# Amicus Curiae Brief — Gonzales v. Oregon

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0051%3A21

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 243

## Text

No. 04-623 MAY 11 2005
RK
In The

Supreme Court of the Gnited States

o

ALBERTO R. GONZALES, in his official capacity
as United States Attorney General, et al.,

Petitioners,
v.

State of OREGON, et al.,
Respondents.
.

On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit

s

AMICUS CURIAE BRIEF OF SENATORS
RICK SANTORUM, TOM COBURN, M.D., JAMES M.
INHOFE, JIM DEMINT, CHRISTOPHER S. BOND,
LARRY CRAIG, JUDD GREGG, AND SAM
BROWNBACK, AND REPRESENTATIVES STEVE
CHABOT, CHRIS SMITH, JACK KINGSTON,
JOHN SHIMKUS, JOSEPH R. PITTS, HENRY HYDE,
MARK GREEN, TODD AKIN, ROSCOE BARTLETT,
JEFF MILLER, STEVE KING, THOMAS PETRI,
MARK E. SOUDER, PETE KING, PAUL RYAN,
VIRGIL H. GOODE, JR., GENE TAYLOR,
JOHN N. HOSTETTLER, AND RALPH HALL
IN SUPPORT OF PETITIONERS

7

Counsel for Amici

DONALD A. DAUGHERTY, JR.*
JOHN B. TUFFNELL

WHYTE HIRSCHBOECK DUDEK S.C.
555 E. Wells Street, Suite 1900
Milwaukee, WI 53202

(414) 273-2100

*Counsel of Record for Amici

COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ...........c:cccccesecesesesesssesseeevees iii
INTEREST OF AMICI CURIAE...........0cccccceccceseseseseeee 1
SUMMARY OF ARGUMENT. ..........ccccccccsssesesseeseeseseeees 2
pS PSIG a POE AN oP a I 3

I. A REVIEW OF THE LEGISLATIVE HISTORY
IS INSTRUCTIVE FOR DISCERNING CON-
GRESSIONAL INTENT BEHIND THE CSA... 5

Il. THE CSAS LEGISLATIVE HISTORY
CLEARLY SHOWS THAT CONGRESS IN-
TENDED THE FEDERAL GOVERNMENT
TO PLAY AN ACTIVE ROLE IN REGULAT-
ING THE PRESCRIPTION AND DISPENS-
ING OF CONTROLLED SUBSTANCES BY
Feel bacesenceveseresensccevesepaseeesssnsesnecenesstenest 6

A. The CSA Enhanced The Federal Govern-
ment’s Long-Standing Role As The Regu-
lator Of Controlled Substances .................. 6

B. The 1974 Amendments Distinguished Be-
tween The Roles Of HHS And The Attor-
ney General With Regard To Treatment
Programs For Narcotics Addicts And Are Ir-
relevant To The Issues Before This Court.... 10

C. The 1984 Amendments Clarified The Fed-
eral Government’s Authority To Act Where
States Ineffectively Regulated Physician
Use Of Controlled Substances..................... 12

D. The Interpretive Rule Is Based Upon A
Reasonable Interpretation Of The CSA’s
I CRED ecccenesserecscnsescsecnenectneseeees 16

ii

TABLE OF CONTENTS - Continued
Page

E. The Federal Government’s Role As Regu-
lator Of Controlled Substances Does Not
Displace The States’ Role As Primary
Regulators Of The Practice Of Medicine.... 18

Ill. THE ATTORNEY GENERAL HAS THE
AUTHORITY TO DETERMINE WHETHER
PHYSICIAN-ASSISTED SUICIDE VIOLATES
THE CSA, NOTWITHSTANDING THE AB-
SENCE OF SPECIFIC REFERENCES TO
THE PRACTICE IN THE LEGISLATIVE HIS-

TABLE OF AUTHORITIES
Page
CASES:
Am. Pharm. Ass’n v. Weinberger, 377 F. Supp. 824
(D. D.C.1974), aff’d, 530 F.2d 1054 (D.C. Cir.
ELL 13
Babbit v. Sweet Home Chapter of Communities for a
Greater Oregon, 515 U.S. 687 (1995) ............ccccccecceeeeeeees 5
Barnhart v. Walton, 535 U.S. 212 (2002) ............ccccccccceceeees 5
Browder v. United States, 312 U.S. 335 (1941)........... 23, 24
Chevron U.S.A., Inc. v. Natural Res. Def. Council,
ET 17
Dep't of Commerce v. United States House of Repre-
sentatives, 525 U.S. 316 (1999) ................cccscesseeeeeersereees 5
Dickerson v. New Banner Institute, Inc., 460 U.S.
a csssssonsooecs 5
H.J. Inc. v. Northwestern Bell Telephone Co., 492
EEE EES EE 22, 24
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)............c0cc006 5
Lewis v. United States, 523 U.S. 155 (1998) ...............cccc00ee 5
Mississippi Band of Choctaw Indians v. Holyfield,
i sesesserenenee 5
Nationsbank of North Carolina, N.A. v. Variable
Annnuity Life Ins. Co., 513 U.S. 251 (1995) ................. 17
Negonsott v. Samuels, 507 U.S. 99 (1993)..............ccccceeeeeees 5
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
ELTA 23, 24

Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004),
cert. granted, 125 S. Ct. 1299 (2005)..................004. passim

iv

TABLE OF AUTHORITiES -— Continued

Page
Rust v. Sullivan, 500 U.S. 173 (1991) ...............cccccseeeeeeeees 24
United States v. Moore, 423 U.S. 122 (1975) ................ 7,10
United States v. Rosenberg, 515 F.2d 190 (9th Cir.

TTT ccenssnscncecenneniestetanaimeaesieathatimastaaiiaeaiatiadeasiatitasaaasaiaselataaaiedaiaidiadl 7
United States v. Southwestern Cable Co., 392 U.S.

ff ESR heen renner 23, 24
United States v. Steinberg, 525 F.2d 1126 (2d Cir.

TTT icscteccncensniniiiindansiansaaeieiadaasediianieiaiiai sneneninennntiniuasiies 7
United States v. Upthegrove, 504 F.2d 682 (6th Cir.

TTITII ccninesicinensdasiesemamsiandeneeesteaeaseaausdiatstaieadiostasitasesiebasimamaieeiiemiamanmtiliaids 7
West v. Gibson, 527 U.S. 212 (1999)............cccccceeseeeeeeeeeeeeees 5
STATUTES AND REGULATIONS:

21 C.F.R.:

QO ee 10, 16, 18

BBE BIO ....cccsninsennccecntenintnniepeniansansentensmiaipiesepmenmminenes 8
66 Fed. Reg. 56,607 (Nov. 9, 2001).............:ccceceeeeees 2, 10, 18
Pub. L. No. 91-513, § 202, 84 Stat. 1236€........................008. 8
Pub. L. No. 91-518, § 201(aX(1), 84 Stat. 1236 (1

AEE, So Gi crccnicsnsicnncnstitestennsiesieiitaninienitinjensiiiemnabntinamsineasiitaiaes 8
Pub. L. No. 98-473, Title II § 501 (1984), 98 Stat.

