Amicus Curiae Brief — Gonzales v. Oregon

Supreme Cour, Us.

ei FILED

AA

JUL 18 2005

No. 04-623 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

ALBERTO R. GONZALES, Attorney General, et a/.,

Petitioners,

v.

STATE OF OREGON, et al.,

Respondents.

On WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF MEMBERS OF THE OREGON

CONGRESSIONAL DELEGATION AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

WILLIAM R. STEIN

Counsel of Record

Eric S. PARNES

HucGuHes HuBBARD & REED LLP

1775 I Street, N.W.

Washington, D.C. 20006-2401

(202) 721-4600

Counsel for Amici Curiae

195503

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

I.

Il.

TABLE OF CONTENTS

The Attorney General Has Acted Outside The

Scope Of The Power Delegated By Congress

PPE Sannekessdecieceni pails

A.

As Originally Enacted, The CSA

Protected The Historical Prerogative Of

States To Regulate The Practice Of

Medicine And Denied The Attorney

General Any Discretion To Regulate

Medical Use Of Approved Controlled

PD icudeaceseutaekecudes

The 1984 Amendments To The CSA Did

Not Expand The Attorney General’s

Limited Statutory Authority .........

Congress Has Manifested Its Understanding

That The Attorney General Lacks Authority

To Preempt State Regulation Of Physician-

PRE Ee rn

A. Congress Has Recognized That The CSA

Does Not Authorize Federal Preemption

Of State Law Regarding The Legitimacy

Of Physician-Assisted Suicide .......

ii

Contents

B. Congress Has Recognized That Federal

Law Leaves The Regulation Of Physician-

Assisted Suicide To The States .......

Ill. The Regulation of Physician-Assisted Suicide

Is Within The Core Of The States’ Power And

CY So cecnchsvecscedccoesscees

A. Regulation Of The Practice Of Medicine

And Related Issues Of Medical Ethics

Has Traditionally Fallen To The States

B. This Court Has Recognized That

Resolution Of The Difficult Moral,

Practical, And Ethical Questions

Associated With Physician-Assisted

Suicide Is Appropriately Entrusted To The

SCNT TTT TT TT TT TTT Te

CRORES ccccccveccecccnscccesoveesese

Page

21

23

23

26

27

ili

TABLE OF CITED AUTHORITIES

Page

U.S. Cases:

Barsky v. Bd. Of Regents, 347 U.S. 442 (1954) ... 24

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204

a 4

Brotherhood of Locomotive Engineers v. Atchison,

Topeka & Santa Fe Railroad Co., 516 U.S. 152

DUA CbEbegheeegoceesoesosceecceccess 17

Business Roundtable v. S.E.C., 905 F.2d 406 (D.C.

EEE 14

Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)

ee ieie eh ubeeeneéoeseeessees 17

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)

i Pees heeeeseeeocenssseeecucecess 23

Gonzales v. Raich, 125 §.Ct. 2195 (2005) ........ 6

Hillsborough County v. Automated Med. Labs, 471

EE 23-24

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ..... 20

NAACP v. Federal Power Comm'n, 425 U.S. 662

ii eeiee eek eens sek keeoenveceesss 14

New State Ice Co. v. Liebman, 285 U.S. 262 (1932)

iv

Cited Authorities

Page

New York Tel. Co. v. New York State Dept of Labor,

440 UB. SID CIDTD) 2 nccccccccccccccccccess 19

Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004) .

Pegram v. Herdrich, 530 U.S. 211 (2000) ........ 23

United States v. Hunter, 101 F.3d 82 (9th Cir. 1996) =

United States v. Moore, 423 U.S. 122 (1975) ..... 10, 11

Washington v. Glucksberg, 521 U.S. 702 (1997) .. 19, 26, 27

Watson v. Maryland, 218 U.S. 173 (1910) ........ 23

Statutes and Regulations:

10 U.S.C. § 1094 (2000) .... 02... cece ee eee eens 24

21 U.S.C. § 396 (2008) .. nc ccccccccccccccces 24

21 U.S.C. §§ 800 et seg. (2000) .........- 6-0 eee passim

42 U.S.C. § 263 (20GB) .. nc ccccccccccccccceess 24

42 U.S.C. § 1395 (2000) ..... cc ccccccccccees 21, 24

Assisted Suicide Funding Restriction Act, Pub. L. No.

105-12, 111 Stat. 23 (1997) .......... eee eeee 21

Vv

Cited Authorities

Page

Comprehensive Drug Abuse Prevention and Control

Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236

Se 606 esntesenseddsaceccndeddicnio 3, 5, 6, 7

Comprehensive Crime Control Act of 1984, Pub. L.

No. 98-473, 98 Stat. 1837 (1984) ............ 12

Narcotic Addict Treatment Act of 1974, Pub. L. No.

93-281, 88 Stat. 124 (1974) ................. 7

Or. Rev. Stat. §§ 127.800-127.995 (2001) ........ l

Be Ce, EDOD BO IIOD occccccccescccccceses 4,11

Miscellaneous:

AMA, Code of Ethics § E-2.06, available at http://

www.ama-assn.org/ama/pub/category/8419.html

snckebacne 60¥e0neuebesdssecesececceséess 25

AMA, Frequently Asked Questions In Ethics, http://

www.ama-assn.org/ama/pub/category/5105.html

pcendunedddes doudeudss éakewéaeseebooucas 25

California Compassionate Choice Act, 2005-06 Cal.

AB We. 654 (Cal. 2005) ... nc cccccccccccess 26

Conquering Pain Act, H.R. 2188, 106th Cong. (1999)

$odebenedtesndkhdeecetkecéuasanduwbeosuees 2

15 CQ Researcher 421 (May 13, 2005) .......... 26

vi

Cited Authorities

Page

130 Cong. Rec. (1984):

Tt «ccecheckekasdeceedsesatinnsseseses 13

TE vevakequseeeesedduCucccnnenesdnteses 13

143 Cong. Rec. (1997):

i <c< ¢debcosededdeboqetbetesadeuneune 22

DED cecckcckéudeesesedunssankeoseuheses 22

Dispensing of Controlled Substances to Assist

Suicide, 66 Fed. Reg. 56,607 (Nov. 9, 2001)... 4,11

H.R. Rep. No. 91-1444 (1970), reprinted in 1970

DSBCLAB, GED cccccccccccescccccsccces passim

H.R. Rep. No. 93-884 (1974), reprinted in 1974

BECEAR. Fe coccccccccccccesesscoves 7

H.R. Rep. No. 98-1030 (1984), reprinted in 1984

DSCC AR, FOGE ccccccccccssscccccsccecs 13

H.R. Rep. No. 105-683 (1998) .............445. 19, 20

H.R. Rep. No. 106-378 (1999) ...........25445. 19, 20

Hugh I. Schade, M.D., Denial of Application, 60 Fed.

