192 F.Supp.2d 1077 (D.Or. 2002), Civ. 01-1647, Oregon v. Ashcroft

• Citation: 192 F.Supp.2d 1077
• Party Name: State of OREGON, Plaintiff, and Peter A. Rasmussen; et al., Plaintiff-Intervenors, v. John ASHCROFT, in his official capacity as United States Attorney General; ASA Hutchinson, in his official capacity as Administrator of the Drug Enforcement Administration; Kenneth W. Magee, in his official capacity as Director of the Drug Enforcement Administrati
• Case Date: April 17, 2002
• Court: United States District Courts, 9th Circuit, U.S. District Court — District of Oregon

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192 F.Supp.2d 1077 (D.Or. 2002)

State of OREGON, Plaintiff,

and

Peter A. Rasmussen; et al., Plaintiff-Intervenors,

v.

John ASHCROFT, in his official capacity as United States Attorney General; ASA Hutchinson, in his official capacity as Administrator of the Drug Enforcement Administration; Kenneth W. Magee, in his official capacity as Director of the Drug Enforcement Administration, Portland Office; United States of America; United States Department of Justice; and United States Drug Enforcement Administration, Defendants.

No. CIV. 01-1647-JO.

United States District Court, D. Oregon.

April 17, 2002

Page 1078

Stephen K. Bushong, Trial Division Salem, OR, for Plaintiff.

Eli D. Stutsman, Attorney at Law, Peter H. Koehler, Jr., Tonkon Torp, Todd G. Glass, Heller Ehrman White & McAuliffe, Portland, OR, for Plaintiff-Intervenors.

Craig J. Casey, Assistant United States Attorney, District of Oregon, United States Attorney's Office, Portland, OR, for Defendants.

OPINION AND ORDER

ROBERT E. JONES, District Judge.

INTRODUCTION

After surviving voter and legal challenges, the 1994 Oregon Death with Dignity Act ("Oregon Act"), O.R.S. 127.800 et seq, finally went into effect in October 1997. On November 6, 2001, with no advance warning to Oregon representatives, Attorney General John Ashcroft (herein referred to as "Ashcroft") fired the first shot in the battle between the state of Oregon and the federal government over which government has the ultimate authority to decide what constitutes the legitimate practice of medicine, at least when schedule II substances regulated under the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq, are involved. Ashcroft began the battle by issuing the so-called "Ashcroft directive,"--a few paragraphs published in the Federal Register on November 9, 2001, in which Ashcroft declares, in relevant part, that

· controlled substances may not be dispensed to assist suicide, thus reversing the position taken by his predecessor, Attorney General Janet Reno, in June 1998.

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· assisting suicide is not a "legitimate medical purpose" and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the CSA.

· prescribing, dispensing, or administering federally controlled substances to assist suicide may "render [a physician's] registration * * * inconsistent with the public interest" and therefore subject to possible suspension or revocation under 21 U.S.C. § 824(a)(4).

66 FR 56608 (Nov. 9, 2001).

Through his directive, Ashcroft evidently sought to stifle an ongoing "earnest and profound debate" in the various states concerning physician-assisted suicide. Washington v. Glucksberg, 521 U.S. 702, 735, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). In Glucksberg, the Supreme Court was called upon to decide whether the state of Washington's statutory ban on assisted suicide violated the Due Process Clause. In a thoughtful opinion, the Court acknowledged that "[t]hroughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide." The Court recounted the various states' "serious, thoughtful examinations" of the issues in this difficult debate, including Oregon's 1994 enactment of the Oregon Act. See 521 U.S. at 716-19, 117 S.Ct. 2258. The Court declined to "strike down the considered policy choice" of the State of Washington, deferring instead to that state's resolution of the debate. 521 U.S. at 719, 724, 735, 117 S.Ct. 2258.

In her concurring opinion in Glucksberg, Justice O'Connor further elaborated that

[t]here 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. * * * 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."

Glucksberg, 521 U.S. at 737, 117 S.Ct. 2258 (O'Connor, J., concurring) (citations omitted).

As the Court acknowledged in Glucksberg, the citizens of Oregon, through their democratic initiative process, have chosen to resolve the moral, legal, and ethical debate on physician-assisted suicide for themselves by voting--not once, but twice--in favor of the Oregon Act. The Oregon Act attempts to resolve this "earnest and profound debate" by "strik[ing] 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, 521 U.S. at 737, 117 S.Ct. 2258 (O'Connor, J., concurring).

