Roberts Places Himself Firmly In Conservative Camp In Oregon Assisted Suicide Case

Chief Justice John Roberts staked out his position on the first hot button social issue to come before the Supreme Court during his first term on the court, and he came down squarely in the camp of the far-right conservative camp anchored by Justices Antonin Scalia and Clarence Thomas. Roberts was the third dissenting vote in a 6-3 opinion blocking the Justice Department’s attempt to broadly interpret a federal drug control law to criminalize physician-assisted suicide.

The case, Gonzales v. Oregon, involved a state statute authorizing physician-assisted suicide for terminally ill patients. In 1994, Oregon became the first state in the country to adopt a state statute, the Oregon Death With Dignity Act, which permitted a licensed physician to prescribe a lethal dose of drugs upon the request of a patient who has been diagnosed as terminally ill with a life expectancy of no more than six months. Right to lifers not only adamantly oppose abortion in all cases but also oppose the right of terminally ill patients to voluntarily elect to end their lives with dignity with the assistance of a licensed physician. Not surprisingly, right to lifers took aim at the Oregon law.

A statewide referendum to repeal the law failed. Sympathetic members of Congress, including then-U.S. Senator John Ashcroft, sought to get the Drug Enforcement Agency to prosecute physicians in Oregon who assisted their patients pursuant the state statute as a violation of the federal Controlled Substance Act (“CSA”). The CSA regulates the dispensing and prescribing of certain controlled substances by physicians as a means of preventing their use for non-medical purposes. Then-Attorney General Janet Reno ruled that the CSA did not contain broad enough power to authorize the federal government to displace the states as the primary regulators of the medical profession by deeming the practice an unlawful “medical purpose.” Congress, with the support of Ashcroft, tried to legislatively grant the explicit authority Reno found lacking, but the legislation failed to pass.

Sen. Ashcroft was defeated for re-election in 2000, but he was appointed to serve as President Bush’s first Attorney General. Soon after assuming his post, Ashcroft threw out Reno’s interpretive opinion and issued a new interpretive rule respecting physician-assisted suicide. For purposes of the CSA, Ashcroft ruled that “assisting suicide is not a ‘legitimate medical purpose’ within the meaning of [the CSA].” If applied, an Oregon physician could not assist a terminally ill patient with suicide pursuant to the state statute without fear of being prosecuted under federal law for violating CSA.

A federal district court entered a permanent injunction against the enforcement of the Ashcroft rule, and the 9th Circuit Court of Appeals affirmed the ruling by holding that by making the state-authorized medical procedure a federal offense, Ashcroft had upset the usual balance between states and the federal government without a clear statement that the CSA authorized such action, or, alternatively, that the Ashcroft rule did not square with the plain language of the CSA.

As presented to the Supreme Court, the case represented the classical arguments conservative jurists like Roberts, Scalia and Thomas make in interpreting federal power: respecting the rights preserved to the states by the Constitution; avoiding overly broad interpretation of federal statutes that give the government more power than the legislature intended; and strictly interpreting statutes in accordance with their plain text, thereby avoiding judicial activism wherein a judge substitutes his own opinion for the law as written. But instead, we saw the Court’s most conservative jurists borrow the arguments typically relied upon by the Court’s more liberal jurists to reach the end it sought: to criminally outlaw physician-assisted suicide.

Fortunately, the moderate conservatives on the Court, Justices Kennedy and O’Connor would have no part of the conservative bloc’s chicanery. Kennedy wrote the majority opinion, which was joined by O’Connor, Breyer, Ginsburg, Stevens and Souter. In the case presented here which neither involved an interpretation of an ambiguous agency rule or an ambiguous statute, the majority found that the government was not entitled to deference in interpreting the CSA. The majority insisted that such deference is permissible only “when it appears that Congress delegated the authority to the agency generally to make rules carrying the force of law”, and that “the agency interpretation claiming deference was promulgated in the exercise of that authority.”

In this case, Kennedy found that “[t]he specific respects in which the Attorney General is authorized to make rules under the CSA show that he is not authorized to make a rule declaring illegitimate a medical standard for patient care and treatment specifically author­ized under state law.” In nullifying the Ashcroft rule, Kennedy concluded: The Government, in the end, maintains that the pre­scription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it.”

The language of Kennedy’s opinion could have been taken right out of any opinion written by Justices Scalia or Thomas. But the conservative jurists chose to substitute their own personal opposition to physician-assisted suicide, staying true to their right to life views, for what the written law permitted. What we heard from Scalia in his dissent is that the Ashcoft rule was valid because of the “substantial deference we must accord it”, it is a “natural interpretation” of the regulation and “his implicit interpretation of the statutory phrase “public health and safety” are entitled to deference.” The use of these refrains by the Court’s more liberal jurists in their opinions is regularly attacked by Scalia.

So much for Justice Roberts often-made refrain during his confirmation hearing that he was not a “judicial activist.” Just as Advance Indiana predicted after his nomination, Chief Justice Roberts will vote and think just like Rehnquist, Scalia and Thomas. Judging from his position in this case, we have no reason to think differently.