Amicus Curiae Brief — Gonzales v. Oregon
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Supreme Court. US
a Tare
No. 04-623 OFFICE OF THE CLERK
————
IN THE
Supreme Court of the Anited States
October Term, 2004
ALBERTO R. GONZALES, ATTORNEY GENERAL, ef al.,
PETITIONERS,
v.
STATE OF OREGON, ef al.
RESPONDENTS.
On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
BRIEF OF AMICI CURIAE NOT DEAD YET, ADAPT,
CENTER ON DISABILITY STUDIES, LAW AND POLICY
AT SYRACUSE UNIVERSITY, CENTER FOR SELF-
DETERMINATION, HOSPICE PATIENTS ALLIANCE,
MOUTH MAGAZINE/FREEDOM CLEARINGHOUSE,
NATIONAL COUNCIL ON INDEPENDENT LIVING,
NATIONAL SPINAL CORD INJURY ASSOCIATION,
SELF-ADVOCATES BECOMING EMPOWERED,
SOCIETY FOR DISABILITY STUDIES, TASH AND THE
WORLD INSTITUTE ON DISABILITY
IN SUPPORT OF PETITIONERS
Max Lapertosa Walter J. Kendall Ill
Counsel of Record Professor of Law
Kenneth M. Walden THE JOHN MARSHALL LAW
Adrienne Detanico, Law Clerk SCHOOL
ACCESS LIVING 315 South Plymouth Court
614 West Roosevelt Road Chicago, IL 60604
Chicago, IL 60630
TABLE OF CONTENTS
TARE GS AEF CRIIE UTED cccccccesctnesesnssvesccsnsvvnssesscsccnceeees
INTEREST OF AMICI CURIAE .............sssscsssssssssssssssesseeee I
xf Center on Disability Studies, Law and Human
Policy at Syracuse University ...............::cscceeeee
ae
4
4
Hospice Patients Alliance........ssssssssssvscseseseseeeeeeee 4
Mouth Magazine/Freedom Clearinghouse........... 5
National Council on Independent Living............ 5
National Spinal Cord Injury Association ............ 5
Society for Disability Studies... ........cccccesee0000. 6
6
6
6
7
x
=
a
—
Self-Advocates Becoming Empowered ..............
I. Assisted Suicide Serves No Legitimate Medical
Purpose Because It Discriminates Against and
Degrades the Lives of People with Disabilities ........ 8
A. Laws, Programs and Services Operate to
B. The Oregon Assisted Suicide Law Denies
People with Disabilities the Benefits of _
C. Euthanasia and Assisted Suicide Are Part of
the Long and Tragic sn 5 of Discrimination
rox
‘
ii
D. Assisted Suicide Contravenes Medical Ethics
and Practice Because of the Abuse It Poses to
People with Disabilities..................cccsesseeseeeees 14
a The Uncertainty of Diagnosing a
TOSI GE ccccsncetitatucsmsiaamene 14
2. The Law’s False Assumption that
Suicide is “Rational” When Committed
By a Person with a Disability................ 16
3. The Law’s False Assumption that
Disability Intrinsically Deprives Life
of Dignity and Value..................:0000008 18
4. The Difficulty in Ensuring
Decisions to Die Are Not
Coerced or Made by Others .................. 22
Il. The Attorney General’s Determination that
Assisted Suicide is Not a “Legitimate Medical
Practice” is a Permissible Construction of the
Controlled Sebetemces A6t ...cccccccccccccccosesescsscsccossenes 23
A. The Attorney General’s
Interpretive Ruling is Entitled to Deference...... 23
B. The “Clear Statement” Rule Does Not Apply to
Regulation of the Practice of Medicine............. 25
CUINGLIBIIUIN ...000:cccssscecscaseceseseeessnsesnimansnnmmna 28
TABLE OF AUTHORITIES
CASES
Abbott v. Bragdon, 912 F. Supp. 580 (D. Me. 1995),
aff'd, 107 F.3d 934 (ist Cir. 1997),
vacated & remanded, 524 U.S. 624 (1998)... 28
ADAPT v. Philadelphia Hous. Auth.,
2000 U.S. Dist. LEXIS 5380 (E.D. Pa. Apr. 14, 2000)..... 3
ADAPT v. Skinner, 881 F.2d 1184 (3d Cir. 1989) ................ 3
ADAPT v. SkyWest Airlines,
SS MPU, GED IPUPE Paxsesnscscccncesessnncsensecsenenencesees 3
Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985)... 27
Barnhart v. Walton, 535 U.S. 212 (2002) ........ccccccceeee 24, 25
Bragdon v. Abbott, 524 U.S. 624 (1998)............006 24, 27-28
Buck v. Bell, 274 U.S. 200 (1927) .......ccccccscsssenesseeesesrenseeees 12
Chevron U.S.A. v. Natural Resources Defense Council,
a 7, 23-25
City of Cleburne v. Cleburne Living Center,
ET CR 12, 26
Equal Employment Opportunity Comm'n v. Massachusetts,
III, ITI ccscennssncsenasennnsenessecsseusczecocesese 26
Gregory v. Ashcroft, 501 U.S. 452 (1991) ..........0.. 7-8, 25-26
Helen L. v. DiDario,
46 F.3d 325 (3d Cir.), cert. denied sub nom.,
Secretary of Publ. Welf. v. Ideil S.,
ee 3
In re Grand Jury | roceedings,
801 F.2d 1164 (9th Cir. 1986) 0... ccccccccecseeeeeeeeeenens 26
In re Kober’s Will, 285 P. 1032 (Or. 1930)..........cccccccccceeeees 9
In re Simpson,
180 N.E. 2d 206 (Ct. Common Pleas Oh. 1962)............. 12
McKay v. Bergstedt, 801 P.2d 617 (Nev. 1990)............. 21-22
Minor v. United States, 396 U.S. 87 (1969) ........cccccccceeeeees 26
Olmstead v. L.C., 527 U.S. 581 (1999) ......cccccccceeees 20, 24, 27
Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004). ......25-26
Reina v. United States, 364 U.S. 507 (1960)... 26
iv
School Comm. of Burlington v.