With publication of the Ashcroft directive, Ashcroft essentially nullified the Oregon Act and four years of Oregon experience in implementing it. In response to what it perceived as an unwarranted and unauthorized intrusion into the sovereign interests of Oregon, the medical practices of Oregon physicians, and the end-of-life decisions made by terminally-ill Oregonians, plaintiff state of Oregon ("plaintiff") immediately commenced this lawsuit to, among other things, enjoin Ashcroft and the other defendants ¹ from giving the

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Ashcroft directive any legal effect. A temporary restraining order, issued on November 8, 2001, remains in effect. ²

Despite the enormity of the debate over physician-assisted suicide, the issues in this case are legal ones and, as pertain to my disposition, are fairly narrowly drawn. My resolution of the legal issues does not require any delving into the complex religious, moral, ethical, medical, emotional or psychological controversies that surround physician-assisted suicide or "hastened death" (as the parties sometimes describe it), because in Oregon, those controversies have been--for now--put to rest.

The case presently is before me on several motions: (1) plaintiff's motion for summary judgment (# 111); (2) intervenors' motions for summary judgment or partial summary judgment (Ë 85, 101); and (3) defendants' motion to dismiss and alternative motion for summary judgment (# 133). For the reasons stated below, I grant plaintiff's and intervenors' motions for summary judgment in part and today enter a permanent injunction enjoining defendants from enforcing, applying, or otherwise giving any legal effect to the Ashcroft directive at issue in this case. Those portions of plaintiff's and intervenors' motions not addressed in this opinion are denied as moot. ³ Defendants' motion to dismiss and alternative motion for summary judgment are denied.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Controlled Substances Act

Congress enacted the CSA, 21 U.S.C. §§ 801-950, as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The CSA provides a comprehensive federal scheme for regulation and control of certain drugs and other substances. The congressional findings supporting Title II reveal that Congress' overarching concern in enacting the CSA was the problem of drug abuse and illegal trafficking in drugs. See 21 U.S.C. § 801.

The CSA establishes five schedules of controlled substances, ranging from schedule I substances, which have no accepted medical use and can be utilized only in very limited contexts, to schedules II, III, IV, and V substances, which have recognized uses and can be manufactured, distributed, possessed and used, subject to the restrictions of the CSA. See 21 U.S.C. §§ 812, 841. The CSA sets forth initial schedules, 21 U.S.C. § 812(c), and specifies procedures by which the Attorney General may add, remove, or transfer substances to or between schedules. 21 U.S.C. § 811.

The CSA makes it unlawful for any person to manufacture, distribute, or dispense any controlled substance "[e]xcept as authorized by [the CSA]." 21 U.S.C. § 841(a)(1). As pertinent in this case, physicians who prescribe controlled substances and pharmacists who fill the prescriptions

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are considered "practitioners" who "dispense" controlled substances. 21 U.S.C.§ 802(10) and (21). To obtain authorization to do so, practitioners must register with the Attorney General and obtain a Drug Enforcement Agency ("DEA") certificate of registration. 21 U.S.C. § 822.

Under the CSA as originally enacted, state-licensed practitioners were entitled to be registered with the DEA as a matter of right. See 21 U.S.C.§ 823(f)(1983)("Practitioners shall be registered to dispense * * * controlled substances in schedule II, III, IV, or V if they are authorized to dispense * * * under the law of the State in which they practice"); see also United States v. Moore, 423 U.S. 122, 140-41, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975)(registration mandatory if applicant authorized under state law). The Attorney General could suspend or revoke a practitioner's registration only if the registrant (1) materially falsified an application; (2) was convicted of a felony relating to controlled substances; or (3) had his or her state license or registration suspended or revoked. See 21 U.S.C. § 824(a)(1983).

Congress has amended the CSA many times since 1970. See Oregon's Memorandum in Support of Motion for Summary Judgment, p. 4 n. 22 (amendments cited). With each amendment, Congress further attempted to address the problems of drug abuse and illegal trafficking in drugs. In 1984, apparently concerned with the domestic diversion of otherwise legitimate medical controlled substances into the illegal market by registered practitioners, Congress again amended the CSA. As pertinent here, the 1984 amendment...