TTD nsceissiarincsinintamctiaastiainiasmtaueitiiaiialiensieinliaeteedieaieiatiieeeatai 15
Assist Suicide Funding Restriction Act, Pub. L.

| eee Cree ee meee eee 25
Comprehensive Drug Abuse Prevention and Control

Act of 1970, Pub. L. No. 91-513, § 100 (amended

1984), reprinted in 1970 U.S.C.C.A.N. 4566.......... passim

v

TABLE OF AUTHORITIES — Continued

Page
Controlled Substances Act:

eS Gee GGG, encnsccecesecsnsntnnctenientnennmnntenmneneden 1
Death With Dignity Act, Or. Rev. Stat. § 127.800,

Ge vercatecnpacenrensttntannemnntscinnineainansiinnininnmeiie 2
Drug-Induced Rape Prevention and Punishment

Act of 1996, Pub. L. No. 104-305, § 1 o0...........cceeeeeeeeeeeee 12
Harrison Act of 1914, ch.1 (codified as amended at

ee ee ND a cncinsstnittcisiisitittiniiiteaiintinininatanssinemen 6,7
Methamphetamine Anti-Proliferation Act of 2000,

Pub. L. No. 106-310, Div. B., Title XXXVI, § 3601........ 12
Narcotic Addict Treatment Act of 1974, Pub. L. No.

es I Bi cvetncncictenscinciinnnudiiniiiiainniiisienidans 10, 12
MISCELLANEOUS:

116 Cong. Rec. 977 (Comments of Sen. Dodd, Jan.

ii SEIU ciccccrteneccnnncccninsiisitecsmunintniaubdidaianaisaiinaiiaiiiasiiniamaniaiias 22
116 Cong. Rec. 18913 (1970) (Sen. McClellan) ................. 22
130 Cong. Rec. H9679 (daily ed. Sept. 18, 1984).............. 14
130 Cong. Rec. H9680 (daily ed. Sept. 18, 1984).............. 14
130 Cong. Rec. H9742 (daily ed. Sept. 18, 1984).............. 15
130 Cong. Rec. S733 (daily ed. Feb 2, 1984)..................... 15
130 Cong. Rec. S758 (daily ed. Feb. 2, 1984).................... 15
130 Cong. Rec. S9681-82 (daily ed. Feb. 2, 1984)............. 17
H.R. Rep. No. 91-1444 (1970), reprinted in 1970

i PS 0 ee 7, 8, 9, 19, 26

H.R. Rep. No. 93-884 (1974), reprinted in 1974
CGC Be. GID cccccccserssencsvessceessssvensnnsesssnacsesssssonsensees 11

vi

TABLE OF AUTHORITIES — Continued

Page
H.R. Rep. No. 98-1030 (1984), reprinted in 1984
EA eee 13, 19, 20
S. Rep. No. 98-225 (1983), nse in 1984
EN Sg EY eenne nena 4
American Medical Association, Code of Medical
enna 25

American Medical Association, Council on Ethical
and Judicial Affairs, Decisions Near the End of
Life, 267 JAMA 2229 (1992)...............secccccssssssssssssreneees 26

American Nursing Association, Position Statement
(available at: http://nursingworld.org/readroom/
position/ethics/etsuic. htm) ...........ccccccccceeereeeeeereeeeeeeenees 26

Dangerous Drug Diversion Control Act of 1984:
Hearing on H.R. 5656 before the Subcomm. on
Health and the Environment of the House Comm.
on Energy and Commerce, 98th Cong., 403-04
(1984) (statement of Gene R. Haislip, Deputy As-
sistant Administrator, Drug Enforcement Admini-

Editorial, Deadly Milestone: 5 years of assisted
suicide, amednews.com, April 21, 2003 (available
at: http://)www.ama-assn.org/amednews/2003/04/
eee 26

Health & Human Servs., Medicare Benefit Policy
Manual, chs. 16 & 20 (available at: http://www.

ems.hhs.gov/manuals/102_policy/bp102c16.pdf)........... 25
Hugh I. Schade, M.D., Denial of Application, 60
Fed. Reg. 56,354 (Nov. 8, 1995) .............ccsssssseeeeeeeeeeeees 24

Jonathan Erlen & Joseph F. Spillane, Federal Drug
Control: The Evolution of Policy and Practice

Vii

TABLE OF AUTHORITIES - Continued

Page
Letter from Hon. Janet Reno, Attorney General of
the United States, to Hon. Henry Hyde, Chair-
man, Committee on the Judiciary United States
House of Representatives (June 5, 1998)................0006. 11

Letter from Hon. Thomas A. Constantine, Adminis-
trator of the Drug Enforcement Administration of
the United States to Hon. Henry J. Hyde, Com-
mittee on the Judiciary, United States House of
Representatives (Nov. 5, 1997) ............ccccccccccceccececeseeeees 24

Memorandum from Deputy Assistant Attorney.
General Sheldon Bradshaw to Hon. John
Ashcroft, “Whether a Physician-Assisted Suicide
Serves a ‘Legitimate Medical Purpose’ Under The
Drug Enforcement Administration Regulations
Implementing the Control Substances Act” (June
ai AEN ctensnsnennnntceniiiianentinciinaniinnindtaiemnimuniiesiasiuiites 18, 20

Oregon Dep't of Human Servs., Off. Of Disease
Prevention and Epidemiology, Seventh Annual
Report on Oregon’s Death with Dignity Act (2005)
(available at: http://egov.oregon.gov/DHS/ph/pas/
a pecnenesecnscmsccensennninnesetinininiamaimgiaisinieenes 8

Press Release, Oregon Dep't of Human Servs.,
Oregon Public Health Servs., Fewer Oregonians
Used Death With Dignity Act in 2001 (Feb. 6,
2002) (available at: http://www.ohd.hr.state.or.us/
newa/2002/0206pas. htm)...............sssssercssssssesssesessseseeses 8

Task Force on the Nurse’s Role in End-of-Life
Decisions, Center for Ethics and Human Rights
GI a cxvcsunnenesnvenensetarnpetonnisesebiunpdensiespenipnieginenstiaadeiimeiaias 26

1

INTEREST OF AMICI CURIAE’

Amici curiae have the honor of serving in the United
States Congress. Amici Craig, Gregg, Hyde, Smith, Petri
and Hall served in Congress at the time of the 1984
amendments to the Controlled Substances Act (“CSA”), 21
U.S.C. § 801, et seg. In addition, several of the amici have
served or are currently serving on relevant committees of
the Senate and House of Representatives, including
Congress’ Judiciary Committees, the Senate Committee on
Health, Education, Labor and Pensions, and Special
Committee on Aging, and the House Energy and Com-
merce Subcommittee on Health. Amicus Hyde has served
as Chair of the House Judiciary Committee. Amici Brown-
back and Hyde have conducted and participated in hear-
ings on the subject of assisted suicide in the United States.
Finally, amicus Coburn is a practicing family physician.

