Amicus Curiae Brief — Gonzales v. Oregon

5 Owe + Sat, LU.

FILED

(2) DEC 6 - 2004

OFFICE OF THE CLERK |

No. 04-623

IN THE

Supreme Court of the United States

JOHN ASHCROFT, ATTORNEY GENERAL

OF THE UNITED STATES, ET AL.

PETITIONERS,

Vv.

STATE OF OREGON, ET AL.,

RESPONDENTS.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF FOCUS ON THE FAMILY AND THE

FAMILY RESEARCH COUNCIL

AS AMICI CURIAE, SUPPORTING PETITIONERS

WILLIAM WAGNER

NELSON P.MILLER

Counsel of Record

STEPHEN W. REED

35 N. Lake Ave. COOLEY LAW SCHOOL

Pasadena, CA 91101 300 South Capitol

(626) 449-4521 Lansing, MI 8933

(517) 371-5140

PATRICK A. TRUEMAN

801 G. Street NW

Washington D.C. 20001

(202) 393-2100

TABLE OF CONTENTS

TABLE OF EE NTs eee II

FE Te TT l

gE EELS SNOT NO TOT E EDT 2

LD 3

EAR Re a Mn 4

THE COURT OF APPEALS ERRED IN GRANTING

OREGON’S REQUEST TO ENJOIN THE UNITED STATES

FROM ENFORCING THE FEDERAL CONTROLLED

I in aancattel 4

A. The Federal Controlled Substances Act Preempts

the Oregon Law Authorizing Physicians to Dispense

Drugs to Assist the Killing of a Human Being.........4

B. The Attorney General Acted within His

I is cnidiinteidineciiatctnatinccscnewsncceell

C. Enjoining the United States from Protecting the

Citizenry against Dispensing Drugs to Kill a Human

Being, Creates a Culture of Death with Grave

ee iiiideieinincdinmisdasininernssoriineccsoenetle

EE IE oe OR NS na 19

Cases:

II

TABLE OF AUTHORITIES

Boggs v. Boggs, 520 U.* 833 (1997) .o.cccccccccccccesceceeceeees 7

Gade v. National Solid 'V ste

Management Assn., 505 U.S. 98 (1992).....ccccccccccceseceeees 7

Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979)... 7

United States v. Moore, 423 U.S. 122 (1975)........... 5,7,9

Washington v. Glucksberg, 521 U.S. 702 (1997).......... 16

United States v. Steele, 147 F.3d 1316 (11" Cir.

1998)(en banc) (and cases cited therein), cert. denied,

Steele v. United States, 528 U.S. 933 (1999)......cccccccceeee 5

Ashcroft v. Oregon, (court of appeals opinion, filed

FY Yt en RE 8,13

Oregon v Ashcroft, (district court opinion

Ke 8 4,11

Constitution, statutes, and regulations:

tf fs F | eee 3,6,7,19

Or. Rev. Stat. §§ 127.800 et seg. (2003)..3,4,15,17,18,19

Assisted Suicide Funding Restriction Act of 1997,

Pub. L. 105-12, Apr. 30, 1997, 111 Stat, 23..ccccccccc.--. 5,6

28 UBC. 8 OBB CODE eecencinecnnisscnmnnaiiaeeeeeeae 1

EIT Te yy, nie 5,6,11

22 U.S.C. 6 CBB i crccecccenseeniocsnsinensannenne 1

ri hit Toe | NI 9,12

20 UBC. § CBB COI ceeeecscasscssnssseseresenessanana 9

21 U.S.C. 8 GBB. naececessonsesiecsenmeseussiinanannaan 9

TET Y eT 7 rn 9,10

23 U.S.C. § GBOIIIO cencecsrsscrsnsscersraeeanal 9,10,13

iL Tet iN 5,6,11

err aicerrccrenncsapcenesececsncnsseest 5.6

CTE 5,7

ate sercnenmnpemanecnsccscssees y

icc terirtnrnesensnenceneosscscess 5

cr ncrrepesnsnenasnnnsssccensenensenced 6

21 CFR § 306.04(a) (1973)

(re-designated as 21 CFR § 1306.04(a) (1975).......5,6,12

Pet. App. 100a (AG Order no. 2534-2001,

SE TIE cxrncccnsecsccsccesesscsesssesscsosoescooes 3,8,13

Miscellaneous:

