They're dying in Oregon.

Oral argument from the court.
Oct. 5 2005 5:51 PM

They're Dying in Oregon

Should the Supreme Court save them?

Some Supreme Court cases have odd or long-winded names that have nothing to do with what they're remembered for. The case heard this morning, however, is satisfyingly direct. It's called Gonzales v. Oregon, and it pits a state's power to let doctors help terminally ill patients die against the attorney general's power to stop them. It's all life and death—no fun, no games—in the first major case for the term and for Chief Justice John Roberts.

In 1994 and then again in 1997, Oregon voters passed the Death With Dignity Act, which allows doctors to prescribe lethal doses of legal but regulated drugs to dying Oregonians who ask for them. John Ashcroft, who was then a senator, asked Janet Reno, who was then Clinton's attorney general, to stop the Oregon doctors. Reno declined. In 1998 and 1999, Ashcroft introduced two bills in Congress that would have explicitly scuttled Death With Dignity. Both bills failed.

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

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Then Ashcroft became President Bush's attorney general. In 2001, he announced that the federal Controlled Substances Act—passed by Congress in 1970 to "conquer drug abuse" and control the trafficking of legal and illegal drugs—gave him the power to revoke the licenses of doctors who assisted suicide with a prescription drug. The doctors could also be criminally prosecuted. When Ashcroft made his move, Oregon squawked its way to court. (That's why the name of today's case could be improved on a bit—it should really be called Ashcroft v. Oregon.)

At oral argument this morning, the justices start off nervous about this abundance of AG power. What about "some very different attorney general who had a very different view of the death penalty" and decided to prosecute a doctor who prescribed a lethal injection at a state or federal execution, Sandra Day O'Connor asks. What would stop him? Solicitor General Paul Clement tries to reassure her that Congress ratified the use of lethal injections for execution in 1994. But O'Connor can't be appeased. "But isn't the reasoning the same?" she presses. David Souter and later Stephen Breyer join in. The full-court press backs Clement into a mistake. He says that doctors aren't directly involved with lethal injections.

It's the first of several such off-balance moments for Clement—not because he's not his brilliant self, but because he's got a tough set of facts and precedents to negotiate. A minute or two later, Ginsburg reminds him of the Justice Department's position in Washington v. Glucksberg, the 1997 case in which the court found in the Constitution no right to die. "The government said then," Ginsburg points out, that there is "every reason to believe that the state legislatures will address this issue in a fair and legitimate way." It sounds like she is directly quoting. "You are rejecting that position," she concludes, taking pains not to sound triumphant.

Clement has to disagree. The problem is where that takes him. A breath after standing by Glucksberg, he seems to be saying that doctors in Oregon can zap all the patients they want to as long as they don't do it with federally regulated drugs. His poster boy is none other than Jack Kevorkian. Doctor Death "had no federal substances license for six years before his conviction," Clements notes cheerfully.

Has the Bush administration really just invoked Dr. Kevorkian as a model of medical practice?

Clement reaches for a lifeboat. Even if the drugs that non-Kevorkian doctors can prescribe to assist suicide (barbiturates classified as Schedule II under the Controlled Substances Act) are the most effective means to that end, he continues, that wouldn't make them OK. After all, if a state wanted to allow doctors to prescribe illegal drugs (Schedule I drugs like marijuana *), it wouldn't be able to. Clement is paddling toward Ashcroft v. Raich. In that case last term, the court ruled that the federal government could prosecute sick Californians who were smoking pot with the blessing of their state's medical marijuana law.

Then Ginsburg snatches the lifeboat away. "But Congress said when it made a drug Schedule I, 'No. Never,' " she says. "With Schedule II, it's OK with a doctor's prescription." Marijuana is definitely Schedule I. If Clement loses, this exchange will probably be why. The drugs that doctors prescribe to assist suicide are legal. Marijuana is illegal. The attorney general who is trying to nab Oregon doctors with a law that says nothing about assisted suicide is one executive appointee. Congress that passed a law explicitly criminalizing pot is the whole elected legislature.

But when Oregon's lawyer, Robert Atkinson, takes his turn, he gets addled, too. What if a state wanted to, say, let doctors prescribe morphine for recreational use, Stephen Breyer asks. The attorney general would be able to do something about that, wouldn't he?

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