VALUE OF HUMAN LIFE
SEC 2. PROHIBITION ON THE DISPENSING OF CONTROLLED SUBSTANCES FOR AS- AS-SISTING IN THE COMMISSION OF SUICIDE
(a) Title 21, United States Code, section 841(a) is amended by inserting the following new sub-section (3):
Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or in-tentionally —
(3) to dispense a controlled substance to assist an individual in killing himself or herself.
* Professor Wagner is President of the International Center for Ethics & Responsibility and teaches Constitutional Law and Ethics at the Cooley Law School.
1Oregon Death With Dignity Act, OR. REV. STAT. ANN. §§ 127.800-897 (West 2003).
2Gonzales v. Oregon, 546 U.S. 243 (2006).
3Id. It is important to note that the Court: 1) did not uphold physician-assisted suicide; 2) did not uphold Oregon’s law; and 3) did not resolve the question whether the Constitution allows the federal government to regulate federally
controlled substances in a way that prohibits the dispensing of such drugs to kill a human being.
4Controlled Substances Act, 21 U.S.C.A. §§ 801-02, 811-14, 821-30, 841-44a, 846-56, 858-65, 871-87, 889-90, 901-04, 951-71 (2006).
5Incorrectly assuming he was acting within statutory authority allowing him to do so, the Attorney General attempt-ed to confirm, through an interpretive rule, that dispensing controllattempt-ed substances to assist suicide violates the fattempt-ederal drug law. The Attorney General’s rule further attempted to officially clarify that assisting suicide is not a legitimate medical purpose under the federal drug law (The federal drug law already expressly provided that it was a federal crime for a physician to “dispense” a controlled substance without a legitimate medical purpose).
6For example, in 2006, legislators introduced bills to legalized assisted suicide in the state legislatures of Arizona, H.B.
2313, 47th Leg., 2d Reg. Sess. (Ariz. 2006); H.B. 2314, 47th Leg., 2d Reg. Sess. (Ariz. 2006); Washington, S.B. 6843, 59th Leg., 2006 Reg. Sess. (Wash. 2006); and Rhode Island, H.B. 7428, 2006 Leg. Sess. (R.I. 2006).
More recently, California legislators, on February 15, 2007, introduced the California Compassionate Choices Act, AB 374 (Cal. 2007). A month earlier in Vermont, legislators introduced the Patient-Directed Dying Act, H.44 (Vt. 2007), and the Patient Control at the End of Life Act, S.63 (Vt. 2007); see also Compassion in Choices, Improving Laws: In Legislatures, http://www.compassionandchoices.org/improvinglaws/statehouses.php (last visited May 10, 2007).
7Proverbs 14:34 (NIV).
8Genesis 1:27 (NIV); see also Genesis 1:26 (NIV).
9Genesis 1:31 (NIV).
10Jeremiah 29:11 (NIV).
11Ephesians 2:10 (NIV). As David confirms in the Psalms, “For you created my inmost being; you knit me together in my mother’s womb.…[Y]our eyes saw my unformed body. All the days ordained for me were written in your book before one of them came to be.” Psalm 139:13, 16 (NIV); and see, e.g., in Paul’s letter to the Colossians: “For by him all things were created: things in heaven and on earth, visible and invisible, whether thrones or powers or rulers or au-thorities; all things were created by him and for him.” Colossians 1:16 (NIV); and in Isaiah’s divine prophesy concern-ing Israel’s deliverance and restoration: “Brconcern-ing all who claim me as their God, for I have made them for my glory. It was I who created them.” Isaiah 43:7 (NIV); and in Acts: “The God who made the world and everything in it is the Lord of heaven and earth …. From one man he made every nation of men, that they should inhabit the whole earth;
and he determined the times set for them….” Acts 17:24, 26 (NIV); and Paul’s statement, just prior to facing humanly unbearable adversity: “[I]f only I may finish the race and complete the task the Lord Jesus has given me — the task of testifying to the gospel of God’s grace.” Acts 20:24 (NIV).
12Although the duty of those created to respect the commands of the Creator is self-evident, it becomes especially clear when one reads the commandment not to kill in pari material with the First (I am the Lord your God…. You shall have no other gods before me. Exodus 20:2-3; Deut. 5:6-7), and the Greatest commandment (“Love the Lord your God with all your heart and with all your soul and with all your mind.” Matthew 22:37-40).
13LUDWIGEDELSTEIN, THEHIPPOCRATICOATH: TEXT, TRANSLATION, ANDINTERPRETATION3 (1943).