Reg. 56,354 (Nov. 8, 1995) .......-.0-e0eees 11

Lethal Drug Abuse Prevention Act, H.R. 4006, 105th

Camm, (SRE) oc cccccccccccsccccsceccoscccs 18

I 7 =

vil

Cited Authorities

Page

Letter from Hon. Janet Reno, Attorney General of the

United States, to Hon. Henry Hyde, Chairman on the

Judiciary, United States House of Representatives

(June 5, 1998), available at http://www.usdoj.gov/

opa/pr/1998/June/259ag.htm.html ............ 20

Louis Finkelstein Institute for Social and Religious

Research and HCD Research, Poll: Majority of

Doctors Support Ethics of Physician Assisted

Suicide, Business Wire (March 3, 2005) ....... 25

Memorandum 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 Regulations Implementing the

Controlled Substances Act (June 27, 2000),

reprinted in 17 Issues L. & Med. 269, 271-72 (2002)

pe-Geetenshduneeseoeeées s ecunboeeesshenes 11-12

Nancy Vogel, Oregon Law Fuels Debate on Suicide,

Ss § Pee 26

Pain Relief Promotion Act, H.R. 2260, 106th Cong.

EIPSE cbnevevedcodadsecctésavessasuenbes 2, 18-19

S. Rep. No. 98-225, reprinted in 1984 U.S.C.C.A.N.

PEED Cbd be ceécndecccsedeuseuccscntevees 12, 13, 16

S. Rep. No. 106-299 (2000) ................ 19, 20, 21

l

INTEREST OF THE AMICI CURIAE

Amici are Members of Congress representing the people of

the State of Oregon.' Amicus Ron Wyden has the honor of

serving Oregon in the United States Senate. Amici Earl

Blumenauer, Peter DeFazio, Darlene Hooley, and David Wu

have the honor of serving Oregon in the United States House of

Representatives. As members of Congress, amici are directly

concerned with the need to carefully circumscribe within

constitutional and statutory limits the authority of the Executive

Branch to preempt the consideied policy judgments made by

the states and their citizens.

While serving in the United States Congress, amici have

taken the lead in helping to defeat attempts at legislative

preemption of Oregon law. Though he voted twice as a private

citizen against the Oregon ballot measures that approved

Oregon’s Death With Dignity Act (“Dignity Act’”’), Or. Rev. Stat.

§§ 127.800-127.995 (2001), Senator Wyden also has twice

testified before the Senate Judiciary Committee, as well as once

before the Senate Committee on Health, Education, Labor, and

Pensions, in opposition to bills seeking amendments to the

Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801 et seq.

(2002), that would have preempted the decision of the citizens

of Oregon reflected in the Dignity Act. Similarly, Representative

DeFazio—who has a masters degree in gerontology and has

counseled seniors on end-of-life issues—testified before the

House Judiciary Committee in opposition to the legislation

seeking to overturn the Dignity Act.

1. Consents to the filing of this amici curiae brief are on file with

the Clerk of the Court pursuant to Rule 37(3) of the Rules of the Supreme

Court of the United States. Pursuant to Rule 37(6), counsel for amici

certifies that no counsel for a party authored this brief in whole or in

part and that no person, other than amici or their counsel, made a

monetary contribution to the preparation or submission of this brief.

2

Representatives DeFazio, Blumenauer, Hooley, and Wu

each fought against passage of the “Pain Relief Promotion Act,”

H.R. 2260, 106th Cong. (1999), in order to protect from federal

preemption Oregon’s thoughtful approach to giving terminally-

ill patients more control over difficult end-of-life issues.

Congresswoman Hooley, representing Oregon’s Fifth

Congressional District, despite personal opposition to the

practice of physician-assisted suicide, joined her Republican

colleague from Connecticut, Representative Nancy Johnson, in

introducing the “Conquering Pain Act,” H.R. 2188, 106th Cong.

(1999), coauthored by Senator Wyden, as a substitute for the

Pain Relief Promotion Act in order to improve palliative care

without overturning Oregon law.

Similarly, Representative Wu, representing Oregon’s First

Congressional District, actively opposed the Pain Relief

Promotion Act in the 106th Congress, and joined his colleagues

in sending a letter to former President Clinton urging him to

oppose any legislation that would overturn Oregon’s law.

Likewise, during the 107th Congress, he joined the Oregon

delegation in requesting a meeting with President Bush and

Attorney General Ashcroft before the Administration considered

any action regarding Oregon’s Dignity Act. Representative

DeFazio joined more than fifty health and hospice related

organizations to defeat attempts to overturn the Oregon law.

Because of their experience with the CSA and the policy

debate about physician-assisted suicide during their time in the

United States Congress, amici Senator and Representatives can

offer a unique insight into the CSA’s legislative purpose and

history, into the Congressionally-drawn demarcation between

the role of the states and the role of the Attorney General under

the CSA, and into the proper relationship between the CSA and

Oregon’s Death With Dignity Act. In addition, Senator Wyden

served in the ¥ States House of Representatives at the time

3

of the 1984 amendments to the CSA, and thus can bring his

perspective on the purpose of the 1984 amendments to an

analysis of the CSA.

SUMMARY OF ARGUMENT

All parties and amici agree that regulation of the practice

of medicine, including matters of medical ethics, has

traditionally been the province of the states. Nothing in the CSA

alters state primacy in this area. The statute, which was enacted

for the purpose of controlling drug trafficking and abuse, does

not authorize the Attorney General to preempt state law on issues

regarding the ethical practice of medicine.

ARGUMENT

I. The Attorney General Has Acted Outside The Scope

Of The Power Delegated By Congress In The CSA.

Congress enacted the Comprehensive Drug Abuse

Prevention and Control Act of 1970, Pub. L. No. 91-513,

84 Stat. 1236, to “deal in a comprehensive fashion with the

growing menace of drug abuse in the United States.” H.R. Rep.

No. 91-1444 (Sept. 10, 1970), reprinted in 1970 U.S.C.C.A.N.

4566, 4567. Title II of the Act, dealing with “control and

enforcement,” was designated the Controlled Substances Act.

Id. at 4569. From its inception in 1970, its amendment in 1984,

and its consistent construction and application over three

decades, the CSA directed the Attorney General to enforce a

closed system of drug distribution and dispensing as a means

of curbing drug abuse and controlling drug trafficking. Nothing

in the language, history, or application of the original or amended

CSA authorized the Attorney General to use his law enforcement

powers to proscribe as illegitimate those medical practices that

fail to conform to his moral convictions.

