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The Ninth Circuit Court (gasp) got one right

By Robert S. Sargent, Jr.
web posted May 31, 2004

Last week (Wednesday, May 26) the Ninth U.S. Circuit Court of Appeals in State of Oregon v. Ashcroft upheld Oregon's assisted-suicide law (Death with Dignity Act) striking down what is known as the "Ashcroft Directive" which held that doctors who prescribed "federally controlled substances" to assist in suicide are in violation of the federal "Controlled Substances Act (CSA) of 1970."

In 1994, Oregon passed the Death with Dignity Act by a ballot measure. In 1997, another ballot measure sought to overturn the Act, but was defeated. In the footnotes of Oregon v. Ashcroft it summarizes the Act: "Under Oregon's Death with Dignity Act, only adult Oregon residents suffering from an incurable disease likely to result in death within six months are eligible for a lethal prescription. A patient's diagnosis must be confirmed by two independent physicians. Patients must sign a written request for the prescription in the presence of two witnesses attesting that the patient is competent and acting voluntarily." The medication must be self-administered, and the Act forbids euthanasia.

The "Ashcroft Directive" was issued in November of 2001. Although I am a critic of the Directive, there have been false accusations about it. The first is that it is an attempt to strike down the Death with Dignity Act. For example, ABC News and other anti-Ashcroft media have been reporting (this from an AP report) that "The Bush administration asked a federal appeals court to strike down Oregon's assisted-suicide law as counter to U.S. drug law." No. The Ashcroft Directive applies only to "federally controlled substances," and doctors who prescribe other medication under the Death with Dignity Act, are not covered by federal law.

A second accusation of the Directive is that it will allow federal investigators to go through the records of doctors and patients violating their right to privacy. No. The Directive states: "Under Oregon statutes, an attending physician who writes a prescription for medication to end the life of a qualified patient must document the medication prescribed…Thus, it should be possible to identify the cases in which federally controlled substances are used to assist suicide in Oregon in compliance with Oregon law by obtaining reports from the Oregon State Registrar without having to review patient medical records or otherwise investigate doctors."

The majority opinion in Oregon v. Ashcroft, written by Judge Richard Tallman, states that "All parties agree that the question before us is whether Congress authorized the Attorney General to determine that physician assisted suicide violates the CSA. We hold that the Attorney General lacked Congress' requisite authorization." And Judge Clifford Wallace, in his dissent, wrote: "This case involves a single legal question: is the Attorney General's interpretation of [CSA] entitled to deference?" No and no. There is one question before the court: is the power to regulate "federally controlled substances" in Oregon an enumerated power in the U.S. Constitution? No.

The argument that Judge Tallman makes is that "Unless Congress' authorization is ‘unmistakably clear,' the Attorney General may not exercise control over an area of law traditionally reserved for state authority." This, of course, leaves the door open for Congress to write any law that usurps state law as long as the authorization is "unmistakably clear." The Ninth Circuit, the most overturned federal court, is notorious for outrageous opinions. The "unmistakably clear" jurisprudence of Judge Tallman leaves it open for any interpretation the Judges want to make. If Congress passes a law they like, it will be "unmistakably clear" what their intentions are. If they don't like a statute, they can plead an "unmistakably unclear" position. By invoking the "clear statement rule," they can ignore the real issue: Is the Directive Constitutional?

When Congress wrote the Controlled Substances Act, the members were concerned about its Constitutionality, so invoked the Commerce Clause. In Section 801, paragraph (3), the law states: "A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because – (A) after manufacture, many controlled substances are transported in interstate commerce, (B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution , and (C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.").

This is, of course, is a lot of nonsense trying to justify a federal law that intrudes on the states. A doctor in Oregon who prescribes a drug to an Oregonian resident, who buys it in Oregon, and who dispenses it in Oregon is not participating in interstate commerce. (Unbelievably, Judge Tallman wrote, "We need not, and therefore do not, decide whether the Ashcroft Directive actually exceeds Commerce Clause boundaries…" I am sure this is to keep intact the "clear statement" jurisprudence to keep their future options open.)

So the Ninth Circuit Court got one right, but for the wrong reasons. I predict that, on appeal, the Supreme Court will uphold the decision, but for the reason that Oregon is not violating the Commerce Clause, not that the Ashcroft Directive is in conflict with some "clear statement" hooey. Stay tuned.

Robert S. Sargent, Jr. is a senior writer with Enter Stage Right and can be reached at rssjr@citcom.net.

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