b'Whether Physician-Assisted Suicide Serves a\n\xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d Under DEA Regulations\nA physician\xe2\x80\x99s assisting in a patient\xe2\x80\x99s suicide, even in a manner permitted by state law, is not a\n\xe2\x80\x9clegitimate medical purpose\xe2\x80\x9d within the meaning of a Drug Enforcement Agency regulation, and\naccordingly dispensing controlled substances for this purpose violates the Controlled Substances\nAct, which the DEA regulation implements.\n\nJune 27, 2001\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nI. Background ...................................................................................................... 136\nII. Physicians Are Regulated Under the Controlled Substances Act ................... 137\nIII. Dispensing Controlled Substances to Assist in Suicide Does Not Serve a\n\xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d........................................................................ 140\nA. Case Law ................................................................................................. 140\nB. State and Federal Policy .......................................................................... 142\nC. Views of the Medical and Nursing Professions ....................................... 145\nIV. The Existence of a State Law Permitting Physician-Assisted Suicide\nDoes Not Immunize a Physician from the General Requirements of the\nCSA ................................................................................................................ 150\nV. The CSA Contemplates Concurrent Federal and State Regulation of\nMedical Practices Involving Controlled Substances....................................... 152\nVI. The CSA\xe2\x80\x99s Preemption Provision Is Consistent with This Interpretation ..... 155\nVII. The DEA Had the Authority to Promulgate and Interpret a Regulation\nConcerning Whether Dispensing a Controlled Substance Has a\n\xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d........................................................................ 157\nVIII. Conclusion .................................................................................................. 160\nYou have asked for our opinion whether a physician who assists in a patient\xe2\x80\x99s\nsuicide by prescribing a controlled substance has a \xe2\x80\x9clegitimate medical purpose\xe2\x80\x9d\nwithin the meaning of a regulation of the Drug Enforcement Administration\n(\xe2\x80\x9cDEA\xe2\x80\x9d), 21 C.F.R. \xc2\xa7 1306.04(a) (2000), 1 if the physician is immune from liability\n1\nThe DEA regulation was promulgated pursuant to a delegation of the Attorney General\xe2\x80\x99s broad\nauthorities under the Controlled Substances Act, 21 U.S.C. \xc2\xa7\xc2\xa7 801-971 (1994 & Supp. II 1996) (the\nCSA or Act), to \xe2\x80\x9cpromulgate rules and regulations . . . relating to the registration and control of the\nmanufacture, distribution and dispensing of controlled substances and to the registration and control of\nregulated persons and of regulated transactions,\xe2\x80\x9d 21 U.S.C. \xc2\xa7 821, and to \xe2\x80\x9cpromulgate and enforce any\nrules, regulations, and procedures which he may deem necessary and appropriate for the efficient\nexecution of his functions under this [title].\xe2\x80\x9d Id. \xc2\xa7 871(b). See also id. \xc2\xa7 871(a) (authority of Attorney\nGeneral to delegate CSA functions); 28 C.F.R. \xc2\xa7 0.100 (2000) (delegation to DEA); Touby v. United\n\n135\n\n227-329 VOL_25_PROOF.pdf 145\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nunder a state law such as the Oregon \xe2\x80\x9cDeath with Dignity Act\xe2\x80\x9d for assisting in a\nsuicide in such a manner. 2 In our view, assisting in suicide, even in a manner\npermitted by state law, is not a \xe2\x80\x9clegitimate medical purpose\xe2\x80\x9d under the DEA\nregulation, and accordingly dispensing controlled substances for this purpose\nviolates the Controlled Substances Act, which the DEA regulation implements.*\nI. Background\nThe Oregon \xe2\x80\x9cDeath with Dignity Act,\xe2\x80\x9d which legalized physician-assisted\nsuicide under certain circumstances, was originally approved by Oregon voters on\nNovember 8, 1994, and went into effect on October 27, 1997. 3 Prior to the\neffective date of the Oregon law, Representative Henry J. Hyde, Chairman of the\nHouse Judiciary Committee, and Senator Orrin G. Hatch, Chairman of the Senate\nJudiciary Committee, wrote to the Administrator of the DEA, Thomas A. Constantine, requesting a determination whether the CSA prohibits the use of controlled\nsubstances for the purpose of assisting in a suicide. 4\nAdministrator Constantine replied on November 5, 1997, concluding \xe2\x80\x9cthat\ndelivering, dispensing or prescribing a controlled substance with the intent of\nassisting a suicide would not be under any current definition a \xe2\x80\x98legitimate medical\npurpose\xe2\x80\x99\xe2\x80\x9d and thus would violate the CSA. 5\n\nStates, 500 U.S. 160, 169 (1991) (upholding Attorney General\xe2\x80\x99s authority to delegate CSA functions to\nDEA).\n2\nThe \xe2\x80\x9cDeath with Dignity Act\xe2\x80\x9d is codified at 3 Oregon Revised Statutes (O.R.S.) \xc2\xa7\xc2\xa7 127.800127.995 (1999).\n*\nEditor\xe2\x80\x99s Note: Relying upon the analysis set forth in this memorandum opinion, the Attorney\nGeneral subsequently promulgated an interpretive rule, which provided that \xe2\x80\x9cassisting suicide is not a\n\xe2\x80\x98legitimate medical purpose\xe2\x80\x99 within the meaning of 21 C.F.R. \xc2\xa7 1306.04 (2001), and that prescribing,\ndispensing, or administering federally controlled substances to assist suicide violates the Controlled\nSubstances Act.\xe2\x80\x9d 66 Fed. Reg. 56,607, 56,608 (Nov. 9, 2001). In Gonzales v. Oregon, 546 U.S. 243\n(2006), the Supreme Court held that the Attorney General was not statutorily authorized to issue the\ninterpretive rule. Id. at 274-75.\n3\nOn the circumstances surrounding the adoption of the Oregon \xe2\x80\x9cDeath with Dignity Act\xe2\x80\x9d and a\ndescription of its provisions, see generally Mark C. Siegel, Lethal Pity: The Oregon Death With\nDignity Act, Its Implications for the Disabled, and the Struggle for Equality in an Able-Bodied World,\n16 Law & Ineq. 259, 270- 76 (1998).\n4\nLetter for Thomas A. Constantine, Administrator, Drug Enforcement Administration, from Henry\nJ. Hyde, Chairman, Committee on the Judiciary, U.S. House of Representatives, and Orrin G. Hatch,\nChairman, Committee on the Judiciary, U.S. Senate (July 25, 1997), reprinted in S. Rep. No. 105-372,\nat 7 n.6 (1988) (\xe2\x80\x9cHyde Letter\xe2\x80\x9d) (\xe2\x80\x9cIn our view, assisting in a suicide by prescribing or filling a\nprescription for a controlled substance cannot be a \xe2\x80\x98legitimate medical purpose\xe2\x80\x99 under DEA regulations, especially when the practice is not reasonable and necessary to the diagnosis and treatment of\ndisease and injury, legitimate health care, or compatible with the physician\xe2\x80\x99s role as healer.\xe2\x80\x9d).\n5\nLetter for Orrin G. Hatch, Chairman, Committee on the Judiciary, U.S. Senate, from Thomas A.\nConstantine, Administrator, Drug Enforcement Administration at 1-2 (Nov. 5, 1997), reprinted in\nS. Rep. No. 105-372, at 8 n.9 (1998) (\xe2\x80\x9cConstantine Letter\xe2\x80\x9d).\n\n136\n\n227-329 VOL_25_PROOF.pdf 146\n\n10/22/12 11:10 AM\n\n\x0cWhether Physician-Assisted Suicide Serves a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\n\nWithin a month, the Oregon Deputy Attorney General, David Schuman, wrote\nto the United States Department of Justice on December 3, 1997, arguing that \xe2\x80\x9cthe\nCSA is addressed to the problems of the abuse and trafficking of controlled\nsubstances. In enacting and later amending the CSA, Congress had no intention of\nregulating medical practices that are legal under state law and that have no relation\nto drug abuse or trafficking.\xe2\x80\x9d 6 Deputy Attorney General Schuman concluded that\nthe DEA had no authority to regulate medical practices authorized by state law and\nunrelated to drug abuse or trafficking.\nOn June 5, 1998, Attorney General Janet Reno reversed the interpretation of\nDEA Administrator Constantine, concluding that \xe2\x80\x9cthe CSA does not authorize\nDEA to prosecute, or to revoke the DEA registration of, a physician who has\nassisted in a suicide in compliance with Oregon law.\xe2\x80\x9d Specifically, Attorney\nGeneral Reno stated: \xe2\x80\x9cThere is no evidence that Congress, in the CSA, intended to\ndisplace the states as the primary regulators of the medical profession, or to\noverride a state\xe2\x80\x99s determination as to what constitutes legitimate medical practice\nin the absence of a federal law prohibiting that practice.\xe2\x80\x9d 7\nII. Physicians Are Regulated Under the Controlled Substances Act\nThe basic domestic drug trafficking provision of the CSA, 21 U.S.C. \xc2\xa7 841,\ngoverns physicians\xe2\x80\x99 prescriptions of controlled substances. Section 841(a)(1)\nmakes it unlawful for \xe2\x80\x9cany person knowingly or intentionally . . . to . . . dispense, a\ncontrolled substance.\xe2\x80\x9d The term \xe2\x80\x9cdispense\xe2\x80\x9d is defined to \xe2\x80\x9cmean[] to deliver a\ncontrolled substance to an ultimate user . . . by, or pursuant to the lawful order of,\na practitioner . . . .\xe2\x80\x9d 21 U.S.C. \xc2\xa7 802(10). A \xe2\x80\x9cpractitioner\xe2\x80\x9d includes a \xe2\x80\x9cphysician . . . licensed, registered, or otherwise permitted, by the United States or the\njurisdiction in which he practices . . . to . . . dispense . . . a controlled substance in\nthe course of professional practice.\xe2\x80\x9d Id. \xc2\xa7 804(21).\nAlthough section 841(a)(1) generally prohibits the dispensing of controlled\nsubstances, the statute does permit such action if \xe2\x80\x9cauthorized by this subchapter.\xe2\x80\x9d\n21 U.S.C. \xc2\xa7 841(a). One such form of authorization is found in the CSA\xe2\x80\x99s\nprovisions dealing with physician \xe2\x80\x9cregistration.\xe2\x80\x9d See id. \xc2\xa7 822(b) (\xe2\x80\x9cPersons\nregistered by the Attorney General . . . to . . . dispense controlled substances . . .\nare authorized to . . . dispense such substances . . . to the extent authorized by their\nregistration and in conformity with the other provisions of this subchapter.\xe2\x80\x9d).\n6\nLetter for Jonathan Schwartz, Principal Associate Deputy Attorney General, United States, from\nDavid Schuman, Deputy Attorney General, Oregon at 7 (Dec. 3, 1997) (\xe2\x80\x9cOregon Deputy Attorney\nGeneral Letter\xe2\x80\x9d).\n7\nLetter for Henry J. Hyde, Chairman, Committee on the Judiciary, U.S. House of Representatives,\nfrom Janet Reno, Attorney General at 1 (June 5, 1998), reprinted in S. Rep. No. 105-372, at 9 n.10\n(1998) (\xe2\x80\x9cReno Letter\xe2\x80\x9d) (\xe2\x80\x9cAdverse action against a physician who has assisted in a suicide in full\ncompliance with the Oregon Act would not be authorized by the [CSA]\xe2\x80\x9d).