4

In an unprecedented expansion of his role under the CSA,

the Attorney General in his 2001 Interpretive Rule asserted that

he is authorized to prohibit physicians from prescribing drugs

in accordance with the Dignity Act. See Dispensing of Controlled

Substances to Assist Suicide, 66 Fed. Reg. 56,607, 56,608 (Nov.

9, 2001) (the “Interpretive Rule”). He found that authority in a

DEA regulation supplying the criteria for what constitutes an

effective prescription for a controlled substance under the CSA.

Id. Promulgated in 1971, that regulation provides that 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) (2004). The Attorney General

declared in his Interpretive Rule that he had “determined that

assisted suicide is not a ‘legitimate medical purpose’ within the

meaning of 21 CFR 1306 (2001), and that prescribing,

dispensing, or administering federally controlled substances to

assist suicide violates the Controlled Substances Act.” 66 Fed.

Reg. at 56,608. Thus, thirty years after its promulgation, this

heretofore unremarkable regulation has become the vehicle by

which the nation’s chief law-enforcement officer seeks to

become arbiter of the legitimacy of medical practices, to usurp

the traditional state prerogative of regulating the practice of

medicine, and to derogate the outcome of Oregon’s political

process acting within the core of its traditional competency.

Viewed in light of the language and purpose of the statute

under which it was promulgated, the 1971 regulation simply

does not provide the Attorney General with the broad authority

to preempt state law that he seeks. The CSA cannot sustain

such a dramatic expansion of the Attorney General’s limited

authority under that statute. To the contrary, the terms and

legislative history of the CSA demonstrate the will of Congress

to respect the traditional prerogative of the states to regulate the

practice of medicine. See Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204, 208 (1988) (“It is axiomatic that an administrative

5

agency’s power to promulgate legislative regulations is limited

to the authority delegated by Congress.”’).

A. As Originally Enacted, The CSA Protected The

Historical Prerogative Of States To Regulate The

Practice Of Medicine And Denied The Attorney

General Any Discretion To Regulate Medical Use

Of Approved Controlled Substances.

The terms and history of the CSA as originally enacted

belie the claim that Congress gave the Attorney General, a

law-enforcement officer, final word as to which state-sanctioned

medical practices are “legitimate.” The CSA was “designed 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.” H.R. Rep. 91-1444, 1970 U.S.C.C.A.N.

at 4589. Congress authorized the Attorney General to exercise

several law enforcement functions intended to keep controlled

substances from escaping the closed system and flowing to illicit

channels. Congress never delegated any power or discretion to

the Attorney General to make judgments about the proper

medical use of controlled substances. Those matters were left

to state law—which traditionally has regulated the practice of

medicine—or, in specific, limited circumstances, to federal

officials with expertise in medical and scientific matters.

As part of its effort to regulate drug distribution and prevent

diversion to illicit channels, Congress in the CSA required that

medical practitioners wishing to prescribe controlled substances

register with the Attorney General. Pub. L. No. 91-513, 302(a),

84 Stat. 1236, 1253. Under the CSA as originally enacted,

practitioner “registration would be as a matter of right where

the individual or firm is engaged in activities involving

these drugs which are authorized or permitted under state law.”

H.R. Rep. 91-1444, 1970 U.S.C.C.A.N. at 4590. The Attorney

6

General was required to register practitioners “if they are

authorized to dispense . . . controlled substances under the law

of the State in which they practice.” Pub. L. No. 91-513, § 303(f),

84 Stat. 1253 (1970).2 When it enacted the CSA, therefore,

Congress unquestionably intended to leave solely to the states

the power to license and discipline medical practitioners

regarding the use of controlled substances, and gave the Attorney

General no leeway to override the state regulators’

determinations or otherwise to exercise discretion regarding

medical issues.’

To be sure, Congress in the original CSA provided for a

limited federal role in medical issues relating to use of controlled

substances. That federal role, however, was highly circumscribed

and directly related to the core concern of the Act, i.e.,

maintaining a closed system for distribution of potentially

dangerous drugs. Further, that limited federal medical role was

entrusted to federal officials with medical expertise at the

Department of Health, Education and Welfare, not to federal

officials with law enforcement expertise at the Department of

Justice.

2. This provision was amended in 1984. As demonstrated infra,

at Part I.B., and contrary to the assertions of the Attorney General and

various amici, the 1984 amendments to the CSA’s registration provisions

did not abandon the requirement of deference to state regulation of the

practice of medicine.

3. This Court’s recent decision in Gonzales v. Raich, 125 S. Ct.

2195 (2005), is not to the contrary. Raich addressed a commerce-clause

challenge to the decision of Congress to prohibit the local use of locally-

grown marijuana, and did not consider the Attorney General’s authority

under the CSA. Also, Raich concerned federal authority under the drug-

scheduling, rather than the physician-licensing, authoiity conferred by

the CSA. While scheduling decisions involve medical determinations,

Congress in the CSA expressly entrusted those decisions to federal

officia!s with medical expertise (or in some cases made the decision

itself). See infra at 8.

7

Accordingly, the CSA vested the Secretary of Health,

Education, and Welfare (now, the Secretary of Health and

Human Services)—not the Attorney General—with authority

over medical and scientific determinations relating to the

scheduling of controlled substances. See 21 U.S.C. § 811(b)

(2000) (determinations of the Secretary “shall be binding on

the Attorney General as to such scientific and medical matters’”’).

Likewise, Congress granted the Secretary of Health, Education,

and Welfare the authority to determine national standards for

the use of methadone and other narcotics in the treatment of

addicts. Pub. L. No. 91-513, Tit. I, § 4, 84 Stat. 1236, 1241.

The Narcotic Addict Treatment Act of 1974, Pub. L. No.

93-281, 88 Stat. 124, which amended the CSA to set forth

procedures governing practitioner registration to conduct

addiction treatment programs, provides further evidence of the

Congressional will to withhold from the Attorney General

discretionary authority over medical determinations. The

legislative history of the 1974 amendments demonstrates that

Congress intended to “preserve ... the distinctions found in

the Controlled Substances Act between the functions of the

Attorney General and the Secretary of Health, Education and

Welfare.” H.R. Rep. No. 93-884 (1974), reprinted in 1974

U.S.C.C.A.N. 3029, 3024. Congress intended that

“{a]ll decisions of a medical nature are to be made by the

Secretary. . .. Law enforcement decisions respecting the security

of stocks of narcotic drugs and the maintenance of records on

such drugs are to be made by the Attorney General.” Jd.

