No. 04–623





Argued February 23, 2006 — Decided March 17, 2006




            The Controlled Substances Act of 1970 (“CSA”) provides the Federal Government with a mechanism to regulate legitimate and illegitimate channels of substances in order to combat drug abuse.  Under the CSA there are five schedules under which drugs are classified that determine the accessibility and use of a substance in relation to its addictive properties and efficacy for prescription by a doctor for a ‘legitimate medical purpose.’  The Attorney General is authorized to add, remove or reschedule substances but must accept the findings of the Secretary of Health and Human Services on scientific and medical matters.

            The Oregon Death With Dignity Act (ODWDA), passed by popular referendum in 1994 and surviving a repeal effort in 1997, provides for physicians to prescribe lethal doses of Schedule II substances while meeting the safeguard standards that prevent abuse of the program by those who are mentally incompetent.  In 2001, the Attorney General issued an Interpretive Rule declaring that physician-assisted suicide is not in keeping with a ‘legitimate medical purpose’ and that prescribing Schedule II substances for that purpose is unlawful and will be prosecuted.  This Interpretive Rule was challenged by Oregon and the District Court enjoined the Attorney General from enforcing the Rule.  The Ninth Circuit Court of Appeals then invalidated the rule, finding that it was inconsistent with the language outlined in the CSA and its purpose to combat recreational drug abuse.


Held:  The authority claimed by the Attorney General exceeds the scope of federal authority as determined by the text of the CSA and legislative history and the Interpretive Rule is thus inconsistent with the intent and language of the Act.  Furthermore, the Court reaffirms the implicit existence of the ability of an individual to maintain autonomy over one’s own body and regard the sanctity of life regarding intimate and personal decisions in medical care as acknowledged in Washington v. Glucksberg, 521 U.S. 702 (1997), without specifically recognizing the explicit ‘right to die’ as protected under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.  Affirmed.


ELDREDGE-BURNS, J., delivered the opinion of the Court, in which POWERS, J., joined.  POWERS, J., filed a concurring opinion, in which ELDREDGE-BURNS, J., joined and HANSON, J. joined in part and dissented in part.





I. ELDREDGE-BURNS, J., delivered the opinion of the Court, in which POWERS, J., joins.


The question before us is whether the Controlled Substances Act of 1970 allows the Attorney General to regulate state medical practices, specifically Oregon state’s regulation permitting doctors to prescribe lethal doses of Schedule II drugs under the state’s physician-assisted suicide law.

In 1970 Congress passed the Controlled Substances Act in an attempt to address the growth of drug abuse, addiction and trafficking. Included in the statute, medical practitioners must register with the Attorney General in order to prescribe certain controlled substances. Said substances must "be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." 21 CFR §1306.04(a) (2005). In 1994 Oregon voters enacted state legislation enabling physicians, through a detailed process, to prescribe a lethal dose of Schedule II substances to terminally ill patients of a sound mind who are within six months of death.

In 2001, United States Attorney General John Ashcroft issued a directive which stated that, "assisting suicide is not a 'legitimate medical purpose' within the meaning of 21 CFR 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the Controlled Substances Act. Such conduct by a physician registered to dispense controlled substances may 'render his registration . . . inconsistent with the public interest' and therefore subject to possible suspension or revocation under 21 U. S. C. 824(a)(4).”

The Court finds that the CSA does not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure.

            The Attorney General exceeds the scope of his federal authority as determined by the text of the CSA and legislative history. The CSA enables the Attorney General to add, remove, or re-schedule substances on one of five schedules based on their potential for abuse and dependence, their accepted medical use and their accepted safety for use under medical supervision. The dispute involves Schedule II substances which require prescriptions, “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice,” 21 C.F.R § 811.

No clear language can be found in the statute that supports the Attorney General’s interpretation of his duties. CSA expressly limits federal authority to the field of drug abuse. Legislative history reinforces the limitations of the federal power of the CSA. When the federal power of the CSA was enacted, “Congress was concerned with the diversion of drugs out of legitimate channels of distribution, United States v. Rosenberg, 515 F. 2d 190, 193 (9th Cir. 1975). The CSA explicitly contemplates a role for the States in regulating controlled substances as evidenced by its pre-emption provision. “No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates…to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision…and that state law so that the two cannot consistently stand together.” § 903.