\n\n137\n\n227-329 VOL_25_PROOF.pdf 147\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nPhysicians may apply to the DEA (which acts here as the Attorney General\xe2\x80\x99s\ndelegate) for registration permitting them to prescribe and administer controlled\nsubstances. Section 823(b) provides that the DEA shall register qualified applicants unless it \xe2\x80\x9cdetermines that . . . such registration is inconsistent with the public\ninterest.\xe2\x80\x9d This determination is to be based on any of five factors identified in the\nstatute, including \xe2\x80\x9csuch other factors as may be relevant to and consistent with the\npublic health and safety.\xe2\x80\x9d Id. \xc2\xa7 823(b)(5).\n\xe2\x80\x9c[T]he scheme of the [CSA], viewed against the background of the legislative\nhistory, reveals an intent to limit a registered physician\xe2\x80\x99s dispensing authority to\nthe course of his \xe2\x80\x98professional practice.\xe2\x80\x99 . . . Implicit in the registration of a\nphysician is the understanding that he is authorized only to act \xe2\x80\x98as a physician.\xe2\x80\x99 . . .\n[R]egistration is limited to the dispensing and use of drugs \xe2\x80\x98in the course of\nprofessional practice or research.\xe2\x80\x99 Other provisions throughout the Act reflect the\nintent of Congress to confine authorized medical practice within accepted limits.\xe2\x80\x9d\nUnited States v. Moore, 423 U.S. 122, 140-42 (1975). Although section 841(a)\ndoes not, in terms, state that a physician is authorized to dispense controlled\nsubstances only for a legitimate medical purpose, that limitation appears to be\nimplicit in the statute, see Moore, 423 U.S. at 137 n.13, and has been made explicit\nby DEA regulation. 8 The relevant regulation reads:\nA prescription issued for a controlled substance to be effective\nmust be issued for a legitimate medical purpose by an individual\npractitioner acting in the usual course of his professional practice . . . . An order purporting to be a prescription issued not in the\nusual course of professional treatment or in legitimate and authorized\nresearch is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. 829) and the person knowingly filling\nsuch a purported prescription, as well as the person issuing it, shall\nbe subject to the penalties provided for violations of the provisions\nof law relating to controlled substances.\n21 C.F.R. \xc2\xa7 1306.04(a) (emphasis added).\nWhere a physician dispenses controlled substances without a \xe2\x80\x9clegitimate medical purpose\xe2\x80\x9d under 21 C.F.R. \xc2\xa7 1306.04(a), the physician violates several provisions of the CSA, including sections 829 and 841(a)(1). If such dispensing without\na legitimate medical purpose is proven in a criminal case, the physician may be\nsubject to criminal penalties under 21 U.S.C. \xc2\xa7\xc2\xa7 841(a)(1) (felony) and 842(a)(1)\n8\nThe courts have found no distinction between the statutory phrase \xe2\x80\x9cin the course of professional\npractice\xe2\x80\x9d and the regulatory phrase \xe2\x80\x9clegitimate medical purpose.\xe2\x80\x9d See United States v. Rosenberg, 515\nF.2d 190, 193 (9th Cir. 1975), cert. denied, 423 U.S. 1031 (1975); cf. United States v. Kirk, 584 F.2d\n773, 784 (6th Cir. 1978), cert. denied, 439 U.S. 1048 (1978); United States v. Plesons, 560 F.2d 890,\n897 n.6 (8th Cir. 1977), cert. denied, 434 U.S. 966 (1977).\n\n138\n\n227-329 VOL_25_PROOF.pdf 148\n\n10/22/12 11:10 AM\n\n\x0cWhether Physician-Assisted Suicide Serves a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\n\n(misdemeanor). See Moore, 423 U.S. at 131 (holding that registered physician can\nbe prosecuted and convicted under section 841(a)(1) for dispensing controlled\nsubstances outside the usual course of professional practice). Even without a\ncriminal prosecution or conviction, the DEA may initiate administrative proceedings to suspend or revoke the registration of a physician based on evidence that the\nphysician dispensed controlled substances without a legitimate medical purpose\nunder 21 C.F.R. \xc2\xa7 1306.04(a). In an administrative proceeding, the government\nmust prove, by a preponderance of the evidence, that the physician dispensed in\nviolation of section 1306.04(a), and that, as a result, the physician\xe2\x80\x99s continued\nregistration would be inconsistent with the public interest. See 21 U.S.C.\n\xc2\xa7 824(a)(4) (applying public interest standard of section 823(f) to administrative\nproceedings for suspension or revocation of registration granted under section 823); see generally Robert G. Hallermeier, M.D., Continuation of Registration with Restrictions, 62 Fed. Reg. 26,818 (1997) (administrative proceeding in\nwhich DEA sought revocation of physician\xe2\x80\x99s federal registration). 9 Nothing in the\nlanguage of the CSA or of the relevant DEA regulations requires that the physician\nbe shown to have violated state law in order to be subject to criminal sanctions\nunder sections 829 or 841(a), or to suspension or revocation of federal registration\nunder section 824(a)(4). Indeed, of the five separate grounds listed in section\n824(a)(4) for adverse administration action, only two directly concern state law\nsanctions.10 Further, as we shall discuss in detail below, Congress added the\n\xe2\x80\x9cpublic interest\xe2\x80\x9d standard in section 824(a)(4) in order to permit the Attorney\nGeneral to take adverse administrative action against a registrant in cases in which\nthe registrant\xe2\x80\x99s wrongful conduct might not have been sanctioned or sanctionable\nunder state law.\n\n9\nWe note that practitioners have lost or been denied federal registrations necessary to prescribe\ncontrolled substances because they have prescribed controlled substances used in suicides and other\nlethal overdoses. See, e.g., Hugh I. Schade, M.D., Denial of Application, 60 Fed. Reg. 56,354 (1995);\nJos\xc3\xa9 R. Castro, M.D., Denial of Application, 62 Fed. Reg. 16,189 (1997 ); Samuel Fertig, M.D., Denial\nof Application, 49 Fed. Reg. 6577 (1984); Murray J. Walker, M.D., Revocation of Registration, 55 Fed.\nReg. 5306 (1990); see also Townwood Pharmacy, Revocation of Registration, 63 Fed. Reg. 8477\n(1998).\n10\nSection 824(a)(2) authorizes the Attorney General to suspend or revoke a registration upon a\nfinding that the registrant \xe2\x80\x9chas been convicted of a felony under . . . any . . . law . . . of any State,\nrelating to any . . . controlled substance,\xe2\x80\x9d while section 824(a)(3) authorizes such action if the registrant\n\xe2\x80\x9chas had his State license or registration suspended, revoked, or denied . . . and is no longer authorized\nby State law to engage in . . . dispensing . . . controlled substances . . . or has had the suspension,\nrevocation, or denial of his registration recommended by competent State authority.\xe2\x80\x9d\n\n139\n\n227-329 VOL_25_PROOF.pdf 149\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nIII. Dispensing Controlled Substances to Assist in Suicide Does Not\nServe a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\nWe understand that physician-assisted suicide typically involves the use of a\nlethal dose of a combination of drugs, including controlled substances. First, the\npatient is sedated using either a barbiturate (e.g., sodium pentothal), or an opiate\n(e.g., morphine). Then, one or more drugs are used to paralyze the muscles and/or\nto stop the heart. The sedatives involved in these procedures are controlled\nsubstances under the CSA. Most lawfully available opiates and barbiturates are in\nSchedule II of the CSA, the most strictly regulated category of substances\navailable for non-research purposes. See 21 C.F.R. \xc2\xa7 1308.12(b), (c), (e) (2000).\nIn our opinion, assisting in suicide is not a \xe2\x80\x9clegitimate medical purpose\xe2\x80\x9d within\nthe meaning of 21 C.F.R. \xc2\xa7 1306.04(a) that would justify a physician\xe2\x80\x99s dispensing\ncontrolled substances. That interpretation, which the DEA itself originally adopted\nbefore being overruled by Attorney General Reno, is the best reading of the\nregulatory language: it is firmly supported by the case law, by the traditional and\ncurrent policies and practices of the federal government and of the overwhelming\nmajority of the states, and by the dominant views of the American medical and\nnursing professions.\nA. Case Law\nThe case law demonstrates that the CSA forbids dispensing controlled substances except in the course of accepted medical practice, and that physicianassisted suicide is outside the boundaries of such practice.\nIn Moore, the Supreme Court in effect approved a jury instruction under which\na physician would be held criminally liable for dispensing controlled substances in\nviolation of 21 U.S.C. \xc2\xa7 841(a) unless the physician was acting \xe2\x80\x9cin the usual\ncourse of professional practice and in accordance with a standard of medical\npractice generally recognized and accepted in the United States.\xe2\x80\x9d Moore, 423 U.S.\nat 139. The lower courts have followed Moore in requiring that a physician\xe2\x80\x99s\nactions conform to standards \xe2\x80\x9cgenerally recognized and accepted\xe2\x80\x9d throughout the\nnation. For example, in United States v. Vamos, 797 F.2d 1146, 1153 (2d Cir.\n1986), the court stated that:\nTo permit a practitioner to substitute his or her views of what is good\nmedical practice for standards generally recognized and accepted in\nthe United States would be to weaken the enforcement of our drug\nlaws in a critical area. As the Supreme Court noted in Moore, \xe2\x80\x9cCongress intended the CSA to strengthen rather than weaken the prior\ndrug laws.\xe2\x80\x9d\n\n140\n\n227-329 VOL_25_PROOF.pdf 150\n\n10/22/12 11:10 AM\n\n\x0cWhether Physician-Assisted Suicide Serves a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\n\nAs the courts have found, physician-assisted suicide has never been, and is not\nnow, a generally recognized and accepted medical practice in the United States.\nOn the contrary, the American legal system and the American medical profession\nalike have consistently condemned the practice in the past and continue to do so.\nIn Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court upheld\na state prohibition against causing or aiding a suicide against a challenge that, as\napplied to physicians assisting terminally ill, mentally competent patients, the\nprohibition offended the requirements of substantive due process. See id. at 709\nn.6 (describing holding). The Court began its analysis by examining \xe2\x80\x9cour Nation\xe2\x80\x99s\nhistory, legal traditions, and practices,\xe2\x80\x9d id. at 710. The Court found that \xe2\x80\x9c[i]n\nalmost every State\xe2\x80\x94indeed, in almost every western democracy\xe2\x80\x94it is a crime to\nassist a suicide. The States\xe2\x80\x99 assisted-suicide bans are not innovations. Rather, they\nare longstanding expressions of the States\xe2\x80\x99 commitment to the protection and\npreservation of all human life.