The End Of The Beginning

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

And law professors are going to be scratching their heads for decades trying to figure out why the Court backed Oregon's law while voiding California's medical marijuana initiative just a few months ago.

That last point was raised, not unfairly, by Justice Clarence Thomas, who dissented from the 6-3 ruling in favor of Oregon along with his conservative brethren on the Court, Justice Antonin Scalia and Chief Justice John Roberts. All three men sided with the Bush Administration and former U.S. Attorney General John Ashcroft in declaring that the federal government's regulation of doctors permits it to trump a state law like Oregon's that allows those doctors to prescribe deadly medication to the terminally ill.

That view, however, is not the law of the land.

That's because the Court's moderate core -- Justices Souter, Kennedy and the soon-to-be-gone O'Connor -- all sided with Oregon, ruling that neither the Controlled Substance Act, nor Ashcroft's 2001 effort interpreting it, permitted the Attorney General to "effect a radical shift of authority from the states to the federal government to define general standards of medical practice in every locality."

Justice Kennedy, writing for the majority, declared that the Attorney General exceeded his authority when he "interpreted" the Act to mean that "using controlled substances to assist suicide is not a legitimate medical purpose and that dispensing or prescribing them for this purpose is unlawful."

What the majority saw as overreaching by the executive branch the dissenters saw as a perfectly appropriate and legitimate effort to give more meaning to the Controlled Substance Act. Justice Scalia, writing the main dissent, said that the Act permitted, even encouraged, the Attorney General to issue rules identifying the scope of congressional authority and that the federal government long has had the power, through the Commerce Clause, to regulate state activities.

The majority's ruling, Justice Scalia wryly noted, "is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position…. [But] if the term legitimate medical purpose any meaning, it surely excludes the prescription of drugs to produce death." (Emphasis added by Scalia).

What's striking about both the majority's opinion, and Scalia's main dissent, is how much this viscerally, emotional case turned upon arcane and technical rules of statutory construction. If you were looking for sweeping language about the meaning of life and death, or a doctor's role in end-of-life decisions, you will find very little of it.

Instead, you will find a fight over how much deference the Court was supposed to give, not just to Congress when it enacted the Controlled Substance Act, but also the former Attorney General when he used it as a sword to cut down Oregon's efforts. Reading the dueling opinions was like reading a textbook when you are expecting a novel.

In any event, the ruling is a crushing blow to the Administration, especially on the heels of its big win last Court term in the medical marijuana case. And it's a ratification of the views of Oregon officials and the courts, which had said all along that the feds had no business butting in to what the state wanted to do for its terminally ill.

But the text and force of the ruling doesn't end the matter. In fact, it probably just signifies the end of the beginning of the legal debate over physician-assisted suicide. There are doubtless many more rounds to come.

Even though the vast majority of states now outright outlaw assisted-suicide -- Justice Scalia puts the number at 47 -- there are grassroots efforts in several states to copy Oregon's law. No doubt these initiatives will gather steam now that supporters of physician-assisted suicide can claim they have the force of law behind them. And I wouldn't be surprised if we start to see such issues crop up on ballots, if not this November then certainly soon thereafter.

Supporters of the practice, then, will look at this ruling and declare that the tide has turned in their favor.

But opponents of the practice will simply read the Court's majority as an invitation to Congressional action. The Court didn't declare that no federal law ever could preclude a state's assisted-suicide laws. It just declared that the federal laws currently on the books cannot. So now, in Congress, I suspect that some will push to make explicit what the Controlled Substance Act does not: an outright prohibition for doctors who assist suicides.

Can these efforts succeed? That's a political question, not a legal one, but I wouldn't put anything past the same people who tried to wrangle their way into the Terri Schiavo saga last winter.

And then there is the third effect of this important ruling -- the apparent disconnect between the Court's majority today and the Court's majority in Gonzales v. Raich, the medical marijuana case decided last spring. As Justice Thomas pointed out, the Court in Raich seemed to recognize a far stronger and more powerful Controlled Substance Act than it did in the assisted suicide case.

In Raich, Thomas noted, the Court was willing to say that the CSA "is a comprehensive regulatory scheme specifically designed to regulate which controlled substances can be utilized for medicinal purposes and in what manner." (Emphasis added by Thomas).

But in the Oregon case, Thomas continued, that broad view of the Controlled Substance Act was narrowed to by the Court's majority so it "is only concerned with the regulation of 'medical practice insofar as it bars doctors from using their prescription-writing powers as means to engage in illicit drug dealing and trafficking as conventionally understood." Justice Thomas also chastised the majority for its inconsistency in evaluating the dance between federal and state interests. In the Raich case, he noted, the Court's majority was willing to recognize strong federal power in implementing the CSA; in the assisted suicide case, it was not.

Are we seeing a Supreme bias in favor of assisted-suicide patients and against ailing medical marijuana users? Can the two rulings be reconciled? Will the Court have to render another ruling in a similar case to make clear what it really means? Those questions are going to echo throughout law school classrooms for years and years to come. And so will the legal and political debate over physician-assisted suicide.

The language of these opinions may be dry. But the import of the words is not. About 200 terminally ill patients in Oregon already have been permitted to die under the new law. Many hundreds more, maybe even many thousands more, will be able to choose the time and manner of their death because six Justices sided with Oregon and against the feds. This was a life-and-death case, after all, and another example of why the makeup of the Supreme Court is so vitally important to all of us.