Physician-Assisted Suicide and the Controlled Substances Act: Gonzales v. Oregon
CRS Report for Congress
Physician-Assisted Suicide and the Controlled
Substances Act: Gonzales v. Oregon
Updated February 7, 2006
Brian T. Yeh
American Law Division
Congressional Research Service ˜ The Library of Congress
Physician-Assisted Suicide and the Controlled
Substances Act: Gonzales v. Oregon
The state of Oregon’s Death with Dignity Act (ODWDA) is the first and only
state law in the nation that legalizes physician-assisted suicide. The ODWDA
permits Oregon physicians to prescribe a lethal dose of medication to mentally
competent, terminally ill patients, who then may voluntarily elect to hasten their
Under the Controlled Substances Act (CSA), a federal law that regulates the
legal and illicit manufacture, distribution, and possession of drugs, a physician may
prescribe controlled substances to patients only for a “legitimate medical purpose.”
In 2001, then-U.S. Attorney General John Ashcroft issued a memorandum in which
he declared that physician-assisted suicide is not a “legitimate medical purpose” for
prescribing federally controlled substances. The “Ashcroft Directive” potentially
subjected Oregon doctors who prescribed drugs pursuant to the ODWDA to criminal
prosecution for violating the CSA and to a loss of the privilege to prescribe
On November 7, 2001, the state of Oregon, an Oregon physician and
pharmacist, and several terminally ill patients filed a lawsuit to prevent the
enforcement of the Ashcroft Directive. A federal district court and the U.S. Court
of Appeals for the Ninth Circuit held the Directive invalid and unenforceable because
Congress did not authorize the Attorney General to determine that physician-assisted
suicide is not a legitimate medical purpose under the CSA. These courts determined
that Congress did not intend for the CSA to override a state’s traditional power to
regulate the practice of medicine.
Attorney General Ashcroft appealed the Ninth Circuit’s decision to the U.S.
Supreme Court. Alberto Gonzales had replaced John Ashcroft as Attorney General
by the time the Court agreed to review the case. On January 17, 2006, the U.S.
Supreme Court in Gonzales v. Oregon affirmed the judgment of the Ninth Circuit,
ruling that the Directive is not entitled to the traditional judicial deference
customarily accorded to a federal agency’s interpretation of a regulation or statute,
and, furthermore, that the Directive is unenforceable because the CSA does not
authorize the Attorney General to prohibit the distribution of federally controlled
substances for the purposes of facilitating an individual’s suicide.
In troduction ..................................................1
The Controlled Substances Act...............................2
Oregon’s Death with Dignity Act.............................3
The Ashcroft Directive.....................................3
The Supreme Court Opinion in Gonzales v. Oregon...................5
Physician-Assisted Suicide and the
Controlled Substances Act:
Gonzales v. Oregon
The circumstances giving rise to Gonzales v. Oregon1 involved the emotionally
charged political and moral debate over physician-assisted suicide and end-of-life2
decision making. However, the matter in controversy did not require the U.S.
Supreme Court to weigh in on the merits of physician-assisted suicide or the
constitutionality of the Oregon statute that sanctioned and regulated such practice.
Rather, it presented the Court with a question concerning the scope of authority
granted by a federal statute: Whether the Controlled Substances Act (CSA) and its
implementing regulations authorized the Attorney General to prohibit the distribution
of federally controlled substances for the purpose of facilitating an individual’s
suicide, regardless of the state of Oregon’s law that permits such distribution.
Writing the opinion of the Court, which was joined by five other justices,
Associate Justice Anthony M. Kennedy relied on a statutory interpretation of the
CSA to determine that the Attorney General had exceeded his authority under the
CSA when he issued a rule declaring the use of controlled substances for physician-
assisted suicide to be a violation of the CSA.3 As a consequence of this decision, a
physician acting pursuant to the Oregon Death with Dignity Act to hasten the death
of a terminally ill patient does not commit a per se violation of the CSA — thus he
or she cannot be subjected to federal criminal prosecution on this particular ground,
nor can the physician’s authority to prescribe controlled substances be revoked on
1 546 U.S. __ , 126 S. Ct. 904 (2006).