Sissella Bok, Physician-Assisted Suicide, in Euthanasia

and Physician-Assisted Suicide 139 (Gerald Dworkin,

ee 14

Kathleen Foley, and Herbert Hendin, The Case Against

Assisted Suicide, For the Right to End-of-Life Care

(Foley & Hendin, eds 2002)...........:c.ccccce000+ 8,15,16,17,18

M.D. Reed and J.Y. Greenwald, Survivor Victim Status,

Attachment and Sudden Death Bereavement, 21 J. of

Suicide and Life-Threatening Behavior 385 (1991).....17

Brief of the American Medical Assn., American Nurses

Assn., American Psychiatric Assn., et al., as Amicus

Curiae in Support of Petitioners at 5, Glucksberg

(No. 96-110), available in 1996 WL 56263................... 18

Memorandum for the Attorney General,

SAEs SEED GP WER, GUIIID. Deccecccccccccssscesccccecrosccscoccceed 4,11

|

INTEREST OF AMICI CURIAE

This amicus curiae brief is filed on behalf of Focus

on the Family and the Family Research Council.'

Focus on the Family is a non-profit religious

corporation committed to strengthening the emotional,

psychological, and spiritual health of children and their

families in the United States and throughout the world.

Focus on the Family’s Founder and Chairman, Dr.

James Dobson, a distinguished child psychologist, is the

author of numerous books, pamphlets, and papers on child

development, education, marriage, and society. Focus on the

Family and Dr. Dobson have been at the forefront of the pro-

life movement and have spoken and written extensively

concerning individual and societal dangers associated with

assisted suicide. Focus on the Family has participated as

amicus curiae on numerous briefs to this Court and others in

cases addressing issues of life. It regularly lobbies Congress

and state legislatures concerning matters associated with the

sanctity and preservation of life. See: www.family.org

Family Research Council is a non-profit, research

and educational organization dedicated to articulating and

advancing a family-centered philosophy of public life. FRC

is a voice for the pro-family movement in Washington, D.C.,

and provides policy analysis, legislative assistance, and

research for pro-life and pro-family organizations. It also

' In accordance with Supreme Court Rule 37(6), amici certify that this

brief was authored entirely by Counsel of Record for amici and that no

part of the brief was authored by any attorney for a party. The Alliance

Defense Fund provided a monetary contribution to the preparation or

submission of this brief; no other person or entity other than amici curiae

or their counsel provided a monetary contribution to the preparation or

submission of this brief.

2

seeks to educate legislators on issues that affect A.merican

families.

In addition to providing policy research and analysis

for the legislative, executive, and judicial branches of the

federal government, FRC works to inform the news media,

the academic community, business leaders, and the general

public about family issues that affect the nation. FRC

publishes and disseminates resource materials, legal

memoranda, and public policy studies on pro-family issues.

These publications include discussions on the problems and

legal controversies surrounding assisted suicide. See:

www.frc.org. Its research, publications, and films on the

impact of assisted suicide have been distributed to thousands

of scholars, students, organizations, and citizens. FRC’s legal

and public policy experts are continually sought out by

members of Congress and state legislators for assistance and

advice on matters of bioethics and issues relating to assisted

suicide.

FRC has participated in numerous amicus curiae

briefs in the United States Supreme Court and federal courts,

including cases involving pro-life issues.

Focus on the Family and Family Research Council

work to preserve and protect the family and have particular

knowledge about the social and legal impact of assisted

suicide that will be helpful to the Court in this case.

CONSENT TO FILE BRIEF

Petitioner and Respondents, through their counsel of

record, consented to the filing of this Brief Amici Curiae in

support of Petitioner. Their letters of consent are on file with

the Clerk of the Court.

3

SUMMARY OF THE ARGUMENT

The issues in this case implicate important federalism

concerns vital to proper constitutional governance under the

rule of law.

The appellate court’s analysis, granting Oregon’s

request to enjoin the United States from enforcing the

Federal Controlled Substances Act (CSA), is incompatible

with the Supremacy Clause in Article VI of the United States

Constitution. Mutually exclusive provisions of the Federal

CSA and Oregon law make it impossible for a dispensing

physician to comply with both. In such situations this Court

has deemed the state law preempted — even where a

distinctive state interest is at stake. See e.g., Hisquierdo v.

Hisquierdo, 439 U.S. 572, 581 (1979) (finding state

community property law preempted by federal military pay

law). Thus, even without considering the Attorney General’s

reasonable interpretation of the CSA’s implementing

regulation, the two statutes here conflict to the extent they

cannot consistently stand together.

The Attorney General’s interpretive rule confirmed

that dispensing controlled substances to assist suicide

violates the CSA, and verified that assisting suicide is not a

“legitimate medical purpose” within the meaning of 21

C.F.R. 136.04. Pet. App. 100a (AG Order no. 2534-2001).