\xe2\x80\x9d Id. (footnote omitted).11 After tracing \xe2\x80\x9cthe AngloAmerican common law tradition\xe2\x80\x9d that \xe2\x80\x9cfor over 700 years\xe2\x80\x9d \xe2\x80\x9chas punished or\notherwise disapproved of both suicide and assisted suicide,\xe2\x80\x9d id. at 711, the Court\nreferred to the Oregon \xe2\x80\x9cDeath With Dignity Act,\xe2\x80\x9d which legalized physicianassisted suicide for competent, terminally ill adults. The Court\xe2\x80\x99s discussion made\nplain that the Oregon statute represented an exceptional case, contrary both to\nlongstanding historical practices and to contemporary trends in the law:\nSince the Oregon vote, many proposals to legalize assisted-suicide\nlaws have been and continue to be introduced in the States\xe2\x80\x99 legislatures, but none has been enacted. And just last year [i.e., 1996], Iowa\nand Rhode Island joined the overwhelming majority of States explicitly prohibiting assisted suicide. . . . Also, on April 30, 1997, President Clinton signed the Federal Assisted Suicide Funding Restriction\nAct of 1997, which prohibits the use of federal funds in support of\nphysician-assisted suicide.\nId. at 717-18 (citations and footnotes omitted). Further, the Court discussed the\n\xe2\x80\x9cserious, thoughtful examinations of physician-assisted suicide and other similar\nissues\xe2\x80\x9d now going on in the states. Id. at 719. It referred in particular to the work\nof New York State\xe2\x80\x99s Task Force on Life and the Law, a commission composed of\ndoctors, ethicists, lawyers, religious leaders and interested laymen charged with\nrecommending public policy on issues raised by medical advances. The Court\nnoted that after studying physician-assisted suicide, the Task Force had unanimously concluded that \xe2\x80\x9c[l]egalizing assisted suicide and euthanasia would pose\n11\nAccord Cruzan v. Director, Missouri Dep\xe2\x80\x99t of Health, 497 U.S. 261, 280 (1990) (\xe2\x80\x9cAs a general\nmatter, the States\xe2\x80\x94indeed, all civilized nations\xe2\x80\x94demonstrate their commitment to life by treating\nhomicide as a serious crime. Moreover, the majority of States in this country have laws imposing\ncriminal penalties on one who assists another to commit suicide.\xe2\x80\x9d).\n\n141\n\n227-329 VOL_25_PROOF.pdf 151\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nprofound risks to many individuals who are ill and vulnerable. . . . [T]he potential\ndangers of this dramatic change in public policy would outweigh any benefit that\nmight be achieved.\xe2\x80\x9d Id. (internal quotation marks and citation omitted; ellipses in\noriginal).\nSummarizing its review of the American legal tradition\xe2\x80\x99s view of assisted\nsuicide, the Court said:\nAttitudes toward suicide itself have changed since Bracton, but our\nlaws have consistently condemned, and continue to prohibit, assisting suicide. Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end-of-life\ndecisionmaking, we have not retreated from this prohibition.\nId.\nB. State and Federal Policy\nAs detailed in Washington v. Glucksberg, state law and policy, with the sole\nexception of Oregon\xe2\x80\x99s, emphatically oppose assisted suicide. Assisted suicide has\nlong been prohibited at common law, see Glucksberg, 521 U.S. at 711,12 and at\nleast forty states and territories have laws explicitly prohibiting the practice.13 \xe2\x80\x9cIn\nthe two hundred and five years of our [national] existence no constitutional right to\naid in killing oneself has ever been asserted and upheld by a court of final\njurisdiction.\xe2\x80\x9d Compassion in Dying v. Washington, 49 F.3d 586, 591 (9th Cir.\n1995) (Noonan, J.), rehearing en banc granted, 62 F.3d 299 (9th Cir. 1995);\nvacated, 79 F.3d 790 (9th Cir. 1996) (en banc) (Reinhardt, J.) (state could not\nconstitutionally prohibit physician-assisted suicide in cases of terminally ill\ncompetent adults), rev\xe2\x80\x99d sub nom. Washington v. Glucksberg, 521 U.S. 702\n(1997). The only state supreme court to decide the matter has rejected recognition\nof an enforceable right to assisted suicide under that state\xe2\x80\x99s constitution. Krischer\nv. McIver, 697 So.2d 97 (Fla. 1997).\nState statutes banning assisted suicide trace back a century or more in many\ncases. They have not been kept on the books through oversight or neglect:\nMany jurisdictions have expressly reconsidered these laws in\nrecent years and reaffirmed them. In 1980, the American Law Institute conducted a thorough review of state laws on assist[ed] suicide\nin the United States and acknowledged the continuing widespread\n12\nSee generally Thomas J. Marzen, Mary K. O\xe2\x80\x99Dowd, Daniel Crone & Thomas J. Balch, Suicide: A\nConstitutional Right?, 24 Duq. L. Rev. 1, 71-75 (1985).\n13\nSee Christine Neylon O\xe2\x80\x99Brien & Gerald A. Madek, Physician-Assisted Suicide: New Protocol for\na Rightful Death, 77 Neb. L. Rev. 229, 275 n.314 (1998).\n\n142\n\n227-329 VOL_25_PROOF.pdf 152\n\n10/22/12 11:10 AM\n\n\x0cWhether Physician-Assisted Suicide Serves a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\n\nsupport for criminalization. Accordingly, it endorsed two criminal\nprovisions of its own. In the 1990s, both New York and Michigan\nconvened blue-ribbon commissions to consider the possibility of\nlegalizing assisted suicide and euthanasia. The New York commission issued a thoughtful and detailed report unanimously recommending the retention of existing laws against assisting suicide and\neuthanasia. The Michigan panel divided on the issue, but the state\nlegislature subsequently chose to enact a statute strengthening its\nexisting common law ban against assisted suicide. . . . Meanwhile,\nrepeated efforts to legalize the practice\xe2\x80\x94in state legislatures and by\npopular referenda\xe2\x80\x94have met with near-total failure.\nNeil M. Gorsuch, The Right to Assisted Suicide and Euthanasia, 23 Harv. J. L. &\nPub. Pol\xe2\x80\x99y 599, 639-41 (2000) (\xe2\x80\x9cGorsuch\xe2\x80\x9d) (footnotes omitted).\nFederal policy fully accords with the views that prevail in every state except\nOregon. As noted in Glucksberg, the Assisted Suicide Funding Restriction Act of\n1997, Pub. L. No. 105-12, 111 Stat. 23, was signed into law on April 30, 1997.\nThe Act was approved in the House of Representatives by a 398-to-16 vote and in\nthe Senate by a 99-0 vote. The Act bans federal funding of assisted suicide,\neuthanasia, or mercy killing through Medicaid, Medicare, military and federal\nemployee health plans, the veterans health care system, or other federally funded\nprograms. In the \xe2\x80\x9cFindings\xe2\x80\x9d preceding the Act\xe2\x80\x99s substantive restrictions, Congress\nstated that \xe2\x80\x9c[a]ssisted suicide, euthanasia, and mercy killing have been criminal\noffenses throughout the United States and, under current law, it would be unlawful\nto provide services in support of such illegal activities.\xe2\x80\x9d Id. \xc2\xa7 2(a)(2). Then, after\ntaking note that the Oregon \xe2\x80\x9cDeath With Dignity Act\xe2\x80\x9d might soon become\noperative, see id. \xc2\xa7 2(a)(3), Congress determined that it would \xe2\x80\x9cnot provid[e]\nFederal financial assistance in support of assisted suicide, euthanasia, and mercy\nkilling and intends that Federal funds not be used to promote such activities.\xe2\x80\x9d Id.\n\xc2\xa7 2(a)(4). In general, Congress stated that its purpose was \xe2\x80\x9cto continue current\nFederal policy by providing explicitly that Federal funds may not be used to pay\nfor items and services (including assistance) the purpose of which is to cause (or\nassist in causing) the suicide, euthanasia, or mercy killing of any individual.\xe2\x80\x9d Id.\n\xc2\xa7 2(b).\nEven before the enactment of the Assisted Suicide Funding Restriction Act of\n1997, it was the policy of the federal government not to recognize physicianassisted suicide as a legitimate medical practice. As Acting Solicitor General\nWalter Dellinger noted in 1996 in the United States brief in Glucksberg:\nThe United States owns and operates numerous health care facilities\nwhich . . . do not permit physicians to assist patients in committing\nsuicide by providing lethal dosages of medication. The Department\n\n143\n\n227-329 VOL_25_PROOF.pdf 153\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nof Veterans Affairs (VA), which operates 173 medical centers, 126\nnursing homes, and 55 in-patient hospices, has a policy manual\nthat . . . forbids \xe2\x80\x9cthe active hastening of the moment of death.\xe2\x80\x9d . . .\nThe military services, which operate 124 centers, the Indian Health\nservice, which operates 43 hospitals, and the National Institutes of\nHealth, which operate a clinical center, follow a similar practice . . . .\nNo federal law . . . either authorizes or accommodates physician\nassisted suicide.14\nOther federal agencies have taken similar views in the past. The Hyde Letter\nnoted that \xe2\x80\x9c[t]he Health Care Financing Administration has stated that physicianassisted suicide is not \xe2\x80\x98reasonable and necessary\xe2\x80\x99 to the diagnosis and treatment of\ndisease or injury and is therefore barred from reimbursement under Medicare.\xe2\x80\x9d\nHyde Letter, supra note 4, at 1. Administrator Constantine\xe2\x80\x99s reply stated that a\nreview of \xe2\x80\x9ca number of cases, briefs, law review articles and state laws relating to\nphysician-assisted suicide\xe2\x80\x9d and \xe2\x80\x9ca thorough review of prior administrative cases in\nwhich physicians have dispensed controlled substances for other than a \xe2\x80\x98legitimate\nmedical purpose\xe2\x80\x99\xe2\x80\x9d demonstrated \xe2\x80\x9cthat delivering, dispensing or prescribing a\ncontrolled substance with the intent of assisting a suicide would not be under any\ncurrent definition a \xe2\x80\x98legitimate medical purpose.\xe2\x80\x99\xe2\x80\x9d15\nFinally, federal medical policy since the enactment of the Assisted Suicide\nFunding Restriction Act also supports the conclusion that physician-assisted\nsuicide is not a legitimate medical practice. In 1999, the Surgeon General sought\nto classify suicide as a serious public health problem and to intensify suicide\nprevention efforts, especially among high risk groups such as the sick and elderly,\nwho often suffer from undiagnosed depression and inadequately treated pain.16\nDispensing controlled substances to assist the suicides of some of the most\n\n14\nBrief for the United States as Amicus Curiae Supporting Petitioners at 1-2, Washington v.\nGlucksberg, 521 U.S. 702 (1997) (No. 96-110) (\xe2\x80\x9cUnited States Brief in Glucksberg\xe2\x80\x9d).