2 For a discussion concerning the “right to die” and assisted suicide, see CRS Report 97-
3 It is important to note that this decision did not explicitly uphold the constitutionality of
the Oregon Death with Dignity Act, as that matter was not at issue before the Court. The
outcome of the decision determines the possible legal sanctions under federal law that an
Oregon physician might face if he or she prescribes controlled substances to facilitate a
patient’s death in compliance with the Oregon law.
The Controlled Substances Act. Congress enacted the CSA as Title II of4
the Comprehensive Drug Abuse Prevention and Control Act of 1970. The purpose
of the CSA is to regulate the use of controlled substances for legitimate medical
purposes and to prevent these substances from being diverted for illegal manufacture,
distribution, and use. Controlled substances are categorized into five schedules,
ranging from Schedule I substances, which have no currently accepted medical use
in treatment and can only be used in very limited circumstances, to substances in
Schedules II, III, IV, and V, which have recognized medical uses and may be
manufactured, distributed, and used in accordance with the CSA.5
It is unlawful for a physician to prescribe or dispense controlled substances
without first registering with the U.S. Attorney General and obtaining a Drug
Enforcement Administration (DEA) certificate.6 No controlled substance in7
Schedules II, III, IV, and V may be dispensed without a prescription. According to
a regulation promulgated by the Attorney General in 1971, a prescription for a
controlled substance may be issued only for a “legitimate medical purpose” by a
physician “acting in the usual course of his professional practice.”8
The CSA authorizes9 the Attorney General to suspend or revoke a physician’s
prescription privileges upon a finding that the physician has “committed such acts as
would render his registration ... inconsistent with the public interest.”10 In
determining the public interest, the Attorney General is required to consider the
!The recommendation of the appropriate state licensing board or
professional disciplinary authority.
!The applicant’s experience in dispensing or conducting research
with respect to controlled substances.
!The applicant’s conviction record under federal and state laws
relating to the manufacture, distribution, and dispensing of
4 P. L. 91-513, 84 Stat. 1236 (1970) (codified at 21 U.S.C. §§ 801-904).
5 See 21 U.S.C. § 812.
6 21 U.S.C. §§ 822, 841(a)(1).
7 21 U.S.C. § 829.
8 21 C.F.R. § 1306.04(a).
9 While the Attorney General is empowered by the CSA to deny, suspend, or revoke a DEA
registration, this action is not mandatory: “A [DEA] registration ... may be suspended or
revoked by the Attorney General...” 21 U.S.C. § 824(a) [emphasis added].
10 21 U.S.C. § 824(a)(4).
11 21 U.S.C. § 823(f).
!Compliance with applicable state, federal, and local laws relating to
!Such other conduct that may threaten the public health and safety.
Oregon’s Death with Dignity Act. The Oregon Death with Dignity Act
(ODWDA) is the first and only state law in the nation that legalizes physician-12
assisted suicide. The ODWDA specifies detailed requirements and procedures by
which a mentally competent, terminally ill adult resident of Oregon may voluntarily
make a “written request for medication for the purpose of ending his or her life in a
humane and dignified manner.”13 The patient must be suffering from “an incurable
and irreversible disease that has been medically confirmed and will, within
reasonable medical judgment, produce death within six months.”14 The patient’s
written request must be signed and dated in the presence of at least two witnesses
who attest that the patient is competent and acting voluntarily.15
Under the ODWDA, an Oregon physician may prescribe, but not administer,16
lethal doses of medication to enable the patient to end his or her life. The most
effective and reliable means for painlessly ending a terminally ill person’s life is by17
ingesting certain controlled substances listed under Schedule II of the CSA.
