With 0-2 in the 9th, Ashcroft looks to the high court

June 09, 2004

Marcia Coyle, The Recorder

Washington - Before the end of the year, the U.S.

Supreme Court may be asked to wade once again into the legal thicket surrounding assisted suicide and the medical use of marijuana because of recent court defeats suffered by the Bush administration.

   Attorney General John Ashcroft already has petitioned the high court to review the medical marijuana decision issued by the Ninth Circuit U.S. Court of Appeals in December. Ashcroft v. Raich, 03-1454. And Department of Justice officials are now considering whether to go to the high court or to seek en banc review by the Ninth Circuit of the May 26 assisted suicide ruling, said a  department spokesman. Oregon v. Ashcroft, 02-35587.

   Both rulings stem from long-running battles between the Justice Department and two states, California and Oregon, whose laws legalizing medical marijuana  use and assisted suicide have come up against Ashcroft's interpretation of a federal criminal statute, the Controlled Substances Act of 1970.

   Both cases share common ground in the significant legal questions that they raise, said Marc Spindelman of Ohio State University College of Law, who has written about the issues.

   'There are questions about the authority of the federal government and the states' authority to determine what medical practice is,' he said. 'There are questions about what the purpose of the Controlled Substances Act is. And there are questions about Congress' authority to regulate commerce when it involves controversial medical decisions, and what tools, if any, the federal government should use in the national debate about how medical practice should or shouldn't evolve.'

   And both cases have triggered criticism by some litigants and others that Ashcroft is pursuing a personal or political agenda instead of a law enforcement one.

   That criticism is not unusual given the nature of the issues in both cases, said Spindelman, who described himself as someone who disagrees with many of Ashcroft's initiatives.

   'In both cases, the decision being made at the local level has national implications, so it's not surprising there is a federal response to the local initiatives,' he explained. And the criticism, he added, is 'certainly not surprising where the initiatives at the local level tend to be viewed, even if they are not, as 'liberal' projects, and the federal government has, at least in the executive branch, a 'conservative' agenda.'

   Ashcroft may be more vulnerable to the criticism because his legal arguments in both cases seem undercut by recent Supreme Court rulings, said high court scholar Douglas Kmiec of Pepperdine University School of Law, who shares
Ashcroft's opposition to assisted suicide.

   'But the attorney general has a responsibility to defend the institution's mission, and that mission is very much shaped by the control of drugs,' he hadded. 'The attorney general may be guided by that law enforcement mission and may decide to leave the constitutional questions to someone else.'

   Regulating drugs

   In the marijuana litigation, Angel McClary Raich and Diane Monson use marijuana for medical purposes on the recommendation of their doctors. After agents from the Drug Enforcement Administration seized Monson's six cannabis plants, the two women, fearing future raids, sued Ashcroft. They sought a declaration that the CSA was unconstitutional as applied to the medical use of marijuana and an injunction. At that time, Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington had passed laws permitting the cultivation and use of medicinal marijuana.

   The CSA establishes five 'schedules' of certain drugs and substances and designates them 'controlled substances.' Under the act, marijuana is a schedule I controlled substance because it has no currently accepted medical use, it has a high potential for abuse and there is a lack of accepted safety for its use
under medical supervision.

   After losing in the district court, Raich and Monson appealed to the Ninth Circuit. Ruling 2-1, a panel agreed with the women in holding that the CSA, as applied to them, is an unconstitutional exercise of Congress' commerce clause
authority. The majority, led by Judge Harry Pregerson, noted that the circuit had upheld the CSA under the commerce clause in prior cases, but here the class of activities was very different from the earlier cases that concerned drug
trafficking.

   The class of activities at issue in Raich, said the majority, was intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law.

   The court looked to U.S. v. Morrison, 529 U.S. 598 [2000], a commerce clause challenge to the Violence Against Women Act, to analyze whether the activity in Raich substantially affects interstate commerce. Morrison sets out four factors for answering that question. Under each factor, the panel majority found no substantial effect on commerce.

   Senior Circuit Judge C. Arlen Beam of the Eighth Circuit, sitting by designation, dissented, saying he found it impossible to distinguish the conduct  surrounding the cultivation and use of marijuana from the that of a wheat crop
for family use, which the Supreme Court held did affect interstate commerce in Wickard v. Filburn, 317 U.S. 111 [1942].