As even the amici federal legislators who support the

Attorney General recognize, “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.” Amicus Curiae Brief of Senators

Rick Santorum, et al., at 19 (“Santorum Br.”). Prior to the

Interpretive Rule, the only attempt by the federal government

to regulate the practice of medicine under the CSA dealt with

8

the use of narcotics in addiction treatment, which directly relates

to the central purpose of the CSA. It is not surprising that

Congress wanted a federal role in defining the manner in which

narcotics were placed in the hands of addicts, the most likely

vehicles for diversion from proper to illicit channels. Congress,

however, granted this limited authority not to the Attorney

General, but to “the principal health agency of the federal

government.” H.R. Rep. 91-1444, 1970 U.S.C.C.A.N. at 4581.

Given this statutory scheme, it is absurd to suggest that Congress

implicitly vested the Attorney General with the uncabined

authority to declare illegitimate state-sanctioned medical

practices unrelated to the evils to which the CSA was directed.

While uniform guidelines for the methods by which physicians

place narcotics in the hands of addicts serve the anti-diversion

goals of the CSA, a national standard regulating the medical

purposes that physicians may legitimately pursue serves no

such goal.

Despite this clear indication of Congressional intent to defer

to the states, the Attorney General and certain amici insist that,

even under the original CSA, the Attorney General had the

authority to override a state’s decisions as to the legitimacy of

particular medical purposes. Two arguments are raised in support

of this position, but neither holds water.

First, the Attorney General and certain amici insist that the

federal drug-control laws that preceded the CSA “created a

federal standard for determining what constitutes a legitimate

medical practice,” and that the CSA was intended to “clarify

that federal standard, not to cloud that standard by overlaying

potentially disparate state standards.” Brief for the Petitioners

at 33 (“Gov. Br.”) (emphasis in original); see also Santorum

Br. at 18-19. This argument is grounded on a gross

mischaracterization of the legislative history. The Attorney

General relies on the Report of the House Committee On

Interstate And Foreign Commerce, but that Report in fact

demonstrates that Congress deliberately denied federal law-

9

enforcement personnel discretion to make medical and scientific

judgments with respect to addiction treatment. See H.R. Rep.

91-1444, 1970 U.S.C.C.A.N. at 4581. The House Committee

recognized that previous federal drug laws had led to the problem

of prosecutors indicting practitioners for their practices in

treating addiction, thereby in effect exercising discretion as to

the propriety of methods used to treat addiction. /d. Congress

specifically intended to withdraw any discretion in this area

from federal prosecutors and instead to authorize the Secretary

of Health, Education, and Welfare (now the Secretary of Health

and Human Services) to issue guidelines for prescribing

narcotics to treat addicts. See supra at 8-9.

The Attorney General’s assertion that Congress had always

intended to allow the Attorney General to define appropriate

medical practice is based on partial, out-of-context quotations

from the House Report. The passage in full, however, makes

clear that the Committee was describing with disfavor the

situation created by the Justice Department’s overbroad assertion

of authority under pre-1970 federal narcotics legislation in the

specific area of addiction treatment.‘ Placed in context, the

4. In full, with italics indicating the portions the Attorney General

omitted in his selective excerpt, the passage reads:

The Committee expects that the determinations made by

the Secretary of Health, Education, and Welfare will clarify

for the medical profession the conditions under which

narcotic drugs may be prescribed for the medical treatment

of narcotic addicts. Although the Committee is concerned

about the appropriateness of having federal officials

determine the appropriate method of the practice of

medicine, it is necessary to recognize that for the last 50

years this is precisely what has happened, through criminal

prosecution of physicians whose methods of prescribing

narcotic drugs have not conformed to the opinions of

federal prosecutors of what constitutes appropriate methods

of professional practice. Jn view of this situation, this

(Cont'd)

10

passage demonstrates that Congress sought to avoid any

intervention in medical matters by prosecutors and other

medically-unqualified federal law enforcement officials.

H.R. Rep. 91-1444, 1970 U.S.C.C.A.N. at 4581.

Second, the Attorney General (Gov. Br. at 31), and the

legislative amici who support him (Santorum Br. at 10), argue

that this Court’s decision in United States v. Moore, 423 U.S.

122 (1975), recognized the Attorney General’s authority to

declare uniform federal standards for permissible prescriptions

under the CSA. In Moore, however, this Court did not address

the issue whether the CSA empowers the Attorney General to

determine the legitimacy of particular medical purposes. Instead,

the physician defendant in Moore had been found to be acting

as a methadone pusher rather than as a physician and thus could

not claim immunity from prosecution under the more severe

provisions of the CSA. /d. at 133. To the extent that the holding

depended on the existence of a federal standard for appropriate

practice, the Court looked only to the “particularly clear” limits

on practices relating to methadone treatment, the articulation

of which the 1970 Act expressly committed to the Secretary of

Health, Education, and Welfare. /d. at 144. Neither the Attorney

General nor any of the fifteen amici briefs in support of his

position has identified a single instance in which the federal

government has based a prosecution or license revocation on a

(Cont'd)

section will provide guidelines, determined by the principal

health agency of the federal government, after consultation

with appropriate national professional organizations.

Those physicians who comply with the recommendations

made by the secretary will no longer jeopardize their

professional careers by accepting addicts as patients.

H.R. Rep. 91-1444, 1970 U.S.C.C.A.N. at 4581.

11

finding of an illegitimate medical purpose other than conduct

amounting to “pill pushing.”

B. The 1984 Amendments To The CSA Did Not

Expand The Attorney General’s Limited Statutory

Authority.

Although based primarily on the Attorney General’s

interpretation of the phrase “legitimate medical purpose” in the

1971 regulation now found at 21 C.F.R. 1306.04(a) (2004), the

Interpretive Rule also purports to rely on the 1984 amendments

to the CSA to support the threat of enforcement action against

physicians prescribing controlled substances pursuant to the

Dignity Act.® See 66 Fed. Reg. at 56,608; see also Gov. Br. at

34-35. Likewise, the Attorney General invokes the 1984

amendments as support for the proposition that Congress

intended to depart from its traditional deference to state

regulation of medical practice. The substance and history of the

5. Hugh I. Schade, M.D., Denial of Application, 60 Fed. Reg.

56,354 (Nov. 8, 1995), cited in Santorum Br. at 24 n.7, is not such a

case. In that proceeding, the DEA simply found it appropriate to deny a

physician’s application for registration due to the physician’s having

been convicted in state court of involuntary manslaughter in connection

with the death of a patient and having been found by the DEA to be in

violation of numerous regulations concerning the keeping of controlled

substances. The decision did not involve any determination of the

legitimacy of physician-assisted suicide or otherwise federalize the issue

of what constitutes the legitimate practice of medicine.

