2006 Voices: Gonzales v. Oregon: A New Lethal Decision?

Voices Online Edition
VOICES – Vol. XXI No. I
Lent – Easter 2006

Gonzales v. Oregon: A New Lethal Decision?

by Nancy Valko, RN

Until recently, the “right to die” movement has been basically stymied in its push to legalize assisted suicide/euthanasia in other US states besides Oregon. Efforts to pass assisted suicide/euthanasia laws in California, Hawaii, Vermont and other states failed, although sometimes by as little as one vote in the state legislature.

However, on January 17, 2006 and by a vote of 6-3, a majority of judges on the US Supreme Court ruled in Gonzales vs. Oregon1 that federal law regulating the prescription of certain controlled drugs by physicians does not apply to lethal overdoses prescribed by physicians in Oregon, the only state so far to legalize the prescription of such lethal overdoses.

A SHORT HISTORY OF GONZALES V. OREGON

Soon after Oregon enacted the only assisted suicide law in the US in 1997, Thomas Constantine, the administrator of the federal Drug Enforcement Agency (DEA), issued a determination that narcotics and other potentially dangerous drugs controlled by federal law could not be prescribed or dispensed to assist suicides anywhere in the US. However, then-US Attorney General Janet Reno reversed Constantine’s decision, claiming that Oregon doctors who write prescriptions for lethal overdoses did not violate federal law in that state, even though doctors in other states without assisted suicide laws would be in violation of federal law.

When John Ashcroft was appointed US Attorney General under President George Bush, he reversed the Reno decision, stating that the practice of assisted suicide is not a medically legitimate use of federally controlled drugs under the federal Controlled Substance Act of 1970 (CSA). Ashcroft also determined that doctors who used these controlled drugs to assist suicide risked losing their federally-issued prescribing licenses. He based his directive on both prior legal precedent and an analysis by the Office of Legal Counsel.

In response, Oregon attorney general Hardy Myers went to district court and won a restraining order against the Ashcroft decision. One of the main arguments made as the case wound its way through the court system was that the 1970 federal CSA passed by Congress was only concerned with illicit drug dealing and trafficking. Of course, at that time, the possibility of legalized assisted suicide/euthanasia was not even on the horizon and, not surprisingly, was not specifically mentioned in the CSA.

The case was eventually accepted by the US Supreme Court in 2004 and renamed Gonzales vs. Oregon when Alberto Gonzales took over as US Attorney General. In the final 6-3 decision written by Justice Anthony Kennedy, the majority of the justices did not dispute the power of the federal government to regulate drugs, but decided that the federal law did not empower the US Attorney General to overrule a state’s law determining what constituted the appropriate use of federally controlled drugs.

WHAT THE SUPREME COURT DECISION DID-AND DIDN’T-DO

Contrary to the prevailing spin by most of the mainstream media that the Supreme Court upheld Oregon’s assisted suicide law, the Gonzales decision was technically more narrow than that, although still disturbing. Even if the court had ruled in favor of the attorney general, assisted suicide itself would not be outlawed in Oregon — just the use of federally controlled drugs to accomplish such suicides. As the infamous Dr. Jack Kevorkian proved in the 1990s, there are other means to kill patients without using controlled substances.

But basically, the Gonzales decision hinged on the right of the US Attorney General to interpret federal drug law in a state with its own peculiar law. (Ironically, Oregon Senior Assistant Attorney General Robert Atkinson, in his oral arguments before the Supreme Court, did not insist that Oregon doctors were protected from penalty for prescribing controlled drugs “just” for assisted suicide but indeed any use of such drugs — even for recreation — if such use was permitted and regulated by state law.2)

Though the decision was widely proclaimed a victory for euthanasia, Wesley Smith, a noted lawyer and opponent of assisted suicide has pointed out that “… Justice Anthony Kennedy’s majority opinion indicated that the federal government probably could prevent narcotics from being prescribed by doctors to intentionally cause death — just not in the way chosen by former Attorney General John Ashcroft”.3 For example, Congress itself could pass such a law. Unfortunately and especially with the help of the mainstream media, “spin” — rather than facts — was allowed to take precedence with the public.

The Gonzales decision should have been an easy, common-sense decision, but it was not. Considerable legal gymnastics were required for the majority of justices to arrive at their decision. This is ominous in terms of aiding the culture of death.

As Justice Anthony Scalia pointed out in his scathing dissent to the Gonzales decision, “The court’s decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government’s business”.4

Justice Scalia went on to explain that “Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death”.5

The “right to die” movement now views the Gonzales decision as an injection of new life (pardon the pun) into efforts to get more states to follow Oregon’s lead. And indeed since the Gonzales decision, states like Washington and California are facing new efforts to legalize assisted suicide/euthanasia. Pro-euthanasia forces even want the term “suicide” stricken from the debate in favor of such softer-sounding terms like “death with dignity”, “end of life choices” and “compassionate choices”.6

But the larger question remains: If the federal government’s role does not cover the constitutional protection of innocent citizens, then what is the rationale for any lesser federal law?

In the end, the Gonzales case is an illustration of how important it is to have judges on our courts who are willing to uphold constitutional rights rather than reinterpret those rights in order to further controversial and even lethal political agendas.

Notes:
1 ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. OREGON et al, online at
http://supct.law.cornell.edu/supct/html/04-623.ZD.html

2 Supreme Court transcript, Oral Arguments, Gonzales v. Oregon, no. 04-623, 10/5/05, pp. 30-38. Online at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-623.pdf (requires Adobe Acrobat Reader – free downloadable program).

3 “The dying need TLC, not rulings” by Wesley J. Smith. San Francisco Chronicle, January 22, 2006. Online at: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/01/22/ING9UGQ48F1.DTL&type=health

4 ALBERTO R. GONZALES, ATTORNEY GENERAL, et al., PETITIONERS v. OREGON et al, online at
http://supct.law.cornell.edu/supct/html/04-623.ZD.html

5 Ibid.

6 Californians for Compassionate Choices Press Kit, 9/28/05

Nancy Valko, a registered nurse from St. Louis, is president of Missouri Nurses for Life, a spokesperson for the National Association of Pro-Life Nurses and a Voices contributing editor.

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