   The assisted suicide case, unlike the medical marijuana case, was not a constitutional ruling, but one involving a statutory interpretation.

   A doctor, a pharmacist, several terminally ill patients and the state of Oregon challenged the so-called Ashcroft Directive, an interpretative rule stating that physician-assisted suicide violates the CSA. The directive criminalizes conduct authorized by Oregon's Death with Dignity Act of 1994.

   After the plaintiffs won in the lower court, a Ninth Circuit panel, led by Richard Tallman, held, 2-1, that the direc  tive 'invokes the outer limits of Congress' power by encroaching on state authority to regulate medical practice.' Because Congress did not clearly authorize that intrusion, the majority said, the directive violates the clear-statement rule.

   The CSA, according to the majority, expressly limits federal authority to the field of drug abuse, and physician-assisted suicide is not a form of drug abuse that Congress intended the CSA to cover. And the majority noted that the Supreme Court, in its first look at the assisted suicide issue, had said that the debate about the morality, legality and practicality of the practice belongs to state lawmakers. Washington v. Glucksberg, 521 U.S. 702 [1997].

   But Judge J. Clifford Wallace dissented, saying that the act's text furnishes 'ample evidence' that Congress was concerned with any improper drug use that might have a detrimental effect on the public health, and 'nothing in the Controlled Substances Act's text precludes its application to physician-assisted suicide.' Deference is owed Ashcroft's interpretation, he said.

   Who can regulate?

   'The seed in both cases is the recognition that the regulation of the practice of medicine has historically been within states' power,' said Kathryn Tucker of Compassion in Dying, co-counsel in the Oregon case for the individual plaintiffs. 'That's really why when Raich came out, we did a supplemental  citation on it,' she added. 'We thought it was an important decision.'

   The Oregon decision, she said, was a victory on two levels: 'It preserved the laboratory of the states on the assisted suicide question, which the Supreme Court felt should go forward, and it protects dying patients in all 50 states from having their pain management imperiled.

   'When Ashcroft announced the department would be scrutinizing doctors in Oregon, it made all doctors all over country fearful about their prescriptions for pain,' explained Tucker.

   But James Bopp of Bopp Coleson & Bostrom in Terre Haute, Ind., who filed an amicus curiae brief in the Oregon case supporting Ashcroft, sees the two cases differently. 'They're related because of the general proposition that the
federal government has the authority to regulate the use of drugs - an authority that certainly had not been disputed until most recently,' Bopp said.

   Federal laws are supreme so state laws just give way, he said. 'If you go back far enough, the federal government didn't do anything, but over time those state regulations of areas that were historically viewed as of particular state concern have given way to federal laws,' he said. 'Unless there is some constitutionally protected right to practice medicine, which the Supreme Court has regularly turned down, then there is nothing peculiar about the practice of medicine as opposed to being a plumber in terms of the relevant power of the state or federal government to regulate.'

   Applying the CSA to assisted suicide is not at odds with the notion that a state can legalize assisted suicide, he added. 'They just have to use some other means-strangulation, ropes, ladders, trees. But they made the choice of using a controlled substance and when they made that choice, they ran up against a federal law.'

   Ohio State's Spindelman said a states' rights argument in the context of health care is hard to sustain, particularly after the 9/11 attacks.

   'We're now thinking about mass inoculations or other interventions in case of a terrorist strike,' he said. 'Are we going to say the federal government's effort to coordinate responses in the unhappy event we need to have massive public health intervention is going to be hamstrung or subject to veto by the states?

   'Where is the authority of the federal government to make the determination that marijuana does not have a medical purpose, or to classify marijuana in the way it has in the CSA, if direct control of medical practice is beyond the power of the federal government? Where does the federal government get the authority to regulate medical experimentation? Isn't that ever control of medical practice?'

   Pepperdine's Kmiec, a former Reagan Justice Department official, sees trouble for the government's position in both cases if they are taken by the Supreme Court.

   In the assisted suicide case, he said, 'To assume the same level of statutory deference would be given to the attorney general's interpretation after the Supreme Court had already, in essence, invited Oregon to have its own debate and reach its own conclusion was unfortunate and an incorrect assumption.'

   In the medical marijuana case, Kmiec noted that judges appointed by Presidents Reagan, Clinton and both Bushes have been saying for some time that an activity that is neither interstate nor commercial in nature is not easily regulated as interstate commerce.

   Marcia Coyle is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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