6. If the Attorney General’s interpretation of 21 C.F.R. 1306.04

stands, practitioners acting pursuant to the Dignity Act also would

potentially be subject to criminal penalties under 21 U.S.C. § 841. See

United States v. Moore, 423 U.S. 122, 136 (1975); see also Memorandum

from Deputy Assistant Attorney General Sheldon Bradshaw to Hon.

John Ashcroft, Whether Physician-Assis ‘ed Suicide Serves a “Legitimate

Medical Purpose” Under the Drug Enforcement Administration

Regulations Implementing the Controlled Substances Act (June 27,

2000), reprinted in 17 Issues L. & Med. 269, 271-72 (2002).

12

1984 amendments support neither of these assertions. To the

contrary, the 1984 amendments reaffirmed the Act’s fundamental

division of authority.

The 1984 amendments began as the “Dangerous Drug

Diversion Control Act” and later were incorporated into the

Comprehensive Crime Control Act of 1984. Pub. L. No.

98-473, 98 Stat. 1837 (1984). As the original bill title reflects,

Congress intended the 1984 legislation to address a specific

issue: the “problem of diversion of drugs of legitimate origin

into the illicit market.” S. Rep. No. 98-225, reprinted in 1984

U.S.C.C.A.N. 3192, 3442; see also id. at 3182, 3444. Although

the CSA’s original registration provisions had proven effective

in “meeting the diversion problem at the manufacturer and

distributor levels,” Congress was concerned that “the same

strong regulatory authority to maintain a ‘closed’ distribution

chain does not exist at the practitioner level.” /d. at 3443.

Toward the limited end of sealing leaks in the closed

distribution system, Congress made applicable to the registration

of practitioners a standard comparable to that already applicable

to the registration of manufacturers and distributors of controlled

substances. See id. (citing 21 U.S.C. §§ 823(a), (b), (d), (e)).

Whereas the CSA had previously required the Attorney General

to register any practitioner authorized to distribute controlled

substances by that practitioner’s state, the 1984 amendment

authorized the Attorney General to deny or revoke a

practitioner’s DEA registration upon a finding that such

registration is contrary to the “public interest.” 21 U.S.C.

§ 824(a)(4) (added by Pub. L. No. 98-473, § 512(2), 98 Stat.

1837).

While giving the Attorney General a limited basis for

denying or revoking the registration of state-licensed physicians

in order to better combat illegal diversion of drugs, the 1984

amendment did not, contrary to the Attorney General’s position,

upset two-hundred years of tradition by vesting the nation’s chief

13

law-enforcement officer with unfettered discretion over how

medical practitioners do their work. Indeed, Congress intended

that the Attorney General would be required to “continue to

give deference to the opinions of the State licensing authorities.”

S. Rep. No. 98-225, reprinted in 1984 U.S.C.C.A.N. at 3449.

In light of the purpose and substance of the 1984 amendments,

the grant of authority to the Attorney General cannot be read as

an open-ended invitation to block as “illegitimate” state-

sanctioned medical practices of which he disapproves.

First, in the 1984 amendments, Congress expanded the

authority of the Attorney General with respect to practitioner

registration for a single purpose: to strengthen federal controls

against diversion of controlled substances to illicit channels.

See, e.g., 130 Cong. Rec. H9680 (daily ed. Sept. 18, 1984)

(“The most serious diversion problem today exists at the retail

level. State policing of these activities, as well as peer review

within the profession, have not been adequate control

measures.”’); H.R. Rep. No. 98-1030 (1984), reprinted in 1984

U.S.C.C.A.N. 3182, 3443 (the “strong regulatory authority to

maintain a ‘closed’ distribution system does not exist at the

practitioner level’); 130 Cong. Rec. S758 (daily ed. Feb 2, 1984)

(statement of Senator Strom Thurmond) (arguing that the

amendment was appropriate given that “80 to 90 percent of

current diversion of drugs into illicit markets takes place” at

the practitioner level); see also Santorum Br. at 13 (“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 [of the 1984

amendments].”’).

The 1984 amendments do not support the Attorney

General’s authority to make registration determinations based

on a definition of the “public interest” that has no relationship

to that Congressional goal. The “public interest” provision was

meant to strengthen federal enforcement of the closed system,

not to authorize federal regulation of the practice of medicine.

14

As with any regulatory statute, the term “public interest” must

be construed in light of the statutory purpose. See, e.g., NAACP

v. Federal Power Comm'n, 425 U.S. 662, 669 (1976) (“The

use of the words ‘public interest’ in a regulatory statute . . . take

meaning from the purposes of the regulatory legislation.”);

see also Business Roundtable v. S.E.C., 905 F.2d 406, 413-14

(D.C. Cir. 1990) (rejecting SEC’s attempt to invoke statute’s

“public interest” mandate to assert authority in an area of “firmly

established” state jurisdiction and noting that affirming this

“advance into an area not contemplated by Congress would

circumvent the legislative process that is virtually the sole

protection for state interests”).

Second, the term “public interest” does not stand alone in

the amended CSA. Instead, section 824(a)(4) allows the Attorney

General to revoke or suspend a registrant upon a finding that

the registrant “has committed such acts as would render his

registration under section 823 of this title inconsistent with the

public interest as determined under such section.” 21 U.S.C.

§ 824(a)(4) (emphasis added). The provision on which the

Attorney General relies cannot be read apart from the provision

on which it explicitly depends. It is under 21 U.S.C. § 823 that

the meaning of “inconsistent with the public interest” is

determined.

Section 823 provides an exclusive list of the factors that

the Attorney General may consider in determining the “public

interest”:

(1) The recommendation of the appropriate State

licensing board or professional disciplinary

authority.

(2) The applicant’s experience in dispensing, or

conducting research with respect to controlled

substances.

15

(3) The applicant’s conviction record under Federal

or State laws relating to the manufacture,

distribution, or dispensing of controlled

substances.

(4) Compliance with applicable State, Federal, or

local laws relating to controlled substances.

(5) Such other conduct which may threaten the public

health and safety.

21 U.S.C. § 823(f). Nothing about these five factors—and

certainly nothing in the legislative history of the 1984

amendments—suggests that Congress intended to upset the

fundamental principle it had established in 1970: that the

regulation of medical practice be left to the states other than as

necessary to prevent diversion of controlled substances into

illicit markets, and that any federal intrusion into medical and

scientific matters must be specifically authorized, delegated to

federal health officials, and off-limits for the Attorney General.

The Attorney General does not purport to rely on the first

three factors, and for good reason. The first factor reaffirms the

primacy of state regulators in determining the eligibility of

practitioners for CSA registration. As the 1984 Senate Report

made clear, the amended registration provisions require that the

Attorney General “continue to give deference to the opinions

of state licensing authorities, since their recommendations are

the first of the factors to be considered with respect to practitioner

applicants.” S. Rep. No. 98-225, reprinted in 1984 U.S.C.C.AN.

