The DWDA and the Controlled Substances Act of 1970

The stated purpose of the Controlled Substances Act is to “to provide increased research into, and prevention of, drug abuse and drug dependence … and to strengthen existing law enforcement authority in the field of drug abuse.” A regulation promulgated under the act provided, “A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”

In 1984 the act was amended to give the U.S. Attorney General the authority to revoke a physician’s prescription privileges upon a determination that the physician has “committed such acts as would render his registration … inconsistent with the public interest.”

On November 6, 2001, U.S. Attorney General John Ashcroft issued an interpretation of the Controlled Substances Act. Ashcroft’s interpretation made it illegal for doctors to prescribe controlled substances under Oregon’s Death With Dignity law. According to Ashcroft’s determination, prescribing such drugs was a violation of the Controlled Substances Act because physician-assisted suicide was not a “legiti-mate medical purpose.” A doctor who made such prescriptions could have his or her registration to distribute controlled substances under the act revoked or could be criminally prosecuted.

Ashcroft’s determination reflected a reversal of administration policy from Clinton’s presidency to that of George W. Bush. Janet Reno, attorney general under President Clinton, had determined that the pertinent section in the Controlled Substances Act would not apply in states where physician-assisted suicide was legal. Ashcroft’s decision on the subject has come to be known as the “Ashcroft Directive.”

The state, along with a doctor, a pharmacist, and a group of terminally ill patients, filed a lawsuit to challenge Ashcroft’s interpretation of the Controlled Substances Act. On November 20, 2001, a federal judge issued a restraining order from implementation of the Ashcroft Directive. In April 2002 U.S. District Court Judge Robert Jones upheld the DWDA in light of the Controlled Substances Act. The U.S. appealed; the Ninth Circuit Court of Appeals upheld the federal district court decision. The appellate decision opined that the Ashcroft Directive violated the plain language of the Controlled Substances Act: “Contrary to the Attorney General’s characterization, physician-assisted suicide is not a form of ‘drug abuse’ that Congress intended the CSA to cover.” Moreover, the Ashcroft Directive undermined Congressional intent, and overstepped the bounds of the attorney general’s authority.

Judge Richard Tallman’s decision also noted that the federal government was interfering in an area delegated to the states. “The principle that state governments bear the primary responsibility for evaluating physician assisted suicide follows from our concept of federalism, which requires that state lawmakers, not the federal government are the ‘primary regulators of professional [medical] conduct,'” Tallman wrote. He concluded, “The Attorney General’s unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician assisted suicide and far exceeds the scope of his authority under federal law.” Moreover, “To be perfectly clear, we take no position on the merits or morality of physician assisted suicide. We express no opinion on whether the practice is inconsistent with the public interest or constitutes illegitimate medical care. This case is simply about who gets to decide.”

On January 17, 2006, in a 6-3 decision, the Supreme Court upheld Oregon’s statute. Writing for the majority, Justice Anthony Kennedy found that the “authority claimed by the attorney general is both beyond his expertise and incongruous with the statutory purposes and design.” Although the Oregon law may stand under the decision, the case did not resolve the controversy surrounding physician-assisted suicide. Congress could amend the Controlled Substances Act to allow the Attorney General to determine whether Oregon’s law is permissible under the statute, and this amendment would effectively negate the Court’s decision.


Inside The DWDA and the Controlled Substances Act of 1970