Between 1998 and 2004, 208 persons in Oregon chose to take their lives pursuant to18
the ODWDA. The most frequently given reasons for terminally ill patients making
prescription requests under the ODWDA are a decreasing ability to participate in19
activities that make life enjoyable, loss of autonomy, and a loss of dignity.
The Ashcroft Directive. In 1997, in reaction to a congressional inquiry, the
DEA Administrator issued an opinion letter stating that assisting suicide is not a
“legitimate medical purpose” under the CSA, and therefore Oregon physicians and
pharmacists would be violating the CSA if they acted under the ODWDA to
prescribe or dispense controlled substances.20 However, on June 5, 1998, after
conducting “a thorough and careful review of the issue,” then-Attorney General Janet
12 OR. REV. STAT. §§ 127.800-897. This act was enacted through a voter initiative process
in November 1994. After surviving legal challenges and a ballot measure that would have
repealed it, the DWDA went into effect in November 1997.
13 OR. REV. STAT. § 127.805(1).
14 OR. REV. STAT. § 127.800(12).
15 OR. REV. STAT. § 127.810(1).
16 See Brief for Respondent State of Oregon, at 2 n.2, Gonzales v. Oregon, No. 04-623 (July
18, 2005) (“[N]either the physicians who prescribe nor the pharmacists who dispense drugs
under the ODWDA may provide physical assistance to the patient.”).
17 Oregon v. Ashcroft, 368 F.3d 1118, 1123 n.5 (9th Cir. 2004); Oregon v. Ashcroft, 192
F.Supp. 2d 1077, 1082 (D. Or. 2002).
18 Oregon Department of Human Services, Seventh Annual Report on Oregon’s Death with
Dignity Act, 5 (2005), available at [http://egov.oregon.gov/DHS/ph/pas/docs/year7.pdf].
19 Id. at 15.
20 Oregon, 368 F.3d at 1132 (Wallace, J., dissenting).
Reno overruled the DEA Administrator’s determination, explaining that the CSA was
not “intended to displace the states as the primary regulators of the medical
profession, or to override a state’s determination as to what constitutes legitimate
medical practice.”21 She concluded that “the CSA does not authorize the DEA to
prosecute, or to revoke DEA registration of, a physician who has assisted in a suicide
in compliance with Oregon law.”22
In response, some Members of Congress introduced bills in 1998 and 1999 to
amend the CSA to “provide explicit clarification that the dispensing or distribution
of controlled substances to assist with a suicide ... is not a legitimate medical
purpose.”23 The Lethal Drug Abuse and Prevention Act of 199824 would have
required the Attorney General to determine that a physician’s DEA registration is
inconsistent with the public interest (and thus subject to suspension or revocation),
upon a finding that the registrant has intentionally dispensed or distributed a
controlled substance with the purpose of causing, or assisting in causing, the suicide
or euthanasia of an individual.25 The Pain Relief Promotion Act of 199926 would
have prohibited the Attorney General, in evaluating whether a DEA registration is
consistent with the public interest, from giving any force and effect to state laws
authorizing assisted suicide or euthanasia. However, neither of these bills passed the
After John Ashcroft became the new Attorney General, the Department of
Justice’s interpretation of the CSA changed. On November 9, 2001, Attorney
General Ashcroft issued a memorandum to the DEA Administrator that reversed the
legal analysis of his predecessor. This interpretive rule, known as the “Ashcroft
Directive,” states that the Attorney General has determined that
“[A]ssisting suicide is not a ‘legitimate medical purpose’ within the meaning of
21 C.F.R. § 1306.04 (2001), and that prescribing, dispensing, or administering
federally controlled substances to assist suicide violates the CSA. Such conduct
by a physician registered to dispense controlled substances may ‘render his
registration ... inconsistent with the public interest’ and therefore subject to
possible suspension or revocation under 21 U.S.C. § 824(a)(4). This conclusion
applies regardless of whether state law authorizes or permits such conduct by
21 Statement of Attorney General Reno on Oregon’s Death with Dignity Act (June 5, 1998),
available at [http://www.usdoj.gov/opa/pr/1998/June/259ag.htm.html].