3182, 3449.’ This requirement of deference to state officials

7. As the Ninth Circuit found, “[i}t is undisputed that the Attorney

General made no effort to solicit input from the State of Oregon before

issuing his Directive, notwithstanding an express promise to do so by

— Oregon v. Ashcroft, 368 F.3d 1118, 1129 (9th Cir.

16

only serves to highlight the fallacy in the Attorney General’s

suggestion (Gov. Br. at 35) that the CSA prescribes exclusively

federal standards for regulating use of controlled substances by

medical practitioners. Nothing in the 1984 amendments or their

legislative history suggests that such national uniformity was

one of Congress’s goals.

The second and third factors, meanwhile, are objective

considerations that have nothing to do with the scientific or

ethical legitimacy of particular medical purposes.

The Attorney General is thus left with the fourth and fifth

factors. As to factor four, whether a physician who prescribes a

controlled substance to assist suicide in a manner consistent

with Oregon law fails to comply with “applicable . . . Federal

... laws relating to controlled substances,” 21 U.S.C.

§ 823(f)(4), begs the question currently before the Court.

The fifth factor permits the Attorney General to consider

“{sJuch other conduct which may threaten the public health and

safety.” 21 U.S.C. § 823(f)(5). The term “public health and

safety,” however, does not provide the Attorney General

with discretion to define the legitimate practice of medicine.

The phrase must be construed in light of the purpose and

structure of the CSA itself, which is directed toward preventing

the diversion of controlled substances to illicit channels and

which reserves medical determinations to the states and

(in limited instances) to federal health officials.* It would be

odd, indeed, for Congress to have departed so radically from

the basic structure of the CSA in such a “back door” manner.

As this Court has observed of similar statutory provisions,

section 823(f)(5) “calls for the application of the maxim ejusdem

8. See Brotherhood of Locomotive Engineers v. Atchison, Topeka

& Santa Fe Railroad Co., 516 U.S. 152, 157 (1996) (recognizing that,

where a statute’s objective is apparent, statutory terms “must be

understood in accord with that objective”).

17

generis, the statutory canon that ‘[wJhere general words follow

specific words in a statutory enumeration, the general words

are construed to embrace only objects similar in nature to those

objects enumerated by the preceding specific words.’” Circuit

City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001) (quoting

2AN. Singer, Sutherland on Statutes and Statutory Construction

§ 47.17 (1991)). None of the four enumerated factors preceding

section 823(f)(5) involves anything remotely similar to a major

policy determination defining the legitimate practice of medicine

based on considerations of morality, or a wholesale preemption

of matters that are the historical province of the states.

In sum, the 1984 amendments to the CSA’s registration

provisions did not alter the goals or basic structure of the Act.?

The amendments enhanced the federal government’s authority

to act to maintain the closed system for distribution of controlled

substances. They did not, however, effect the sea change in

federal policy towards the regulation of the practice of medicine

that the Attorney General urges.'°

9. Insistence by amici federal legislators that, in the event of

affirmance in this case, “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,” Santorum Br. at 21, misses the

mark. Regulation of particular medical purposes has never been within

the ambit of the CSA. Affirmance would thus restore the status quo in

which the Attorney General lacked discretion to carve out specific

purposes from those for which a prescription could be written. Under

that status quo, state standards were pivotal—trather than anathema—

to the enforcement of the CSA’s registration provisions.

10. The strong bipartisan support for the amendments identified

by amici, see Santorum Br. at 15, is not consistent with the theory that

the 1984 amendments were intended to radically alter the balance of

state and federal power in the area of regulation of medical practice.

18

Il. Congress Has Manifested Its Understanding That The

Attorney General Lacks Authority To Preempt State

Regulation Of Physician-Assisted Suicide.

Since the enactment of Oregon’s Dignity Act, Congress has

three times considered bills dealing with assisted suicide. The

Congressional proponents and opponents of these legislative

efforts understood that federal authority under the CSA did not

reach physician-assisted suicide and that, at a minimum, new

federal legislation would be required to defeat the Dignity Act.

A. Congress Has Recognized That The CSA Does Not

Authorize Federal Preemption Of State Law

Regarding The Legitimacy Of Physician-Assisted

Suicide.

In 1998, opponents of the Dignity Act introduced H.R. 4006,

entitled the “Lethal Drug Abuse Prevention Act,” 105th Cong.

(1998), which would have authorized the Attorney General to

suspend or revoke the registration of a physician prescribing

lethal doses of drugs to terminally ill patients to assist suicide,

even if authorized by state law. The bill failed. In 1999, the

opponents made another attempt at preempting the Oregon law

in H.R. 2260, the “Pain Relief Promotion Act,” 106th Cong.

(1999), which also failed. '' Implicit in these attempts is the

recognition that the CSA does not preempt, or authorize the

Attorney General to preempt, state law in this area.

While failed legislative proposals generally are accorded

limited weight in statutory interpretation, in appropriate contexts

11. Both proponents and opponents of the bills acknowledged that

the amendments targeted the Dignity Act. See, e.g., S. Rep. No. 106-

299, at 7, 18 (2000) (Senate Judiciary Committee Report on H.R. 2260);

id. at 54-55 (minority views); H.R. Rep. No. 106-378, at 5 (1999) (House

Judiciary Committee Report on H.R. 2260); H.R. Rep. No. 105-683, at

6 (1998) (House Judiciary Committee Report on H.R. 4006).

19

rejected attempts at amending a statute may provide valuable

guidance in determining the scope of the unamended legislation.

See New York Tel. Co. v. New York State Dept of Labor, 440

U.S. 519, 544-45, 544 n.44 (1979) (finding that two instances

in which Congress considered and failed to approve attempts

to expressly preempt state power indicated lack of preemption).

This is such a case, because the context in which Congress

considered these failed bills is particularly helpful in delineating

the scope of the Attorney General’s authority under the CSA in

its present form.

First, the amendments to the CSA were proposed in the

wake of this Court’s observation in Washington v. Glucksberg

that “Americans are engaged in an earnest and profound debate

about the morality, legality, and practicality of physician-assisted

suicide. Our holding permits this debate to continue, as it should

in a democratic society.” 521 U.S. 702, 735 (1997). In light of

this observation, the sponsors of the failed bills recognized that

this debate would continue in the states unless Congress stepped

in to amend the CSA to preempt the Oregon, and any similar

state, law. The CSA, however, was not so amended.