When this interpretation of the CSA’s implementing

regulation is added into the analysis, federal preemption is

irrefutable. In promulgating this interpretive rule concerning

the dispensing of controlled substances, the Attorney

General acted within the scope of his statutory authority.

Amici, therefore, urge this Court to grant the Petition

for Certiorari.

4

ARGUMENT

THE NINTH CIRCUIT ERRED IN GRANTING OREGON’S

REQUEST TO ENJOIN THE UNITED STATES FROM ENFORCING

THE FEDERAL CONTROLLED SUBSTANCES ACT (CSA)’

The issues in this case implicate important federclism

concerns vital to proper constitutional governance under the

rule of law.

A. THE FEDERAL CONTROLLED SUBSTANCES ACT PREEMPTS

THE OREGON LAW AUTHORIZING PHYSICIANS TO DISPENSE

DRUGS TO ASSIST THE KILLING OF A HUMAN BEING

The relevant Oregon Taw in this case authorizes

physicians, in certain circumstances, to prescribe and

dispense a lethal amount of drugs for the purpose of assisting

in the killing of a human being. Or. Rev. Stat. §§ 127.800 er

seg. (2003). The Oregon law expressly provides that a

physician cannot “be subject to civil or criminal liability or

professional disciplinary action” for engaging in the conduct

authorized by the Oregon law. /d. § 127.885 (1)

The drugs dispensed in the lethal conduct authorized

by the Oregon law are controlled substances regulated under

the Federal CSA. Pet. App. 114a (Memorandum for the

Attorney General, June 27, 2001). Generally, such

substances are among those listed in Schedule II of the CSA.

Id.; see also Pet. App. 65a (opinion of the district court).

The conduct authorized as legitimate and immune

from prosecution in the Oregon law is a prosecutable crime

carrying serious penalties under the provisions of the Federal

CSA.

? Title 21, United States Code, Sections 801 et seq.

Under the CSA it is a federal crime for a physician to

“dispense” a controlled substance without a legitimate

medical purpose in the usual course of medical treatment.’

See Title 21, United States Code, sections 841(a)(1), 802

(21); 829; 21 CFR § 306.04(a) (1973) (re-designated as 21

CFR § 1306.04(a) (1975); see also United States v. Moore,

423 U.S. 122, 124, 139 (1975) (holding that physician can be

convicted under the CSA when acting outside professional

limits). When “death ... results from the use of such

substance” dispensed, the dispensing physician faces

significant penalties under the CSA. See, 21 U.S.C. § 841

(b)(1)(C) (prescribing up to life in prison for dispensing

Schedule II controlled substances in violation of §841(a)

where death results from the use of the drug) see also Moore,

423 U.S. at 132 (1975) (recognizing that Congress geared the

CSA’s penalties “to the nature of the violation, including the

character of the drug involved.”) .

It is worth noting that Congress also expressed

disapproval of physician-assisted suicide in its Assisted

Suicide Funding Restriction Act of 1997, Pub. L. 105-12,

> Whether the physician acted outside authorized professional limits is

not an element of the offense that the government needs to negate; rather,

it is an affirmative defense available to the practitioner who carries the

burden of going forward with the evidence concerning the exception. 21

U.S.C. § 885(a)(1); United States v. Steele, 147 F.3d 1316, 1318-1320

(11" Cir. 1998)(en banc) (and cases cited therein), cert. denied, Steele v.

United States, 528 U.S. 933 (1999). Congress clearly did not intend an

exception for non-medical use of controlled substances for purposes

harmful to life. There is no expression within the CSA of any such

exception. Permitting states to alter the CSA by injecting such an

exception holds the potential to gut it. Under the appellate court's

decision, for example, California could pass a law permitting physicians

to prescribe and dispense controlled substances to assist patients to get

“high” in order to deal with stress.

6

Apr. 30, 1997, 111 Stat. 23, codified at 42 U.S.C. § 14401 et

seq., Congress’s stated principal purpose of the Act was “to

continue current Federal policy by providing explicitly that

Federal funds may not be used to pay for items and services

(including assistance) the purpose of which is to cause (or

assist in causing) the suicide, euthanasia, or mercy killing of

any individual.” 42 U.S.C. § 14401(b).

Article VI of the United States Constitution states:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof... shall be the supreme Law of the

Land; and the Judges in every State shall be

bound thereby, any Thing in the . . . laws of

any State to the Contrary notwithstanding.