In these various capacities, amici are directly con-
cerned with the interpretation and enforcement of the
CSA, as well as the relationship between the state and
federal governments. Because of the unique perspective
they offer in discerning Congress’ intent, this brief focuses
on the erroneous conclusion of the United States Court of
Appeals for the Ninth Circuit that the CSA’s legislative

history supported its decision.
>

* Pursuant to Supreme Court Rule 37.6, no person other than
counsel identified on the cover participated in authoring this brief. No
entities other than amici and counsel provided financial support for this
brief. Further, the consent of the parties to the filing of this amicus
curiae brief has been obtained and filed with the Clerk of the Court.

2

SUMMARY OF ARGUMENT

The legislative history to the CSA makes clear that in
enacting and later amending the CSA, Congress was
concerned with, inter alia, the diversion by physicians of
federally-controlled substances to illegitimate uses outside
the usual course of conduct of medical professionals, and
that Congress saw ineffective state regulation as a signifi-
cant factor in that illegitimate activity. The interpretive
rule issued by the Attorney General pursuant to the CSA
on November 9, 2001 (the “Interpretive Rule”) states that
prescribing controlled substances to assist a patient's
suicide is not a “legitimate medical purpose.” The Rule is
entirely consistent with the statute’s legislative history.

The Interpretive Rule was issued largely in response
to the 1994 Oregon Death with Dignity Act (the “DWDA”),
Or. Rev. Stat. § 127.800, et seg., which permits physicians
in that state to prescribe and dispense medications,
including federally-controlled substances, to assist certain
patients in committing suicide. Under the Interpretive
Rule, physicians who prescribed, dispensed or adminis-
tered federally-controlled substances to facilitate a pa-
tient’s suicide would be subject to denial, suspension or
revocation of their registrations with the Drug Enforce-
ment Administration (“DEA”) because such conduct
“render[ed] [the physician’s] registration ... inconsistent
with the public interest.” 66 Fed. Reg. 56,607, 56,608 (Nov.
9, 2001).

As seen from the CSA's legislative history, the Inter-
pretive Rule addresses concerns and advances goals that
were considered and discussed by Congress in enacting
and amending the statute. Further, by issuing the Inter-
pretive Rule, the Attorney General acted in the role that

3

Congress had envisioned for the federal government.
Although the legislative history does not show that Con-
gress contemplated physician-assisted suicide specifically,
this does not detract from the Attorney General’s authority
under the CSA to issue the Interpretive Rule.

The CSA would not apply (and actions taken pursuant
to it by the Attorney General would not be authorized) if a
state decided to permit assisted suicide but ensured that it
would somehow occur without the involvement of DEA-
registered physicians prescribing controlled substances.
However, that is not the case here. Where a state seeks to
permit DEA-registered physicians to assist their patients
in committing suicide by prescribing controlled sub-
stances, the CSA authorizes the Attorney General to speak
to whether this is a legitimate medical purpose. The
Interpretive Rule is consistent with the CSA's legislative
intent and a reasonable response to the DWDA.

S

ARGUMENT

Upholding an injunction against enforcement of the
Interpretive Rule, the Ninth Circuit mistakenly concluded
that the Interpretive Rule conflicted with the CSA’s
legislative history and that the Attorney General had
exceeded his authority by issuing the Rule. Oregon uv.
Ashcroft, 368 F.3d 1118, 1127 (9th Cir. 2004) (“The CSA’s
legislative record confirms that the Attorney General has
exceeded the scope of his authority” under the statute),
cert. granted, 125 S. Ct. 1299 (2005). To reach this conclu-
sion, the Ninth Circuit ignored the importance of amend-
ments made to the CSA in 1984 and focused primarily on
legislative history predating those amendments. Jd. at

4

1128. The Ninth Circuit sought to characterize the 1984
amendments as little more than an effort to tidy up “loop-
holes” in the CSA, but acknowledged that the amendments
“authorize[ed]) the Attorney General to revoke physician
registrations without depending on state licensing boards.”
Id. at 1129 (citing S. Rep. No. 98-225, at 260-62 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3442-44). What the
Ninth Circuit failed to acknowledge was that the Attorney
General issued the Interpretive Rule pursuant to this
independent authority.

The Ninth Circuit tried to buttress its flawed conclu-
sion by exaggerating the significance of legislative history
from 1974 that discussed the role of the Secretary of
Health and Human Services (“HHS”) in registering practi-
tioners who conduct treatment programs for narcotic
addicts, which was entirely unrelated to the issue before
the Court. Completing its erroneous analysis, the Ninth
Circuit asserted that the legislative record supported its
belief that the Attorney General was required not only to
review and consider relevant Oregon law (which he did
do), but also to solicit and obtain specific input from the
state before he could issue the Interpretive Rule; however,
this assertion makes little sense in light of the 1984
amendments, which, as the Ninth Circuit recognized, were
expressly intended to permit the Attorney General to take
action independent of state authorities.

The Ninth Circuit’s reading of the CSA and its rele-
vant legislative history was overly narrow and ultimately,
mistaken. A review of the full legislative history estab-
lishes that it squarely supports the Attorney General’s
interpretation of the CSA and the Interpretive Rule was
fully consistent with congressional intent.

5

I. AREVIEW OF THE LEGISLATIVE HISTORY IS
INSTRUCTIVE FOR DISCERNING CONGRES-
SIONAL INTENT BEHIND THE CSA.

Among the interpretive tools available for determin-
ing the Congressional intent underlying a statute is the
statute’s legislative history. See, e.g., Barnhart v. Walton,
535 U.S. 212, 220 (2002); Dep't of Commerce v. United
States House of Representatives, 525 U.S. 316, 342-43
(1999); Babbitt v. Sweet Home Chapter of Communities for
a Greater Oregon, 515 U.S. 687, 704-07 (1995); Negonsott
v. Samuels, 507 U.S. 99, 104-05 (1993). A review of legisla-
tive history may be especially appropriate where, as here,
the relevant statutory language is broad and susceptible to
more than one meaning. See, e.g., West v. Gibson, 527 U.S.
212, 219-20 (1999); INS v. Cardoza-Fonseca, 480 U.S. 421,
432-35 (1987). Further, this Court has looked to legislative
history in determining whether Congress intended for the
meaning of terms in a federal statute to depend upon state
law, which is also at issue in this case. See, e.g., Lewis v.
United States, 523 U.S. 155, 170-71 (1998); Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 44-45
(1989); Dickerson v. New Banner Institute, Inc., 460 U.S.
103, 119 (1983).