Second, Congress failed to amend the CSA despite Attorney

General Reno’s 1998 interpretation of the CSA as not

authorizing preemption of state law on physician-assisted

suicide. Cf. United States v. Hunter, 101 F.3d 82, 85 (9th Cir.

1996) (presuming that Congress is aware of, and acquiesces to,

existing interpretations of its laws when it subsequently enacts

amendments). After “thorough and careful review of the issue,”

Attorney General Reno explained her conclusion that “[t}here

is no evidence that Congress, in the CSA, intended to displace

the states as the primary regulators of the medical profession,

or to override a state’s determination as to what constitutes

legitimate medical practice in the absence of a federal law

prohibiting that practice.” Letter from Hon. Janet Reno, Attorney

General of the United States, to Hon. Henry Hyde, Chairman

on the Judiciary, United States House of Representatives (June

20

5, 1998), available at http://www.usdoj.gov/opa/

pr/1998/June/259ag.htm.html. At virtually every stage in

Congress’s consideration of the two bills, both proponents and

opponents mentioned Attorney General Reno’s interpretation. '?

The failure of these attempts to override Attorney General Reno’s

interpretation of the CSA, while lacking the force of an

affirmative legislative enactment, should carry great weight in

assessing whether the CSA in its present form empowers the

current Attorney General to preempt state law.

When asked to interpret federal statutes as preempting state

law, this Court has held that courts should “start with the

assumption that the historic police powers of the States were

not to be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr,

518 U.S. 470, 485 (1996). Given the lack of any evidence that

Congress ever intended the CSA to substantially preempt state

regulation of the practice of medicine, Congress’s recent refusals

to “eviscerate the states’ well-established power to regulate

medical practices,” S. Rep. No. 106-299, at 61 (Senate Judiciary

Committee minority views on H.R. 2260), are significant.

B. Congress Has Recognized That Federal Law Leaves

The Regulation Of Physician-Assisted Suicide To

The States.

In 1997, Congress passed the Assisted Suicide Funding

Restriction Act (“Funding Act’), Pub. L. No. 105-12, 111 Stat.

23, which prohibits the use of federal funds in assisted suicide.

Amici refer to the Funding Act as evidence that “the position of

the federal government has consistently been that it will not

12. See, e.g., S. Rep. No. 106-299, at 12, 42 (2000) (Senate

Judiciary Committee Report on H.R. 2260); id. at 52-53 (minority

views); H.R. Rep. No. 106-378, at 6 (1999) (House Judiciary Committee

Report on H.R. 2260); H.R. Rep. No. 105-683, at 6 (1998) (House

Judiciary Committee Report on H.R. 4006).

21

facilitate suicide.” Santorum Br. at 25. This proposition,

however, is beside the point.'? The decision not to provide

federal funds for physician-assisted suicide does not imply an

authorization for federal officials to prohibit, or to preempt state

laws authorizing and regulating, physician-assisted suicide.

Indeed, when Congress enacted the Funding Act, it did so with

the explicit understanding that the power to regulate assisted

suicide remained with the states.

Then-Senator Ashcroft, speaking as a cosponsor of the

Senate version of the bill, explained that the legislation would

alter only allocation of federal funding:

[The bill] does not in any way forbid a State to legalize

assisted suicide or even to provide its own funds for

assisted suicide. \t simply says Federal resources are

not to be used to promote or conduct assisted suicides.

After passage of this bill, States might choose to

legalize or fund assisted suicide, but they would not

be able to draw on Federal resources normally drawn

upon in joint efforts between the State and the Federal

Government for the provision of health services.

143 Cong. Rec. $3249, $3250 (1997) (emphasis added);

see also 143 Cong. Rec. H1397, H1402 (1997) (statement of

Rep. Bilirakis). Thus, at the time of the Funding Act, Congress

understood that federal law—which, of course, included the

CSA—left to the states the policy decision whether to permit

physician-assisted suicide.

13. The authority upon which amici relies—a Medicare Benefit

Policy Manual—is particularly unavailing as support for a claim of

federal policy antagonistic to state law. The Medicare statute provides

that “[nJothing in this title shall be construed to authorize any Federal

officer or employee to exercise any supervision or control over the

practice of medicine or the manner in which medical services are

provided.” 42 U.S.C. § 1395 (2000).

22

Far from demonstrating congressional understanding that

physician-assisted suicide was inconsistent with federal law,

the enactment of the Funding Act demonstrates Congress’s

recognition that state legislatures might choose to authorize

assisted suicide. Otherwise, there would be no need to prohibit

use of federal funds. The original sponsor of the bill in the House,

Representative Ralph Hall, explained: “If assisted suicide is

legalized by the Supreme Court or in any individual State, all it

would take [for federal funds to be used] is for one district court

judge to rule that assisted suicide fits under the State’s Medicare

guidelines.” 143 Cong. Rec. H1397, H1403 (1997). This concern

was echoed verbatim by a cosponsor of the Senate bill. 143

Cong. Rec. $3249, $3258 (1997) (statement of Sen. Nickles).

The Funding Act thus demonstrates the Congressional

recognition that states could and might legalize physician-

assisted suicide and that, absent federal legislation, the federal

government might be forced to fund the practice.

Ill. The Regulation Of Physician-Assisted Suicide Is

Within The Core Of The States’ Power And

Competence.

The absence of authorization in the CSA for federal officials

to regulate physician-assisted suicide is not a coincidence. Policy

decisions respecting physician-assisted suicide sit at the

crossroads of moral judgment and medical regulation. Tradition

and constitutional doctrine recognize that decisions in these areas

are properly entrusted to the states.

A. Regulation Of The Practice Of Medicine And

Related Issues Of Medical Ethics Has Traditionally

Fallen To The States.

As this Court has recognized, “States have a compelling

interest in the practice of professions within their boundaries,

and that as part of their power to protect the public health, safety,

and other valid interests, they have broad power to establish

23

standards for licensing practitioners and regulating the practice

of professions.” Goldfarb v. Virginia State Bar, 421 U.S. 773,

792 (1975). The compelling interest that each state has in

regulating professionals operating within its borders has |

particular force in the field of medicine, where the conduct of

professionals relates directly to the core of state police power—

the public health. See Watson v. Maryland, 218 U.S. 173, 176

(1910) (“There is perhaps no profession more properly open to

[state] regulation than that which embraces the practitioners of

medicine.”’).