U.S. Const. art. VI (emphasis added)

The Federal CSA expressly preempts state laws to

the extent “there is a positive conflict between [a provision

of the CSA] and that state law so that the two cannot

consistently stand together.” 21 U.S.C. 903. To be sure,

nothing in the CSA prevents a state from enacting its own

stricter drug legislation, or prosecuting drug offenses at the

state level. Jd. And, nothing in the Federal CSA preempts a

state from regulating within the field of physician assisted

suicide, (i.e., nothing in the CSA preempts a state law

authorizing physician assisted suicide per se). Under

conventional conflict preemption principles, however, the

Federal CSA clearly preempts Oregon’s statute authorizing

the dispensing of controlled substances to assist suicide. The

CSA proscribes the dispensing of controlled substances by

physicians without a legitimate medical purpose in the usual

course of medical treatment -- and provides severe penalties

when “death ... results from the use of such substance....”

See, §§841(a)(1), 802 (21), 829; 21 CFR § 1306.04(a)

7

(1975); Moore, 423 U.S. at 124 (1975); and 21 U.S.C. 841

(b)(1)(C). Oregon’s law, on the other hand, expressly

authorizes - and immunizes against prosecution - the lethal

dispensing proscribed and severely penalized in the CSA.

Thus, the two statutes here conflict to the extent they cannot

consistently stand together.

Moreover, even if the CSA did not expressly preempt

the Oregon statute, implied preemption exists where

“compliance with both federal and state regulations is a

physical impossibility.” Boggs v. Boggs, 520 U.S.833, 844

(1997) (internal quotation marks omitted), citing Gade v.

National Solid Wastes Management Assn., 505 U.S. 88, 98

(1992). The mutually exclusive provisions of the CSA and

Oregon law governing the dispensing of controlled

substances make it impossible for a dispensing physivian to

coimply with both. In such situations this Court has deemed

the state law preempted — even where a distinctive state

interest is at stake. See e.g., Hisquierdo v. Hisquierdo, 439

U.S. 572, 581 (1979) (finding state community property

law preempted by federal military pay law).

Thus, the Ninth Circuit’s analysis, granting Oregon’s

request to enjoin the United States from enforcing the

Federal CSA, is incompatible with the Supremacy Clause in

Article VI of the United States Constitution. The CSA and

its implementing regulations plainly proscribe, and therefore

preempt, Oregon’s law authorizing the dispensing of drugs to

assist in the death of a human being -- even without

considering the Attorney General’s statutorily authorized

reasonable interpretation of the CSA’s implementing

regulation at issue here. As discussed in more detail in the

next section, this interpretive rule confirmed that dispensing

controlled substances to assist suicide violates the CSA, and

verified that assisting suicide is not a “legitimate medical

purpose” within the meaning of 21 C.F.R. 136.04. Pet. App.

8

100a (AG Order no. 2534-2001). When this reasonable

interpretation of the CSA’s implementing regulation is added

into the analysis, the certainty of federal preemption is

irrefutable. *

B. THE ATTORNEY GENERAL ACTED WITHIN HIS

STATUTORY AUTHORITY

The court of appeals erred when it held that the

interpretive rule promulgated by the Attorney General fell

outside his statutory authority. Pet. App. 9a (court of appeals

opinion).

As previously discussed, the Attorney General’s

interpretive rule confirmed that dispensing controlled

substances to assist suicide violates the CSA. It also verified

that helping one to kill oneself is not a “legitimate medical

purpose” within the meaning of 21 C.F.R. 136.04. Pet. App.

100a (AG Order no. 2534-2001, 66 Fed. Reg at 56,608).

The interpretive rule further concluded that “[s]uch conduct

* The Ninth Circuit’s analysis incorrectly presumes this case is about

Oregon’s right to regulate the practice of medicine -- suggesting that the

Attorney General's ruling alters the usual constitutional balance between

the states and federal government. Pet. App. at lla (court of appeals

opinion). First, the appellate court over-states Oregon’s situation, given

that Oregon stands alone among the fifty states in having radically

departed from accepted medical practice. Physician-assisted suicide bills

in more than 20 states have failed in the past decade, whereas 16 bills

prohibiting it have in the past decade and a half been enacted. Yale

Kamisar, The Rise and Fall of the “Right” to Assisted Suicide, in Foley

& Hendin, eds., The Case Against Assisted Suicide, For the Right to End-

of-Life Care 91 (2002) (citations omitted). Second, and more

importantly, the court’s federalism analysis analyzes oranges when this

case is about apples. This case is not about the regulation of medical

practice, but about the right of the federal government to regulate

controlled substances in a uniform manner.

