Evaluating the Dissent in State of Oregon v. Ashcroft : Implications for the Patient-Physician Relationship and the Democratic Process

Two brief, but excellent accounts of the recent administrative, legislative, and judicial history surrounding physician-assisted suicide, including the Oregon Death with Dignity Act and the Ashcroft Directive, are Wiley L. F. , “Assisted Suicide: Court Strikes Down Ashcroft Directive,” Journal of Law, Medicine & Ethics 30 (2002): 459–460; and Rich B. A. , “Oregon v. Ashcroft: The Battle Over the Soul of Medicine,” Cambridge Quarterly of Health Care Ethics 12 (2003): 310–320. Both articles, in addition to discussing this history, focus on the decision by Judge Robert E. Jones for the United States District Court in Oregon v. Ashcroft, 192 F.Supp.2d 1077 (D. Or. 2002).

State of Oregon v. Ashcroft, 368 F. 3d 1118 (9th Cir. 2004).

Id. at 1120.

Id. at 1127.

Id. at 1148.

On the day of the 2004 election, Attorney General John Ashcroft notified President Bush of his intention to resign. Several weeks later the President nominated Alberto Gonzales, Chief White House Counsel, to replace Ashcroft. The Senate Judiciary Committee narrowly approved Gonzales's nomination, and on February 3, 2005, after a vote of 60–36 confirming the nomination by the full Senate, Vice President Cheney issued the oath of office to Gonzales. There is every reason to believe that Gonzales will continue to vigorously support the policies of his predecessor.

The majority opinion by Judge Tallman and the dissenting opinion by Judge Wallace each offers a summary of political, legislative, and administrative events and actions leading up to their rulings. It is interesting to note that the two accounts differ significantly from one another with regard to specific details each judge chooses to highlight. See State of Oregon v. Ashcroft, at 1121–1123 and 1131–1133.

Id. at 1121 (citing Pub. L. No. 91-513, 84 Stat. 1236 (1970).

Wiley , supra note 1, at 459.

Id. at 459 (citing 21 U.S.C. § 823(f)).

State of Oregon v. Ashcroft, at 1122 (citing 21 U.S.C. § 823(f)).

442 U.S. 544 (1979).

Id. at 557.

521 U.S. 702 (1997).

521 U.S. 793 (1997).

532 U.S. 483 (2001).

Id. at 493.

Halpern A. . “Pain: No Medical Necessity Defense for Marijuana to Controlled Substances Act,” Journal of Law, Medicine & Ethics 29 (2001): 410–411, at 411.

State of Oregon v. Ashcroft, at 1123 (citing 66 Fed. Reg. at 56.608).

Id. at 1122.

Rich B. A. , supra note 1, at 313.

Wiley L. F. , supra note 1, at 459.

Rich B. A. , supra note 1, at 313.

Wiley L. F. , supra note 1, at 459.

Id. The two pieces of legislation were The Lethal Drug Prevention Act of 1998 and The Pain Relief Promotion Act of 1999. For a detailed summary and evaluation of both pieces of legislation see Rich B. A. , supra note 1, at 314.

Rich B. A. , supra note 1, at 316.

Oregon v. Ashcroft, 192 F. Supp. 2d 1077 (D. Or. 2002).

Rich B. A. , supra note 1, at 316.

State of Oregon v. Ashcroft, 368 F. 3d 1118 at 1120. In a footnote Judge Tallman agrees with Judge Jones that the district court lacked jurisdiction over the matter, but then concludes, “…Judge Jones' opinion on the merits is well reasoned, and we ultimately adopt many of his conclusions.” See State of Oregon, at 1120.

Id. at 1123.

Id. at 1149.

Id. at 1123.

Id. at 1131.

Id. at 1134 (citing 21 U.S.C. § 903).

Id. at 1148.

Id. at 1135 (The emphasis is Judge Wallace's).

Id. at 1121.

Id. at 1123.

Orentlicher D. , Matters of Life and Death: Making Moral Theory Work in Medical Ethics and the Law (Princeton: Princeton University Press, 2001): 42.

A great deal of literature exists explaining, analyzing, and evaluating various models of the patient-physician relationship. Much of this commentary is sensitive to the connection between presenting ethical justifications for a particular model and developing legal and policy standards for implementation of a model of patient-doctor interactions. See e.g., Veatch R. M. , “Models for Ethical Medicine in a Revolutionary Age,” in Edwards R. and Graber G. , eds., Bioethics (New York: Harcourt, 1988): 51–55; Brody H. , “The Physician-Patient Relationship,” in Veatch R. M. , ed., Medical Ethics 2nd edition (Boston: Jones and Bartlett, 1997): 75–101; and Emanuel E. and Emanuel L. , “Four Models of the Physician-Patient Relationship,” in Steinbock B. Arras J. , and London A. , eds., Ethical Issues in Modern Medicine 6th edition (New York: McGraw-Hill, 2003): 67–76.

Brody H. , supra note 37, at 76.

See Pellegrino E. , “Distortion of the Healing Relationship,” in Beauchamp T. L. and Veatch R. M. , eds., Ethical Issues in Death and Dying 2nd edition (Upper Saddle River, NJ: Prentice Hall, 1996): 161–165.

Id. at 162.

Orentlicher D. , supra note 42, at 41.

521 U.S. 702, at 779.

Orentlicher D. , supra note 42, at 39.

Oregon, at 1139–1140.

Id. at 1140 (the emphasis is Judge Wallace's).

Id. (the emphasis is Judge Wallace's).

Id. at 1143.

Id. at 1144.

Id. at 1148.

Id. at 1127

Rich B. A. , supra note 1, at 315.

Rich B. A. , supra note 1, at 317–18.

Id. 318.

Oregon, at 1135–1136.

521 U.S. 702 at 737

Bloche M. , “Medical Ethics in the Courts,” in Danis M. Clancy C. , and Churchill L. , eds., Ethical Dimensions of Health Policy (New York: Oxford University Press, 2002): 133–156, at 149.

See Id. Bloche observes: “Judicial legitimacy rests on courts' sensitivity to the law's separate institutional concerns – about efficiency, interpretative consistency, and relationships between branches and level of government. Above all, judges' moral authority is tied to their deference to public preferences as expressed through political institutions. Courts depart from these constraints at their own political peril,” at 148.

Oregon at 1148 (the emphasis is Judge Wallace's).

532 U.S. 483, at 500 (the emphasis is Justice Stevens's).

Id. at 502.

Many advocates of state and medical professional control over provision of palliative care might characterize the events that took place several months after Judge Wallace made these comments as an ironic twist of fate. In October 2004, the U.S. Justice Department and the Drug Enforcement Administration changed their position regarding their participation in the development of national guidelines designed to provide information to health care professionals and law enforcement agencies on prescribing narcotics for pain. In 2001, the DEA, Last Acts Partnership, and the Pain & Policy Studies Group at the University of Wisconsin had produced a consensus statement titled “Promoting Pain Relief and Preventing Abuse of Pain Medications: A Critical Balancing Act.” And, two years later, the same parties had produced a document titled “Prescription Pain Medications: Frequently Asked Questions and Answers for Health Care Professionals and Law Enforcement Personnel.” The introduction to that document states, “The goal is to achieve a better balance in addressing the treatment of pain while preventing abuse and diversion of pain medications. The authors of this document stand committed to the core principle of balance that was expressed in the 2001 joint consensus statement….” Both documents can be viewed at <www.lastacts.org>. The DEA cited the presence of misstatements in the documents as the reason for its withdrawal of support for such initiatives.

Oregon at 1148.