Report No. 196

(4) Gonzales, Att. Gen et al v. Oregon et al: US (SC) (d. 17.1.2006)

The Supreme Court, in this case, upheld the Oregon law of 1994 on assisted suicide not on merits but on the question of non-repugnancy with Federal Law of 1970.

The Oregon Death With Dignity Act, 1994 exempts from civil or criminal liability state-licensed physicians who, in compliance with the said Act's specific safeguards, dispense or prescribe a lethal dose of drugs upon the request of a terminally ill-patient. In 2001, the Attorney General of US issued an Interpretative Rule to address the implementation and enforcement of the Controlled Substances Act, 1970 with respect to the Oregon Act of 1994, declaring that using controlled substances to 'assist suicide' is not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the 1970 Act.

The State of Oregon, a physician, a pharmacist and some terminally ill State residents challenge the Rule made by the AG. The Ninth Circuit, on appeal, invalidated the Rule, reasoning that by making a medical procedure authorized under Oregon law a 'federal offence', it altered the balance between the States and the Federal Government without the requisite clear statement that the 1970 Act authorized the action; and in the alternative, that the Rule could not be squared with the plain language of the 1970 Act', which targets only conventional drug abuse and excludes the Attorney General from medical policy decisions.

It may be noted that the 1970 Federal Act's main objectives of controlling drug abuse and controlling legitimate and illegitimate traffic in controlled substances, criminalizes, inter alia, the unauthorized distribution and dispensation of substances classified in any of its five schedules. The Attorney General may add, remove, or reschedule substances only after making particular findings, and on scientific and medical matters, he must accept the findings of the Secretary of Health and Human Services (Secretary). These proceedings must be on the record after an opportunity for comment.

The dispute here involves controlled substances listed in Sch. II, which are generally available only by written prescription (21 USC section 829 (a)). A 1971 regulation promulgated by the Attorney General of US requires that such prescriptions be used "for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice" 21 CFR, section 1306.04. To prevent diversion of controlled substances, the 1970 Act regulates the activity of physicians, who must register in accordance with rules and regulations promulgated by the Attorney General.

He may deny, suspend, or revoke a registration that, (as relevant here), would be 'inconsistent with the public interest'. (21 USC section 824(a)(4) & 822(a)(2)). In determining consistency with the public interest, he must consider five factors, including the States recommendations, compliance with State, federal and local law regarding controlled substances, and 'public health and safety' (section 823(f)). The 1970 Act explicitly contemplates a role for the States in regulating controlled substances (section 903). So held the 9th Circuit.

The US Supreme Court (majority) held, in the appeal by the Attorney General US, that the 1970 Act does not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physicianassisted suicide under State law permitting the procedure. The Appeal was dismissed.