9

by a physician registered to dispense controlled substances

may ‘render his registration ... inconsistent with the public

interest’ and therefore subject to possible suspension or

revocation.” /d. quoting 21 U.S.C. § 824(a)(4)(emphasis

added). For the reasons discussed below, the Attorney

General acted within statutory authority when he

promulgated this interpretive rule.

Congress, through the CSA, used the concept of

“registration” to identify those physicians who operate

“beyond the bounds of professional practice.” Moore, 423

U.S. at 139 (1975). Physicians and others, who dispense a

controlled substance, must “obtain from the Attorney

General a registration issued in accordance with the rules and

regulations promulgated by him.” 21 U.S.C. § 822 (a)(2).

Under the CSA, physicians and others registered by the

Attorney General to dispense controlled substances are

authorized to dispense such substances only “to the extent

authorized by their registration and in conformity with the

[provisions of the CSA].” 21 U.S.C. § 822 (b). Thus, only

“the lawful acts of registrants are exempted” from

prosecution. Moore, 423 U.S. at 130 (1975).

Congress expressly granted the Attorney General the

authority “to promulgate rules and regulations ... relating to

the registration and control of the...dispensing of controlled

substances and to the registration and control of regulated

persons and regulated transactions” 21 U.S.C. § 821.°

Under 21 U.S.C. § 823 (f), Congress gave the

Attorney General the express authority to deny an

* Congress expressly further granted the Attorney General the authority

to “promulgate and enforce any rules, regulations, and procedures”

deemed “necessary and appropriate for the efficient execution of his

functions under this subchapter.” 21 U.S.C. § 871(b).

10

application for registration “if he determines the issuance of

such registration is inconsistent with the public interest.”

Moreover, Congress also expressly gave the Attorney

General the authority to suspend or revoke a registration

authorized pursuant to section 823 if the Attorney General

finds that the registrant committed an act that would “render

his registration under section 823 [of the CSA] inconsistent

with the public interest as determined under such section.”

21 U.S.C. § 824.

In denying, revoking or suspending an application,

the Attorney General must consider the following factors in

determining the public interest:

(1) The recommendation of the appropriate State licensing

board or professional disciplinary authority.

(2) The applicant’s experience dispensing ... controlled

substances.

(3) The applicant’s conviction record under Federal or State

laws relating to the manufacture, distribution, or dispensing

of controlled substances.

(4) Compliance with applicable State, Federal, or local laws

relating to controlled substances.

(5) Such other conduct which may threaten the public health

and safety.

21 U.S.C. § 823

11

Most of the drugs dispensed in the lethal conduct

authorized by the Oregon law likely fall within Schedule II

of the CSA, the “most strictly regulated category of

substances available for non-research purposes.” Pet. App.

114a (Memorandum for the Attorney General, June 27,

2001). See also Pet. App. 65a (opinion of the district court).

In 21 U.S.C. 829, Congress mandated the following

in connection with the dispensing of Schedule II controlled

substances:

Except when dispensed directly by a practitioner,

other than a pharmacist, to an ultimate user, no

controlled substance in schedule [II...may be

dispensed without the written prescription of a

practitioner, [with emergency exceptions not relevant

to the discussion at bar].”°

Pursuant to the above discussed rulemaking authority

vested in the Attorney General by Congress, the Attorney

General, in the early 1970’s, enacted regulations pursuant to

Section 829:

A prescription for a controlled substance to be

effective must be issued for a legitimate medical

purpose by an individual practitioner acting in the

usual course of his professional practice... An order

® The word “dispense” means “to deliver a controlled substance to an

ultimate user... by, or pursuant to the lawful order of, a practitioner,

including the prescribing and administering of a controlled substance....”

Title 21, United States Code, Section 802 (10). “‘Ultimate user’ means a

person who has lawfully obtained ... a controlled substance for his own

use...” 21 U.S.C. § 802 (27). The term “practitioner” includes a

“physician ... licensed, registered, or otherwise permitted, by the United

States or the jurisdiction in which he practices ... [to] dispense ... a

controlled substance in the course of professional practice...” 21 U.S.C.

§ 802 (21) (emphasis added).

12

purporting to be a prescription issued not in the usual

course of professional treatment ... is not a

prescription within the meaning of this Act and the

person knowingly filling such a _ purported

prescription, as well as the person issuing it, shall be

subject to the penalties provide for violations of the

provisions of law relating to controlled substances.