20Id. at 8. Remarkably, no suffering requirement exists in the Oregon law, which purports instead to be based on per-sonal choice. See Oregon Death With Dignity Act, OR. REV. STAT. ANN. §§ 127.800-897 (West 2003). The Oregon law re-quires the physician to advise the patient of palliative care and hospice, but does not require that the physician have any training in either and requires no palliative care consultation. Id.
21THECASEAGAINSTASSISTEDSUICIDE, supra note 15, at 10.
22Id.
23The Oregon law similarly fails to provide an enforcement mechanism for physician non-compliance. Moreover, the law’s data collection requirements are so meager — the form used requires no disclosure of the reason for the pa-tient’s request — that study of the Oregon experiment is limited. Id. at 8.
24Id.
25Id.
26Herbert Hendin, The Dutch Experience, in THECASEAGAINSTASSISTEDSUICIDE, supra note 15, at 105; see also Zbigniew Zylicz, M.D., Palliative Care and Euthanasia in the Netherlands: Observations of a Dutch Physician, in THECASEAGAINST
ASSISTEDSUICIDE, supra note 15, at 123.
27Herbert Hendin, The Dutch Experience, in THECASEAGAINSTASSISTEDSUICIDE, supra note 15, at 103 (citing CARLOSF.
GOMEZ, REGULATINGDEATH: EUTHANASIA AND THECASE OF THENETHERLANDS(1991)).
28521 U.S. 702, 733 (1997).
T H E A M E R I C A N E X P E R I M E N T : R E L I G I O U S F R E E D O M
29Steven Ertelt, Dutch Doctor Who Engages in Euthanasia of Newborns Unapologetic, Dec. 27, 2004, http://www.life-news.com/bio623.html.
30See ROBERTH. BORK, SLOUCHINGTOWARDGOMORRAH173-92 (1996).
31Brief of the Am. Medical Ass’n, Am. Nurses Ass’n, Am. Psychiatric Ass’n, et al., as Amicus Curiae Supporting Petitioners at 5, Washington v. Glucksberg, 521 U.S. 702, No. 96-110 (1997).
32Id.
33Proverbs 14:34.
34Controlled Substances Act, 21 U.S.C.A. §§ 801-02, 811-14, 821-30, 841-44a, 846-56, 858-65, 871-87, 889-90, 901-04, 951-71 (2006).
35Gonzales v. Raich, 545 U.S. 1, 10 (2005).
36H.R. Rep. No. 91-1444, at 1 (1970); Raich, 545 U.S. at 12-13; see also Oregon v. Ashcroft, 368 F.3d 1118, 1125 n.7 (9th Cir. 2004) (“The record is voluminous and replete with statements of congressional intent to combat drug abuse and addiction, and particularly the problem of doctors who illicitly funnel prescription drugs into the hands of dealers and addicts.”)
3721 U.S.C.A. § 801(1).
38Controlled Substances Act, 21 U.S.C.A. § 841 (a) Unlawful acts
…it shall be unlawful for any person knowingly or intentionally — (1) to …dispense a controlled substance ….
(b) Penalties
(1)(C)In the case of a controlled substance in schedule I or II …such person shall be sentenced to a term of impris-onment of not more than 20 years and if death …results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $1,000,000 if the defendant is an individual ….
Id.
39Pub. L. No. 105-12, (1997), 111 Stat. 23 (codified at 42 U.S.C. § 14401 et seq.).
4042 U.S.C. § 14401(b).
4121 U.S.C.A. § 830(b)(3)(A)(ii) (2006).
42145 CONG. REC. H10880 (1999). As one United States Congressman put it, the issue is “whether we are going to have a consistent Federal policy that does not support assisted suicide or whether we are going to allow a Federal regulato-ry scheme to be used to support physician-assisted suicide.” See id. at H10878 (statement of Rep. Canady).
43Gonzales v. Oregon, 546 U.S. 243, 249 (2006).
44Id.
45Id. at 254-75.
46Prior attempts by Congress to prohibit assisted suicide were unsuccessful. See, e.g., Lethal Drug Abuse Prevention Act of 1998, H.R. 4006, 105th Cong. (1998); The Pain Relief Promotion Act of 1999, H.R. 2260; S. 1272, 106th Cong.