\n15\nConstantine Letter, supra note 5, at 1-2. Also relevant to the past practice of federal agencies is\nUnited States v. Rutherford, 442 U.S. 544 (1979), which involved a challenge by terminally ill cancer\npatients to the determination of the Food and Drug Administration (\xe2\x80\x9cFDA\xe2\x80\x9d) that Leatrile constituted a\n\xe2\x80\x9cnew drug\xe2\x80\x9d for purposes of the Federal Food, Drug and Cosmetic Act because it was not generally\nregarded as safe or effective. In upholding the FDA\xe2\x80\x99s determination, the Court rejected the plaintiffs\xe2\x80\x99\nargument that an implied exception from the Act was justified because the safety and effectiveness\nstandards could have no reasonable application to terminally ill patients. It pointed out that \xe2\x80\x9cthe FDA\nhas never made exception [from the FDA\xe2\x80\x99s safety standards] for drugs used by the terminally ill.\xe2\x80\x9d Id.\nat 553.\n16\nSee generally U.S. Public Health Service, Dep\xe2\x80\x99t of Health and Human Services, The Surgeon\nGeneral\xe2\x80\x99s Call to Action to Prevent Suicide (1999), available at http://www.surgeongeneral.gov/\nlibrary/calls/index.html (last visited Aug. 3, 2012); see also Improving Palliative Care for Cancer:\nSummary and Recommendations (Kathleen M. Foley & Hellen Gelbard, eds., 2001) (finding depression\ncommon among terminally ill cancer patients, and recommending greater emphasis on palliative care).\n\n144\n\n227-329 VOL_25_PROOF.pdf 154\n\n10/22/12 11:10 AM\n\n\x0cWhether Physician-Assisted Suicide Serves a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\n\nvulnerable members of American society is manifestly inconsistent with the\nSurgeon General\xe2\x80\x99s policy.17\nC. Views of the Medical and Nursing Professions\nThe leading organizations of the American medical profession have repeatedly,\nand recently, expressed the profession\xe2\x80\x99s condemnation of physician-assisted\n\n17\nSee United States Brief in Glucksberg at 19. Medical evidence suggests that many terminally ill\npatients who seek death do so not as a result of rational deliberation, but rather because of depression or\nmental illness. Moreover, given modern palliative care techniques, pain-avoidance cannot justify the\ngeneral practice of assisted suicide. See Susan R. Martyn and Henry J. Bourguignon, Now Is The\nMoment to Reflect: Two Years of Experience With Oregon\xe2\x80\x99s Physician-Assisted Suicide Law, 8 Elder\nL.J. 1, 14-16 (2000) (footnotes omitted) (\xe2\x80\x9cFirst, the rate of depression among terminally ill patients\nappears to be \xe2\x80\x98much higher than would be expected in the general population.\xe2\x80\x99 Recent studies indicate\nthat fully two-thirds of those requesting assisted suicide suffer from depression. Second, seriously ill\npatients often require powerful medications which can distort the patient\xe2\x80\x99s thoughts and feelings. \xe2\x80\x98For\nmany patients, the progression of disease will result in the impairment of decisionmaking capacity,\neither from the effects of the disease itself or those of drug treatment.\xe2\x80\x99 Third, seriously ill patients may\nalso suffer physical and mental disability, have short attention spans, or find it difficult to concentrate.\nThey may have difficulty hearing or thinking through complex subjects. . . . Physicians, psychiatrists,\nand psychologists, like anyone else who deals with a seriously ill, mentally or physically disabled\npatient can all too easily conclude that the patient\xe2\x80\x99s request for assisted suicide is reasonable and\ntherefore competent. The greatest threat is that persons with mental or physical disabilities or\ndepression, especially those who burden others, will readily be found competent to request assistance in\nsuicide. . . . Depression, the major precursor of suicidal intent, often worms its way into serious\nillnesses and, especially among the elderly, can remain undiagnosed and untreated. In fact, clinical\nstudies now indicate that depression is the only factor that predicts suicidal intent or ideation. Indeed,\nOregon physicians report that they recognized symptoms of depression in twenty percent of patients\nwho sought suicide assistance.\xe2\x80\x9d); id. at 38-43 (describing significant recent innovations in palliative\ncare, noting that states are increasingly enacting intractable pain legislation to assure physicians that\nadequate pain control is legally and medically required, and suggesting that legalizing physicianassisted suicide may inhibit advances in such care); New York State Task Force on Life and the Law,\nWhen Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 11, 13 (1994) (\xe2\x80\x9cStudies\nthat examine the psychological background of individuals who kill themselves show that 95 percent\nhave a diagnosable mental disorder at the time of death. Depression, accompanied by symptoms of\nhopelessness and helplessness, is the most prevalent condition among individuals who commit\nsuicide. . . . In one study of terminally ill patients, of those who expressed a wish to die, all met\ndiagnostic criteria for major depression.\xe2\x80\x9d); Brief for American Geriatrics Soc. as Amicus Curiae at 7-9,\nVacco v. Quill, 521 U.S. 793 (1997), Washington v. Glucksberg, 521 U.S. 702 (1997) (Nos. 95-1858,\n96-100) (1996) (hospice and palliative care programs relieve pain and other severe symptoms for those\nnear death and should be preferred treatment options; also noting high correlation between cognitive or\nemotional dysfunctioning such as depression and suicide inquiries); Leon R. Kass and Nelson Lund,\nPhysician-Assisted Suicide, Medical Ethics and the Future of the Medical Profession, 35 Duq. L. Rev.\n395, 406 (1996) (\xe2\x80\x9cKass & Lund\xe2\x80\x9d) (\xe2\x80\x9cBecause the quick-fix of suicide is easy and cheap, it will in many\ncases replace the use of hospice and other humanly-engaged forms of palliative care, for there will be\nmuch less economic incentive to continue building and supporting social and institutional arrangements\nfor giving humane care to the dying.\xe2\x80\x9d); Yale Kamisar, Against Assisted Suicide\xe2\x80\x94Even a Very Limited\nForm, 72 U. Detroit Mercy L. Rev. 735, 744 (1995) (\xe2\x80\x9cAlthough pain is notoriously undertreated in this\ncountry, \xe2\x80\x98according to experts in the field of pain control, almost all terminally ill patients can\nexperience adequate relief with currently available treatments.\xe2\x80\x99\xe2\x80\x9d) (footnotes omitted); Gorsuch at 691.\n\n145\n\n227-329 VOL_25_PROOF.pdf 155\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nsuicide. The American Medical Association (\xe2\x80\x9cAMA\xe2\x80\x9d), joined by the American\nNurses Association (\xe2\x80\x9cANA\xe2\x80\x9d), the American Psychiatric Association, and 43 other\nnational medical organizations, filed a brief in the Glucksberg case declaring that\n\xe2\x80\x9c[t]he ethical prohibition against physician-assisted suicide is a cornerstone of\nmedical ethics\xe2\x80\x9d and that physician-assisted suicide is \xe2\x80\x9c\xe2\x80\x98fundamentally incompatible with the physician\xe2\x80\x99s role as healer.\xe2\x80\x99\xe2\x80\x9d18 More specifically, the AMA\xe2\x80\x99s Brief\nsaid:\nThe power to assist in intentionally taking the life of a patient is antithetical to the central mission of healing that guides both medicine\nand nursing. It is a power that most physicians and nurses do not\nwant and could not control. Once established, the right to physicianassisted suicide would create profound danger for many ill persons\nwith undiagnosed depression and inadequately treated pain, for\nwhom physician-assisted suicide rather than good palliative care\ncould become the norm. At greatest risk would be those with the\nleast access to palliative care\xe2\x80\x94the poor, the elderly, and members of\nminority groups.\nAmici acknowledge that many patients today do not receive proper treatment for their pain, depression, and psychological distress.\nNevertheless, physician-assisted suicide is not the right answer to the\nproblem of inadequate care. Although for some patients it might\nappear compassionate intentionally to cause death, institutionalizing\nphysician-assisted suicide as a medical treatment would put many\nmore patients at serious risk for unwanted and unnecessary death.\n...\nThe ethical prohibition against physician-assisted suicide is a cornerstone of medical ethics. Its roots are as ancient as the Hippocratic\noath that a physician \xe2\x80\x9cwill neither give a deadly drug to anybody if\nasked for it, nor . . . make a suggestion to this effect,\xe2\x80\x9d and the merits\nof the ban have been debated repeatedly in this nation since the late\nnineteenth century. Most recently, the AMA has reexamined and\nreaffirmed the ethical prohibition against physician-assisted suicide\nin 1977, 1988, 1991, 1993, and 1996.19\n\n18\nBrief for American Medical Association et al. as Amici Curiae at 5, Washington v. Glucksberg,\n521 U.S. 702 (1997) (No. 96-110) (1996).\n19\nId. at 2-5.\n\n146\n\n227-329 VOL_25_PROOF.pdf 156\n\n10/22/12 11:10 AM\n\n\x0cWhether Physician-Assisted Suicide Serves a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\n\nAs the Court noted in Glucksberg, 521 U.S. at 731, the AMA\xe2\x80\x99s Code of Ethics\ncondemns physician-assisted suicide as fundamentally incompatible with the\nphysician\xe2\x80\x99s role as a healer. AMA, Code of Ethics \xc2\xa7 2.211 (1994); see also\nCouncil on Ethical and Judicial Affairs, Decisions Near the End of Life, 267\nJAMA 2229, 2233 (1992). Largely on the basis of the AMA\xe2\x80\x99s position, the Court\nfound that the State of Washington had \xe2\x80\x9can interest in protecting the integrity and\nethics of the medical profession\xe2\x80\x9d when it prohibited physician-assisted suicide.\nGlucksberg, 521 U.S. at 731; see also Compassion in Dying, 49 F.3d at 592\n(citation omitted) (\xe2\x80\x9cFrom the Hippocratic Oath with its promise \xe2\x80\x98to do no\nharm,\xe2\x80\x99 . . . to the AMA\xe2\x80\x99s code, the ethics of the medical profession have proscribed killing.\xe2\x80\x9d).\nThe AMA took the same unequivocal position in hearings before Congress on\nthe subject of assisted suicide. See Assisted Suicide in the United States: Hearing\nBefore the Subcomm. on the Constitution of the House Comm. on the Judiciary,\nUnited States House of Representatives, 104th Cong. 309-11 (1996) (statement of\nLonnie L. Bristow, M.D., Pres., AMA). Dr. Bristow testified:\nThe AMA believes that physician-assisted suicide is unethical and\nfundamentally inconsistent with the pledge physicians make to themselves to healing and to life. . . . AMA takes seriously its role as a\nleader in issues of medical and professional ethics. The AMA\xe2\x80\x99s\n\xe2\x80\x9ccode of ethics\xe2\x80\x9d serves as the profession\xe2\x80\x99s defining document as to\nwhat is right versus what is wrong in medical practice, and such are\ncritical to our professionalism and our role as healers. My primary\nobligation as a physician is to first be an advocate for my patient. If\nmy patient in understandably apprehensive or afraid of his or her\nown mortality, I need to provide information, support, and comfort,\nnot help them avoid the issues of death.\nId. at 310.