23 S. REP. NO. 105-372, at 4, 105th Cong., 2nd Sess. (1998).
24 H.R. 4006, 105th Cong., 2nd Sess. (1998).
25 The bill provided exceptions for palliative care and for carrying out a death sentence
under federal or state law.
26 H.R. 2260, 106th Cong., 1st Sess. (1999).
27 Oregon, 192 F.Supp. 2d at 1083 n.6 (“The Lethal Drug Abuse and Prevention Act of 1998
... failed to reach the floor of either the House or the Senate. The Pain Relief Promotion Act
of 1999 passed the House in 1999, but failed to reach the Senate floor for a vote.”). See also
CRS Report RS20677, Assisted Suicide and the Controlled Substances Act: Legal Issues
Associated with the Proposed Pain Relief Promotion Act, by Kenneth R. Thomas.
practitioners or others and regardless of the condition of the person whose28
suicide is assisted.
This Directive thus attempts to accomplish three specific things:29
!declaring that the phrase “legitimate medical purpose,” as it appears
in a regulation that interprets the CSA, does not include physician-
!determining that prescribing, dispensing, or administering federally
controlled substances to assist suicide is a violation of the CSA; and
!cautioning that assisting in suicide may render a physician’s
registration “inconsistent with the public interest” and thus subject
to suspension or revocation.
On November 7, 2001, the state of Oregon, joined by an Oregon physician and
pharmacist and several terminally ill patients, filed a lawsuit for declaratory and
injunctive relief, together with a motion for a temporary restraining order, to enjoin
the enforcement of the Ashcroft Directive. A federal district court in Oregon in 2002
entered a permanent injunction against the Directive’s enforcement,30 and the U.S.
Court of Appeals for the Ninth Circuit in 2004 determined that the Directive was
invalid.31 Attorney General Ashcroft appealed the Ninth Circuit’s decision to the
U.S. Supreme Court. Alberto Gonzales had replaced John Ashcroft as Attorney
General by the time the Court agreed to review the case.32
The Supreme Court Opinion in Gonzales v. Oregon
By a vote of 6-3, the U.S. Supreme Court affirmed the judgment of the Court
of Appeals. The majority opinion, written by Justice Anthony M. Kennedy, was
joined by Justices John Paul Stevens, Sandra Day O’Connor, David H. Souter, Ruth
Bader Ginsburg, and Stephen G. Breyer. Justice Antonin Scalia wrote the dissent,
signed by Chief Justice John G. Roberts, Jr., and Justice Clarence Thomas, who also
wrote a separate dissent.
Majority Opinion. At the outset, Justice Kennedy identified the Court’s
primary task that would provide a resolution to the case: “interpreting a federal
statute to determine whether Executive action is authorized by, or otherwise
28 66 Fed. Reg. 56,608.
29 Gonzales, 126 S. Ct. at 926 (Scalia, J., dissenting).
30 Oregon v. Ashcroft, 192 F.Supp. 2d 1077 (D. Or. 2002).
31 Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004). The Court of Appeals provided two
independent reasons for finding the Directive unlawful and unenforceable: (1) The Directive
altered the “usual constitutional balance between the States and the Federal Government”
in the absence of a “clear statement” by Congress that the CSA authorizes such action, and
(2) The Directive is contrary to the plain language of the CSA, which is limited to
combating conventional drug abuse and requires the Secretary of Health and Human
Services, not the Attorney General, to make decisions on medical policy. Id. at 1124-1129.
