Tuesday, September 24, 2002

John writes:

What is AAPS doing to support Ashcroft's fight against euthanasia in Oregon? Today, Ashcroft filed a brief in the 9th Circuit in the case of Oregon v. Ashcroft. Is it too late for any more amicus briefs?
Is AAPS involved? I can think of no more worthy project for AAPS than to argue the point that assisted suicide is never, under any conceivable circumstance, a legitimate medical purpose.

Andy writes:

Bigger issues are at stake in the case like the federal takeover of medicine, which AAPS opposes. Also, on a cursory review of the district court opinion, my impression was that Ashcroft's subordinates were mishandling the case. They didn't argue that the medicinal marijuana Supreme Court decision applied, for example.

John writes:

All the more reason for AAPS to weigh in here! The district court opinion, was particularly outrageous, and deserves to be rebuked for that reason alone, in addition to being wrong on the substantive merits of the case.

The opinion (by Robert E. Jones, who was appointed by George Bush I) was far more out of line than the Newdow (Pledge of Allegiance) decision. While the Pledge opinion was actually a careful and plausible application of Supreme Court precedent, the Oregon v. Ashcroft opinion was liberal judicial activism dressed up in the phony mantle of state's rights (which are irrelevant here).

I fully agree that the "federal takeover of medicine" is an important issue. However, concern about that important issue is, as I said, "misplaced" when raised in opposition to the Ashcroft rule at issue here. The Ashcroft rule does not in any way promote the "federal takeover of medicine" for the simple reason that assisted suicide is not medicine.

We are not talking about "intrastate use" of drugs; we are talking about interstate commerce in drugs, which is clearly subject to federal regulation.

A state is, indeed, free to legalize the "intrastate use" of drugs, even for assisted suicide, by an unlicensed person (such as Jack Kevorkian) who operates entirely outside the medical system.

But a state is not free to redefine "medicine" to embrace assisted suicide and thereby force the federal government to endorse, subsidize, and respect that practice.

Andy writes:

Ashcroft's approach to Oregon's assisted suicide law is to expand federal power. Ashcroft could exclude participating doctors from Medicare or Medicaid, or take other meaningful actions such as defunding hospitals and ending federal perks for other participants. But Ashcroft hasn't cut off the money; instead his approach is to expand federal control over medicine and its definition. I cannot agree. Nor would AAPS.

John wrote, "This is comparable to the Defense of Marriage Act, which says that for all federal purposes, the term "spouse" can only mean a person of the opposite sex. Likewise, Ashcroft is saying that for all federal purposes, assisted suicide can never be a legitimate medical purpose."

Ashcroft, according to the court, is doing more than that. He is threatening prosecution.

I do agree that the Defense of Marriage Act is analogous, though. It represents an equally futile defense against powerful movements in the states. Politics is local, and efforts are best devoted to that level. Anything Ashcroft does in opposition to assisted-suicide is short-term at best, as the next Democratic Administration will simply undo it. And it might also use the DEA and FDA to cause more havoc, as in banning capital punishment based on Ashcroft's logic.

I don't see how Ashcroft is expanding federal power. This is about legitimate uses for DEA schedule II drugs like morphine. The law on this has been unchanged since 1970. Physicians cannot just prescribe morphine whenever they please; they are subject to DEA regulations.

Maybe you think that the Controlled Substances Act of 1970 was an expansion of federal power, or that heroin should be freely available over the counter. If so, you won't persuade anyone. Otherwise, Ashcroft is just applying existing law from 1970. For Ashcroft to take some non-statutory economic retaliation for assisting suicide would be an expansion of federal power. So Andy's position makes no sense to me.

The prosecution (that Ashcroft threatens) would be for misusing DEA schedule II drugs. If the physician were merely assisting suicide, it would be a state matter.

If some future administration bans DEA-licensed physicians from administering lethal injection of schedule II controlled substances as part of capital punishment, then I'll agree with it.

John writes:

We have a federal system with government and politics at both the state and national levels. Just because assisted suicide can be fought at the state level is no reason not to fight it at the federal level as well.

Ashcroft's action is really much narrower than that. He only wants to say that a physician cannot use a DEA license to get schedule II drugs for the purpose of killing someone.

If Oregon wants to allow assisted suicide, that's Oregon's business. But there is a federal distribution system for schedule II drugs that Congress has statutorily restricted to a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. Assisted suicide has never been considered a legitimate medical purpose. Ashcroft is just applying this law.

Andy writes:

John and Roger make good points. They've persuaded me that Ashcroft can and should revoke DEA licenses of suicide docs using controlled drugs.

I'm not keen on federal prosecutions of doctors who comply with state law, however. Nor do I support the overall principle of the federal govt expanding its power over controlled drugs to trump state laws governing use. At stake is far more than the little-used Oregon suicide law; capital punishment and perhaps even abortion drugs are at issue. The FDA and DEA could prohibit the use of drugs for execution under Ashcroft's logic.

It is folly to support expansions in federal power simply because Bush is there now. Before long, a liberal will likely be there. We are better off opposing federal power.

Roger writes, "Ashcroft's action is really much narrower than that. He only wants to say that a physician cannot use a DEA license to get schedule II
drugs for the purpose of killing someone."

That's debatable. Ashcroft runs DOJ, and it raids and prosecutes people. Roger need look no further than the recent Santa Cruz raid.

Now the Santa Cruz couple is suing to get their 167 marijuana plants back. [KTVU story] Their business is the Wo/Men's Alliance for Medical Marijuana.

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