\nThe American Nurses Association (\xe2\x80\x9cANA\xe2\x80\x9d), a national organization representing 2.2 million registered nurses, submitted written testimony to Congress at the\nsame hearing. See id. at 438-50. Included in the ANA\xe2\x80\x99s submission was the\norganization\xe2\x80\x99s Position Statement on Assisted Suicide (1994). The Position\nStatement succinctly summarizes the ANA\xe2\x80\x99s view of nurse-assisted suicide as\nfollows:\nThe American Nurses Association (ANA) believes that the nurse\nshould not participate in assisted suicide. Such an act is in violation\nof the Code for Nurses with Interpretive Statements (Code for Nurses) and the ethical traditions of the profession.\n\n147\n\n227-329 VOL_25_PROOF.pdf 157\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nId. at 443. The \xe2\x80\x9cRationale\xe2\x80\x9d in the Position Statement sets forth comprehensively\nthe basis of the ANA\xe2\x80\x99s view. It states in part:\n\xe2\x80\xa2 The profession of nursing is built upon the Hippocratic tradition\n\xe2\x80\x9cdo no harm\xe2\x80\x9d and an ethic of moral opposition to killing another\nhuman being. The ethical framework of the profession as articulated\nthrough the Code for Nurses explicitly prohibits deliberately terminating the life of any human being.\n\xe2\x80\xa2 Nursing has a social contract with society that is based on trust\nand therefore patients must be able to trust that nurses will not\nactively take human life. . . . Nurse participation in assisted suicide is\nincongruent with the accepted norms and fundamental attributes of\nthe profession. . . .\n\xe2\x80\xa2 While there may be individual patient cases that are compelling,\nthere is high potential for abuses with assisted suicide, particularly\nwith vulnerable populations such as the elderly, poor and disabled.\nThese conceivable abuses are even more probable in a time of\ndeclining resources. The availability of assisted suicide could\nforseeably weaken the goal of providing quality care for the dying.\nId. at 445.\nScholars have observed that the norms of the medical and nursing professions\nwith respect to physician-assisted suicide, which reflect the experience and the\nreflection of centuries, are more compelling now than ever. See Kass & Lund,\nsupra note 17, at 423 (\xe2\x80\x9cGiven the great pressures threatening medical ethics\ntoday\xe2\x80\x94including, among other factors, a more impersonal practice of medicine,\nthe absence of a lifelong relationship with a physician, the push toward managed\ncare, and the financially-based limitation of services\xe2\x80\x94a bright line rule regarding\nmedically-assisted suicide is a bulwark against disaster.\xe2\x80\x9d); see also Seth F.\nKreimer, Does Pro-Choice Mean Pro-Kevorkian? An Essay on Roe, Casey, and\nthe Right to Die, 44 Am. U. L. Rev. 803, 841 (1995) (\xe2\x80\x9cParticularly with the\nemergence of cost controls and managed care in the United States, the danger of\ntempting health care providers to persuade chronic patients to minimize costs by\nending it all painlessly is no fantasy.\xe2\x80\x9d).\nTo be sure, it has been claimed that physician-assisted suicide has become a\ncommon, if also usually clandestine, practice.20 But the claim is questionable. The\nAmerican Geriatrics Society, for example, has stated that the Society\xe2\x80\x99s leadership\n\xe2\x80\x9cis unfamiliar with situations in which this is true, and it seems unlikely. Three-\n\n20\n\nSee, e.g., Compassion in Dying, 79 F.3d at 811.\n\n148\n\n227-329 VOL_25_PROOF.pdf 158\n\n10/22/12 11:10 AM\n\n\x0cWhether Physician-Assisted Suicide Serves a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\n\nquarters of all deaths happen in institutions where a regularized endeavor would\nrequire the collusion of a large number of persons, which seems implausible. Little\nreliable evidence characterizes the rate and nature of actual instances of [physician-assisted suicide].\xe2\x80\x9d Brief for American Geriatrics Soc. as Amicus Curiae at 10,\nVacco v. Quill, 521 U.S. 793 (1997), Washington v. Glucksberg, 521 U.S. 702\n(1997). Moreover, even if there were reliable evidence that unacknowledged\nphysician-assisted suicide was not infrequent, that fact would hardly invalidate the\nnormative judgments of the AMA and other medical groups that emphatically\ncondemn the practice. By parity of reasoning, if it could be shown that physicians\nviolated traditional medical canons of ethics more often that is usually supposed,\ne.g., by engaging in sexual relations with their patients or disclosing patient\nconfidences, it would follow that the evidence of such deviations overturned the\nprofessional standards prohibiting such misconduct.\nThus, the overwhelming weight of authority in judicial decisions, the past and\npresent policies of nearly all of the states and of the federal government, and the\nclear, firm and unequivocal views of the leading associations within the American\nmedical and nursing professions, establish that assisting in suicide is not an\nactivity undertaken in the course of professional medical practice and is not a\nlegitimate medical purpose. Indeed, we think it fair to say that physician-assisted\nsuicide should not be considered a medical procedure at all. Here we follow an\namicus brief filed in Glucksberg by a group of fifty bioethics professors, who\ndeclared that physician-assisted suicide \xe2\x80\x9cis not a medical procedure, and\nmedicalizing an act runs the risk of making an otherwise unacceptable act appear\nacceptable.\xe2\x80\x9d Brief for Bioethics Professors as Amici Curiae Supporting Petitioners\nat 27, Vacco v. Quill, 521 U.S. 793 (1997), Washington v. Glucksberg, 521 U.S.\n702 (1997) (Nos. 95-1858, 96-100). As this brief points out, assisted suicide does\nnot require any medical knowledge whatever, nor does it necessarily depend on\naccess to any prescribed drugs or to medical services. Indeed, the country\xe2\x80\x99s most\nprominent partisan of assisted suicide, Jack Kevorkian, has often used the entirely\nnon-medical method of carbon monoxide poisoning. See George J. Annas,\nPhysician Assisted Suicide\xe2\x80\x94Michigan\xe2\x80\x99s Temporary Solution, 20 Ohio N.U.L.\nRev. 561, 568 (1994). It is plainly a fallacy to assume that a procedure must be\n\xe2\x80\x9cmedical\xe2\x80\x9d because it is performed by a physician rather than, say, by a family\nmember, or because it involves the use of a drug that a physician has prescribed.21\n\n21\nThe Oregon Deputy Attorney General\xe2\x80\x99s Letter assumes, uncritically, that physician-assisted\nsuicide, if authorized by state law, must be considered a \xe2\x80\x9cmedical\xe2\x80\x9d practice that serves a \xe2\x80\x9cmedical\xe2\x80\x9d\npurpose. See Oregon Deputy Attorney General Letter, supra note 6, at 7 (\xe2\x80\x9c[T]he CSA is addressed to\nthe problems of the abuse and trafficking of controlled substances, [not to] regulating medical practices\nthat are legal under state law and that have no relation to drug abuse or trafficking\xe2\x80\x9d). As we have\nargued above, it is far from obvious (to say no more) that assisting an individual to kill himself or\nherself must be considered a \xe2\x80\x9cmedical\xe2\x80\x9d procedure.\n\n149\n\n227-329 VOL_25_PROOF.pdf 159\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nAccordingly, we conclude that assisting in suicide is not a \xe2\x80\x9clegitimate medical\npurpose\xe2\x80\x9d that would justify a physician\xe2\x80\x99s dispensing controlled substances\nconsistent with the CSA.\nIV. The Existence of a State Law Permitting Physician-Assisted\nSuicide Does Not Immunize a Physician from the General\nRequirements of the CSA\nThe CSA establishes a uniform, nation-wide statutory scheme for regulating the\ndistribution of controlled substances. Notwithstanding the traditional role of the\nstates in regulating the practice of medicine,22 state law cannot abrogate the CSA\nor supersede its provisions in the event of conflict.23 Thus, the fact that assisting in\nsuicide may be permitted in some cases for Oregon physicians under local law\ndoes not entail that they should be held immune from criminal prosecution or\nadverse administrative action under the CSA if they dispense a controlled\nsubstance when rendering that assistance. It is simply wrong to suggest, as the\nDeputy Attorney General of Oregon did, that the CSA does not reach \xe2\x80\x9cpractices\nthat are engaged in by physicians in accordance with state law.\xe2\x80\x9d24\nThe Supreme Court\xe2\x80\x99s very recent decision in the so-called \xe2\x80\x9cmedical marijuana\xe2\x80\x9d\ncase, United States v. Oakland Cannabis Buyers\xe2\x80\x99 Coop., 532 U.S. 483 (2001),\ndemonstrates the fallacy of attempting to read an implied immunity into the CSA\nfor physicians who dispense controlled substances to assist suicides in a state in\nwhich such conduct is consistent with local law. In Oakland Cannabis Buyers, the\nSupreme Court addressed the question whether there was an implied \xe2\x80\x9cmedical\nnecessity\xe2\x80\x9d exception to the CSA\xe2\x80\x99s general prohibition in 21 U.S.C. \xc2\xa7 841(a)(1) on\nmanufacturing and distributing marijuana. Marijuana is a \xe2\x80\x9cschedule I\xe2\x80\x9d controlled\nsubstance. For drugs on that schedule, there is but one express statutory exception,\nand that exception is available only for government-approved research projects.\nSee 21 U.S.C. \xc2\xa7 823(f); Oakland Cannabis Buyers, 532 U.S. at 491.25 Notwithstanding the fact that it did not fall within the sole express statutory exception, the\ndefendant Cooperative argued that the statute should be read to include another,\nimplied exception for \xe2\x80\x9cmedical necessity.\xe2\x80\x9d The Supreme Court refused to read\nsuch an exception into the CSA.\n\n22\nSee, e.g., Buckman Co. v. Plaintiffs\xe2\x80\x99 Legal Comm., 531 U.S. 341, 347 (2001); Gade v. Nat\xe2\x80\x99l Solid\nWastes Management Ass\xe2\x80\x99n, 505 U.S. 88, 108 (1992).\n23\nSee, e.g., Rosenberg, 515 F.2d at 198 n.14.\n24\nSee Oregon Deputy Attorney General Letter, supra note 6, at 6.\n25\nThe controlled substances usually used in physician-assisted suicide are, as we have noted,\nschedule II substances, and accordingly are governed by a different regulatory regime from schedule I\nsubstances. In particular, registered practitioners may \xe2\x80\x9cdispense\xe2\x80\x9d schedule II, but not schedule I,\nsubstances. See 21 U.S.C. \xc2\xa7 824(f). This distinction does not, however, affect the relevance of Oakland\nCannabis Buyers to the questions considered in this memorandum.