# Amicus Curiae Brief — Gonzales v. Oregon

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0051%3A29

## Record

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

## Text

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As Originally Enacted, The CSA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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0051%3A29. Public record. Not legal advice.