The Ninth Circuit, as well as the district court below,
cited the CSA's legislative history to reach their decisions.
However, read together and in context, statements by the
sponsors and others in Congress at the time the CSA was
enacted in 1970 and amended in 1984, as well as reports
from the House, Senate and conference committees,
provide ample support for the Interpretive Rule.

6

II. THE CSA’S LEGISLATIVE HISTORY CLEARLY
SHOWS THAT CONGRESS INTENDED THE
FEDERAL GOVERNMENT TO PLAY AN ACTIVE
ROLE IN REGULATING THE PRESCRIPTION
AND DISPENSING OF CONTROLLED SUB-
STANCES BY PHYSICIANS.

As seen from the legislative history, Congress viewed
the states as the first line of defense under the CSA
against the misuse of controlled substances. The legisla-
tive history to the CSA also shows that Congress envi-
sioned a central role for the federal government in
establishing and enforcing its own standard as to what
constitutes such misuse. This role necessarily required
that the federal government be able to enforce its standard
when a state could not or would not do so.

A. The CSA Enhanced The Federal Govern-
Ment’s Long-Standing Role As The Regula-
tor Of Controlled Substances.

While states have traditionally regulated the practice
of medicine, the federal government has traditionally
regulated the use of controlled substances. See generally
Jonathon Erlen & Joseph F. Spillane, Federal Drug Con-
trol: The Evolution of Policy and Practice (2004). Since the
1914 Harrison Act, the federal government has played a
significant role in controlling the prescription and dispens-
ing by physicians of toxic, addictive narcotics. Under the
Harrison Act, “every person” who imported, manufactured,
dispensed or in any way distributed opium, coca leaves or
their derivatives, was required to register with the Inter-
nal Revenue Service, and pay taxes on such activity. See
Law of December 7, 1914, ch. 1 (codified as amended at 21
U.S.C. §§ 801-971). Physicians were allowed to dispense or

a

7

distribute the drugs regulated by the Harrison Act pro-
vided that they registered with the IRS, acted “in the
course of [their] professional practice only,” and main-
tained records “of all such drugs dispensed or distributed.”
Id. at ch. 1, § 2(a).

The CSA was Congress’ attempt to collect and ration-
alize the Harrison Act and some 50 other pieces of legisla-
tion that had been enacted over the years for the purpose
of regulating controlled substances. See United States v.
Rosenberg, 515 F.2d 190, 196 (9th Cir. 1975); United States
v. Upthegrove, 504 F.2d 682, 688 n.10 (6th Cir. 1974); see
also H.R. Rep. No. 91-1444, at 4 (1970), reprinted in 1970
U.S.C.C.A.N. 4566, 4571. Further, Congress “intended the
CSA to strengthen rather than to weaken the prior drug
laws.” United States v. Moore, 423 U.S. 122, 139 (1975); see
also United States v. Steinberg, 525 F.2d 1126, 1133 (2d
Cir. 1975).

Congress enacted the CSA as Title II of the Compre-
hensive Drug Abuse Prevention and Control Act of 1970.
Pub. L. No. 91-513, § 100, 84 Stat. 1236, 1242 (amended
1984). Congress “designed [the CSA] to improve the
administration and regulation of the manufacturing,
distribution, and dispensing of controlled substances by
providing for a ‘closed’ system of drug distribution for
legitimate handlers of such drugs.” 1970 U.S.C.C.A.N. at
4589. The CSA created a comprehensive system for federal
regulation of such substances, charging the Attorney
General and the Bureau of Narcotics and Dangerous
Drugs (forerunner to the DEA) with responsibility for
administering the system.

Under the CSA, the differing varieties of controlled
substances were separated into five categories, ranging

8

from Schedule I substances, which had no accepted medi-
cal use and could be used only in limited situations, to
Schedule II, III, IV, and V substances, which had recog-
nized uses and could be manufactured, distributed, and
used, subject to the statute’s limitations. Pub. L. No. 91-
513, § 202 (Schedules I-V), 84 Stat. 1236, 1248-53. Mari-
juana and heroin were Schedule I substances, for example,
while Schedule V included substances such as cough
medicine with codeine.’ Pub. L. No. 91-513, § 202 (Sched-
ules I-IV), 84 Stat. 1236, 1247-1252. The CSA imposed
“tighter controls” on the use of “drugs providing serious
addiction or abuse problems (those listed in schedules I
and II).” H.R. Rep. No. 91-1444, at 4 (1970), reprinted in
1970 U.S.C.C.A.N. 4566, 4569. The CSA authorized the
Attorney General to add, remove or transfer substances to
or between the schedules based on procedures established
by the statute. Pub. L. No. 91-518, § 201(a)(1), 84 Stat.
1236, 1245 (21 U.S.C. § 802(5)).

Discussing the criteria to be used by the Attorney
General in exercising his authority under the CSA to deter-
mine the appropriate schedules for different substances, the

? Schedule II drugs are highly addictive, but have accepted medical
uses. Pub. L. No. 91-513 § 202(b\(2), 84 Stat. 1236, 1247. The two most
commonly-prescribed drugs used to assist suicide under the DWDA are
pentobarbital and secobarbital, see Oregon Dep’t of Human Servs., Off.
of Disease Prevention and Epidemiology, Seventh Annual Report on
Oregon’s Death With Dignity Act 14 (2005) (ava‘lable at: http:/
egov.oregon.gov/DHS/ph/pas/docs/year7.pdf); Press Release, Oregon
Dep’t of Human Servs., Oregon Public Health Servs., Fewer Oregonians
Used Death With Dignity Act in 2001 (Feb. 6, 2002) (available at: www.
ohd_hr.state.or.us/news/2002/0206pas.htm), which fall into Schedule II,
see 21 C.F R. § 1308.12(e). Thus, the DWDA conflicts most directly with
the registration requirements and other controls relating to Schedule II

drugs

House Report noted, “Misuse of a drug in suicides and
attempted suicides, as well as injuries resulting from
unsupervised use, are regarded as indicative of a drug’s
potential for abuse.” 1970 U.S.C.C.A.N. at 4602. Although
this reference in the legislative history was not in the
context of physician-assisted suicide, it establishes that
Congress intended that, in exercising regulatory authority
under the CSA, the Attorney General could consider
whether a controlled substance was being used to commit
suicide.

Besides classifying controlled substances into differ-
ent schedules, the Attorney General’s duties under the
CSA included monitoring the use of controlled substances
through the registration of manufacturers, physicians,
pharmacies, and others. The CSA required ail “legitimate
handlers” (e.g., physicians) to register with the federal
government. Pub. L. No. 91-513, § 302(a), 84 Stat. 1236,
1253. Under the CSA, registration was considered “a
matter of right where the individual ... is engaged in
activities involving these drugs which are authorized or
permitted under State law.” H.R. Rep. No. 91-1444 (1970),
reprinted in 1970 U.S.C.C.A.N. 4566, 4590. The CSA
authorized the Attorney General to deny, suspend or
revoke a physician’s registration for three reasons:

1. falsification of an application to dispense,
distribute, or manufacture a controlled sub-
stance;

2. a felony conviction under state or federal law
relating to a controlled substance; or

3. denial, revocation, or suspension of a state li-
cense or registration.