21 CFR § 306.04(a) (1973) (redesignated as 21 CFR §

1306.04(a) (1975)’

If the Attorney General in the early 1970's

promulgated the above rule pursuant to statutory authority,

then the Attorney General in 2001certainly had the authority

to interpret what it means. Indeed, as noted above, Congress,

in 21 U.S.C. § 821, expressly granted the Attorney General

authority “to promulgate rules and regulations ... relating to

the registrations and control of the...dispensing of controlled

substances and to the registration and control of regulated

persons and regulated transactions.” The Attorney General’s

interpretive ruling directly promotes the CSA’s purposes, by

restricting use of controlled substances to legitimate medical

purposes. It promotes the medical use of drugs, furthering

the public interest in a manner perfectly consistent with the

broad intent of Congress. Thus, when the Attorney General

published the interpretive rule confirming that dispensing

controlled substances to assist suicide violates the CSA, and

verified that assisting suicide is not a “legitimate medical

purpose” within the meaning of 21 C.F.R. 136.04, he acted

7 See also, 21 U.S.C. 830 (b)(3)(ii) Regulation of listed Chemicals - Mail

order reporting — “The term ‘valid prescription’ means a prescription

which is issued for a legitimate medical purpose by an individual

practitioner licensed by law to ...prescribe the drugs concerned and acting

in the usual course of the practitioner’s professional practice.”

13

well within his Congressional authorized authority. Pet. App.

100a (AG Order no. 2534-2001, 66 Fed. Reg. at 56,608).

Moreover, it was reasonable for the Attorney General

to subsequently conclude in the interpretive rule that “[s]uch

conduct by a physician registered to dispense controlled

substances may ‘render his registration ... inconsistent with

the public interest’ and therefore subject to possible

Suspension or revocation.” Pet. App. 100a (AG Order no.

2534-2001, 66 Fed. Reg at 56,608 quoting 21 U.S.C. §

824(a)(4)) (emphasis added).

The court of appeal’s holding that the Attorney

General’s action exceeded statutory authority because it

“evaluates public interest under 21 U.S.C. § 823 without

considering all five factors required by that subsection” is

misplaced. Pet. App. 17a (court of appeals opinion).

This part of the Attorney General’s interpretive rule

is merely public notice of a logical consequence that may

come to one from ignoring the previously established

premise that dispensing drugs to assist one to kill oneself is

not a legitimate medical practice and violates the CSA. In

this regard, although the Attorney General certainly

evaluated the public’s interest in promulgating the

interpretive rule, nothing in the law requires him to consider

all five factors delineated in 21 U.S.C. §823(f). Under the

CSA, the Attorney General is required to consider these five

factors only when denying, revoking or suspending an

application for a registration. 21 U.S.C. §§ 823 (f), 824.

Nothing in the record indicates that the Attorney General has

even contemplated taking such action against the named

plaintiffs. Thus, the court of appeals erred since no statutory

authority required the Attorney General to consider the five

factors when promulgating the interpretive rule.

14

C. ENJOINING THE UNITED STATES FROM PROTECTING THE

CITIZENRY AGAINST DISPENSING DRUGS TO KILL A HUMAN

BEING, CREATES A CULTURE OF DEATH

WITH GRAVE IMPLICATIONS

The court of appeals mandated that the United States

must not enforce the nation’s drug laws against physicians

who dispense controlled substances to assist in the killing of

a human being. Amici believe that human beings are made

in the image of God and that therefore every life is sacred.

Genesis 1:26 (NIV) Underlying the court of appeals

decision is a rejection of this inviolable standard present in

the natural law, divine law, and positive law, in favor of a

morally relative standard where each individual chooses

when and whether a human life has positive value.

Ultimately, allowing the dispensing of federally

controlled drugs for assisting suicide proceeds from the

fundamentally erroneous premise that human life in certain

conditions has no positive value. That premise has

incalculably grave implications for all of us. Here an

appellate court ruled that individuals have the right to take

life in one situation, and that the United States cannot

enforce the federal drug laws in ways that protect life. When

we abandon moral absolutes today, it becomes easy

tomorrow to choose death in other ways, for other people, in

other situations, since the positive value of life has become

an immorally relative individual choice.

The prominent ethicist Sissela Bok concluded, “No

society has yet worked out the hardest questions of how to

help those patients who desire to die, without endangering

others who do not.” Sissella Bok, Physician-Assisted

Suicide, in Euthanasia and Physician-Assisted Suicide 139

(Gerald Dworkin, et a!., eds., (1998).