Massachusetts Dep't of Educ.,
I ls Se IED crnecenerersnniacenententenatininaniiainmninitiate 12
Solid Waste Agency v. Army Corps of Engineers,
Be Se GI a cctennennpnnemnnatanntaninninniinacanenitns 25
Tennessee v. Lane,
541 U.S. 509, 124 S. Ct. 1978 (2004) ooo ccccccccceeeeeees 26
United States v. Moore, 423 U.S. .22 (1975) ............... 24, 27
Vacco v. Quill, $21 U.S. 793 (1997) ..............ccccesseesssseeseees 14
Washington v. Glucksberg,
eee 2, 3, 8, 11, 14, 16
Wyckoff v. Mutual Life Ins. Co.,
Pe Ca I Ge cennnsnsntnenenennnitipnninicinninitienidiai 9
FEDERAL STATUTES
Americans with Disabilities Act,
ee l
Se lie Ob See cenrsereresnnrsensenncccomeenemnsneiiinainsianiinil 10
Controlled Substances Act, 21 U.S.C. §§ 801-971 ......... 7,24
ae ies SPIED counennmmnecincnsineanitanceniietniaapinaneaniendis 24
See les SD cxenecrnnveresenmneiannicnnnninetininneiininiannain 24
I 24
Be eee SP crinscennnennengeccninnsmnnneniaiiitaninmenaes 24
Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301-397........ 27
Section 504 of the Rehabilitation Act,
ss 0 Penns 10
STATE STATUTES
Alaska Stat. §§ 44.29.300-44.29.390 0000ooooocccccceceeeeeeneeeeees 9
TR. TR, RD. Fa eerrteeenetarettcmenniviuntitiiiatiiitiatnniin 8
RED, GRR. GB, Bee nee 9
AGS. GEG GER: BEG Gennes 9
Ca Saat, Ga i eenemiemmmennennin 9
Cal. Welf. & Inst. Code §§ 4098 — 4098.5 0000.0 ccccceeeeees 9
a GR GRR, BS Pee eceerenenneneneteiainmeniiaites 9
ee GR GE. Fi ED encanta 8
Vv
Haw. Rev. Stat. § 703.308 .............ccscscscsssssssscsesseeseeseeseeeseseee 8
ee 9
La. Rev. Stat. Amn. § 17.282.4 .......ccccccsccscsesssessessesseesseesecsees 9
Mass. Ann. Laws ch. 40, § 36C ......ccccccsccssesssessesseeseessessnesees 9
Md. Code Ann., Health-General § 10-1403(a)(1)(iii)........... 9
NS ARI 9
NS Ee 9
oO Ear ee 8
INLD. Cant. Code § S7-40.6-10 .....c.ccescessccsccescesccsccecosscssecssee 9
DUBE. Reov. Stat. § 1OGG PO ccecacecnneccccscceccccccesccescccnsccscossscess 9
N.H. Rev. Stat. Ann. § 627.6.........ccccessesssessessessessecseesesseseeeees 8
a as: 8
N.J. Stat. Ann. §§ 30:9A-13 — 30:9A-27.......cccccccessessessveseeeees 9
et 8
Nev. Rev. Stat. §§ 439.511 — 439.513 .....ccccccccccccsessessesseeseeees 9
Okla. Stat. Ann. §§ 12-101 — 12-105 ........cccecccessecsesseeseeeneeees 9
The Oregon "Death with Dignity” Act,
Or. Rev. Stat. §§ 127.800 — 127.995 ......cccccccecesseesveees 1,10
icin i eeiinn 17
teen ae 8
RATS 8
Or. Rev. Stat. § 181.860(8)(a) .......c.ccccccccsessesseeseeseseesveseeeveens 9
SS | | eee 9
eS eS 9
ie, rh, Be I iiitisccticnnitmnctinientinmamedl 9
SEES 9
I I ac crcritinsesiinssinieiueitinthinbietiinadistias 8
24 P.R. Laws Ann. §§ 3241 — 3244 .....ccccccccsesceessecseeseeseeeveens 9
a, GR, BS BO rrcremneeeeeeememnen 9
CO 8
eS eee ees 9
ee 8
FEDERAL REGULATIONS
SORE. CUED. .xintntiidtiniondael 7,24
vi
OTHER AUTHORITIES
American Medical Association,
SII ceenenetuniantrarsenneninsmnmaninniinseniititiiin 2
Evelyn Hoover Barnett,
ls Mom Capable of Choosing to Die?
The Oregonian, Oct. 16, 1999, at G1 ooo... eee 2, 22
William Breitbart ef ai.,
Depression, Hopelessness and Desire for Hastened
Death in Terminally Ill Patients with Cancer,
284 JAMA 2907 (Dec. 13, 2000). ..0........cccecccceeeeeees 16, 18
Harvey Max Chochinov ef ai,
Dignity in the Terminally Ill:
A Cross-Sectional, Cohort Study,
360 The Lancet 2026 (Dec. 28, 2002) 20.........ccccccecceeeeeees 20
Kathleen M. Foley,
Competent Care for the Dying
Instead of Physician-Assisted Suicide,
336 New Eng. J. Med. 54 (Jan. 2, 1997) 200000 cccceecceeees 19
Linda Ganzini et al,
Evaluation of Competence to Consent to
Assisted Suicide: Views of Forensic Psychiatrists,
157 Am. J. Psychiatry 595 (Apr. 2000)..................... 17,21
Carol J. Gill, Suicidal Intervention for People with
Disabilities: A Lesson in Inequality,
8 Issues in L. & Med. 37 (1992) ...........::ccccsccceeeeeceeeeeeeees 1]
Herbert Hendin ef ai,
Physician-Assisted Suicide:
The Dangers of Legalization,
150 Am. J. Psychiatry 14 (Jan. 1993). 20.00.0000... 16, 18
Herbert Hendin,
Seduced by Death:
Doctors, Patients and the Dutch Cure (1997).............0..-+« 2
Herbert Hendin,
Seduced by Death:
Doctors, Patients and the Dutch Cure,
10 Issues in L. & Med. 123 (1994). 0... eeeecceecceeeeeeeeeees 15
vii
Stanley S. Herr,
No Place to Go: Refusal of Life-Sustaining
Treatment by Competent Persons with Physical
Disabilities,
eS 21
Brendan D. Kelly et al.,
Euthanasia, Assisted Suicide and Psychiatry:
A Pandora's Box,
181 British J. Psychiatry 278, 279 (2002)................. 17, 18
Evan J. Kemp, Could You Please Die Now?
UU UF UR 16
H. Laughlin,
Eugenic Sterilization in the United States (1922).......... 12
James V. Lavery et al.,
Origins of the Desire for Euthanasia and
Assisted Suicide in People with HIV-1 or AIDS:
A Qualitative Study,
358 The Lancet 362 (Aug. 4, 2001) ..........:.ccccceeeeeees 19, 21
Robert J. Lifton,
The Nazi Doctors: Medical Killing and
the Psychology of Genocide (1986) .............cceeseeeeeeenees 13
National Council on Disability,
Assisted Suicide: A Disability Perspective
OU 2, 15, 18
M. Louis Offen, Dealing with “Defectives”’:
Foster Kennedy and William Lenox on Eugenics,
61 Neurology 668 (Sept. 2003) ............ccccsecseereeeeeneeees 13
Oregon Department of Human Services,
Oregon's Death with Dignity Act:
Three Years of Physician-Assisted Suicide (2001)..... 19-20
Oregon Department of Human Services,
Seventh Annual Report on
Oregon's Death with Dignity Act (2005) ...........--+++ 15,17
Timothy E. Quill ef ai.,
Sounding Board: Care of the Hopelessly Ill,
327 New Eng. J. Med. 1380 (Nov. 5, 1992) ..........cc000000+ 14
Vili
Lori A. Roscoe et al,
Dr. Jack Kevorkian and Cases of Euthanasia
in Oakland County, Michigan, 1990-1998,
343 New Eng. J. Med. 1735 (Dec. 7, 2000)................ 2, 15
Peter Singer,
Rethinking Life and Death:
The Collapse of Our Traditional Ethics (1994).............. 13
The Right to Kill, Time, Nov. 18, 1935, at 53-54................ 13
The Surgeon General's
Call to Action to Prevent Suicide 1999 ..........cccccccccceeees 1,8
Peter Van der Maas ef al.,
Euthanasia and Other Medical
Decisions Concerning the End of Life,
338 The Lancet 669 (1991) .0........cccccccccceeceeeeeeees 15, 18, 22
World Health Organization,
World Report on Violence and Health (2002) ...............0... i)
l
INTEREST OF AMICi CURIAE
Amici are among the nation’s leading organizations
representing people with disabilities. Most are governed and
staffed by a majority of people with disabilities of all types.
They played a key role in enacting the nation’s civil rights
laws for people with disabilities, including the Americans
with Disabilities Act, 42 U.S.C. §§ 12101-12181. Based on
their shared experience as people with disabilities, including
conditions judged to be “terminal,” Amici strongly oppose
the legalization of assisted suicide. '
In the United States, as in most other nations, a
person who attempts or desires to commit suicide wili
typically be rushed to the nearest emergency room, as one-
half million Americans are each year. The Surgeon
General's Call to Action to Prevent Suicide 1999 1. The
person will be subject to numerous laws, programs, and
medical and therapeutic interventions designed to convince
him or her not to commit suicide, or to prevent him or her
from doing so. /d.