10

Pub. L. No. 91-513, §§ 303(f) & 304(a), 84 Stat. 1236, 1255.
Two of these grounds depended in whole or in part on state
enforcement and, in 1984, Congress acted to repair “leaks”
in the closed system that resulted from this overreliance
on state law.

Nonetheless, even before the 1984 amendments, the
CSA (and its original implementing regulations’) provided
clear authority for the Attorney General to regulate
physician conduct in prescribing controlled substances.
“(T]he scheme of the [CSA], viewed against the back-
ground of the legislative history, reveals an intent to limit
a registered physician's dispensing authority to the course
of his ‘professional practice’ .... [In addition,] [o)ther
provisions throughout the Act reflect the intent of Con-
gress to confine authorized medical practice within ac-
cepted limits.” Moore, 423 U.S. at 140-42.

B. The 1974 Amendments Distinguished Between
The Roles Of HHS And The Attorney General
With Regard To Treatment Programs For Nar-
cotics Addicts And Are Irrelevant To The Is-
sue Before This Court.

In the Narcotic Addict Treatment Act of 1974, Pub. L.
No. 93-281, 88 Stat. 124, Congress amended the CSA “to
provide for the registration of practitioners conducting

* In 1971, the Bureau of Narcotics and Dangerous Drugs promul-
gated the initial regulations under the CSA. The regulations included
standards for prescribing controlled substances: “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.” 21 C.F.R. § 1306.04(a) (emphasis added).
The Interpretive Rule was based on the Attorney General's interpreta-
tion of this regulation. See 66 Fed. Reg. at 56,608.

11

narcotic treatment programs.” H.R. Rep. No. 93-884, at 1
(1974), reprinted in 1974 U.S.C.C.A.N. 3029, 3029. The
Narcotic Addict Treatment Act created, inter alia, a regis-
tration process for the use of controlled substances in
treating addicted persons through, for example, metha-
done maintenance and detoxification programs, that was
separate and in addition to the customary registration
under the CSA. 1974 U.S.C.C.A.N. at 3029-3030; see also
21 U.S.C. § 823(g). The Narcotic Addict Treatment Act is
irrelevant to the issue currently before this Court, which
concerns the customary registration process under the
CSA. Thus, not surprisingly, the Ninth Circuit’s conclusion
from the legislative history to the 1974 amendments that
the Secretary of HHS had ultimate authority to make
“‘lajll decisions of a medical nature’” under the CSA,
Oregon, 368 F.3d at 1128 (citing 1974 U.S.C.C.A.N. at
3034), conflicts with the language of the statute, see, e.g.,
21 U.S.C. § 823(f) (“The Attorney General may deny an
application for ... registration if he determines that the
issuance ... would be inconsistent with the public inter-
est.”) (emphasis added).*

* Under the Ninth Circuit’s reasoning, the 1974 legislative history
would similarly cast doubt on former Attorney General Janet Reno’s
conclusion that dispensing drugs to assist suicides is a legitimate
medical practice under the CSA. See Letter from Hon. Janet Reno,
Attorney General of the United States, to Hon. Henry Hyde, Chairman,
Committee on the Judiciary, United States House of Representatives, at
1 (June 5, 1998) (“Adverse action against a physician who has assisted
in a suicide in full compliance with the [DWDA] would not be author-
ized by the [(CSA].”).

12

C. The 1984 Amendments Clarified The Federal
Government’s Authority To Act Where States

Ineffectively Regulated Physician Use Of
Controlled Substances.

Although the CSA has been amended many times
since 1970, e.g., Narcotic Addict Treatment Act; Drug-
Induced Rape Prevention and Punishment Act of 1996
(Pub. L. No. 104-305, § 1, 110 Stat. 3807); Methampheta-
mine Anti-Proliferation Act of 2000 (Pub. L. No. 06-310,
Div. B, Title XXXVI, § 3601, 114 Stat. 1227), the most
significant amendments occurred in 1984. The legislative
history to the 1984 amendments makes clear that at that
time, Congress had become concerned that states were not
effectively handling the distribution of controlled sub-
stances by physicians and that state law alone was insuffi-
cient to prevent the diversion of controlled substances
from legitimate medical uses.

Thus, Congress amended the CSA to give the Attorney
General additional, independent authority to deny, sus-
pend or revoke a physician’s federal registration where he
determined that the registration was “inconsistent with
the public interest.” See 21 U.S.C. §§ 823(f) & 824(a\(4),
Pub. L. No. 91-513, §§ 303(f) & 304(a)(4), 84 Stat. 1236,
1254. The amendments identified five specific criteria in
section 823(f) (and, by reference, section 824(a)) to be used
by the Attorney General in determining whether a physi-
cian’s registration was consistent with the “public inter-
est.” Although state law remained an important factor, the
Attorney General was also required to consider two
criteria wholly independent of state law: namely, “the
[physician’s} experience in dispensing ... controlled
substances” and “[s)uch other conduct which may threaten
the public health and safety,” 21 U.S.C. § 823(f)(2) & (5).

13

Notably, since the enactment of the CSA in 1970, the
Attorney General has had discretion to determine whether
the registration of a manufacturer or distributor of con-
trolled substances was “inconsistent with the public
interest.” See 21 U.S.C. §§ 823(a), (b), (d) & (e); see also
Am. Pharm. Ass’n v. Weinberger, 377 F. Supp. 824, 829-30
(D. D.C. 1974), aff’d, 530 F.2d 1054 (D.C. Cir. 1976). The
1984 amendments gave the Attorney General the same
authority with regard to “practitioners,” and registration
was no longer “a matter of right” where a physician’s
conduct complied with state law.

The theme of needing to better control the distribution
of controlled substances through physicians by shoring up
weaknesses at the state level pervades the legislative
history. For example, the House Report accompanying the
amendments stated,

Unfortunately, experience under the [CSA]
over the past decade has demonstrated that the
same strong regulatory authority to maintain a
‘closed’ distribution chain does not exist at the
practitioner level.... Under current law, the
grounds for denial or revocation of the registra-
tion of a practitioner are very limited. Indeed,
the Attorney General must presently grant a
practitioner’s registration application unless his
State license has been revoked or he has been
convicted of a felony drug offense, even though
such action may clecrly be contrary to the public
interest.

