Close division on “death with dignity”
on Oct 5, 2005 at 12:24 pm
Oregon’s unique plan to allow doctor-assisted suicide appeared to be in legal limbo Wednesday after the Supreme Court heard argument on the power of the federal government to ban that experiment. The ebb-and-flow of questions and comments by the Justices made any prediction too uncertain. New Chief Justice John G. Roberts, Jr., however, gave a number of quite strong hints that he is inclined to support the government’s authority to forbid doctors to prescribe the drugs that terminally ill patients would use to end their lives. This is the most controversial case he has faced, and among the most controversial he will face, in his new role.
Even with the doubt about how the Court as a whole may go on the case of Gonzales v. Oregon (04-623), an outcome could be imagined that would give Justice Sandra Day O’Connor the deciding vote – and that could be a problem if the case is not decided before she leaves the Court.
Solicitor General Paul D. Clement encountered a mostly skeptical bloc of Justices on his claim that the U.S. Attorney General had clear authority to order doctors not to prescribe the drugs used under Oregon’s “Death with Dignity†procedures. That authority, Clement said, comes from the Controlled Substances Act, the 1970 federal law that closely regulates an array of drugs, and from 90 years of federal drug enforcement history tracing back to a 1914 law to stamp out the use of opium.
But that claim was questioned aggressively by Justices O’Connor, Ruth Bader Ginsburg and David H. Souter, and less rigorously by Justice John Paul Stevens. They would need another vote to prevail, and it was not clear who might join them. Justice Stephen G. Breyer, one candidate for such a vote, seemed to be on both sides of the case.
Were Breyer to join with those four, and the other four Justices disagreed, the government would lose only if the Court put out the ruling before O’Connor begins her planned retirement. Her vote would not count if the decision came out after her successor took to the bench, and the case might have to be reargued.
Significant support for the Attorney General’s role emerged clearly during the argument by Oregon’s lawyer, senior assistant state attorney general Robert M. Atkinson, who relied heavily on what he said was a 200-year history supporting state control of the practice of medicine.
There did not seem much doubt that Atkinson would draw no votes from the other four Justices – although one of them, Clarence Thomas, asked no questions, as is his usual practice. Thomas presumably shared the strongly negative statements that Justice Antonin Scalia made repeatedly about helping people to die, something that Scalia said Congress could not possibly have thought it was allowing when it passed the Controlled Substances Act.
Chief Justice Roberts several times questioned how the federal government could carry out uniform enforcement of the federal drug laws if states, on a theory of regulating the practice of medicine, were free to allow doctors to dispense controlled substances despite the federal law. Picking up on a hypothetical discussed by several Justices – that a state had opted to allow the use of morphine “to make people feel better†– Roberts asked rhetorically: “If one state allows the use of a drug that federal law says is illegal, how is the federal government supposed to enforce that prohibition?â€
Justice Anthony M. Kennedy seemed somewhat conflicted by the case, but the thrust of most of his questions and comments seemed to be favorable toward the government. For example, he invited Clement to discuss the “serious consequences†if the Court were to rule against the Attorney General’s authority. Clement replied: “If the Court makes clear that states can overcome the federal regime, there is a real possibility that states will take up that invitation.†Kennedy also seemed to find in the Act specific authorization for the Attorney General to control the drug-dispensing authority of doctors.
In addition, Kennedy — like some of the other Justices — seemed unpleasantly surprised when the state’s lawyer, Atkinson, readily asserted when asked that the Attorney General could not interfere if a state allowed the use of morphine for recreational use, or of steroids for body-building.
It was a point well beyond his basic argument of state control of medical practice. Justice Souter tried to help Atkinson recover, by saying that all Oregon needed to win the case was a decision by the Court that Congress in passing the Controlled Substances Act did not intend to go beyond the problem of drug abuse when doctors or others provided drugs to “pushers.”