\n\n150\n\n227-329 VOL_25_PROOF.pdf 160\n\n10/22/12 11:10 AM\n\n\x0cWhether Physician-Assisted Suicide Serves a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\n\nBecause of the passage in a 1996 voter initiative of the Compassionate Use Act\nof 1996, Cal. Health & Safety Code Ann. \xc2\xa7 11362.5 (West Supp. 2001), California\nlaws prohibiting the possession and cultivation of marijuana now include an\nexception for a patient or primary caregiver who possesses or cultivates marijuana\nfor the patient\xe2\x80\x99s medical purposes upon the recommendation or approval of a\nphysician. In the wake of the voter initiative, \xe2\x80\x9cmedical cannabis dispensaries\xe2\x80\x9d\nwere organized to meet the needs of qualified patients. The defendant was one\nsuch organization, and distributed marijuana to those it accepted as members. The\nUnited States sued the defendant in 1998, arguing that, \xe2\x80\x9cwhether or not the\nCooperative\xe2\x80\x99s activities are legal under California law, they violate\xe2\x80\x9d section 841(a)\nof the CSA. Oakland Cannabis Buyers, 532 U.S. at 487. Despite being enjoined\nfrom distributing marijuana, the defendant continued to do so, and the United\nStates accordingly initiated contempt proceedings. In defense, it was \xe2\x80\x9ccontended\nthat any distributions were medically necessary. Marijuana is the only drug,\naccording to the Cooperative, that can alleviate the severe pain and other debilitating symptoms of the Cooperative\xe2\x80\x99s patients.\xe2\x80\x9d Id. (citation omitted). The district\ncourt found the defendant in contempt, and declined to modify its injunction so as\nto permit marijuana distributions that were asserted to be medically necessary.\nAlthough the defendant\xe2\x80\x99s appeal of the contempt order was mooted, its motion to\nmodify the injunction presented a live controversy, and the court of appeals\naccepted the defendant\xe2\x80\x99s argument that medical necessity was a legally cognizable\ndefense under the CSA. The United States sought certiorari to review the court of\nappeals\xe2\x80\x99 decision, and the Supreme Court granted the petition because the\nappellate decision below \xe2\x80\x9craise[d] significant questions as to the ability of the\nUnited States to enforce the Nation\xe2\x80\x99s drug laws.\xe2\x80\x9d Id. at 489.\nThe Supreme Court flatly rejected the defendant\xe2\x80\x99s claim of an implied medical\nnecessity exception. \xe2\x80\x9c[T]o resolve the question presented, we need only recognize\nthat a medical necessity exception for marijuana is at odds with the terms of the\nControlled Substances Act. The statute, to be sure, does not explicitly abrogate the\ndefense. But its provisions leave no doubt that the defense is unavailable.\xe2\x80\x9d Id.\nat 491 (footnote omitted).\nThe question whether Oregon physicians may dispense controlled substances to\nassist in a suicide without violating the CSA is similar to (although it is of course\nnot the same as) the question decided in Oakland Cannabis Buyers. In effect, the\nargument that such physicians do not violate the CSA depends on the assumption\nthat because assisting suicide in that manner is permissible under state law, the\nCSA must be interpreted so that such dispensing is done \xe2\x80\x9cin the course of\nprofessional practice,\xe2\x80\x9d 21 U.S.C. \xc2\xa7 802(21), and the DEA\xe2\x80\x99s regulations must be\nread so that such actions serve \xe2\x80\x9ca legitimate medical purpose,\xe2\x80\x9d 21 C.F.R.\n\xc2\xa7 1306.04(a). But a state cannot, by its unilateral action, take its physicians\xe2\x80\x99\nconduct out of the scope of otherwise nationally applicable prohibitions on the\ndispensing of controlled substances. The CSA contains no express immunity for\n\n151\n\n227-329 VOL_25_PROOF.pdf 161\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nsuch conduct in states in which physicians may assist suicides compatibly with\nlocal law, and it should not be construed in a manner that implies such an immunity.26\nV. The CSA Contemplates Concurrent Federal and State Regulation\nof Medical Practices Involving Controlled Substances\nLike the Court in Oakland Cannabis Buyers, we share the concern for \xe2\x80\x9c\xe2\x80\x98showing respect for the sovereign States that comprise our Federal Union.\xe2\x80\x99\xe2\x80\x9d Oakland\nCannabis Buyers, 532 U.S. at 494 n.7 (quoting Stevens, J., concurring in judgment). But we think it shows no disrespect for the principles of federalism to\nconclude that the states cannot, by their unilateral actions, shelter their physicians\nfrom the federal narcotics code. Although the states are the primary regulators of\nthe practice of medicine, they are not its exclusive regulators: since the Harrison\nNarcotics Act of 1914, the federal government has regulated the practice of\nmedicine insofar as it involved the dispensing of controlled drugs.27 Physicians\nwere often prosecuted under the Harrison Act for prescribing drugs in a manner\nthat did not comport with federal statutory requirements or that fell outside the\ncourse of professional practice as determined by the federal courts.28 Further, the\nSupreme Court repeatedly upheld the authority of federal prosecutors to bring such\ncases against physicians over the objection that the Harrison Act impermissibly\nencroached on a regulatory power exclusively reserved to the states.29 The CSA\n26\nWe note that the Reno Letter, supra note 7, at 3-4, expressly recognized that its conclusion was\n\xe2\x80\x9climited to these particular circumstances\xe2\x80\x9d in Oregon (and, should any other State follow Oregon, such\na State), and affirmed that \xe2\x80\x9c[a]dverse action under the CSA may well be warranted in other circumstances: for example, where a physician assists in a suicide in a state that has not authorized the practice\nunder any conditions.\xe2\x80\x9d Construing the CSA and its regulations as Attorney General Reno did would\naccordingly cause the Act\xe2\x80\x99s prohibitions to apply differently from one state to another, and would in\neffect grant the states the power to immunize their physicians from liability under otherwise generally\napplicable federal law.\n27\nSee Moore, 423 U.S. at 132 (\xe2\x80\x9cPhysicians who stepped outside the bounds of professional practice\ncould be prosecuted under the Harrison Act (Narcotics) of 1914, 38 Stat. 785, the predecessor of the\nCSA.\xe2\x80\x9d); id. at 139 (\xe2\x80\x9cUnder the Harrison Act physicians who departed from the usual course of medical\npractice were subject to the same penalties as street pushers with no claim to legitimacy.\xe2\x80\x9d).\n28\nSee, e.g., United States v. Behrman, 258 U.S. 280 (1922) (sustaining conviction of physician over\ndissent\xe2\x80\x99s argument that defendant should have been assumed to have given drugs in the regular course\nof his practice and in good faith); Jin Fuey Moy v. United States, 254 U.S. 189, 194 (1920) (sustaining\nconviction; Court states that \xe2\x80\x9c[m]anifestly the phrases \xe2\x80\x98to a patient\xe2\x80\x99 and \xe2\x80\x98in the course of his professional practice only\xe2\x80\x99 are intended to confine the immunity of a registered physician, in dispensing the\nnarcotic drugs mentioned in the act, strictly within the appropriate bounds of a physician\xe2\x80\x99s . . .\npractice.\xe2\x80\x9d); Webb v. United States, 249 U.S. 96, 99-100 (1919) (holding that to call the defendant\xe2\x80\x99s\norder for the use of morphine a \xe2\x80\x9cphysician\xe2\x80\x99s prescription\xe2\x80\x9d would \xe2\x80\x9cbe so plain a perversion of meaning\nthat no discussion of the subject is required.\xe2\x80\x9d).\n29\nSee Nigro v. United States, 276 U.S. 332, 353-54 (1928) (upholding constitutionality of Harrison\nAct as revenue measure despite claim that it infringed on states\xe2\x80\x99 police power to regulate intrastate\npurchases of commodities); Linder v. United States, 268 U.S. 5, 18 (1925) (prosecution of physician\n\n152\n\n227-329 VOL_25_PROOF.pdf 162\n\n10/22/12 11:10 AM\n\n\x0cWhether Physician-Assisted Suicide Serves a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\n\nwas intended \xe2\x80\x9cto strengthen rather than to weaken the prior drug laws.\xe2\x80\x9d30 Consequently, dispensing controlled substances has been an aspect of medical practice\nthat the federal government has regulated concurrently with the states for some\neighty-seven years.31\nBoth in enacting the CSA in 1970 and in amending it in 1984, Congress was\nwell aware that enforcement of the federal law would unavoidably necessitate\nfederal regulation of medicine concurrent with, and in some circumstances\ndesignedly superseding, state regulation. In the House Report on what is now 42\nU.S.C. \xc2\xa7 257a,32 the Committee on Interstate and Foreign Commerce noted the\ndifficulty but found it inescapable:\nAlthough the committee is concerned about the appropriateness of\nhaving Federal officials determine the appropriate method of the\npractice of medicine, it is necessary to recognize that for the last 50\nyears this is precisely what has happened, through criminal prosecution of physicians whose methods of prescribing narcotic drugs have\nnot conformed to the opinion of Federal prosecutors of what constitutes appropriate methods of professional practice.\nH.R. Rep. No. 91-1444, pt. 1, at 15 (1970), reprinted in 1970 U.S.C.C.A.N. 4566,\n4581 (emphasis added).\nFurther, Congress revisited the CSA in 1984 in order to add amendments that\nexpanded federal authority at the expense of the states and were specifically\ndirected against the misuse of federally regulated prescription drugs (that otherwise have legitimate medical uses) in a manner that did not violate state law. The\nexpanded federal authority was accomplished by adding \xe2\x80\x9cinconsistency with the\npublic interest\xe2\x80\x9d as a ground for denying, suspending, or revoking federal registration. See 21 U.S.C. \xc2\xa7 823(f) (\xe2\x80\x9cThe Attorney General may deny an application for\nsuch registration if he determines that the issuance of such registration would be\ninconsistent with the public interest.\xe2\x80\x9d); id. \xc2\xa7 824(a)(4) (DEA may revoke registration of any physician who has committed acts \xe2\x80\x9cinconsistent with the public\ninterest.\xe2\x80\x9d). Previously, the federal government lacked the authority under the CSA\nto deny a physician\xe2\x80\x99s registration application when the physician possessed a\n\nunder Harrison Act; Court states that while \xe2\x80\x9cdirect control of medical practice in the States is beyond\nthe power of the Federal Government,\xe2\x80\x9d \xe2\x80\x9c[i]ncidental regulation of such practice by Congress through a\ntaxing act\xe2\x80\x9d may be permitted); United States v. Doremus, 249 U.S. 86, 93-94 (1919).\n30\nMoore, 423 U.S. at 139.\n31\nCf. Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41 (1921) (state law regulating physicians\xe2\x80\x99\nfurnishing or prescribing narcotic drugs held compatible with Harrison Act).\n32\nThis provision was originally enacted as section 4 of title I of the Comprehensive Drug Abuse\nand Control Act of 1970, 84 Stat. 1236, 1241 (1970); title II comprised the CSA. Hence the legislative\nhistory of the provision is highly relevant to the CSA.