Gonzalez vs. Oregon: Not a Ringing Endorsement of Physician-Assisted Suicide
Posted Oct 01 2008 10:28pm
Will the the decision rendered by the US Supreme Court yesterday in Gonzalez v. Oregon pave the way for other states to enact laws allowing physician-assisted suicide? Probably not, according to an article in the NY Times today. In Vermont, one of the states that has considered PAS legislation, Dr. Robert D. Orr, the president of the Vermont Alliance for Ethical Healthcare, said "I don't think its impact will be great ... Some have misunderstood the Oregon case as a challenge to the Oregon statute itself." According to the Washington Post, conservatives reacted angrily to the ruling. Jay Sekulow, chief counsel of the American Center for Law and Justice, a nonprofit litigation group founded by Pat Robertson, called it "a disturbing and dangerous decision that can only lessen the value of protecting human life." But assisted-suicide initiatives have not fared well in recent years: State referendums and proposed legislation supporting assisted suicide have failed in California, Maine, Maryland, Michigan and Washington.
From a more legal viewpoint, the case presents an interesting tension between the philosophical approaches in strict constructionalism vs interpretationalism. Traditionally, conservatives favor strict constructionalism, but in this case the Bush administration argued for a more expansive, liberal interpretation of the federal Controlled Substances Act (CSA). The majority opinion, written by Justice Kennedy, looks to the text and structure of the CSA: " The Government does not suggest that its interpretation turns on any difference between the statutory and regulatory language. The CSA allows prescription of drugs only if they have a “currently accepted medical use,” 21 U.S.C. § 812 (b); requires a “medical purpose” for dispensing the least controlled substances of those on the schedules, §829(c); and, in its reporting provision, defines a “valid prescription” as one “issued for a legitimate medical purpose,” §830(b)(3)(A)(ii). Similarly, physicians are considered to be acting as practitioners under the statute if they dispense controlled substances “in the course of professional practice.” §802(21). The regulation uses the terms “legitimate medical purpose” and “the course of professional practice,” ibid., but this just repeats two statutory phrases and attempts to summarize the others. It gives little or no instruction on a central issue in this case: Who decides whether a particular activity is in “the course of professional practice” or done for a “legitimate medical purpose”? Since the regulation gives no indication how to decide this issue, the Attorney General’s effort to decide it now cannot be considered an interpretation of the regulation. Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language."