32 Gonzales v. Oregon, 125 S.Ct. 1299 (2005).
consistent with, the enactment.”33 In the opinion of the Court, Attorney General
Ashcroft had exceeded his statutory authority under the CSA when he issued the
Directive, and his determination excluding physician-assisted suicide as a “legitimate
medical purpose” under the prescription requirement of the CSA is entitled to no
Standards of Judicial Deference. As a framework for analyzing the
Attorney General’s Directive throughout the opinion, the Court considered several
different standards of judicial deference that might be applicable and ultimately
concluded that only one would be appropriate. Judicial deference is the degree to
which a court will uphold and respect the validity of a federal agency’s interpretive
rules during judicial review of such agency decisions. The Court described the
inquiries that determine the level of judicial deference accorded, as they had been
explained in earlier Supreme Court jurisprudence:
!Auer v. Robbins:34 if the administrative rule interprets the issuing
agency’s own ambiguous regulation, a court must accord
“substantial deference,” meaning that the interpretation is binding on
the court unless it is plainly erroneous or inconsistent with the
!Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.:
if the administrative rule interprets an ambiguous statute, the
interpretation may receive substantial deference.
!United States v. Mead Corp.:36 if the administrative rule interprets
an ambiguous statute, and it appears that Congress has delegated
authority to the agency generally to make rules carrying the force of
law, and the interpretation was promulgated in the exercise of that
authority, then the Chevron substantial deference standard is
!Skidmore v. Swift & Co.:37 if the administrative rule interprets an
ambiguous statute, but Congress did not confer upon the agency
authority to promulgate the rules or regulations, the interpretation is
respected by the court only to the extent that it is persuasive.
As these standards indicate, the degree of deference to which an agency’s rule
is entitled depends on two threshold matters: (1) whether the interpretation at issue
construes statutory text or the regulations promulgated by the agency charged with
administering the statute and (2) whether Congress had empowered the agency to
issue the interpretive rule in the first place. This determination dictates how a court
will likely resolve any challenges to an administrative agency’s rules, and, indeed,
33 Gonzales, 126 S. Ct. at 911.
34 519 U.S. 452 (1997).
35 467 U.S. 837 (1984).
36 533 U.S. 218 (2001).
37 323 U.S. 134 (1944).
the Gonzales Court relied on this analysis to guide its opinion to the outcome it
The Relevant Statutory Text and Regulations. The Court examined the
following statutory provisions of the CSA and the regulation at issue:
!21 U.S.C. § 829(a): No controlled substance in Schedule II may be
dispensed without the written prescription of a practitioner.
!21 C.F.R. § 1306.04(a): To be effective, a prescription for a
controlled substance must be issued for a legitimate medical purpose
by an individual practitioner acting in the usual course of his
!21 U.S.C. § 824(a)(4): The Attorney General may deny, suspend, or
revoke a physician’s DEA registration if the physician’s registration
would be “inconsistent with the public interest.”
The first provision was part of the CSA as it had been enacted in 1970. The second
provision is a regulation promulgated by the Attorney General in 1971, interpreting
the word “prescription” as it appears in 21 U.S.C. § 829. The third provision was
added to the CSA by amendments made to the law in 1984.
“Parroting” Regulation. The Government in Gonzales claimed that the
Ashcroft Directive, issued in 2001, is an interpretation of the term “legitimate
medical purpose” in the regulation 21 C.F.R. § 1306.04(a). Under the government’s
position, the Ashcroft Directive would appear to be entitled to the Auer substantial
deference standard, as a purported interpretation of an agency regulation rather than
of a statute. However, the Gonzales Court declined to accord the Auer standard of
deference to the Directive. In its view, the agency regulation 21 C.F.R. § 1306.04(a)38
“does little more than restate the terms of the statute itself.” Because the language
of the Directive “comes from Congress, not the Attorney General,” this “near-
equivalence of the statute and the regulation” renders Auer deference inappropriate.