It seems axiomatic that society’s response to a person
who attempts suicide should not differ based on that person’s
race, ethnicity, gender, religion or disability. Yet Oregon’s
“Death with Dignity” Act, Or. Rev. Stat. §§ 127.800 -
127.995, encourages, rather than discourages, certain people
to die solely because of their disability. Indeed, the law
guarantees that the suicide attempts of the severely disabled
will succeed. Although the Surgeon General has stated that
suicide prevention policies “must recognize and affirm the
value, dignity and importance of each person,” Surgeon
General's Call to Action at 13, Oregon’s assisted suicide law
implicitly states that some people’s lives are worth saving
' The parties have consented to the filing of this brief. No
counsel for a party has authored this brief, in whole or in part, and no
person other than amici and their counsel has made any monetary
contribution for its preparation.
2
and others are not. For amici, this debate is not about the
“choice” of someone who is suicidal. Rather, it is about
demanding a uniform legal and societal response to those
who want to kill themselves. Amici’s experience as people
with disabilities is that the false assumption that suicide is a
rational solution to the barriers and discrimination they face
devalues them as human beings and sanctions their unequal
treatment under law.
Supporters of physician-assisted suicide laws such as
Oregon’s claim they are limited only to competent people
who face imminent death as a result of terminal illness. Yet
neither Oregon’s system of physician-assisted suicide nor
any other — whether de jure (the Netherlands)” or de facto
(Dr. Kevorkian)’ — has operated within these boundaries.
Physician-assisted suicide invites anyone involved in the
decision to die, including the physician, to make
monumental judgments on the relative value of a person’s
life — or, as one Oregon reporter noted, to act as “the
gatekeepers of death.” Evelyn Hoover Barnett, /s Mom
Capable of Choosing to Die? The Oregonian, Oct. 16, 1999,
at Gl. It is no coincidence, then, that this Court has refused
to recognize assisted suicide as a fundamental right, see
Washington v. Glucksberg, 521 U.S. 702, 735 (1997), the
medical profession has eschewed it as a legitimate practice,
see American Medical Association, Code of Ethics § 2.211,
and every other state besides Oregon has refused to allow it
shelter under their laws, Glucksberg, 521 U.S. at 710. And,
as Amici here submit, it is condemned by the vast majority of
people with disabilities. See National Council on Disability,
Assisted Suicide: A Disability Perspective (1997, re-released
2005).
? See Herbert Hendin, Seduced by Death: Doctors, Patients and
the Dutch Cure (1997), cited in Washington v. Glucksberg, 521 U.S. 702,
730 (1997).
> See Lori A. Roscoe et al, Dr. Jack Kevorkian and Cases of
Euthanasia in Oakland County, Michigan, 1990-1998, 343 New Eng. J.
Med. 1735 (Dec. 7, 2000).
A. Not Dead Yet
Not Dead Yet is a national grassroots organization of
people with disabilities formed in response to the movement
to permit physician-assisted suicide and euthanasia in the
United States and around the world. Not Dead Yet’s mission
is to protect the civil rights of people with disabilities by
advocating against discriminatory legalization of physician-
assisted suicide and euthanasia and to bring a disability-
rights perspective and awareness of the effects of
discrimination to the legal and _ sociological debate
surrounding these practices. Not Dead Yet has worked to
educate, support, coordinate and lead the disability
community's effort to stop the "right to die" from becoming a
duty to die or a right to kill. This Court cited Not Dead Yet’s
amicus brief in Washington v. Glucksberg, 521 U.S. 702,
733 n.23 (1997). Not Dead Yet has also testified before the
U.S. Congress three times on the subject of physician-
assisted suicide.
B. ADAPT
ADAPT is a national disability rights organization
comprised primarily of people with disabilities. ADAPT has
a long history and record of enforcing the civil rights of
people with disabilities. in addition to being one of the key
organizations that helped enact the Americans with
Disabilities Act, ADAPT has been a plaintiff in numerous
civil rights lawsuits. See e.g. ADAPT v. Skinner, 881 F.2d
1184 (3d Cir. 1989); Helen L. v. DiDario, 46 F.3d 325 (3d
Cir.), cert. denied sub nom., Secretary of Publ. Welf. v. Idell
S., 516 U.S. 813 (1995); ADAPT v. Philadelphia Hous.
Auth., 2000 U.S. Dist. LEXIS 5380 (E.D. Pa. Apr. 14, 2000);
ADAPT v. SkyWest Airlines, 762 F. Supp. 320 (D. Ut. 1991).
4
C. Center on Disability Studies, Law and Human
Policy at Syracuse University
The Center on Disability Studies, Law and Human
Policy is an interdisciplinary disability research and policy
institute at Syracuse University. Established in 1971, the
Center's work focuses on people with cognitive disabilities.
The Center's research has included studies of institutions,
schools, and community services, the history of the treatment
of people with disabilities in America, disability law and
policy, images of disability in the media and popular culture,
and the politics and ethics of treatment.
D. Center for Self-Determination
The Center for Self-Determination is a national
organization comprised of individuals with disabilities,
family members, and professionals committed to the
principles of self-determination: freedom to choose where
and with whom one wants to live, as well as what one will
do with one's life; authority and control over the dollars
necessary for long term supports; designing and providing
individual, community-based supports for people with
disabilities; and responsibility for both the wise use of public
dollars and for contributing to one's community.
E. Hospice Patients Alliance
The Hospice Patients Alliance, Inc. is a charitable
nonprofit patient advocacy organization that works to
promote excellence in end-of-life care and to protect the
rights of patients. It provides information about hospice
services, directly assists patients, families and caregivers in
resolving difficulties they have with current hospice services,
and promotes better quality hospice care.
5
F. Mouth Magazine/Freedom Clearinghouse
Mouth Magazine, published by Free Hand Press, Inc.,
is a magazine run by and dedicated to issues concerning
people with disabilities. Its mission is to promote the lives
and freedoms of all people with disabilities through
magazines, books, handbooks, speeches, pamphlets, and
electronic media. The mission statement of Freedom
Clearinghouse is to publicize and implement the right of
people with disabilities to live in the community.
G. National Council on Independent Living
The National Council on Independent Living (NCIL)
represents over 700 advocacy organizations and people with
disabilities of all types. The independent living philosophy,
which NCIL and its members advance, holds that people
with disabilities have the right to live with dignity and
appropriate supports in their own homes, participate in their
communities, and control and make decisions about their
lives, regardless of the degree of disability.
H. National Spinal Cord Injury Association
Founded in 1948, the National Spinal Cord Injury
Association (NSCIA) is the largest organization in the
United States dedicated to improving the quality of life of
persons with spinal cord injuries and diseases. The NSCIA's
mission is to enable people with spinal cord injuries to make
choices and take actions to achieve their highest level of
independence and personal fulfillment. Spinal cord injury
has been cited as the type of impairment warranting a desire
to hasten death. The NSCIA believes that expediting one’s
death because they have a disability is immoral and unwise,
both for society at large and members of the disability
community in particular.
6
I. Self-Advocates Becoming Empow ered
Self-Advocates Becoming Empowered is a national
organization comprised of and directed by people with
developmental disabilities, including intellectual disabilities
or mental retardation, cerebral palsy and autism. First
established in 1974, Self-Advocates Becoming Empowered
now has over 900 chapters in 46 states (known locally as
“People First” organizations), with an estimated 20,000
members. Many members have been unnecessarily
institutionalized and have experienced discrimination by
medical practitioners.