(1999); The Pain Relief Promotion Act of 2000, H.R. 5544, S. 2607, 106th Cong. (2000). Some reasons given for not amending the CSA included concerns raised by physicians that drugs dispensed with proper intent (e.g., relieving pain) could be prosecuted if the patient died. In this regard, opponents expressed concern over too much discre-tionary authority being given to the Attorney General and the DEA to review decisions made by physicians. Proper exercise of prosecutorial discretion, combined with a requirement that a Grand Jury return an indictment, make such concerns unlikely. Such concerns can, nonetheless, be adequately addressed by an affirmative defense (as in other situations where physicians are prosecuted for dispensing drugs outside professional limits). See, e.g., 21 U.S.C.
§ 885(a)(1); United States v. Steele, 147 F.3d 1316, 1318-20 (11th Cir. 1998) (en banc) (and cases cited therein), cert. de-nied, Steele v. United States, 528 U.S. 933 (1999) (upholding a conviction of a physician under the CSA for dispensing drugs outside professional limits). Opponents to amending the CSA (to prohibit the dispensing of drugs to assist sui-cide) also expressed concerns that Congress lacked power to regulate. As demonstrated in this paper, such concerns lack merit. The bottom line is that previous attempts by Congress to address the problem failed largely because not enough political support for amending the CSA existed. I address this issue in the concluding section of this paper.
47U.S. CONST. art. I.
48U.S. CONST. art. VI; see also 21 U.S.C. § 903; Gonzales v. Raich, 545 U.S. 1, 29 (2005).
49U.S. CONST. art. I, § 8, cl. 3.
50§ 8, cl. 18.
51See United States v. Morrison, 529 U.S. 598, 608-09 (2000); United States v. Lopez, 514 U.S. 549, 558-59 (1995); see also United States v. Darby, 312 U.S. 100, 118 (1941).
52See Gonzales v. Oregon, 546 U.S. 243, 302 n.2 (2006) (Thomas, J., dissenting).
53Raich, 545 U.S. at 9, 15. “[A]ctivities regulated by the CSA are quintessentially economic” since they involve “the production, distribution, and consumption of commodities.” Id. at 25-26.
54Id. (aggregating economic activity); Morrison, 529 U.S. at 617-18 (holding that court may not aggregate
non-econom-ic activity based on its “aggregated effect on interstate commerce”).
55Raich, 545 U.S. at 25-26. Moreover, “[i]n assessing the scope of Congress’ authority under the Commerce Clause, . . . . [a court] need not determine whether [the] activities, taken in the aggregate, substantially affect interstate com-merce in fact, but only whether a ‘rational basis’ exists for so concluding.” Id. at 22 (citing Lopez, 514 U.S. at 557).
56See Oregon, 546 U.S. at 302 n.2 (Thomas, J., dissenting).
57Raich, 545 U.S. at 25-26.
58Id. at 22 (citing U.S. CONST. art. I, § 8).
59Congress may regulate even “purely local activities that are part of an economic ‘class of activities’ that have a sub-stantial effect on interstate commerce.” Id. at 17.
60Id. (citations omitted).
61Id. at 27; see also id. at 24.
62Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (E.g., diversion of drugs into illegal channels).
63Id. at 271-72.
64Raich, 545 U.S. at 9; Oregon, 546 U.S. at 302 n.2 (Thomas, J., dissenting); see also United States v. Darby, 312 U.S. 100, 115-17 (1941) (renouncing earlier doctrines holding that Congress could not utilize the commerce power to achieve legitimate objectives relating to the health and welfare of the nation).
65In Washington v. Glucksberg, the Court held that no fundamental right to assisted suicide exists under the liberty in-terests protected by the Due Process Clause of the Fourteenth Amendment. 521 U.S. 702, 723-28 (1997). Likewise, in Vacco v. Quill, the Court held that laws proscribing assisted suicide do not violate the Equal Protection Clause — dis-tinguishing between laws permitting the refusal of unwanted life-saving measures (where the patient dies naturally from the underlying pathology) and assisting suicide (where the person dies from poison intentionally administered to kill). 521 U.S. 793, 800-09 (1997).
66See, e.g., Hodel v. Indiana, 452 U.S. 314, 323-24 (1981) (“A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activi-ty affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends.”).
67See, e.g., Glucksberg, 521 U.S. at 728 (recognizing a number of legitimate state interests including “preserving life,”
“preventing suicide,” and preventing a moral slide “toward euthanasia”); Quill, 521 U.S. at 808-09 (same); see also Planned Parenthood v. Casey, 505 U.S. 833, 846, 878 (1992) (recognizing protection of human life as a legitimate state interest).
