case certainly has an effect on the distribution of power to regulate assisted suicide between federal and state governments, the decision in this case was not based on any constitutional requirements regarding that distribution. The CSA, passed by the Congress, lays out the statutory standard and authorizes the AG to promulgate regulations under the statute. The AG also issues official interpretations of these regulations, and did so in this case. The majority of the Court in this case decided not to give that interpretation deference in this case, despite precedent which arguably suggests that it should have. This is the primary basis for Scalia's dissent, and frankly, I think he may have the better of that argument.
posted by monju_bosatsu at 11:49 AM on January 17, 2006

Seems like Oregon is just about the most progressive state w.r.t getting the government off people's backs. Sounds like it's pretty nice too.

Too bad it's in the middle of nowhere, otherwise I'd seriously consider moving there.
posted by delmoi at 11:51 AM on January 17, 2006

This whole thing would be avoided if all drugs were legalized and you just let sick people take whatever they wanted.

There is no reason for doctors to be involved in a decision to end your own life.
posted by obfusciatrist at 11:54 AM on January 17, 2006

Ah, so this decision was based on interpreting the CSA, not the Constitution, so it could be re-banned by an act of congress (after O'Conner leaves the court).

Still, I'm not sure an assisted suicide ban could make it through congress.
posted by delmoi at 11:57 AM on January 17, 2006

obfusciatrist, an attending physician can help make sure you don't fuck it up and end up as a living vegetable. They can also help set things up so that you don't expire in the most agonizingly painful way possible.
posted by Gator at 11:58 AM on January 17, 2006

This whole thing would be avoided if all drugs were legalized and you just let sick people take whatever they wanted.

Except doctors could be sued for malpractice if they wrote a lethal script, and old people might not be able to figure out what a lethal dose is.
posted by delmoi at 11:58 AM on January 17, 2006

delmoi writes "Except doctors could be sued for malpractice if they wrote a lethal script, and old people might not be able to figure out what a lethal dose is."

I assume his advocating a complete elimination of the prescription system and a free market in all drugs, so there would be no more scripts.

Is it that tough to figure out what a lethal dose of barbituates would be? Why would old people in particular have a hard time with that?
posted by mr_roboto at 12:04 PM on January 17, 2006

Too bad it's in the middle of nowhere, otherwise I'd seriously consider moving there.

Is this nowhere?
posted by Mijo Bijo at 12:35 PM on January 17, 2006

Mijo, don't encourage delmoi. . .It's hard enough already getting around Portland! He could consider Klamath Falls maybe. . .
posted by Danf at 1:10 PM on January 17, 2006

It's not in the middle of nowhere, it's nestled nicely between Los Angeles and Seattle :)
posted by -harlequin- at 1:16 PM on January 17, 2006

How can something on a coast be "the middle of nowhere"? I'd call Oregon "the west end of nowhere". To be in the middle of nowhere, it'd have to be surrounded by nowhere on all sides.

Like Indiana.
posted by sohcahtoa at 1:40 PM on January 17, 2006

"I thought conservatives were supposed to believe in state's rights?"


That's only when civil rights workers are being beaten and murdered.

So true.
posted by j-urb at 1:44 PM on January 17, 2006

Ya'll are just upset that you don't live in a city which George H.W. Bush once called Little Beirut.
posted by joseph_elmhurst at 1:49 PM on January 17, 2006

Who prescribes the lethal drugs when a prisoner on death row is executed?

Anyone know the answer?
posted by mr_crash_davis at 2:49 PM on January 17, 2006

LOL, someone in Iowa called Oregon the middle of nowhere.
posted by b_thinky at 2:52 PM on January 17, 2006

Oregon is the center of your existence, Mefites, because #1 lives here.
posted by Cranberry at 3:51 PM on January 17, 2006

Who prescribes the lethal drugs when a prisoner on death row is executed?

Turns out you probably don't need a prescription. Johns Hopkins University's Human Rights Quarterly's 2002 report on Health Professionals and Lethal Injection Execution in the United States has a detailed history and analysis of lethal injection. The statues of Delaware, Idaho, Illinois, Maryland, Mississippi, New Hampshire, New Jersey, Oregon, Pennsylvania, and South Dakota "specifically state that no prescription is necessary in order to obtain the drugs necessary for the execution." The report credits Ronald Reagan for popularizing the idea of lethal injection while he was governor of California.