J. Society for Disability Studies
The Society for Disability Studies is an international
non-profit organization that promotes the exploration of
disability through research, artistic production, and teaching.
K. TASH
TASH (formerly the Association for Persons with
Severe Handicaps) is an international advocacy organization
of people with disabilities, their families, advocates and
professionals in the disability field. It has over 30 chapters
covering 37 states and members in 34 nations. TASH has
adopted a resolution opposing physician-assisted suicide.*
L. World Institute on Disability
The World Institute on Disability (WID) is a
nonprofit research, public policy and advocacy center
dedicated to promoting the civil rights and full societal
inclusion of people with disabilities. WID is governed and
staffed by a majority of people with disabilities.
: www .tash.org/resolutions/resO2assistedsuicide.htm.
7
SUMMARY OF ARGUMENT
Amici support the Attorney General’s interpretive
ruling that assisted suicide is not a “legitimate medical
practice” under the Controlled Substances Act, 21 U.S.C. §§
801-971, and its implementing regulations, 21 C.F.R. §
1306.04(a). When applied only to people with significant or
even “terminal” health impairments, Oregon’s assisted
suicide law encourages the disabled to end their lives — and
guarantees such efforts will be successful — while other state
laws concurrently discourage non-disabled persons from
doing so. Assisted suicide laws deny people with disabilities
the benefit of programs and laws that prevent suicide and are
the ultimate legal judgment that the life of a person with a
disability is not as worthwhile as that of a non-disabled
person.
Assisted suicide also raises serious ethical concerns
regarding the medical profession’s treatment of the disabled.
It requires doctors to make difficult, if not impossible,
determinations of a person’s competency and life
expectancy, the consequences of which are both ultimate and
irreversible. The availability of assisted suicide also distracts
from the determination whether a person’s desire to die
might be lifted with improved treatment, community-based
health care or other measures that improve a person’s
independence and dignity.
Thus, given the Attorney General’s latitude to
interpret federal statutes that Congress has authorized him to
enforce, see Chevron U.S.A. v. Natural Resources Defense
Council, 467 U.S. 837, 844 (1982), this difference in
treatment, based solely on the presence of a severe disability,
justifies the Attorney General’s action here. Additionally,
Congress and the Attorney General are not precluded from
acting to protect the rights of people with disabilities simply
because such protection regulates the practice of medicine.
The Court of Appeals’ erroneous reliance on Gregory v.
8
Ashcroft, 501 U.S. 452 (1991), and its imposition of the
“clear statement” rule to an area that is not a “fundamental”
state function, unduly impairs Congress’ ability to legislate
against state infringements on the civil rights of people with
disabilities.
ARGUMENT
I. Assisted Suicide Serves No Legitimate Medical
Purpose Because It Discriminates Against and
Degrades the Lives of People with Disabilities
A. Laws, Programs and Services Operate to
Prevent People from Committing Suicide
Suicide is a practice that American society
disapproves of and actively discourages through laws and
prevention programs. Washington v. Glucksberg, 521 U.S.
702, 711 (1997) (“[F]or over 700 years, the Anglo-American
common-law tradition has punished or otherwise
disapproved of both suicide and assisting suicide.”). The
U.S. Surgeon General has called suicide “a serious health
problem.” The Surgeon General’s Call to Action to Prevent
Suicide 1999 at 1. Every year, 500,000 people in the United
States use emergency room services as a result of suicide
attempts. /d In almost every state, helping someone
commit suicide is a crime. Glucksberg, 521 U.S. at 710-11.
In Oregon, intentionally causing or aiding another person to
commit suicide is second-degree manslaughter. Or. Rev.
Stat. § 163.125. Oregon law also authorizes physical force
to prevent someone from committing suicide. Or. Rev. Stat.
§ 161.205(4).° Additionally, many states statutorily mandate
* See also Ariz. Rev. Stat. § 13-403; Del. Code Ann. tit. 11, §
467; 9 Guam Code Ann. § 7.92; Haw. Rev. Stat. § 703.308; Neb. Rev.
Stat. § 28.1412; N.H. Rev. Stat. Ann. § 627.6; N.J. Stat. Ann. § 2C:3-7;
N.D. Cent. Code § 12.1-05; 18 Pa. Cons. Stat. § 508; Tenn. Code Ann. §
39-1 1-613; Wis. Stat. § 939.48.
9
suicide prevention plans, hotlines, or other intervention
programs.
According to the World Health Organization (WHO),
depression and anxiety are often associated with suicide and
over 80 percent of suicide victims had severe depression.
WHO, World Report on Violence and Health 192 (2002).
Oregon law reflects this assumption that persons who
commit suicide do not act rationally. For life insurance
purposes, Oregon law creates a presumption against suicide,
under the reasoning that “it is common knowledge that sane
persons do not ordinarily kill themselves.” Wyckoff v.
Mutual Life Ins. Co., 147 P.2d 227, 229 (Or. 1944); see also
Or. Rev. Stat. § 656.310 (for worker’s compensation claims,
worker’s death presumed not to be suicide). Oregon also
presumes that the will of one who commits suicide is invalid
and the product of a “deranged” mind. Jn re Kober’s Will,
285 P. 1032 (Or. 1930).’
® See e.g. Alaska Stat. S§ 44.29.300-44.29.390; Ariz. Rev. Stat.
§ 36.3415; Ark. Code Ann. § 6-18-1005; Cal. Gov. Code § 53110;
Cal.Welf. & Inst. Code §§ 4098 — 4098.5; Conn. Gen. Stat. § 7-294;
410 Ill. Comp. Stat. 53/5-15; La. Rev. Stat. Ann. § 17.282.4; Md. Code
Ann., Health-General § 10-1403(a\(1 iii); Mass. Ann. Laws ch. 40, §
36C; Minn. Stat. § 146.56; Mo. Rev. Stat. § 630.900; Nev. Rev. Stat. §§
439.511 — 439.513; N.H. Rev. Stat. § 186.67-a; N.J. Stat. Ann. §§ 30:9A-
13 — 30:9A-27; N.D. Cent. Code § 57-40.6-10; Okla. Stat. Ann. §§ 12-
101 — 12-105; 24 P.R. Laws Ann. §§ 3241 — 3244; R.I. Gen. Laws § 16-
22-14; Va. Code Ann. § 32.1-73.7.
” Other ways in which Oregon law discourages suicide include:
the exclusion of suicide threats from a state law mandating
confidentiality of statements made during counseling sessions, Or. Rev.
Stat. § 181.860(8)(a); establishing a statewide team to investigate youth
suicides, Or. Rev. Stat. § 418.748; establishing a Youth Suicide
Prevention Coordinator, Or. Rev. Stat. § 418.756; and mandating that
hospitals refer children who attempt suicide to crisis intervention
services, Or. Rev. Stat. § 441.750.
10
B. The Oregon Assisted Suicide Law Denies
People with Disabilities the Benefits of Suicide
Prevention Laws and Measures
The Oregon “Death with Dignity” Act, Or. Rev. Stat.