The Court thus announced a new principle for judicial review of agency rules and
deference standard selection:
[T]he existence of a parroting regulation does not change the fact that the
question here is not the meaning of the regulation but the meaning of the statute.
An agency does not acquire special authority to interpret its own words when,
instead of using its expertise and experience to formulate a regulation, it has39
elected merely to paraphrase the statutory language.
Because the Court majority believed that the regulation at issue was a mere
paraphrase of the statutory language, it examined whether the Ashcroft Directive was
entitled to receive Chevron deference as an interpretation of the CSA.
Rule Not Authorized. Applying the Mead analysis, the Court refused to
accord Chevron deference to the Directive after concluding that it was not
38 Gonzales, 126 S. Ct. at 915.
39 Id. at 916.
promulgated pursuant to the authority that Congress delegated to the Attorney
General.40 The Court made the determination that the CSA fails to provide the
Attorney General with the authority to issue this particular rule “carrying the force
of law,” after examining the language, structure, and purpose of the CSA. First, the
Court explained that the CSA delegates to the Attorney General the power to make
rules relating to “registration” and “control” of the manufacture, distribution, and
dispensing of controlled substances,41 as well as other rules he deems “necessary and
appropriate for the efficient execution of his functions” under the statute.42 The
Court noted, however, that the Attorney General’s powers under the CSA are
expressly limited to those functions and responsibilities, and that nothing in the CSA
authorizes the Attorney General “to make a rule declaring illegitimate a medical
standard for care and treatment of patients that is specifically authorized under state
The Directive was issued in excess of the Attorney General’s authority to make
regulations for the “control” of drugs, since the Court’s majority determined that
“control” is a “term of art” that is defined in the statute: “to add a drug or other
substance, or immediate precursor, to a schedule under part B of this subchapter,
whether by transfer from another schedule or otherwise.”44 Because the Directive
does not address the scheduling of drugs, the Court found that it cannot be considered
a valid exercise of the Attorney General’s power to “control” drugs through the
making of regulations.45 In apparent response to the Gonzales dissenting opinion that
questioned the applicability of the statutory definition of “control” to the Attorney
General’s authority to promulgate the Directive (and which argued instead for the use
of a dictionary definition of “control”), the majority opinion rejected giving “control”
a more expansive meaning, stating that
Even if “control” in [21 U.S.C.] § 821 were understood to signify something
other than its statutory definition, it would not support the [Ashcroft Directive].
The statutory references to “control” outside the scheduling context make clear
that the Attorney General can establish controls “against diversion” ... but do not
give him authority to define diversion based on his view of legitimate medical
practice. ... [T]he CSA’s express limitations on the Attorney General’s authority,
and other indications from the statutory scheme, belie any notion that the46
Attorney General has been granted this implicit authority.
The Directive is also not authorized under the Attorney General’s powers to
register a physician to prescribe controlled substances, or to revoke or suspend an
40 Id., citing Mead, 533 U.S. at 226-27.
41 21 U.S.C. § 821.
42 21 U.S.C. § 871(b).
43 Gonzales,126 S. Ct. at 916.
44 21 U.S.C. § 802(5).