\n\n153\n\n227-329 VOL_25_PROOF.pdf 163\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nlicense from the state to practice medicine and had no felony drug conviction. See\nS. Rep. No. 98-225, at 262 (1984) (footnote omitted) (\xe2\x80\x9cthe Attorney General must\npresently grant a practitioner\xe2\x80\x99s registration application unless his State license has\nbeen revoked or he has been convicted of a felony drug offense, even though such\naction may clearly be contrary to the public interest\xe2\x80\x9d).33\nSupporters of the 1984 amendments explained that the most serious threat to\n\xe2\x80\x9cpublic health and safety\xe2\x80\x9d prompting this legal change was the frequency with\nwhich prescription drugs were involved in \xe2\x80\x9cdrug-related deaths\xe2\x80\x9d and overdoses\nthat threatened life.34 Representative Hamilton Fish, a sponsor of the 1984\namendments, said that giving flexibility to the federal government was necessary\nbecause states often did not respond adequately to abuses: \xe2\x80\x9cState policing of these\nactivities . . . ha[s] not been [an] adequate control measure[]. State laws regarding\nthe dispensing of controlled substances are also inadequate.\xe2\x80\x9d 130 Cong. Rec. at\n25,849. At a hearing before the House Commerce Subcommittee on Health and\nthe Environment, the DEA called the expanded federal authority to revoke\npractitioner registrations \xe2\x80\x9cone of the most important sections of the bill,\xe2\x80\x9d not only\nbecause states were often ill-equipped to enforce their own drug laws but also\nbecause \xe2\x80\x9c[m]any controlled drug violations involving prescription drugs are not\nfelonies under state law and therefore cannot be used in a DEA revocation action\xe2\x80\x9d\nunder then-existing law.35 Members of Congress also explained that the 1984\namendments were intended to \xe2\x80\x9cexpand[] the standards for practitioner registration\nbeyond the current exclusive reliance upon authorization by the practitioner\xe2\x80\x99s own\njurisdiction.\xe2\x80\x9d36\nCongress intended, therefore, that the \xe2\x80\x9cinconsistent with the public interest\xe2\x80\x9d\nstandard be more demanding than the standard of a physician\xe2\x80\x99s licensing state. The\n1984 amendments authorized the DEA to enforce the CSA against medical\npractitioners who prescribed controlled substances in a manner that \xe2\x80\x9cendangers\npublic health or safety\xe2\x80\x9d contrary to the \xe2\x80\x9cpublic interest,\xe2\x80\x9d notwithstanding the\nnature or content of state law or regulation. Consistent with Congress\xe2\x80\x99s purpose,\n\n33\nSee also 130 Cong. Rec. 25,852 (1984) (statement of Rep. Rangel); see generally Moore, 423\nU.S. at 140-41 (\xe2\x80\x9cIn the case of a physician th[e] scheme [of the registration provision of the thenexisting CSA] contemplates that he is authorized by the State to practice medicine and to dispense\ndrugs in connection with his professional practice. The federal registration . . . follows automatically.\xe2\x80\x9d).\n34\nDangerous Drug Diversion Act of 1984: Hearing on H.R. 5656 Before House Comm. on Health\nand the Environment, 98th Cong. 365 (1984) (testimony of Rep. Waxman) (\xe2\x80\x9c[d]rugs legally manufactured for use in medicine are responsible for a substantial majority of drug-related deaths and injuries\xe2\x80\x9d);\nsee also 130 Cong. Rec. 25,851 (statement of Rep. Rodino) (\xe2\x80\x9cprescription drugs are responsible for\nclose to 70 percent of the deaths and injuries due to drug abuse\xe2\x80\x9d).\n35\nDangerous Drug Diversion Control Act of 1984: Hearing on H.R. 5656 Before Subcomm. on\nHealth and the Environment of House Comm. on Energy and Commerce, 98th Cong. 403-04 (1984)\n(statement of Gene R. Haislip, Deputy Assistant Administrator, Drug Enforcement Administration).\n36\n130 Cong. Rec. 1586 (1984) (statement of Sen. Laxalt); see also 130 Cong. Rec. at 25,851-52\n(statement of Rep. Rangel).\n\n154\n\n227-329 VOL_25_PROOF.pdf 164\n\n10/22/12 11:10 AM\n\n\x0cWhether Physician-Assisted Suicide Serves a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\n\nthe public interest standard incorporated in section 824(f) is best understood to\nauthorize suspension or revocation of the federal registration of a practitioner who\ndispenses controlled substances to assist in a suicide, even if such conduct is\npermitted under state law.\nVI. The CSA\xe2\x80\x99s Preemption Provision Is Consistent with\nThis Interpretation\nThe CSA itself includes a provision designed to narrow possible federal\npreemption of state law. The provision is found at 21 U.S.C. \xc2\xa7 903. Section 903\nplainly does not require the Department of Justice to accept Oregon\xe2\x80\x99s determination of what is a \xe2\x80\x9clegitimate medical purpose.\xe2\x80\x9d\nSection 903 reads as follows:\nNo provision of this subchapter shall be construed as indicating\nan intent on the part of the Congress to occupy the field in which that\nprovision operates, including criminal penalties, to the exclusion of\nany State law on the same subject matter which would otherwise be\nwithin the authority of the State, unless there is a positive conflict\nbetween that provision of this subchapter and that State law so that\nthe two cannot consistently stand together.\n21 U.S.C. \xc2\xa7 903.\nFor at least two reasons, we do not think that section 903 affects the conclusion\nthat assisting in a suicide is not a legitimate medical purpose that would justify a\nphysician\xe2\x80\x99s dispensing a controlled substance.\nFirst, if section 841(a) and other pertinent parts of the CSA are read and applied\nin accordance with the DEA\xe2\x80\x99s regulation, 21 C.F.R. \xc2\xa7 1306.04(a), and the\ninterpretation of it here, it would certainly not follow that the CSA was being\nunderstood to \xe2\x80\x9coccupy the field\xe2\x80\x9d of regulating the medical profession to the\n\xe2\x80\x9cexclusion of any State law.\xe2\x80\x9d3 7 On the contrary, as we have just shown, the states\nremain free to regulate that profession concurrently with the federal government,\nas they have done since 1914. Federal regulation of the profession under the CSA\nwould reach only the dispensing of controlled substances, which is hardly the\n37\nCongress\xe2\x80\x99s intent to preempt all state law in a particular area may be inferred \xe2\x80\x9cwhere the scheme\nof federal regulation is sufficiently comprehensive to make reasonable the inference that Congress \xe2\x80\x98left\nno room\xe2\x80\x99 for supplementary state regulation\xe2\x80\x9d or \xe2\x80\x9cwhere the field is one in which \xe2\x80\x98the federal interest is\nso dominant that the federal system will be assumed to preclude enforcement of state laws on the same\nsubject.\xe2\x80\x99\xe2\x80\x9d Hillsborough County v. Automated Medical Labs., Inc., 471 U.S. 707, 713 (1985) (citations\nomitted). Interpreting the CSA and its regulations to reach the conduct of physicians who dispense\ndrugs to assist suicide does not require the assumption that Congress intended to occupy the field of\nregulation of the medical profession.\n\n155\n\n227-329 VOL_25_PROOF.pdf 165\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nwhole field of medical practice. Moreover, states would remain free to regulate\nthat activity as well, as long as such regulation did not conflict with federal law.\nSecond, even if our interpretation would make it harder as a practical matter for\nOregon physicians to assist in suicides, the CSA and its regulations as we read\nthem do not preempt Oregon\xe2\x80\x99s Death With Dignity Act.38 Oregon physicians\nremain free under that law to assist in suicides, provided of course that they follow\nthe procedures that Oregon imposes. All that our interpretation does is to affirm\nthat dispensing controlled substances in connection with such an assisted suicide\nwill cause an Oregon physician to be in violation of the CSA. Any method of\nassisting in suicides in which an Oregon physician does not dispense a controlled\nsubstance entails no violation of the CSA. The Attorney General\xe2\x80\x99s interpretation\nforecloses one, but only one, method of assisting suicide in a manner consistent\nwith Oregon law.\nWe respectfully disagree with the contrary opinion of the Oregon Deputy Attorney General. See Oregon Deputy Attorney General Letter, supra note 6, at 7-8.\nThat Letter argues, in part, that the CSA should not be construed to enable the\nAttorney General to regulate the practice of medicine, which is said to be an area\ntraditionally reserved to the states. We consider that argument to be mistaken.\nFirst, as we have shown, the federal government has regulated the dispensing of\ncontrolled substances by physicians continuously since the Harrison Act of 1914,\nand in enacting the CSA in 1970, Congress clearly intended that the Attorney\nGeneral continue to do so.39\nSecond, as we have also shown, the legislative history of the 1984 amendments\nto the CSA demonstrates that Congress intended the Attorney General to have\nregulatory authority with respect to the conduct of physicians even in circumstances in which that conduct was not sanctionable under state law.\nThird, the activity of assisting in suicide should not, in our view, be considered\na \xe2\x80\x9cmedical\xe2\x80\x9d practice solely because it is undertaken by a physician: as we have\nshown, physician-assisted suicide has been condemned by the overwhelming\nmajority of the states and by the leading professional associations of medical and\nnursing practitioners. On the theory of the Oregon Deputy Attorney General\xe2\x80\x99s\nLetter, an act that was performed by doctors, despite being forbidden by ordinary\nprofessional standards or even punishable elsewhere as a crime, could be transformed into a \xe2\x80\x9cmedical\xe2\x80\x9d practice if a single state were to decide to deem it so; and\nthat state\xe2\x80\x99s unilateral decision would presumptively place the act beyond the reach\nof federal regulation. It would follow that if a state authorized physicians to\n\n38\nCf. Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 476 (1996) (per curiam) (state\nlaw preempted only to the extent that it \xe2\x80\x9c\xe2\x80\x98actually conflicts\xe2\x80\x99\xe2\x80\x9d with federal law) (citation omitted);\nPharmaceutical Society of State of New York v. Lefkowitz, 586 F.2d 953, 958 (2d Cir. 1978) (no\npreemption because no actual conflict).\n39\nSee Moore, 423 U.S. at 132-33.\n\n156\n\n227-329 VOL_25_PROOF.pdf 166\n\n10/22/12 11:10 AM\n\n\x0cWhether Physician-Assisted Suicide Serves a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\n\nperform involuntary euthanasia on severely handicapped or mentally retarded\npersons, and thus \xe2\x80\x9cmedicalized\xe2\x80\x9d that procedure, the state law could place the\nprocedure beyond federal regulatory power pursuant to the CSA even if controlled\nsubstances were used. Equally, it would follow that if a state authorized physicians\nto prescribe controlled substances to addicts in order to enable them to maintain\ntheir customary use and so avoid discomfort, the federal government would be\nunable to prosecute those physicians or to revoke their registrations under the\nCSA. We cannot accept these consequences of the theory: no state has the power\nto determine unilaterally what practices count as \xe2\x80\x9cmedical\xe2\x80\x9d for purposes of the\nCSA.