§§ 127.800 — 127.995, modifies the assumption that suicide
is irrational and undesirable — but only as to persons with
“terminal” disabilities or conditions. For these people,
Oregon law does not assume that suicide is irrational or a
practice that should be discouraged. Rather, the law allows
doctors and others to facilitate suicide, an act that would be a
crime but for the person’s disability. Persons with severe
health impairments are therefore denied the benefit of
suicide prevention laws and programs. Indeed, state law
guarantees their suicide attempts will succeed — unlike those
of other persons with suicidal ideations. A practice that the
State would otherwise expend public health resources to
prevent is instead allowed to occur. This differing response
is based solely on a person’s disability.*
If a state overtly excluded people with “terminal”
disabilities from suicide prevention laws and programs, it
would undoubtedly violate federal civil rights laws such as
the Americans with Disabilities Act, 42 U.S.C. §§ 12132,
and Section 504 of the Rehabilitation Act, 29 U.S.C. §
794(a). Yet that is precisely the design and effect of the
Oregon assisted-suicide law. A more devastating form of
discrimination would be difficult to imagine. By assuming
that it is irrational for a non-disabled person to end his or her
life, but rational for a disabled person to do so, the law
assumes that the non-disabled person’s life is intrinsically
more valuable and worthwhile than that of a disabled person.
* Amici do not advocate here for forced treatment or against the
right of people with disabilities to refuse treatment. Amici include
persons with psychiatric disabilities who have been subject to unwanted
treatment. Amici are concerned solely with the Oregon assisted suicide
law’s unequal treatment of the disabled. See www.mindfreedom.com.
11
For amici, perhaps no other attitude strikes closer to
the heart of the disability civil rights movement to which
they have dedicated themselves for the past three decades.
Central to this movement is the idea that a disabling
condition does not inherently diminish one’s life; rather,
surrounding barriers and prejudices do so. Assisted suicide
takes the opposite approach — it gives official sanction to the
idea that life with a disabling condition is not worth living.’
As this Court has recognized:
The State’s interest here [in prohibiting
assisted suicide] goes beyond protecting the
vulnerable from coercion; it extends to
protecting disabled and terminally ill people
from prejudice, negative and inaccurate
stereotypes, and “societal indifference ...”
The State’s assisted-suicide ban reflects and
reinforces its policy that the lives of
terminally ill, disabled and elderly people
must be no less valued than the lives of the
young and healthy, and that a seriously
disabled person’s suicidal impulses should be
interpreted and treated the same as everyone
else’s.
Glucksberg, 521 U.S. at 732.
Cc. Euthanasia and Assisted Suicide Are Part of
the Long and Tragic History of Discrimination
Against People with Disabilities_
Assisted suicide must be seen against the background
of the United States’ long and tragic history of state-
* See Carol J. Gill, Suicidal Intervention for People with
Disabilities: A Lesson in Inequality, 8 \ssues in L. & Med. 37 (1992)
(“When a culture values human life conditionally, suicide intervention
becomes selective. Devalued populations fail to receive rigorous
protection. assessment and treatment.)
12
sanctioned discrimination against the disabled, which five
members of the Supreme Court have called “grotesque.”
City of Cleburne v. Cleburne Living Center, 473 U.S. 432,
454-55 & 461 (1985). Amici’s experience is that this history
continues to haunt the everyday lives and realities of people
with disabilities, particularly when making so-called “end-
of-life” decisions.
Throughout history, state officials, with the support
of the medical community, have authorized the sterilization
of people with disabilities. Buck v. Bell, 274 U.S. 200, 207
(1927) (“It is better for all the world, if ... society can prevent
those who are manifestly unfit from continuing their kind ...
Three generations of imbeciles are enough”).'” People with
disabilities were placed in “massive custodial institutions ...
built to warehouse the retarded for life; the aim was to halt
reproduction of the retarded and ‘nearly extinguish their
race.” City of Cleburne, 473 U.S. at 461-62 (Marshall, J.,
concurring & dissenting) (citations omitted). The disabled
were deemed “uneducable” and excluded en masse from
public schools. See School Comm. of Burlington v.
Massachusetts Dep't of Educ., 471 U.S. 359, 373 (1985).
These practices, like Jim Crow laws in the south, were
carried out by elected officials with the support of the voters.
This did not make them any more legitimate or
constitutional.
Euthanasia played a key role in this history. In the
1940s, medical professionals sought the involuntary
euthanasia of the severely disabled. In a 1941 presentation
to the American Psychiatric Association, which was later
° See also In re Simpson, 180 N.E. 2d 206 (Ct. Common Pleas
Oh. 1962) (ordering sterilization of woman with retardation because of
“probability that [her] offspring will be mental'y deficient and become a
public charge for most of their lives.”); H. Laughlin, Eugenic
Sterilization in the United States 369 (1922) (“(Djefectives who are
practically certain to breed principally defectives, owe a debt to the
community that can be discharged only by an adequate guarantee that
they shall not contribute to the next generation.”).
13
published in the Association’s journal, Dr. Foster Kennedy,
the President of the American Neurological Association,
stated:
[T]he place for euthanasia, I believe, is for the
completely hopeless defective: nature’s
mistake; something we hustle out of sight,
which should never have been seen at all.
These should be relieved of the burden of
living ... to allow them to continue such a
living is sheer sentimentality, and cruel too;
we deny them as much solace as we give our
stricken horse. Here we may most kindly kill.
M. Louis Offen, Dealing with “Defectives”: Foster
Kennedy and William Lenox on Eugenics, 61 Neurology 668
(Sept. 2003) (quoting Foster Kennedy, The Problem of
Social Control of the Congenital Defective, 99 Am. J.
Psychiatry 13, 16 (1942)). In 1935, a Nobel Prize-winning
fellow at the Rockefeller Institute similarly urged that
“sentimental prejudice ... not obstruct the quiet and painless
disposition of incurable ... and hopeless lunatics.” The Right
to Kill, Time, Nov. 18, 1935, at 53-54."
Such attitudes, unfortunately, are not completely in
the past. Prominent ethicists such as Peter Singer of
Princeton University have sanctioned the killing of infants
with severe disabilities based on a belief that they will not
lead a “good” life and will burden their parents and society.
Peter Singer, Rethinking Life and Death: The Collapse of
Our Traditional Ethics 197-98 (1994). Professor Singer has
also written that it is impossible to kill people with severe
cognitive disabilities “against their will” “because they are
not capable of having a will on such a matter.” /d.
' See also Robert J. Lifton, The Nazi Doctors: Medical Killing
and the Psychology of Genocide (1986).
14
Amici do not claim that Oregon’s assisted suicide law
was intended to “extinguish” the disabled. Nevertheless,
given this history and the slippery slope it exemplifies,
federal safeguards are appropriate and necessary to ensure
that euthanasia against the disabled is not, once again,
sanctioned as a “legitimate medical practice” as it was for so
many years.
D. Assisted Suicide Contravenes Medica! Ethics
and Practice Because of the Abuse It Poses to
People with Disabilities
As this Court has recognized, assisted suicide is
contrary to well-established medical ethics. Glucksberg, 521
U.S. at 731 (quoting American Medical Association, Code of
Ethics § 2.211 (1994)); see also Vacco v. Quill, 521 U.S.
793, 801 n.6 (1997) (discussing medical profession’s
distinction between withholding treatment and assisted
suicide). This rejection is firmly grounded in the potential
harm the Oregon assisted suicide law poses to the lives of
people with disabilities.
1. The Uncertainty of Diagnosing a
“Terminal Illness”
First, the diagnosis and prognosis of a “terminal
condition” — defined under the Oregon law as a condition
likely to cause death within the next six months — is
inherently uncertain. Timothy E. Quill ef al., Sounding
Board: Care of the Hopelessly Ill, 327 New Eng. J. Med.
1380, 1381 (Nov. 5, 1992) (“[W]Je acknowledge the
inexactness of such prognosis [of imminent death]”).