According to the National Coalition to Abolish the Death Penalty:

"It is important to understand that the three drugs used in the lethal injection process are prescription drugs," Hawkins said."One of the drugs is a controlled substance and the other two are 'prescription only.' It is a violation of medical ethics for doctors or other medical professionals to prescribe drugs for the purpose of conducting an execution. But if these drugs are not being prescribed, then how are prison officials obtaining them?"

According to their 2002 report on Drug Companies and Their Role in Aiding Executions, New Mexico's chief medical officer wrote a prescription, which caused a scandal, and Texas has occasionally gotten the drugs from a pharmacy.

Human Rights Watch has a horribly-formatted report from 1994 on Physician Participation in Executions in the United States [PDF]:

The language in statutes about lethal injection clearly expresses a desire to set it apart from other medical procedures. Currently, twenty-five states use lethal injection (fourteen as the sole method and eleven as an option). Eleven of these statutes declare outright that lethal injection is not a medical procedure. Seven also authorize pharmacists to dispense lethal drugs to the Commissioner (or designee) without a prescription.

posted by kirkaracha at 4:17 PM on January 17, 2006

I thought conservatives were supposed to believe in state's rights?

Well, they love it when it comes to abortion, anti-racism legislation, gun laws, and .

Not so much for things like this, drug laws, and freedom of speech issues.
posted by lumpenprole at 4:38 PM on January 17, 2006

it opens the door for a few states to have no oversight regarding their physicians

Good! That's what "freedom" is. The way I see it, federalism should be federal guarantee of constitutional rights of minorities, ie. the Feds should be in the business of expanding liberty, not limiting it.

I allow that abortion is a two-edged sword here; IMV there is a case to be made that the fetus is a class of individual deserving constitutional due-process protections (though I bring this up for completeness and don't want to debate it here).

I for one don't need Alabama's representatives telling me how I can live my life. I can't vote for them, they should butt the fuck out.
posted by Heywood Mogroot at 5:32 PM on January 17, 2006

I'm just noticing that our newly minted Chief Justice voted with the retards.

No doubt about where Scalito will fall in such instances. He didn't respect precedence anyother time so no doubt he'll feel free to ignore it again.

What's your opinion on this case monju? If you were judge, how would you decide?
posted by nofundy at 7:57 AM on January 18, 2006

I think it's a very close call, nofundy. First, let's be clear; as I hinted at above, this was not really a federalism case. This was not about whether Congress has to power to preempt assisted suicide laws. This was only a case about whether the CSA authorized the AG to issue regulations and interpretive guidance resulting in the deregistration of doctors who acted under Oregon's assisted suicide law, and even more so, a case about the Court's standards in reviewing executive interpretations of regulations and statutes. I haven't carefully reviewed the briefs or relevant precedent, but I think I'd probably end up siding with the majority in this case, concluding that the CSA does not give the AG the broad authority he exercised in this case. This seems to be the most common sense reading of the statute. [1]

On the other hand, Justice Scalia makes a powerful argument based on the text of the statute and the Court's precedent regarding agency interpretation of regulations and statutes. However, Scalia's interpretation requires reading quite a lot into vague and nonspecific provisions of the statute. As Kennedy wrote, “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions–it does not, one might say, hide elephants in mouseholes.” [2]

This case wasn't decided in a vacuum, though, and Kennedy's opinion reads as a rebuff to the Executive trying to aggrandize its power. Orin Kerr has more on that aspect of the case over at VC.

[1] It's also worth remembering that Ashcroft, while a senator, tried to amend the CSA to prohibit prescriptions for assisted suicide, specifically in response to the Oregon law, but was unsuccessful. When he became AG he simply declared that assisted suicide wasn't a legitimate medical procedure, regardless of state law. While I don't necessarily think that legislative history tells us very much about how a case should be decided, this is at least an interesting historical footnote.

[2] I also disagree with Scalia's ipse dixit that "[i]f the term legitimate medical purpose has any meaning, it surely excludes the prescription of drugs to produce death." I don't see why, under certain circumstances, ending a life filled with pain and no prospect of recovery is not a "legitimate medical purpose."
posted by monju_bosatsu at 9:56 AM on January 18, 2006

No legal opinion from Dios? I'd actually like to hear what he has to say about this one.
posted by zoogleplex at 11:08 AM on January 18, 2006

As a final note before this thread goes away, Slate analyzes Scalia's ruling for hypocrisy. The basic claim is that it is judicial activism to rule for states' rights on abortion, and against it on assisted suicide.
posted by efbrazil at 10:11 AM on January 19, 2006