H.R. Rep. No. 98-1030, at 261-62 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3443-44 (emphasis added). Similarly,
Representative Hamilton Fish, a sponsor of the 1984
amendments, stated, “The most serious diversion problem
today exists at the retail level. States have primary

14

responsibility for the licensing of physicians and pharma-
cists. State policing of these activities, as well as peer
review within the profession, have not been adequate
control measures. State laws regarding the dispensing of
controlled substances are also inadequate.” 130 Cong. Rec.
H9680 (daily ed. Sept. 18, 1984).

During discussion in the House, Representative
Benjamin Gilman stated that the amendments would
“make it easier for the Drug Enforcement Administration
to suspend or revoke the authority of physicians and
pharmacists who write or dispense prescriptions in a way
that is threatening to the public health or safety.” Id. at
H9681. Similarly, Representative Hughes (also a House
sponsor) stated that the amended CSA “gives to DEA
greater latitude to suspend or revoke the registration of a
practitioner [who] dispenses drugs in a manner that
threatens the public health and safety.” Jd. at H9679.

At a hearing before a House subcommittee considering
the amendments, the DEA testified that the expanded
federal authority to revoke a physician’s registration was
“one of the most important sections of the bill,” not only
because of inadequate state enforcement but also because
“many controlled drug violations . . . are not felonies under
state law and therefore cannot be used in a DEA revoca-
tion action.” Dangerous Drug Diversion Control Act of
1984: Hearing on H.R. 5656 before the Subcomm. on
Health and the Environment of the House Comm. on
Energy and Commerce, 98th Cong., 403-04 (1984) (state-
ment of Gene R. Haislip, Deputy Assistant Administrator,
Drug Enforcement Administration).

In the Senate, sponsor Strom Thurmond noted that,
as originally enacted, the CSA

15

provides necessary regulation of manufacturers
and distributions, but it does not adequately
cover the practitioner level of the distribution
chain, the level at which 80 to 90 percent of cur-
rent diversion of drugs into illicit markets takes
place.... [The 1984 amendments] expand/] the
standards for practitioner registration beyond the
current exclusive reliance upon authorization by
the practitioner’s own jurisdiction.

130 Cong. Rec. S758 (daily ed. Feb. 2, 1984) (emphasis added).

These amendments expanding federal authority received
bipartisan support in Congress. See, e.g., 130 Cong. Rec.
H9680-81 (daily ed. Sept. 18, 1984) (statements of Reps.
Hughes and Sawyer). The amendments were approved by
wide margins, passing in the Senate on February 2, 1984 on a
vote of 91 to 1, see 130 Cong. Rec. S733, 741, and in the House
on September 18, 1984 on a vote of 392 to 1, see 130 Cong.
Rec. H9742-9743 (daily ed. Sept. 18, 1984). The President
signed the legislation, and it became law on October 12, 1984.
See Pub. L. 98-473, Title II § 501 (1984), 98 Stat. 2068.

The legislative history to the 1984 amendments, along
with the amendments themselves, make clear that the
“public interest” standard was intended as a requirement
independent of and in addition to state felony law and
state medical licensing regulations, and that the Attorney
General was to determine whether it was in the public
interest for a physician to be registered to prescribe
controlled substances. The “public interest” provision
clarified, if not increased greatly, the Attorney General's
existing authority to take action even where a practitioner
was in compliance with state law. As the Ninth Circuit
was forced to acknowledge, “the 1984 amendments to the
CSA ... extend the Attorney General’s authority over

16

federal registration of practicing physicians ... ” Oregon,
368 F.3d at 1129. In issuing the Interpretive Rule, the
Attorney General properly exercised this extended author-
ity.

D. The Interpretive Rule Is Based Upon A
Reasonable Interpretation Of The CSA’s
Legislative History.

In light of the legislative intent behind the CSA shown
by these congressional reports and comments, it seems
difficult to conclude that the Attorney General lacked
authority to issue the Interpretive Rule, or that the Rule is
somehow contrary to the statute’s purpose. In fact, both
the 1984 amendments and the Interpretive Rule were
federal responses to leaks in the closed system at the state
level that allowed physicians to divert controlled sub-
stances to improper ends: the 1984 amendments re-
sponded to the problem in the states generally, while the
Interpretive Rule responded to the problem in a specific
state.

Since the 1984 amendments, the following standards
have been among those with which a physician must
comply to prescribe federally-controlled substances:

1. Any prescription must be issued for a “le-
gitimate medical purpose” and while the
physician is acting within the “usual course
of his [or her] professional practice,” 21
C.F.R. § 1306.04(a); and

2. The physician must not commit acts that
cause his or her registration to be inconsis-
tent with the “public interest,” 21 U.S.C.
§§ 823(f) & 824(a)(4).

17

With the broad phrases “legitimate medical purpose,”
“usual course of professional practice,” and “public health
and safety,” the CSA and its implementing regulations
leave room for further definition before these provisions
can be enforced as a practical matter.

Gaps and ambiguities created by such broad terms
can be filled in by the Attorney General based on a rea-
sonable interpretation of their meaning. See Nationsbank
of North Carolina, N.A. v. Variable Annuity Life Ins. Co.,
513 U.S. 251, 257 (1995) (citing Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc. 467 U.S. 837, 843-44
(1984)). To fill in gaps in the CSA and its regulations, the
Attorney General can look to the statute’s legislative
history as one tool for discerning Congress’ intent. See
Chevron, 467 U.S. at 851-53.

Here, in concluding that physicians who prescribe
controlled substances to terminate a person’s life are not
acting for a legitimate medical purpose or in the usual
course of their professional practice, and that it is not in
the public interest for such physicians to be able to con-
tinue to issue prescriptions, the Interpretive Rule fits
comfortably within the congressional intent reflected by
the relevant legislative history. Besides the statements
described in Sections II(A) and (C) above, the legislative
history also contains numerous references to the diversion
of narcotic and depressant substances out of the legitimate
system, the public danger caused by drugs prescribed by
physicians for improper reasons, and the large numbers of
deaths annually due to overdoses of prescription drugs.
See, e.g., 130 Cong. Rec. S9681-82 (daily ed. Feb. 2, 1984).

Notwithstanding the broader public debate regarding
the practice of physician-assisted suicide generally, the

18

dispositive legal question before the Ninth Court was a
fairly pedestrian issue of administrative law: “is the
Attorney General’s interpretation of 21 C.F.R. § 1306.04(a)
entitled to deference?” Oregon, 368 F.3d at 1131 (Wallace,
J., dissenting). Based on legislative history (as well as the
statutory language and other sources, see generally Memo-
randum from Deputy Assistant Attorney General Sheldon
Bradshaw to Hon. John Ashcroft, “Whether Physician-
Assisted Suicide Serves a ‘Legitimate Medical Purpose’
Under the Drug Enforcement Administration’s Regula-
tions Implementing the Controlled Substances Act” (June
27, 2001) (‘DAAG Memorandum”)’), the Attorney Gen-
eral’s issuance of the Interpretive Rule was fully within
his authority under the CSA and it was entirely reason-
able for him to exclude physician-assisted suicide from
permissible practices under the CSA and _ section
1306.04(a). Thus, the Ninth Circuit should have deferred
to the Attorney General’s interpretation.