The uniquely strong interest of states in the regulation of

the practice of medicine is consistent with this Court’s frequent

recognition that such regulation has traditionally been the

province of the states. See Pegram v. Herdrich, 530 U.S. 211,

237 (2000) (health care is “a subject of traditional state

regulation”); Hillsborough County v. Automated Med. Labs.,

471 U.S. 707, 719 (1985) (“the regulation of health and safety

matters is primarily, and historically, a matter of local concern’’);

Barsky v. Bd. Of Regents, 347 U.S. 442, 449 (1954) (“It is

elemental that a state has broad power to establish and enforce

standards of conduct within its borders relative to the health of

everyone there.”). Congress has similarly deferred to the

traditional primacy of state regulation of medicine by providing

in several statutes pertaining to medical matters that nothing in

those statutes should be construed to authorize federal officials

“to exercise supervision or control over the practice of medicine

or the manner in which medical services are provided.”

42 U.S.C. § 1395 (2000) (Medicare); see also 42 U.S.C. § 263a-

2(i)( 1) (2000) (Fertility Success Rate Certification Act of 1992);

21 U.S.C. § 396 (2000) (Food and Drug Administration

Modernization Act of 1997); 21 U.S.C. § 823(g)2)(H)\(i) (2000)

(Drug Addiction Treatment Act of 2000). So strong is the

Congressional recognition of the centrality of state regulation

in this area that Congress requires physicians serving in the

United States military to subject themselves to state licensing

regimes. 10 U.S.C. § 1094 (2000). Even amici writing in support

24

of the Attorney General have been forced to acknowledge that

regulation of the practice of medicine “had always been

considered primarily a state responsibility.” Santorum Br. at 18.

The Attorney General, however, seeks to evade the issue

of which entity has traditionally been empowered to make

decisions with respect to the appropriateness of particular

medical practices. Instead of addressing this issue, the Attorney

General attempts to reframe the question as whether a particular

medical practice has traditionally been authorized by states.

See Gov. Br. at 39. So framed, the question lacks meaningful

content. The power to authorize only medical practices that have

been traditionally authorized is no power at all. This approach,

moreover, would freeze medical practice as it has existed at

some point in the past, and could jeopardize the advancement

of medicine through the use of initially controversial practices.

Similarly, the attempt by the Attorney General and certain

amici to characterize the Dignity Act as inconsistent with a

national consensus on physician-assisted suicide is both

inaccurate and inapposite. To begin, statements of ethical policy

by the American Medical Association—of which approximately

30% of physicians are members'* —and similar organizations

cannot be treated as establishing a national medical consensus

against physician-assisted suicide.'* In fact, a recent national

14. See AMA, Frequently Asked Questions In Ethics, http://

www.ama-assn.org/ama/pub/category/5105.html.

15. The Attorney General is quite selective in his reliance on the

AMA position. The AMA Code of Ethics also prohibits physician

participation in legally authorized executions, including by administering

or overseeing lethal injection. AMA, Code of Ethics § E-2.06,

available at http://www.ama-assn.org/ama/»ub/category/8419. html.

Despite the existence of identical authority in support of a supposed

“national” consensus, the Attorney General has not invoked the CSA to

declare such participation contrary to the public interest as he has with

respect to physician-assisted suicide. Nor would he agree that the AMA

position represents a national consensus on the illegitimacy of execution

by lethal injection.

25

survey of physicians reveals that 71% of physicians support the

legalization of physician-assisted suicide, at least under some

circumstances.'* Another recent national poll of the general

public indicates that, far from reflecting a radical departure from

national norms, authorizing doctors to participate in physician-

assisted suicide for terminally ill patients is consistent

with the policy preference of nearly three-quarters of the public.

See 15 CQ Researcher 18, at 428 (May 13, 2005).'’ Reflective

of these evolving views on this issue, the California legislature

is currently debating a bill virtually identical to Oregon’s Dignity

Act. See California Compassionate Choice Act, 2005-06

Cal. AB No. 654 (Cal. 2005); Nancy Vogel, Oregon Law Fuels

Debate on Suicide, L.A. Times, May 24, 2005, at Al. The

question is being debated in other states as well. /d.

In any event, even if a strong national consensus against

physician-assisted suicide did exist—and it clearly does not—

the opinions of the rest of the country have nothing to do with

whether each state has the presumptive authority to reach its

own decision. That is, after all, the very point—and the genius—

of our federal system.

16. The survey was conducted by the Louis Finklestein Institute

for Social and Religious Research and HCD Research. A plurality (41%)

of physicians endorse legalization of physician-assisted suicide under a

wide range of circumstances, and another 30% support legalization in

“a few cases.” Poll: Majority of Doctors Support Ethics of Physician

Assisted Suicide, Business Wire (Mar. 3, 2005).

17. This Gallup poll, too, reflects evolving attitudes toward the

issue. In 1950, only 26% of Americans supported physician-assisted

suicide for terminally-ill patients; in 2003, 72% of Americans voiced

support.

26

B. This Court Has Recognized That Resolution Of The

Difficult Moral, Practical, And Ethical Questions

Associated With Physician-Assisted Suicide Is

Appropriately Entrusted To The States.

A mere eight years ago, this Court acknowledged that the

difficult questions surrounding physician-assisted suicide could

not easily be resolved. “Throughout the Nation, Americans are

engaged in an earnest and profound debate about the morality,

legality, and practicality of physician assisted suicide.

Our holding permits this debate to continue, as it should in a

democratic society.” Washington v. Glucksberg, 521 U.S. 702,

735 (1997).

As Justice Brandeis famously observed in his dissent in

New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1932),

“i]t is one of the happy incidents of the federal system that a

single courageous State may, if its citizens choose, serve as a

laboratory; and try novel social and economic experiments

without risk to the rest of the country.” See Glucksberg, 521

U.S. at 737 (O’Connor, J., concurring) (“States are presently

undertaking extensive and serious evaluation of physician

assisted suicide and other related issues. In such circumstances,

‘the . . . challenging task of crafting appropriate procedures for

safeguarding .. . liberty interests is entrusted to the ‘laboratory’

of the States ... in the first instance.’” (quoting Cruzan v.

Director, Mo. Dept. of Health, 497 U.S. 261, 292 (1990)

(O’Connor, J., concurring))).

As the current debate in California and debates in other

states throughout the country make clear, the wisdom of

authorizing physicians to assist terminally-ill patients in

hastening their deaths is a matter on which reasonable minds

can and do differ. The Attorney General should not be permitted

to deprive the people of Oregon and the nation the opportunity

to benefit from the ultimate outcome of the “earnest and

profound debate” in which they are engaged.

27

CONCLUSION

Amici urge this Court to affirm the decision below.

Respectfully submitted,

WILLIAM R. STEIN

Counsel of Record

Eric S. PARNES

HuGues Hussparp & Reep LLP

1775 I Street, N.W.

Washington, D.C. 20006-2401

(202) 721-4600

Counsel for Amici Curiae