15

Prior to the enactment of the Federal CSA;

euthanasia societies grew during the late 19" and early 20"

century eugenics movements in the United States and

Europe. Kathleen Foley, and Herbert Hendin, /ntroduction,

in The Case Against Assisted Suicide, For the Right to End-

of-Life Care 6-7 (Foley & Hendin, eds 2002). Thirty states

_ passed sterilization laws embraced by Presidents Theodore

Roosevelt and Woodrow Wilson. /d.

The Nazis legalized voluntary euthanasia, then

involuntarily euthanized hundreds of thousands of the

mentally ill, then extended euthanasia’s reach to Jews,

gypsies, and other “undesirables.” /d. at 7.

As late as the 1940s this country’s leading euthanasia

proponent Dr. Foster Kennedy continued to advocate

compulsory euthanasia for retarded children on eugenics

grounds. By the 1970s the euthanasia movement’s focus

shifted to easing the “burden” of caring for the elderly, and

then to easing suffering, id at 8 — though notably, no

suffering requirement exists in the Oregon law which

purports instead to be based on personal choice. The Oregon

law requires the physician to advise the patient of palliative

care and hospice but does not require that the physician have

any training in either and requires no palliative care

consultation. The law’s data collection requirements are so

meager — the form used requires no disclosure of the reason

for the patient’s request — that study of the Oregon

experiment is limited. Jd. Oregon’s law grants “good faith”

immunity to the physician and has no enforcement

. The Ninth Circuit erred in relying on the former Attorney

General Reno’s January 5, 1998 letter suggesting that the CSA did not

prohibit prescription-assisted suicide. See Pet. App. 7a. The Reno letter

assumed, ahistorically, that the CSA was written before there was any

consideration of assisted suicide.

16

mechanism for physician non-compliance, while failing

utterly to protect the family.

The Dutch experiment in physician assisted suicide

failed frighteningly. The three foreign clinicians who were

permitted close study, including case discussion and

extensive interviews, independently determined that the

Dutch legal requirements were consistently violated and

could not be enforced. Foley, et al., supra, at 10. Sixty

percent of Dutch assisted suicide cases go unreported. /d.

Most non-reporting involves cases in which physicians have

failed to follow established guidelines for voluntariness or

consultation.

Worse, in several thousand cases, each year

physicians ended their patient’s life without the patient’s

consent. /d.atl0. Twenty-five percent of physicians

terminated one or more patient’s life without request. /d. In

the 1995 study year, 40 percent of the more than 6,000 cases

in which physicians actively intervened to cause death

involved no explicit request from the patient. Herbert

Hendin, The Dutch Experience, in Foley, ed., supra, at 105;

see also Zbigniew Zylicz, M.D., Palliative Care and

Euthanasia in the Netherlands: Observations of a Dutch

Physician, in Foley, ed., supra, at 123.

Each major Dutch measure to control physician-

assisted suicide, including informed consent, consultation,

and reporting, largely failed, was modified, or was violated.

Hendin, supra, at 103, citing C. Gomez, Regulating Death:

Euthanasia and the Case of the Netherlands (1991). This

Court in Washington v. Glucksberg, 521 U.S. 702, 733

(1997), recognized “that what is couched as a limited right to

‘physician-assisted suicide’ is likely, in effect, a much

broader license, which could prove extremely difficult to

17

solve and contain.” Indeed, what we sow today, we will reap

tomorrow.

As the fundamental units of society, families must be

protected and promoted by the law and by legal institutions,

if order and liberty are to flourish. Yet clinical research

shows that suicides in general and physician-assisted

suicides more particularly, devastate families. M.D. Reed

and J.Y. Greenwald, Survivor Victim Status, Attachment and

Sudden Death Bereavement, 21 J. of Suicide and Life-

Threatening Behavior 385-401 (1991); N.L. Farberow, D.E.

Gallagher-Thompson, N.J. Gilewski, and L.W. Thompson,

Changes in Grief and Mental Health of Bereaved Spouses of

Older Suicides, 47 J. Gerontology 357-66 (1992), both cited

in Kathleen Foley, and Herbert Hendin, The Oregon

Experiment, in The Case Against Assisted Suicide, For the

Right to End-of-Life Care 158 (Foley, ed. 2002)

(“devastating grief and guilt that we see in survivors of

suicide”). Imagine the shock of an adult child making the

weekly visit to a parent’s nursing home, only to discover that

a physician proscribed and dispensed a federally controlled

substance to help the parent commit suicide the day before.

