Dr. Assisted Suicide, Yes; Medical Marijuana, No: Sayeth the Court

Today, the US Supreme Court ruled 6-3 that the State of Oregon can allow their doctors to help their terminally ill patients commit suicide. The decision, entitled Gonzales v. Oregon, is initially hard to square with the Supreme Court's earlier decision in mid-2005, Gonzales v. Raich, where essentially the same majority of Justices overturned a California State law that would have allowed doctors to prescribe marijuana as a pain reliever to cancer patients.

The key passage in the majority opinion of Gonzales v. Oregon that distinguishes the Raich holding is here:

"The present dispute [regarding Oregon's assisted suicide law] involves controlled substances listed in Schedule II [of the Controlled Substance Act], substances generally available only pursuant to a written, nonrefillable prescription by a physician. 21 U. S. C. §829(a). A 1971 regulation promulgated by the Attorney General requires that every prescription for a controlled substance "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)." [Brackets added]

Now, let's look at a key passage in Gonzalez v. Raich (2005):

"Marijuana is classified as a Schedule I substance, §812(c), based on its high potential for abuse, no accepted medical use, and no accepted safety for use in medically supervised treatment, §812(b)(1). This classification renders the manufacture, distribution, or possession of marijuana a criminal offense. §§841(a)(1), 844(a). Pp. 6-11."

As I noted to friends at the time of the Raich decision, the time may be right for either a strong lobbying effort to remove marijuana from Schedule I or attempt another run at the US Supreme Court with a full factually based assault on what petitioners could argue is the unreasonableness and arbitrariness of Congress placing marijuana in Schedule I. Perhaps after today's decision upholding Oregon's suicide assistance law, the Supreme Court may be more willing to hear such an argument.

Underneath these decisions is the fight over when federal law trumps state law. Justice Clarence Thomas dissented in Raich because he said the Commerce Clause of the US Constitution does not allow Congress to pass laws that would stop individuals from growing marijuana in their private homes or back yards for private, non-commercial use. Today, just as the majority of justices who overturned the California law switched gears to uphold the Oregon law, Justice Thomas switched sides, too: In Raich, he would have upheld the California law. Today, however, his position was to overturn the Oregon law.

Neither set of Justices are as inconsistent, however, as they may seem. The key is to understand what they view as the overriding question. For the majority, it was whether the drugs involved are in Schedule I or II of the CSA. For Justice Thomas, it is a question of whether there is sufficient evidence of "interstate" commerce for the Congress to regulate the drugs and conduct in question.

The majority of Justices reject Justice Thomas' narrow view of the Commerce Clause, as do I. However, I might have well agreed with the results of Justice Thomas' holdings in the two cases, but for different reasons. With reference to the medical marijuana law in California, I might have found that placing marijuana on Schedule I, while placing drugs that are used to kill people into Schedule II may indicate that Congress may be acting more capriciously than reasonably; thus, the CSA would have to give way to the California law in that instance. Thus, if I found my argument compelling, I would frame the legal question this way: Did Congress act reasonably in wanting to eradicate all use of marijuana to the point where doctors can't prescribe it to cancer patients who then grow it themselves in their own back yard?

Regarding the Oregon law, I may have given more deference to the the US Attorney General (per the CSA law) in his determination that the use of drugs to intentionally kill people is something that would cause the type of harm that the CSA intended to outlaw, i.e. death. This is particularly so when most offical medical opinion, starting with the American Medical Association, has continued to conclude as follows: ""Physician-assisted suicide is fundamentally incompatible with the physician's role as a healer." (See: Scalia's dissenting opinioin in Gonzales v. Oregon). While the majority provides its own medically based reasons, this statement by the AMA clearly calls into question the majority's conclusion as to whether doctor assisted suicide is, in the words of Schedule II's regulations, "a legitimate medical purpose."

From a public policy or political standpoint, I admit to being of two minds regarding assisted suicide. Having watched elderly relatives who had pain in nearly every waking moment, a fairly strong part of me, as a voter or legislator, would support the Oregon law. On the other hand, again as a voter or legislator, I remain concerned that a nation that does not provide health insurance as a right for every American is a nation that should not have "suicide assistance" laws--particularly when poor or not well off individuals may find an economic incentive to seek assisted suicide: The "incentive" being that they do not want to economically burden their families. If we don't think a widespread passing of laws such as the one in Oregon would have that effect, then we are being, frankly, naive.

Anyway, that's my take on the decision from a judicial and legislative policy perspective.

(Edited)