E. The Federal Government’s Role As Regulator
Of Controlled Substances Does Not Displace

The States’ Role As Primary Regulators Of
The Practice Of Medicine.

Congress knew when it enacted the CSA that en-
forcement of the statute would result in federal regulation
of certain aspects of the practice of medicine, which as a
general matter had always been considered primarily a
state responsibility. Discussing the CSA in 1970, a House
Report acknowledged the problem, but concluded that it

* The Attorney General relied on the DAAG Memorandum in
issuing the Interpretive Rule, and the Rule incorporates it by reference.
See 66 Fed. Reg. at 56,608.

19

could not be avoided: “Although the Committee is con-
cerned about the appropriateness of having federal offi-
cials determine the appropriate method of the practice of
medicine, it is necessary to recognize that for the last fifty
years this is precisely what has happened, through crimi-
nal prosecution of physicians whose methods of prescrib-
ing narcotic drugs have not conformed to the opinion of
federal prosecutors of what constitutes appropriate meth-
ods of professional practice.” H.R. Rep. No. 91-1444, Part
1, at 51 (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4581.

However, Congress never intended to displace the
states as primary regulators of physicians, and the CSA
was never intended to result in a wholesale nationalizing
of the practice of medicine. For example, since its enact-
ment in 1970, the CSA has provided that it does not
“occupy the field ... to the exclusion of any State law on
the same subject matter which would otherwise be within
the authority of the State, unless there is a positive
conflict between that provision [of the CSA] and that State
law so that the two cannot consistently stand together.” 21
U.S.C. § 903. Even after the 1984 amendments, Congress
intended that the DEA “would continue to give deference
to the opinions of State licensing authorities, since their
recommendations are the first of the factors to be consid-
ered with respect to practitioner applications.” H.R. Rep.
No. 98-1030 pt. B, at 267 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3449; see also 21 U.S.C. § 823(f)(1).
Further, “[rjegistration of a physician under the [CSA] is a
matter entirely separate from a physician’s State license to
practice medicine. Therefore, revocation [of] registration
only precludes a physician from dispensing substances
controlled under the [CSA] and does not preclude his
dispensing other prescription drugs or his continued

20

practice of medicine.” H.R. Rep. No. 98-1030, at 267 n.40
(1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3449 n.40.

Thus, for purposes other than the CSA (and leaving
aside the issue of whether other federal laws would be
implicated), states may have a right to decide whether
physician-assisted suicide is a legitimate medical practice.
Nonetheless, with regard to prescribing and dispensing
federally-regulated substances, the CSA leaves final
determination of what constitutes a “legitimate medical
purpose” to the Attorney General. Congress realized that
not only would federal regulation be concurrent with state
regulation but that, in some situations, it would necessar-
ily supersede state law. The result here is that the DWDA
must yield to the Interpretive Rule and, like all other
DEA-registered physicians in the United States, DEA-
registered physicians in Oregon cannot requisition feder-
ally-controlled substances to facilitate their patients’
deaths.

In determining whether physician-assisted suicide is
“inconsistent with the public interest,” the Attorney
General satisfied the requirement of section 823(f) that he
review and consider, inter alia, Oregon law. See DAAG
Memorandum, at 1-2, 6, 14, 20 (reviewing DWDA and its
history, legal opinion of Oregon Deputy Attorney General,
and effect of proposed interpretation on Oregon physi-
cians). Contrary to the Ninth Circuit’s conclusion, the CSA
does not require that he “solicit input” from Oregon before
issuing the Interpretive Rule, Oregon, 368 F.3d at 1129,
and, at bottom, the Ninth Circuit merely complains that

21

the manner in which the Rule was issued was impolitic.*
Whether this complaint is accurate or not is irrelevant as
a legal matter.

Finally, a decision by this Court to affirm the Ninth
Circuit’s decision will not result in a clean demarcation
between the authority of Oregon and the federal govern-
ment, respectively, to define what constitutes a legitimate
medical practice. Instead, Oregon will merely have carved
out of the CSA a specific purpose for controlled substances
(i.e., assisting suicides) that is governed solely by state
law. In enforcing the CSA in Oregon, the federal govern-
ment will be placed in the position of having to differenti-
ate between “legitimate” and “illegitimate” deaths caused
by physicians prescribing controlled substances in the
state. Moreover, effective regulation of controlled sub-
stances on a national basis will become more difficult if
individual states can opt out of the CSA where they
disagree with the federal government about proper uses
for the substances.

Ill. THE ATTORNEY GENERAL HAS THE AUTHOR-
ITY TO DETERMINE WHETHER PHYSICIAN-
ASSISTED SUICIDE VIOLATES THE CSA,
NOTWITHSTANDING THE ABSENCE OF SPE-
CIFIC REFERENCES TO THE PRACTICE IN
THE LEGISLATIVE HISTORY.

As noted by the Ninth Circuit, much of the legislative
history from the CSA’s initial enactment reflects a specific

* As noted by the dissent, specific input would be appropriate if
and when a particular physician’s registration was being reviewed in
light of the Interpretive Rule, which is not the situation here. See
Oregon, 368 F.3d at 1139-40 (Wallace, J., dissenting).

22

concern with “crack{ing] down hard on the narcotics
pusher and the illegal diverters of pep pills and goof balls.”
Oregon, 368 F.3d at 1128 (quoting 116 Cong. Rec. 977-78
(Comments of Sen. Dodd, Jan. 23, 1970)). Further, al-
though Congress identified “suicides and attempted
suicides” as improper uses of controlled substances, see
1970 U.S.C.C.A.N. at 4602, nothing in the history to the
1970 enactment or the 1984 amendments establishes that
Congress ever had in mind the specific “practice” of physi-
cian-assisted suicide. Nonetheless, these aspects of the
legislative history do not support the Ninth Circuit's
conclusion that the Interpretive Rule is contrary to the
CSA and outside the Attorney General’s authority under
the CSA.

The application of a statute to circumstances beyond
those specifically contemplated by Congress at the time of
enactment is not unusual or improper. For example, in
H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229,
245-8 (1989), the Supreme Court acknowledged that
Congress’ target in enacting the RICO statute “was the
perceived need to combat organized crime. But Congress
for cogent reasons chose to enact a more general statute,
one which, although it had organized crime as its focus,
was not limited in application to organized crime.” Jd. at
248. As one congressman noted during debate on the
statute, ““‘Whatever the limited occasion for the identifica-
tion of a problem, the Congress has the duty of enacting a
principled solution to the entire problem. Comprehensive
solutions to identified problems must be translated into
well integrated legislative programs.” Id. at 246-47
(quoting 116 Cong. Rec. 18913-18914 (1970) (Sen.
McClellan)).

