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 staff writer at the New York Times Magazine and the author of Sticks and Stones


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?



Smash and Grab

Will competitive Senate contests in Kansas and South Dakota lead to more late-breaking races in future elections?

Stop Panicking. America Is Now in Very Good Shape to Respond to the Ebola Crisis.

The 2014 Kansas City Royals Show the Value of Building a Mediocre Baseball Team

The GOP Won’t Win Any Black Votes With Its New “Willie Horton” Ad

Sleater-Kinney Was Once America’s Best Rock Band

Can it be again?


Forget Oculus Rift

This $25 cardboard box turns your phone into an incredibly fun virtual reality experience.

One of Putin’s Favorite Oligarchs Wants to Start an Orthodox Christian Fox News

These Companies in Japan Are More Than 1,000 Years Old

Trending News Channel
Oct. 20 2014 6:17 PM Watch Flashes of Lightning Created in a Lab  
  News & Politics
Oct. 20 2014 8:14 PM You Should Be Optimistic About Ebola Don’t panic. Here are all the signs that the U.S. is containing the disease.
Oct. 20 2014 7:23 PM Chipotle’s Magical Burrito Empire Keeps Growing, Might Be Slowing
Oct. 20 2014 3:16 PM The Catholic Church Is Changing, and Celibate Gays Are Leading the Way
  Double X
The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don't Work at Facebook. My Doctors Want Me to Freeze My Eggs.
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
Brow Beat
Oct. 20 2014 9:13 PM The Smart, Talented, and Utterly Hilarious Leslie Jones Is SNL’s Newest Cast Member
Oct. 20 2014 11:36 PM Forget Oculus Rift This $25 cardboard box turns your phone into an incredibly fun virtual reality experience.
  Health & Science
Medical Examiner
Oct. 20 2014 11:46 AM Is Anybody Watching My Do-Gooding? The difference between being a hero and being an altruist.
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.