Oregon’s own reports on the implementation of its assisted
suicide law confirm this uncertainty. In 2004, 60 patients
were determined “terminally ill” and prescribed lethal
medication, but only 35 ingested the medication. Of the 25
who did not, 12 — almost half — were still alive at the end of
2004. One patient who was prescribed medication in 2003,
15
and thus determined to have less than six months to live, did
not ingest the medication and was nevertheless still alive by
the end of 2004. Oregon Department of Human Services,
Seventh Annual Report on Oregon's Death with Dignity Act
12 (2005).
Assisted suicide has not been limited to persons
facing imminent death. In the Netherlands, whose assisted
suicide law was a model for Oregon, a governmental report
confirmed that many people have been killed who did not
have a “terminal” illness. Peter Van der Maas ef al,
Euthanasia and Other Medical Decisions Concerning the
End of Life, 338 The Lancet 669, 672 (1991).'? Similarly,
only one in four of the people whom Dr. Jack Kevorkian
helped commit suicide had a terminal illness; others simply
had physical or neurological disabilities. Lori A. Roscoe ef
al., Dr. Jack Kevorkian and Cases of Euthanasia in Oakland
County, Michigan, 1990-1998, 343 New Eng. J. Med. 1735,
1736 (Dec. 7, 2000).
The medical profession’s predictions of the
capabilities and life spans of people with disabilities have
been historically unreliable. As the National Council on
Disability has reported, “people with disabilities are aware of
enough instances of dramatic mistakes that many of them
have a healthy skepticism of medical predictions,
particularly as it relates to future life quality.” Assisted
Suicide: A Disability Perspective at 27-28. Evan Kemp,
Director of the Equal Employment Opportunity Commission
under President George H.W. Bush, wrote:
'? Not all such cases involve unintentional misdiagnosis. In one
Dutch case, a court acquitted a psychiatrist who helped a physically
healthy 50-year old womar — who was unquestionably not terminally ill
~ commit suicide. The woman had been diagnosed with leukemia and
had a history of depression. Herbert Hendin, Seduced by Death:
Doctors, Patients and the Dutch Cure, \0 Issues in L. & Med. 123, 123-
26 (1994).
16
As a disabled person, I am_ especially
sensitive to the “quality of life” rationale that
is frequently introduced in the debate [over
assisted suicide]. For the past 47 years I have
lived with a progressive neuromuscular
disease that first began to manifest itself when
I was 12. My disease, Kugelberg Weylander
Syndrome, has no known cure, and I have no
hope for “recovery.” Upon diagnosis, my
parents were informed by the physicians
treating me that I would die within two years.
Later, another group of physicians was certain
that I would live only to the age of 18. Yet
here I am at 59, continuing to have an
extraordinarily high quality of life.
Evan J. Kemp, Could You Please Die Now? Wash. Post,
Jan. 5, 1997, at C1.
2. The Law’s False Assumption that Suicide
is “Rational” When Committed by a
Person with a Disability
As the Glucksberg Court recognized, “those who
attempt suicide — terminally ill or not — often suffer from
depression or other mental disorders.” 521 U.S. at 730.'°
The Court continued, “Research indicates ... that many
people who request physician-assisted suicide withdraw that
request if their depression and pain are treated.” Jd For
example, a study of cancer patients showed that those with
depression were four times more likely to want to die.
William Breitbart ef al, Depression, Hopelessness and
Desire for Hastened Death in Terminally Ill Patients with
Cancer, 284 JAMA 2907, 2909 (Dec. 13, 2000).
'? Ninety-five percent of those who commit suicide have been
found to have a diagnosable psychiatric illness in the months preceding
suicide. Herbert Hendin et al/., Physician-Assisted Suicide: The Dangers
of Legalization, 150 Am. J. Psychiatry 14 (Jan. 1993).
17
Although the Oregon law mandates that doctors must
determine that patients are “not suffering from a psychiatric
or psychological disorder or depression causing impaired
judgment” before prescribing lethal drugs, and must refer
such patients for counseling, see Or. Rev. Stat. § 127.825, in
practice such determinations are extremely problematic. In a
survey of Oregon psychiatrists, over half were “not at all
confident” they could assess in a single consultation whether
a psychiatric condition impaired a person’s judgment; only
six percent were “very confident.” Linda Ganzini ef al.,
Evaluation of Competence to Consent to Assisted Suicide:
Views of Forensic Psychiatrists, 157 Am. J. Psychiatry 595
(Apr. 2000). This is because such assessments are inherently
subjective and unreliable. As one research analysis
concluded:
There is a marked lack of clarity about the
. goals of mandatory psychiatric assessment in
all patients requesting PAS _ [physician-
assisted suicide]. More worryingly, there are
no clinical criteria to guide such an
assessment — just as there are no criteria to
assess the rationality of any person’s decision
to commit suicide.
Brendan D. Kelly ef al., Euthanasia, Assisted Suicide and
Psychiatry: A Pandora’s Box, 181 British J. Psychiatry 278,
279 (2002).
Perhaps for these reasons, counseling referrals in
assisted suicide cases under the Oregon law are alarmingly
rare. In 2004, only five percent of patients seeking assisted
suicide were referred for a psychiatric evaluation. Seventh
Annual Report on Oregon's Death with Dignity Act at 24. In
the Netherlands, whose assisted suicide law similarly asks
doctors to determine whether a person’s judgment is
impaired by a psychiatric disability, only three percent of
18
assisted suicide patients were so referred. Kelly, supra at
278. .
3. The Law’s False Assumption that
Disability Intrinsically Deprives Life of
Dignity and Value
Many people identified as candidates for assisted
suicide could benefit from supportive care or treatment, such
as counseling, pain medication, or in-home personal
assistance. These measures lessen their pain and suffering,
their perceived burden on family members, or their lack of
independence and choice. The National Council on
Disability has found that “improving laws, policies,
programs and services for people with disabilities ... would
go a long way toward assuring that any self-assessment or
decision about the quality of life of an individual with a
disability would be made in an optimal context of
independence, equality of opportunity, full participation, and
empowerment.” Assisted Suicide: A Disability Perspective
at 13.
Research demonstrates the lack of this type of
assistance and support, rather than any intrinsic aspect of a
person’s disability, is the primary motivation for suicide.
For example, one study found that people who experience
serious pain are no more likely to want to kill themselves
than those who do not. This finding was attributed to “the
quality of pain management” provided to terminal patients in
the study. Breitbart, supra at 2910. In a study of euthanasia
in the Netherlands, only ten of 187 patients listed pain as the
reason they wanted to die. Van der Maas, supra at 672.
Depression is also a condition that can be treated with
therapy or counseling, which often leads the patient to
withdraw his or her request to die. Kelly, supra at 279;
Herbert Hendin et al., Physician-Assisted Suicide: The
Dangers of Legalization, 150 Am. J. Psychiatry 14, 15 (Jan.
1993).
19
Assisted suicide, however, assumes that a disability
or medical condition inherently makes life unworthy of
continuation. Its availability causes medical practitioners to
ignore other measures, services and modifications that might
cause someone to reconsider their desire to die. As a doctor
at New York’s Memorial Sloan-Kettering Cancer Center has
observed, assisted suicide “runs the risk of further devaluing
the lives of terminally ill patients and may provide the
excuse for society to abrogate its responsibility for their
care.” Kathleen M. Foley, Competent Care for the Dying
Instead of Physician-Assisted Suicide, 336 New Eng. J. Med.
54 (Jan. 2, 1997).