(Oregon’s law requires no pre-suicide notification to

families.)

The toll on family life is incalculable. Allowing

physicians to dispense drugs to assist in killing has an

insidious effect on families who support seniors, burdening

both the family and the dying. The number of patients in

Oregon reporting a concern about being a burden on the

family increased from 12 percent in 1998 to 63 percent in

2000, subsequent to the passage of Oregon’s physician-

assisted suicide law. Jd. at 162. Physician-assisted suicide

creates in practice a frightening “duty to die” — frightening

because the practice of physician-assisted suicide has been

shown to be so imperfect a means of death that in one Dutch

18

study fully 20 percent of patients given what was considered

to be a lethal dose lived for more than three hours, in some

cases requiring the physician to intervene with a lethal

injection which would be illegal under the Oregon law. /d.

at 166, citing J.H. Groenewould, A. van der Heide, B.D.

Onwuteaka-Philipsen, D.L. Willems, P.J. van der Maas, and

G. van Ger Wal, Clinical Problems with the Performance of

Euthanasia and Physician-Assisted Suicide in_ the

Netherlands, 342 New England J. Med. 551-56 (2000).

Families are occasionally called on to intervene with pillows

or plastic bags. Foley & Hendin, supra at 164, (citations

omitted).

The Hippocratic Oath written during the fifth to

fourth centuries B.C. declares, “I will neither give a deadly

drug to anybody if asked for it, nor will I make a suggestion

to this effect.” The AMA and more than 40 other national

and state medical and health care organizations have urged

on this Court that “the ethical prohibition against physician-

assisted suicide is a cornerstone of medical ethics”; that the

AMA has “reexamined and reaffirmed” the prohibition

against physician-assisted suicide; and that “physician-

assisted suicide remains ‘fundamentally incompatible with

the physician’s role as healer, would be difficult or

impossible to control, and would pose serious societal

risks."” Brief of the American Medical Assn., American

Nurses Assn., American Psychiatric Assn., et al., as Amicus

Curiae in Support of Petitioners at 5, Glucksberg (No. 96-

110), available in 1996 WL 656263.

The court of appeals decision rejects this position and

the underlying inviolable standard which serves as its

foundation. Underlying its decision instead is a morally

relative foundation, where each individual chooses when and

whether a human life has positive value. The grave

implications for our nation that accompany such a choice are

19

clear. Foundations do matter. Today this Court stands at the

Statutory construction site and amici urge it to grant the

government's petition for certiorari.

CONCLUSION

This case implicates important federalism concerns

vital to proper constitutional governance under the rule of

law. Mutually exclusive provisions of tlie Federal CSA and

Oregon law make it impossible for a dispensing physician to

comply with both laws. Thus, the Federal CSA preempts the

Oregon law. The appellate court’s analysis granting

Oregon’s request to enjoin the United States, from enforcing

the Federal CSA, is therefore incompatible with the

Supremacy Clause in Article VI of the United States

Constitution.

The Attorney General’s interpretive rule confirmed

that dispensing controlled substances to assist suicide

violates the CSA, and verified that assisting suicide is not a

“legitimate medical purpose.” The Attorney General, in

promulgating this rule, acted well within a plethora of

statutory authority expressly allowing him to do so.

Amici ask that this Court restore the right of the

federal government to enforce our nation’s drug laws under

the CSA. Undeniably, we stand at a statutory construction

site. If, in the name of an individual’s morally relative

choice, we enjoin the federal government from proscribing

the dispensing of drugs to kill a human being, we merely

create an illusion of a nation willing to protect fundamental

freedoms. Such a course inevitably erodes the fundamental

foundations of our country, as structural institutions of free

government stand for a time, while the essence for which

they stand cease to exist. Who we are morally as a nation is

20

a fabric made up of much more than statutes and court

decisions. Those who came before us built a constitutional

democratic republic upon fundamental foundations of

decency. It is now our watch. It is well for us to recall,

therefore, the ancient truth that “righteousness exalts a

nation.” Proverbs 14:34 (NIV).

Amici urge this Court to grant the Petition for

Certiorari.

Respectfully submitted,

WILLIAM WAGNER

NELSON P. MILLER

Counsel of Record

STEPHEN W. REED

35 N. Lake Ave.

Pasadena, CA 91101 COOLEY LAW SCHOOL

(626) 449-4521 300 South Capitol

Lansing, MI 48933

PATRICK A. TRUEMAN (517) 371-5140

801 G. Street NW

Washington D.C. 20001

(202) 393-2100

December 6, 2004