68Congress’s original purpose in enacting the Controlled Substances Act was to comprehensively regulate the market of such substances. See Raich, 545 U.S. at 27. A House Report expressly stated that Congress promulgated the law in order “to deal in a comprehensive fashion with the growing menace of drug abuse in the United States …through providing more effective means for law enforcement aspects of drug abuse prevention and control.” H.R. Rep. No. 91-1444, Pt. 1, at 1 (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4567. Moreover, when it enacted the Federal Controlled Substances Act, Congress made extensive findings and statements, including that:
(1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are neces-sary to maintain the health and general welfare of the American people.
(2) The illegal . . . distribution, and possession and improper use of controlled substances have a substantial and detri-mental effect on the health and general welfare of the American people.
(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce ….
21 U.S.C. § 801(emphasis added).
69See Oregon, 546 U.S. at 302 n.2 (Thomas, J., dissenting).
70Raich, 545 U.S. at 19.
71Although not required, a specific finding to this effect by Congress will be helpful when courts inevitably review the statutory scheme. See Raich, 545 U.S. at 20-22.
72This is why, for example, the dispensing of controlled substances is regulated under the CSA by “provid[ing] for control …through registration of manufacturers, wholesalers, retailers, and all others [including physicians] in the legitimate distribution chain ….” H.R. Rep. No. 91-1444, Pt. 1, at 3, 6 (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4569.
73See Raich, 545 U.S. at 22, 25-26; United States v. Lopez, 514 U.S. 549, 557 (1995).
74Lopez, 514 U.S. at 557-58.
75Oregon Death With Dignity Act, OR. REV. STAT. ANN. §§ 127.800-897 (West 2003).
76Id. § 127.885(1).
77Gonzales v. Oregon Pet. App. 114a (Memorandum for the Attorney General, June 27, 2001).
78Id.; see also Pet. App. 65a (opinion of the district court).
79See 21 U.S.C. §§ 841(a)(1); 802(21); 829; 21 C.F.R. § 306.04(a) (1973) (re-designated as 21 C.F.R. § 1306.04(a) (1975);
see also United States v. Moore, 423 U.S. 122, 124, 139 (1975) (holding that a physician can be convicted under the CSA T H E A M E R I C A N E X P E R I M E N T : R E L I G I O U S F R E E D O M
when acting outside professional limits). Whether the physician acted outside authorized professional limits is not an element of the offense that the government needs to negate; rather, it is an affirmative defense available to the practi-tioner who carries the burden of going forward with the evidence concerning the exception. 21 U.S.C. § 885(a)(1);
United States v. Steele, 147 F.3d 1316, 1318-20 (11th Cir. 1998) (en banc) (and cases cited therein). The proposed amendment will firmly establish that Congress did not intend an exception for non-medical use of controlled sub-stances for terminating human life. Permitting states to alter the CSA by injecting such an exception holds the poten-tial to gut the full intent of the federal law. For example, if such an exception is allowed, a state could pass a law permitting physicians to prescribe and dispense controlled substances to assist patients to get “high” in order to deal with stress.
80See 21 U.S.C. § 841 (b)(1)(C) (prescribing up to life in prison for dispensing Schedule II controlled substances in vio-lation of § 841(a) where death results from the use of the drug); see also Moore, 423 U.S. at 132 (recognizing that Congress geared the CSA’s penalties “to the nature of the violation, including the character of the drug involved”).
81U.S. CONST. art. VI (emphasis added).
82Gonzales v. Raich, 545 U.S. 1, 29 (2005) (Internal quotations and citations omitted).
8321 U.S.C. § 903. To be sure, nothing in the CSA prevents a state from enacting its own stricter drug legislation, or prosecuting drug offenses at the state level. Id. And nothing in the Federal CSA preempts a state from regulating with-in the field of physician-assisted suicide (i.e., nothwith-ing with-in the CSA preempts a state law authorizwith-ing physician-assisted suicide per se).
84See generally §§ 841(a)(1), 802(21), 829; 21 C.F.R. § 1306.04(a) (1975); Moore, 423 U.S. at 124; 21 U.S.C. § 841 (b)(1)(C).
85Boggs v. Boggs, 520 U.S. 833, 844 (1997) (internal quotation marks omitted) (citing Gade v. Nat’l Solid Wastes Mgmt.
Ass’n, 505 U.S. 88, 98 (1992)).
86See, e.g., Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 590 (1979) (finding state community property law preempted by federal military pay law).