The desire to die of people with disabilities is often
driven by a temporal or situational depression that arises
from the perception that their lives lack value or that they are
a burden on their loved ones. In a study of HIV and AIDS
patients, one participant said, “I’m still inconveniencing
other people who look after me and stuff like that ... No, I'd
rather die.” Another described himself as “a bag of potatoes
to be moved from spot to spot ...” James V. Lavery et al.,
Origins of the Desire for Euthanasia and Assisted Suicide in
People with HIV-1 or AIDS: A Qualitative Study, 358 The
Lancet 362, 364-64 (Aug. 4, 2001).'*
'* Oregon’s experience also confirms these findings. Physicians
who administered assisted suicide under the Oregon law were asked
whether “end of life concerns” contributed to the patient’s desire to die:
In all cases, physicians reported multiple concerns
contributing to the request. Eleven (41%) patients
included at least four specific concerns: becoming a
burden, losing autonomy, decreasing ability to
participate in activities that make life enjoyable, and
losing control of bodily functions. Another 15 (56%)
patients included at least two or three of these
concerns. Most frequently noted across all three years
were loss of autonomy ... and participation in activities
that make life enjoyable ... Patients have increasingly
20
Another study linked suicidal ideation to unnecessary
institutionalization. It found that most terminally ill patients
who have a sense of “fractured dignity” were inpatients,
“suggesting that the degree of autonomy and independence
that can be maintained in a home setting with community
based care, as opposed to care enabled by an institution, is an
important mediator of one’s sense of dignity.” This loss of
dignity, and the corresponding feelings of depression and
hopelessness, are “strong predictors of desire for death and
suicidal ideation ...” Harvey Max Chochinov et al., Dignity
in the Terminally Ill: A Cross-Sectional, Cohort Study, 360
The Lancet 2026 (Dec. 28, 2002).
These medical findings mirror this Court’s
recognition of the deleterious effects of institutionalization.
In Olmstead v. L.C., 527 U.S. 581 (1999), the Court held that
unjustified institutionalization was a form of discrimination
under the Americans with Disabilities Act because it
“perpetuates unwarranted assumptions that persons so
isolated are incapable or unworthy of participating in
community life” and “severely diminishes the everyday life
activities of individuals, including family relations, social
contacts, work options, economic independence, educational
advancement, and cultural enrichment.” /d. at 600.
The question how to address the needs that underlie
the desire to die, however, is typically lost in the wake of the
law’s “competency” determination. As one Oregon
psychiatrist stated:
The focus of competence may distract from
adequate attention and resources on the
expressed concern about becoming a burden to family,
friends or caregivers.
Oregon Department of Human Services, Oregon's Death with Dignity
Act: Three Years of Legalized Physician-Assisted Suicide 11-12 (2001).
21
person and their circumstances ... we may
spend thousands of dollars on assessing
competence and little in care directed to the
day-to-day life and morale of the person.
Ganzini, supra at 600. Another study concluded that the
Oregon law’s competency determination “do[es] not provide
a framework to address social circumstances that contribute
to the desire for euthanasia or assisted suicide.” Lavery,
supra at 366.
The case of Kenneth Bergstedt exemplifies how
external concerns that could be remedied drive the desire to
die for people with disabilities. Mr. Bergstedt, a 30-year old
Nevada man with quadriplegia, wanted to die because his
father, who cared for him, was himself dying of cancer. Mr.
Bergstedt, though not in physical pain, feared he would be
institutionalized without his father’s support. See McKay v.
Bergstedt, 801 P.2d 617, 628, 637 (Nev. 1990); Stanley S.
Herr, No Place to Go: Refusal of Life-Sustaining Treatment
by Competent Persons with Physical Disabilities, 8 Issues in
L. & Med. 3, 10-13 (1992).
A psychiatric evaluation submitted to the trial court
found that Mr. Bergstedt was depressed, but that this was
irrelevant because “the quality of life for this man is ..
forever profaned by a future which offers no relief and only
the possibility of worsening.” Herr, supra at 12. Based on
his poor “quality of life,” the Nevada Supreme Court upheld
his decision to die. Bergstedt, 801 P.2d at 824-25. No
consideration was given to measures that might have helped
Mr. Bergstedt restore his sense of dignity and independence,
such as non-institutional, in-home health care.
A dissenting Nevada Supreme Court Justice observed
that “[w]ith this kind of support it is no wonder that he
decided to do himself in.” Bergstedt, 801 P.2d at 637
(Springer, J., dissenting). He added, presciently:
22
It is critical that the court not put its judicial
stamp of approval on negative stereotypes
about disability. This would result if it were
to allow the state to assist an individual to die
only because he or she had a disability.
Judicial decisions which are based on societal
prejudices merely reinforce those prejudices,
making them even more difficult to eradicate.
Id. at 836.
Because it rests on false assumptions and stereotypes
of the disabled, Oregon’s assisted suicide law enshrines these
debilitating attitudes under the protection of state law.
4. The Difficulty in Ensuring Decisions to Die
Are Not Coerced or Made By Others
Finally, evidence exists that some persons killed
under assisted suicide laws may “choose” suicide under
pressure from others. In the case of Kate Cheney, an 85-year
old woman with cancer, her psychologist was concerned that
Ms. Cheney was not competent to make the decision to die
and that her daughter was unduly pressuring her to choose
assisted suicide. The daughter simply obtained an opinion
from a second psychologist, who determined Ms. Cheney
was competent. Ms. Cheney was accordingly prescribed
lethal medication and died on August 29, 1999. Evelyn
Hoover Barnett, Js Mom Capable of Choosing to Die? The
Oregonian, Oct. 16, 1999, at Gl-2. A Dutch study
confirmed that some people administered lethal drugs in that
country did not ask to die. Van der Maas, supra at 672.
23
Il. The Attorney General’s Determination that
Assisted Suicide is Not a “Legitimate Medical
Practice” is a Permissible Construction of the
Controlled Substances Act
A. The Attorney General’s Interpretive Ruling is
Entitled to Deference
In Chevron U.S.A. v. Natural Resources Defense
Council, 467 U.S. 837 (1982), this Court set forth the
standard under which courts must defer to an Executive
Branch agency’s interpretation of a statute. When Congress
has authorized the agency to enforce the statute, the court
must make a twofold inquiry:
First ... whether Congress has directly spoken
to the precise question at issue. If the intent
of Congress is clear, that is the end of the
matter ... If, however, the court determines
Congress has not directly addressed the
precise question at issue, the court does not
simply impose its own construction of the
statute, as would be necessary in the absence
of administrative interpretation. Rather, if a
statute is silent or ambiguous with respect to a
specific issue, the question for the court is
whether the agency’s answer is based on a
permissible construction of the statute.
Id. at 842-43.
The Court clarified that “permissible construction”
was not “the only one [the agency] permissibly could have
adopted ... or even the reading the court would have reached
if the question initially had arisen in a judicial proceeding.”
Id. at 843 n.11.
24
Under this standard, an agency’s interpretative
rulings “are given controlling weight unless they are
arbitrary, capricious or manifestly contrary to the statute.”
Id.; see also Barnhart v. Walton, 535 U.S. 212, 218 (2002).
Even when this standard has not been applied, this Court has
nevertheless relied on “the well-reasoned views of the
agencies implementing a statute,” which “constitute a body
of experience and informed judgment to which courts and
litigants may properly resort for guidance.” Bragdon v.
Abbott, 524 U.S. 624, 642 (1998) (quoting Skidmore v. Swift
& Co., 323 U.S. 134, 139-40 (1944)); see also Olmstead v.
L.C., 527 U.S. 581, 598 (1999).
Under the Controlled Substances Act, 21 U.S.C. §§
801 — 971, Congress authorized the Attorney General to
register medical practitioners to dispense controlled
substances, 21 U.S.C. § 822(b), and designated the Attorney
General as the officer responsible for the Act’s enforcement.
21 U.S.C. § 871(a). The Attorney General may revoke such
registration if he “determines that the issuance of such
registration would be inconsistent with the public interest.”