No clear language can be found conveying Congress’ intent for CSA beyond the “field of drug abuse.” As the 9th Circuit Court notes, if a “statute is ambiguous or that statutory language does not resolve an interpretive issue, our approach to statutory interpretation is to look to legislative history” SEC v. McCarthy, 322 F. 3d 650, 655 (9th Cir. 2003). It is well established by legal precedent that the Attorney General’s interpretation of the CSA would challenge the states’ traditional sovereignty to control medical issues. To allow an Attorney General-an appointed executive whose tenure depends on entirely on whatever administration occupies the White House-to determine the legitimacy of a particular medical practice without a specific congressional grant of such authority would be unprecedented.

There is no “clear statement” of intent in the body of the CSA that gives the Attorney General the authority to regulate the states’ approved medical practices. The act does not expressly and unmistakably delegate authority to the Attorney General to override state law or define ‘public interest’ or ‘legitimate medical purpose’. This Court has consistently affirmed the rights of States to regulate the medical profession and a unilateral attempt to regulate medical practice historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide.

Federal statute must remain true to its clear Intent and meaning and the CSA clearly defers to the states. In Gade v. National Solid Waste, it was established that, “the 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 standards for licensing practitioners and regulating the practice of professions.” Since 1889 the Supreme Court has affirmed the rights of States to regulate the medical profession. Dent v. West Virginia. In Kansas v. Hendricks, 521 U.S. 346, 359 (1997), Justice Thomas emphasized that this Court has traditionally, “left to [state] legislators the task of defining terms of a medical nature that have legal significance.”

This court also ruled in United States v. Bass, 104 U.S. 336. 349 (1971) that in, “traditionally sensitive areas, such as legislation affecting sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assure that the legislature has in fact faced and intended to bring into issue the critical matters involved in judicial decision”. There is no clear evidence in the text of the CSA to suggest that Congress intended the Attorney General to define the terms of the statue, which conflict with State law.

It has been well established that the Attorney General’s interpretation of the CSA exceeds his authority and the right of States to regulate medical practices. In the specific instance of Vacco v. Quill, 521 U.S 793, 798 (1997) this Court stated, “under the United States Constitution and the federal system it establishes, the resolution of this issue is left to the normal democratic processes within the State.” For these reasons, the decision of the Ninth Circuit Court of Appeals is


IIA. POWERS, J., filed a concurring opinion, in which ELDREDGE-BURNS, J. and HANSON, J., joins.


There is no clear language or precedent supporting an explicit ‘right to die’, but this does not mean that the absence of such an unequivocal entitlement precludes State actors from developing programs, such as physician-assisted suicide, with safeguards to prevent abuse. This Court today reaffirms the authority of the States to determine and regulate medical practices concerning decisions made by individuals in preservation of their dignity and autonomy regarding medical care. 

This Court is not unfamiliar to jurisprudence regarding the individual liberty vitally involved in medical care, just as this Court has found compelling state interests in preventing suicide and ensuring that medical decisions are conducted and chosen in a mentally competent manner.  In Washington  v. Glucksberg, 521 U.S. 702 (1997), which involved physicians interested in providing for terminally-ill patients’ desires for hastened death, we held that the State of Washington had a legitimate interest in minimizing and criminalizing the assistance of suicide and did not violate the Due Process Clause of the Fourteenth Amendment in doing so.  Here we concluded that a ‘right to die’ is not among the unenumerated rights protected by that guarantee: Justice Stevens noted that the Clause “does not include a categorical right to commit suicide which itself includes a right to assistance in doing so”, Glucksberg, 521 U.S. at 740 (STEVENS, J., CONCURRING).  However, while Glucksberg demonstrated there might not be an explicit ‘right to die’ alongside other constitutional protections, this Court maintained in that same decision that a State must acknowledge situations in which there is an interest in hastening the death of an individual to protect the sanctity of life, Id.   Oregon, under ODWDA, has acknowledged such interests and provided for measures to guard against the abuse of a physician-assisted suicide program. In order to determine whether the program sufficiently achieves its goal of ‘death with dignity’ to the terminally ill without destroying the lives of the mentally incompetent, we must observe two critical factors in this case. The first is the applicability of the Attorney General’s Interpretive Rule under CSA.  The second is the extent to which terminally-ill individuals seeking a hastened death have the autonomy to make such decisions without outright governmental prohibition of practices that facilitate these choices.  I will expand upon the latter.

