The hot-button issue of physician-assisted suicide will be one of the first to face the Supreme Court in its new term. Justices will hear oral argument in Gonzales v. Oregon on Wednesday, Oct. 5, and the decision could end up being a close one, says Duke University law and political science professor Neil Siegel.
The question in the case, Siegel explained, is whether the federal government can prevent implementation of Oregon's Death with Dignity Act, which legalizes physician-assisted suicide in the state. Former U.S. Attorney General John Ashcroft directed Justice Department officials to effectively kill Oregon's law by using the federal Controlled Substances Act (CSA) to suspend the prescription-writing authority of physicians who assists in a suicide pursuant to state law. The Ninth Circuit invalidated Ashcroft's directive as beyond federal authority to regulate doctors.
"When assisted suicide last came before the Court in 1997 in Washington v. Glucksberg, none of the justices found a constitutional right to death with dignity. But there was a lot of sentiment that this is the kind of issue on which there should be state-by-state experimentation," Siegel said. "But if you believe that prescribing drugs to help end someone's life -- as opposed to trying to preserve life -- is not within the legitimate confines of the practice of medicine, it becomes reasonable for the attorney general to say this is a misuse of state-prescribing authority, and Ashcroft's interpretation of the CSA could be upheld."
Siegel clerked for Justice Ruth Bader Ginsburg during the 2003 Supreme Court term and served as special counsel to U.S. Sen. Joseph Biden in preparation for Senate Judiciary Committee hearings regarding the confirmation of new Chief Justice John Roberts.
Siegel noted that the Oregon case potentially highlights differences in conservative viewpoints.
"There are issue-oriented conservatives who oppose abortion and physician-assisted suicide, and there are 'federalism conservatives' who believe those matters should be dealt with state by state, not as a matter of federal law. Some in the latter group may find unattractive the idea that the federal government is interpreting federal drug law in ways that eviscerate state experiments."
Although the Oregon case involves a technical dispute over the scope of federal law, Siegel finds a parallel to the recent Terri Schiavo case. "Some prominent legal conservatives thought it was absurd for the federal government to get involved, whereas many social conservatives were concerned about the end-of-life issue, saying the federal government should do whatever was needed to preserve Terri Schiavo's life."