21 U.S.C. § 823(f). In making this determination, the
Attorney General may consider, among other factors, “any
conduct which may threaten the public health and safety.”
Id. Although preventing drug abuse is one of Congress’
goals under the Act, its plain language does not limit itself to
that goal; rather, the Act seeks to prohibit any use of
prescription drugs that may have a “detrimental effect on the
health and general welfare of the American people.” 21
U.S.C. § 801(2).
In 1971, the Attorney General promulgated a
regulation under the Act that states that prescriptions for
controlled substances are valid only if issued for a
“legitimate medical purpose” as part of “professional
treatment.” 2! C.F.R. § 1306.04(a). This Court has affirmed
the validity of this regulation. United States v. Moore, 423
U.S. 122, 140 (1975).
25
Under this regulation, the Attorney General issued an
interpretive ruling that assisted suicide is not a “legitimate
medical practice” for “treatment” within the meaning of this
regulation, thereby rendering any prescriptions made for this
purpose invalid. Given the well-documented medical
concerns over the harm and invidious discrimination the
Oregon assisted suicide law poses to people with disabilities,
see Sec. I, supra, the Attorney General’s ruling is
undoubtedly a valid interpretation of the Act, which does not
specifically foreclose this interpretation. Chevron, 467 U.S.
at 843; Barnhart, 535 U.S. at 218.
B. The “Clear Statement” Rule Does Not Apply
to Regulation of the Practice of Medicine _
The Court of Appeals avoided this analysis by
holding that the Attorney General’s directive on
prescriptions for assisted suicide “interferes with Oregon’s
authority to regulate medical care within its borders...”
Oregon v. Ashcroft, 368 F.3d 1118, 1124 (9th Cir. 2004).
Relying on Gregory v. Ashcroft, 501 U.S. 452 (1990), the
Appeals Court held the Attorney General had infringed on an
area of law “traditionally reserved for state authority, such as
regulation of medical care.” /d. at 1125. Thus, the Court of
Appeals turned the usual test for deference to agency
interpretations of federal law on its head: Congress had to
make a “clear statement” that it was prohibiting assisted
suicide to authorize the Attorney General to act. Because it
had not, the Appeals Court held, the Attorney General’s
ruling was invalid. /d. at 1125-26.
Under Solid Waste Agency v. Army Corps of
Engineers, 531 U.S. 159 (2001), the “clear statement rule” is
applied only when “an administrative interpretation of a
statute invokes the outer limits of Congress’ power ...” /d. at
172. It is clear that prohibiting prescriptions made for the
purpose of assisted suicide does not place the Controlled
26
Substances Act outside the boundaries of Congress’
Constitutional authority. Congress has always had the
power, under the Commerce Clause, to regulate medication
prescribed by doctors. See Minor v. United States, 396 U.S.
87, 98 n.13 (1969); Reina v. United States, 364 U.S. 507,
511 (1960); In re Grand Jury Proceedings, 801 F.2d 1164,
1169 (9th Cir. 1986) (“{[T]he Commerce Clause empowers
the federal government to regulate prescription drugs”).
Indeed, given the magnitude of the discrimination posed by
Oregon’s assisted suicide law, Amici here submit that the
Fourteenth Amendment, as well as the Commerce Clause,
provides a basis for the Attorney General’s interpretive
ruling. Cf Tennessee v. Lane, 541 U.S. 509, 124 S. Ct.
1978, 1989-93 (2004); City of Cleburne, 473 U.S. at 461
(striking down, on rational-basis grounds, law that prohibited
home for people with disabilities).
The Appeals Court’s underlying reasoning that
regulation of the practice of medical infringes upon “a
decision of the most fundamental sort for a sovereign entity,”
as establishing qualifications for state judges was held to be
in Gregory, 501 U.S. at 460, is patently flawed. There is no
support, legal or otherwise, for the Appeals Court’s
conclusion that regulating the practice of medicine “go[es] to
the heart of representative government.” /d. at 461 (quoting
Sugarman v. Dougall, 413 U.S. 634, 647 (1973)). See e.g.
Equal Employment Opportunity Comm'n v. Massachusetts,
987 F.2d 64, 67 (ist Cir. 1993) (distinguishing Gregory
because “[t]he Missouri constitutional provision was
concerned, not with regulating health care, but with ensuring
the qualifications of the highest state officials.”) (emphasis
added).
If any federal restriction on the practice of medicine
infringed upon a “fundamental” state function, it would call
into question Congress’ entire regulatory scheme for
prescription medication, which has been in effect for three
decades and has been repeatedly upheld and enforced. See
27
Moore, 423 U.S. at 139. Indeed, it is difficult to understand
how the practice of medicine could be considered solely a
state function, given that the federal government has
regulated in this area for at least the past 67 years. See e.g.
Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301-397.
The Court of Appeal’s holding is of significant
concern to amici beyond its implications for assisted suicide.
Congress and federal agencies often regulate “medical care”
to prevent abuse of or discrimination against people with
disabilities. If every decision affecting the medical practice
were within a state’s sovereign power and subject to the
“clear statement” rule, Congress’ ability to prohibit states
from sanctioning disability discrimination in the medical
field would be severely undermined.
For example, in Olmstead, this Court held that the
unnecessary institutionalization of people with disabilities by
states was discrimination under Title II of the Americans
with Disabilities Act (ADA). Although Title II’s definition
of discrimination did not explicitly identify unnecessary
institutionalization, the Court relied in part upon the
Attorney General’s regulations and interpretztions of the Act
in discerning Congress’ intent. 527 U.S. at 598. Although
this interfered with a “medical” decision approved under
state law (and carried out by the State itself), it was
nevertheless understood as appropriate federal action. Jd. '°
Similarly, in Bragdon, this Court ruled that a patient
with HIV could bring a claim under Title III of the ADA
against a dentist who refused to serve him because of his
disability. 524 U.S. at 647. The Court relied on agency
determinations that Congress had intended to cover persons
'S Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985),
while involving the rights of institutionalized people with disabilities, is
distinguishable because it involved a state’s waiver of sovereign
immunity under the Eleventh Amendment, not the underlying challenged
practices in the institution. /d at 242.
28
with HIV under Title Ill, which applied to medical
practitioners. Although this decision involved Congressional
regulation of the practice of dentistry, this Court did not
invoke the “clear statement” rule or find that Title IIl
encroached upon a “fundamental” state function. /d. at 642."
CONCLUSION
For the foregoing reasons, amici respectfully urge
this Court to reverse the Court of Appeals’ decision and
affirm the Attorney General’s interpretive ruling.
Respectfully submitted,
Walter J. Kendall Ill Max Lapertosa
Professor of Law Counsel of Record
THE JOHN MARSHALL LAW__ Kenneth M. Walden
SCHOOL Adrienne Detanico, Law Clerk
315 South Plymouth Court ACCESS LIVING
Chicago, IL 60604 614 West Roosevelt Road
(312) 987-2377 Chicago, IL 60630
(312) 253-7000
Counsel for amici curiae
May 9, 2005.
'© In the District Court below, the defendant dentist challenged
application of Title II] to him on grounds that “the practice of dental
medicine is an area of law reserved to the states, and thus beyond the
scope of Congress’ Commerce Clause authority.” Abbott v. Bragdon,
912 F. Supp. 580, 592 (D. Me. 1995), aff'd, 107 F.3d 934 (Ist Cir.
1997), vacated & remanded on other grounds, 524 U.S. 624 (1998). The
Court rejected this proposition and held Congress could regulate
defendant's dental practice because it was “an economic enterprise”. /d.
at 593-94 & n.15.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.