23

Similarly, in Browder v. United States, 312 U.S. 335,
339-40 (1941), the Supreme Court upheld a criminal
conviction where the defendant used a fraudulently-
obtained passport to re-enter the United States. The
defendant argued that at the time the statute was en-
acted, passports were not customarily used by citizens to
assure easy re-entry and thus, Congress did not intend to
punish the conduct for which he was convicted. The Court
stated,

There is nothing in the legislative history to indi-
cate that Congress considered the question of use
lof passports] by returning citizens. Old crimes,
however, may be committed under new condi-
tions. Old laws apply to changed situations. The
reach of the act is not sustained or opposed by
the fact that it is sought to bring new situations
under its terms. While a statute speaks from its
enactment, even a criminal statute embraces
everything which subsequently falls within its
scope.

312 U.S. at 339-40 (footnote omitted); see also Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998)
(“male-on-male sexual harassment in the workplace was
assuredly not the principal evil Congress was concerned
with when it enacted Title VII {of the Civil Rights Act of
1964] but statutory prohibitions often go beyond the
principal evil to cover reasonably comparable evils”);
United States v. Southwestern Cable Co., 392 U.S. 157,
172-73 (1968) (FCC has jurisdiction to regulate community
antenna television systems even though when statute
creating FCC was enacted in 1934, Congress could not
envision development of such systems).

24

Like the federal statutes in H.J. Inc., Browder, Oncale
and Southwestern Cables, Congress drafted the CSA with
sufficient breadth such that its language permits reason-
able applications not specifically contemplated by Con-
gress. The mere absence of a specific reference to
physician-assisted suicide in the legislative history cannot
preclude the Attorney General from determining whether
it is a legitimate medical practice under the CSA. De-
manding proof from the legislative history that Congress
envisioned the precise conduct permitted by the DWDA is
unreasonable and the purported lack of such “proof” is not
a proper ground for enjoining the Interpretive Rule. See
Rust v. Sullivan, 500 U.S. 173, 189-90 (1991).

If anything, the absence of specific discussions of
physician-assisted suicide likely reflects the simple fact
that both when the CSA was passed and later amended,
such a practice was beyond what Congress contemplated
as a reasonable possibility. The 1970 House Report's
reference to “misuse of a drug in suicides and attempted
suicides” presumes that such use would be a “misuse.” In
fact, it seems that until former Attorney General Janet
Reno issued her written opinion on June 5, 1998 creating
an exception from the CSA for Oregon, the general under-
standing in Congress was that assisted suicide could not
be considered a legitimate medical practice.’

* Certainly the DEA thought so. See Letter from Hon. Thomas A.
Constantine, Administrator of the Drug Enforcement Administration of
the United States To Hon. Henry J. Hyde, Committee on the Judiciary,
United States House of Representatives (Nov. 5, 1997) (concluding that
prescribing a controlled substance with the intent to assist suicide was
not a legitimate medical purpose and would violate the CSA), see also
Hugh |. Schade, M_D., Denial of Application, 60 Fed. Reg. 56,354 (Nov.
8, 1995) (denying registration on ground of “public health and safety”

(Continued on following page)

25

For example, in 1997 Congress passed the Assisted
Suicide Funding Restriction Act, which President Clinton
signed into law on April 30 of that year. Pub. L. 105-12,
111 Stat. 23. The Assisted Suicide Funding Restriction Act
directly prohibits the use of federal funds for the purpose
of causing or assisting in causing the death of any individ-
ual. Jd. § 3(a)(1). In passing the Act, Congress stated that
its purpose 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.”
Pub. L. No. 105-12, § 2(b), 111 Stat. 23 (emphasis added).
And this remains federal policy today. See Health &
Human Servs., Medicare Benefit Policy Manual, ch. 16,
§ 20 (“A health care item or service for the purpose of
causing, or assisting to cause, the death of any individual
(assisted suicide) is not covered” by the Medicare program.)
(available at: http://www.cms.hhs.gov/manuals/102_policy/
bp102c16.pdf). Thus, it seems clear that, apart from the
June 5, 1998 opinion, the position of the federal govern-
ment has consistently been that it will not facilitate
suicide.

This reasonable federal policy is consistent with the
clear ethical consensus of the medical profession from
enactment of the CSA through today. The positions of the
American Medical Association and other medical organiza-
tions have reflected nearly uniformly the view that physi-
cian-assisted suicide is not an acceptable or legitimate
medical practice. See, e.g., Am. Med. Ass’n, Code of Medical

where physician had prescribed lethal amounts of Darvocet to de-
pressed patient who used them to commit suicide).

26

Ethics § 2.211 (2005) (“[pjhysician-assisted suicide is
fundamentally incompatible with the physician’s role as
healer, would be difficult or impossible to control, and
would pose serious societal risks” and “[i)nstead of partici-
pating in assisted suicide, physicians must aggressively
respond to the needs of patients at the end of life”); Edito-
rial, Deadly milestone: 5 years of assisted suicide, amed-
news.com, Apr. 21, 2003 (available at: http://www.ama-
assn.org/amednews/2003/04/2 l/edsb0421.htm); Council on
Ethical and Judicial Affairs, Decisions Near the End of
Life, 267 JAMA 2229, 2233 (1992) (“Physicians must not
... participate in assisted suicide[]” and “({p)hysician
assisted suicide ... is contrary to the traditional prohibi-
tion against using the tools of medicine to cause a patient’s
death” and includes the “potential for coercive financial
and societal pressures on patients to choose suicide.”);
ANA Position Statement (available at: nursingworld.org/
readroom/position/ethics/etsuic_ htm); Task Force on the
Nurse’s Role in End-of-Life Decisions, Center for Ethics
and Human Rights (1994) (“[s)uch an act is in violation of
the Code for nurses ... and the ethical traditions of the
profession”). Notably, when the CSA was enacted, it was
recommended to Congress by a Presidential Commission
that under the CSA's regulations, “the definition of legiti-
mate medical use of narcotic drugs [be] primarily ...
determined by the medical profession.” H.R. Rep. No. 91-
1444, at 21, reprinted in 1970 U.S.C.C.A.N. 4566, 4586. In
the Interpretive Rule, the Attorney General properly
exercised his authority under the CSA by reasonably
concurring with the medical profession that physician-
assisted suicide is not a legitimate medical practice.

+

27

CONCLUSION

For the foregoing reasons, Amici Curiae respectfully
request that the judgment of the Ninth Circuit be re-
versed.

Respectfully submitted,

DONALD A. DAUGHERTY, JR.
Counsel of Record

JOHN B. TUFFNELL

WHYTE HIRSCHBOECK DUDEK S.C.

555 E. Wells Street, Suite 1900

Milwaukee, WI 53202

(414) 273-2100

Counsel for Congressional Amici
May 11, 2005

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0051%3A21. Public record. Not legal advice.