\nVII. The DEA Had the Authority to Promulgate and Interpret a\nRegulation Concerning Whether Dispensing a Controlled Substance\nHas a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\nFinally, we consider the basis of the Attorney General\xe2\x80\x99s authority to determine\nthat dispensing a controlled substance to assist in a suicide in a state that permits\nsuch conduct on the part of a physician does not serve a \xe2\x80\x9clegitimate medical\npurpose\xe2\x80\x9d under 21 C.F.R. \xc2\xa71306.04 (a).\nWe address this question because of an apparent ambiguity in the Reno Letter,\nsupra note 7. The Letter could be understood, not as controverting DEA\xe2\x80\x99s\ninterpretation of the CSA and the DEA\xe2\x80\x99s own regulations, but rather as making the\njurisdictional claim that the DEA lacked statutory authority to find that a physician\xe2\x80\x99s prescription of controlled substances to assist a suicide in Oregon went\nbeyond \xe2\x80\x9cthe course of professional practice,\xe2\x80\x9d 21 U.S.C. \xc2\xa7 802(21), and did not\nserve a \xe2\x80\x9clegitimate medical purpose,\xe2\x80\x9d 21 C.F.R. \xc2\xa7 1306.04(a). See Reno Letter at 3\n(\xe2\x80\x9c[T]here is no evidence that Congress, in the CSA, intended to assign DEA the\nnovel role of resolving \xe2\x80\x98the earnest and profound debate about the morality,\nlegality, and practicality of physician-assisted suicide,\xe2\x80\x99 Washington v. Glucksberg,\n117 S. Ct. 2258, 2275 (1997), simply because that procedure involves the use of\ncontrolled substances.\xe2\x80\x9d). We do not understand the Reno Letter to be making a\njurisdictional point, but rather to be offering its own interpretation of the CSA and\nthe DEA\xe2\x80\x99s regulations. If, however, the Letter were understood to be putting\nforward a jurisdictional claim, we think it would be both misleading and mistaken.\nFirst, it is misleading to raise the question whether Congress assigned responsibility for interpreting and enforcing the CSA to the DEA. It is clear that Congress\nassigned that responsibility to the Attorney General, not to the DEA. See 21\nU.S.C. \xc2\xa7 821 (\xe2\x80\x9cThe Attorney General is authorized to promulgate rules and\nregulations . . . relating to the . . . dispensing of controlled substances . . . and\ncontrol of regulated persons and of regulated transactions\xe2\x80\x9d) (emphasis added); id.\n\xc2\xa7 871(b) (\xe2\x80\x9cThe Attorney General may promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the\n\n157\n\n227-329 VOL_25_PROOF.pdf 167\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nefficient execution of his functions under this subchapter.\xe2\x80\x9d) (emphasis added). The\nAttorney General is authorized to delegate his or her CSA responsibilities to \xe2\x80\x9cany\nofficer or employee of the Department of Justice,\xe2\x80\x9d id. \xc2\xa7 871(a), and the Attorney\nGeneral determined to delegate those functions to the DEA. See Touby, 500 U.S.\nat 169. Thus, if the Reno Letter were construed to be questioning the DEA\xe2\x80\x99s\nauthority to interpret, for example, what the CSA means by \xe2\x80\x9cthe course of\nprofessional practice,\xe2\x80\x9d 21 U.S.C. \xc2\xa7 802(21), it would necessarily be questioning\nthe authority of the Attorney General to interpret that provision. Such a conclusion\nwould plainly be at odds with the broad language of the CSA\xe2\x80\x99s authorizing\nprovisions, id. \xc2\xa7\xc2\xa7 821, 871(b).\nSecond, it is also misleading to say that Congress did not intend to assign to the\nDEA the role of resolving the national debate over physician-assisted suicide. Of\ncourse Congress did not intend to do that. What Congress plainly did intend to do\nwas to give the Attorney General (and, accordingly, his or her delegate, the DEA)\nthe authority to \xe2\x80\x9cpromulgate rules and regulations . . . relating to the . . . dispensing of controlled substances and control of regulated persons.\xe2\x80\x9d Id. \xc2\xa7 821. That is\nprecisely what the DEA did when it promulgated 21 C.F.R. \xc2\xa7 1306.04(a); and it\nwas well within the scope of DEA\xe2\x80\x99s authority to determine how that regulation\nwas to be applied to the use of controlled substances in physician-assisted suicides.\nThird, the DEA did not undertake to \xe2\x80\x9cresolve\xe2\x80\x9d the national debate over physician-assisted suicide and should not be faulted for having attempted to do so. The\nDEA acts pursuant to delegated authority under an Act of Congress. Congress\nremains free to alter the terms on which the DEA acts: it could, for example, carve\nout an exception for the use of controlled substances by physicians to assist\nsuicide. Moreover, the DEA has no power to control the ability of the states to\nenact laws permitting (or forbidding) physician-assisted suicide. What DEA could,\nand did, properly resolve was that the dispensing of controlled substances by a\nphysician to assist a suicide did not have a \xe2\x80\x9clegitimate medical purpose\xe2\x80\x9d within the\nmeaning of its own regulation, notwithstanding the fact that a single state chose to\nlegalize physician-assisted suicide. In no way did the DEA preclude open and\nvigorous debate in the legislative process on the merits of physician-assisted\nsuicide.\nFourth, the Reno Letter suggests that the DEA\xe2\x80\x94and, by necessary implication,\nthe Attorney General\xe2\x80\x94had no authority to adopt an interpretation that addressed\n\xe2\x80\x9cfundamental questions of morality and public policy.\xe2\x80\x9d Reno Letter, supra note 7,\nat 3. If that were so, it would follow that the Attorney General had no authority to\ndecide whether dispensing controlled substances to assist in suicide served a\n\xe2\x80\x9clegitimate medical purpose\xe2\x80\x9d under 21 C.F.R. \xc2\xa7 1306.04(a), because in deciding\nthat question\xe2\x80\x94one way or the other\xe2\x80\x94the Attorney General would unavoidably be\n\n158\n\n227-329 VOL_25_PROOF.pdf 168\n\n10/22/12 11:10 AM\n\n\x0cWhether Physician-Assisted Suicide Serves a \xe2\x80\x9cLegitimate Medical Purpose\xe2\x80\x9d\n\naddressing such moral and policy questions.40 Indeed, it would seem to follow that\nthat regulation was itself ultra vires\xe2\x80\x94which is clearly a mistaken view.\nThe truth is that, far from being outside the Attorney General\xe2\x80\x99s mission under\nthe CSA, addressing such questions is inherent in that mission. See Chevron\nU.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984) (\xe2\x80\x9cThe power of an\nadministrative agency to administer a congressionally created program necessarily\nrequires the formulation of policy . . . \xe2\x80\x9c) (internal quotation marks, internal ellipses\nand citation omitted). If the CSA is to be administered effectively, the Attorney\nGeneral must interpret its provisions so as to decide, for example, whether\nprescribing of controlled substances in a particular class of cases takes place\nwithin the \xe2\x80\x9ccourse of professional practice,\xe2\x80\x9d 21 U.S.C. \xc2\xa7 802(21), whether a\nphysician\xe2\x80\x99s conduct involving such substances \xe2\x80\x9cmay threaten the public health and\nsafety,\xe2\x80\x9d id. \xc2\xa7 823(f)(5), and whether issuing a registration to an applicant would be\n\xe2\x80\x9cinconsistent with the public interest,\xe2\x80\x9d id. \xc2\xa7 823(f). Of course such administrative\ndeterminations will require a judgment about public policy.4 1 So do, for example,\nadministrative determinations as to what constitute \xe2\x80\x9cexcessive profits\xe2\x80\x9d on\ngovernment contracts, see Lichter v. United States, 334 U.S. 742, 778-86 (1948),\nwhen commodity prices are \xe2\x80\x9cfair and equitable,\xe2\x80\x9d see Yakus v. United States, 321\nU.S. 414, 426-27 (1944), when rates for the sale of a commodity are \xe2\x80\x9cjust and\nreasonable,\xe2\x80\x9d see Federal Power Comm\xe2\x80\x99n v. Hope Gas Co., 320 U.S. 591, 600-02\n(1944), when voting power has been \xe2\x80\x9cunfairly or inequitably\xe2\x80\x9d distributed among\nsecurity holders, see American Power & Light Co. v. SEC, 329 U.S. 90, 104\n(1946), when broadcast licensing is in the \xe2\x80\x9cpublic interest,\xe2\x80\x9d see National Broadcasting Co. v. United States, 319 U.S. 190, 225-26 (1943), or when a new drug\nposes an \xe2\x80\x9cimminent hazard to the public safety,\xe2\x80\x9d see Touby, 500 U.S. at 165. See\ngenerally Whitman v. American Trucking Ass\xe2\x80\x99n, Inc., 531 U.S. 457, 472 (2001).42\nAs a matter of administrative practice, there was nothing unusual or unauthorized\nin the fact that the DEA\xe2\x80\x99s interpretation implicated questions of public policy or\nmorality.\n\n40\nWe note that the Reno Letter was itself an administrative interpretation that assumed a particular\nview of public policy.\n41\nIndeed, one of the primary reasons why an agency\xe2\x80\x99s construction of a statute it administers may\nbe entitled to judicial deference is that it is more appropriate for an agency to make \xe2\x80\x9cpolicy choices\xe2\x80\x9d\nthan it is for the courts. Chevron, 467 U.S. at 865.\n42\nThe Department of Justice may also be required to interpret statutes implicating judgments about\npolicy or morality when bringing criminal prosecutions or when instituting deportation proceedings.\nSee, e.g., Jordan v. DeGeorge, 341 U.S. 223, 231 & n.15 (1951) (deportation proceeding based on\nalien\xe2\x80\x99s commission of asserted \xe2\x80\x9ccrime involving moral turpitude;\xe2\x80\x9d Court finds that phrase \xe2\x80\x9cpresents no\ngreater uncertainty or difficulty than language found in many other statutes repeatedly sanctioned by\nthe Court\xe2\x80\x9d); see also Kay v. United States, 303 U.S. 1, 3 n.1, 7 (1938) (rejecting argument that statute\nmaking it criminal in some contexts willfully to \xe2\x80\x9covervalue[] any security\xe2\x80\x9d was unconstitutionally\nvague).\n\n159\n\n227-329 VOL_25_PROOF.pdf 169\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nAccordingly, if the Reno Letter were construed as denying the Attorney General (or the DEA) the statutory authority to reach the question whether prescribing\ncontrolled substances to assist suicide is consistent with the CSA and its implementing regulations in a state that had legalized physician-assisted suicide, the\nLetter would be clearly mistaken as a matter of law.\nVIII. Conclusion\nBased on the foregoing considerations, the conclusion that a physician\xe2\x80\x99s assisting suicide through the dispensing of a controlled substance does not serve a\n\xe2\x80\x9clegitimate medical purpose\xe2\x80\x9d within the meaning of 21 C.F.R. \xc2\xa7 1306.04 is the\nbest reading of that regulation.\nSHELDON BRADSHAW\nDeputy Assistant Attorney General\nOffice of Legal Counsel\nROBERT J. DELAHUNTY\nSpecial Counsel\nOffice of Legal Counsel\n\n160\n\n227-329 VOL_25_PROOF.pdf 170\n\n10/22/12 11:10 AM\n\n\x0c'