It has been shown that the prescription of “Schedule II” controlled substances by physicians is regulated by the Federal government to prevent drug trafficking and recreational drug use, not to prevent treatment or to interfere with the medical choices of a patient.  The CSA intends to combat recreational drug use, United States v. Rosenberg, 515 F.2d 190, 193 (9th Cir. 2003), and provides the Attorney General with the authority to register and control the substances that are regulated under the CSA, 21 U. S. C. §871(b).  This authority does not include the ability to the Attorney General to limit practices thought controversial or immoral, and Petitioners err in seeking to locate such broad authority in the Attorney General and his interpretations.  This would apply to doctors if they used their privilege to prescribe “Schedule II” substances as a means for drug trafficking or dealing and the profits derived from such illegitimate activity, as this Court recognized in United States v. Moore, 423, U.S. 122 (1975).

Though there is not an unenumerated ‘right to die’ protected by the Fourteenth Amendment, as noted in Gluckberg,  there are significant liberty interests in the individual’s choices regarding medical care that require more than the morality of one Executive official.  In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), we held that “[o]ur obligation is to define the liberty of all, not to mandate our own moral code”.  In the absence of laws proscribing assisted suicide, states may accommodate the liberty interests of terminally ill individuals to preserve their autonomy and sanctity of life in seeking medical care.  JUSTICE GINSBURG aptly describes the weighing of these liberty interests and state interests: “there is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State's interests in protecting those who might seek to end life mistakenly or under pressure”, Glucksberg, 512 U.S. at 737 (GINSBURG, J., CONCURRING).  Oregon, under a statute voted into law twice by popular referenda, has fulfilled this democratic process and found this careful equilibrium between the recognition that terminally ill individuals make intimate, personal choices regarding how they end their lives and the potential abuse for an assisted suicide program by incompetent individuals and physicians.  Because of the liberty interests invoked in end-of-life decisions, the choice of physician-assisted suicide would likely fall under the private sphere of liberty that is to remain free of government interference as recognized by this Court in Lawrence v. Texas, 539 U.S. 558 (2003).


            It is also because of the finality of death and prospect for abuse by the mentally incompetent that the respondents are not completely persuasive in their attempt to locate a ‘right to die as one chooses’, Resp. Brief at 9, within the Due Process Clause of the Fourteenth Amendment and its protections to liberty interests as defined in Casey and Lawrence.  This is also true of their argument that the right to refuse treatment as recognized under Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, is coterminous with the active assistance of physicians in prescribing the means of suicide for terminally ill individuals: the refusal of treatment could certainly be seen as the absence of physician-assisted suicide in many cases, with a drawn-out death rather than a hastened one.  However, similar to physician assistance in abortion, the lack of professional assistance in the hastening of a death will result in “crude and confined methods of death, most shocking and painful to the decedent’s survivors”, Glucksberg, 512 U.S. at 778 (SOUTER, J., CONCURRING) and thus doctors provide the expertise necessary to facilitate such a hastening.  Here, doctors do more than provide a technical knowledge; they minister the whole body and help the terminally ill individual exercise autonomy over their own bodies, and this exercise of autonomy is acceptable—indeed, vital—under the Constitution, Id., and therefore cannot be interfered with by the Attorney General under the pretense of the CSA. 

We find that the Attorney General’s Interpretive Rule under the CSA cannot apply to Oregon’s regulation of physician-assisted suicide under ODWDA because this program sufficiently balances liberty interests with the potential abuse of such a program and the substances it involves, and hereby further recognize individual autonomy as outlined in the concurring opinions of Glucksburg.

Part IIB. POWERS, J. in which ELDREDGE-BURNS, J. joins. 


Because of the terrifying consequences that an abuse of this program would constitute, we stop short today of overturning all state prohibitions on assisted suicide, physician or otherwise.


Hanson dissenting in part


I dissent in that 1) I do not think it is necessary for the Court to address the Attorney General’s authority in determining the legitimate uses of Schedule II substances and hence I take no part in that aspect of this decision. 2) I find that states may not prohibit assisted suicide. While the majority is correct that states must have latitude to regulate such acts, an absolute prohibition violates the “sphere of liberty” which the Lawrence decision so rightly emphasized.