45 Gonzales, 126 S. Ct. at 917.
existing registration, in conformity with “the public interest.”47 The Court asserted
that the Directive failed to undertake the five-factor analysis required by the statute
in determining consistency with the public interest.48 More importantly, the Directive
reaches beyond the subject of registration to interpret substantive federal
requirements for what constitutes a valid prescription and, in effect, “declare[s] that
using controlled substances for physician-assisted suicide is a crime, an authority that
goes well beyond the Attorney General’s statutory power to register or deregister.”49
The Court expressed concern about this “unrestrained” and “extraordinary” authority
claimed pursuant to the Attorney General’s deregistration power, since it criminalizes
the actions of physicians who engage in conduct that the Attorney General deems is
illegitimate.50 Furthermore, the Court was unwilling to find that the CSA implicitly
delegates to the Attorney General the broad authority to interpret the “legitimate
medical purpose” provision: “Congress ... does not alter the fundamental details of
a regulatory scheme in vague terms or ancillary provisions — it does not, one might
say, hide elephants in mouseholes.”51
Finally, the Court noted that the authority claimed by the Attorney General to
promulgate the Directive is in tension with the overall structure and design of the
CSA, which allocates decision-making powers between the Attorney General and the
Secretary of Health and Human Services. Medical judgments are to be made by the
Secretary, who presumably possesses medical expertise and competence beyond that
of the Attorney General, and the Attorney General is required to defer to those
decisions.52 While the government had argued that the Ashcroft Directive reflects a
legal, not a medical, decision, the Court disagreed, noting that the Directive itself
relies upon medical judgments and the views of the medical community.53
47 21 U.S.C. §§ 823(f), 824(a)(4).
48 See the factors listed in 21 U.S.C. § 823(f) in the “Background” section of this Report.
The government argued, however, that the Directive merely provides notice to physicians
that facilitating a patient’s death could potentially constitute being “inconsistent with the
public interest” within the meaning of 21 U.S.C. § 824(a)(4), although this determination
is not mandatory and, in any event, cannot be made until there is an enforcement proceeding
against a physician to revoke or suspend his or her DEA registration. The Gonzales
dissenting opinion agreed with this characterization. Gonzales, 126 S. Ct. at 938 (Scalia,
J., dissenting) (“It would be improper — indeed, impossible — for the Attorney General to
‘undertake the five-factor analysis’ ... outside the context of an actual enforcement
proceeding. But of course the Attorney General may issue regulations to clarify his
interpretation of the five factors, and to signal how he will apply them in future enforcement
proceedings.”) [Emphasis in original.]
49 Gonzales, 126 S. Ct. at 918.
51 Id. at 921 (citations omitted).
52 Id. at 920, citing 21 U.S.C. § 811(b) (“The recommendations of the Secretary to the
Attorney General shall be binding on the Attorney General as to such scientific and medical
matters [concerning the scheduling of any drug or other substance].”).
53 Gonzales, 126 S. Ct. at 909.
Skidmore Deference Applies. The remaining question facing the Court
was whether the Ashcroft Directive was a correct interpretation of the CSA and its
regulations, in case the Attorney General chooses to rely on the interpretation “only
for guidance in deciding when to prosecute or deregister” physicians.54 Because the
Ashcroft Directive was not promulgated pursuant to the authority the CSA vests in
the Attorney General, the Court explained that the interpretive rule only receives
The weight of [an agency interpretation] will depend upon the thoroughness
evident in its consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give it power to55
persuade, if lacking power to control.
The Court first noted that its willingness to accord judicial respect for the
Directive is “tempered” by the fact that the Attorney General lacks the medical
expertise to decide what physician practices constitute a “legitimate medical
purpose” and that there had been an “apparent absence of any consultation with
anyone outside the Department of Justice who might aid in a reasoned judgment”
concerning this issue.56 Then the Court, applying the Skidmore analysis, ruled that
it did not find the Directive persuasive, and thus the Court was not required to uphold
In assessing the validity of the Ashcroft Directive’s reasoning, the Court
considered whether the CSA can be read as prohibiting physician-assisted suicide.
Two recent Supreme Court cases are arguably relevant to this analysis: United States
v. Oakland Cannabis Buyers’ Cooperative57 and Gonzales v. Raich.58 At issue in
Oakland Cannabis was a California law that had created a medical necessity
exception to its marijuana prohibitions. The Supreme Court held that a medical
necessity defense for the cultivation and distribution of marijuana is “at odds with”
the CSA, since marijuana is a Schedule I controlled substance that has been
congressionally determined to have no accepted medical use in the United States.59
The Supreme Court ruled in Raich that Congress has the power under the Commerce
Clause to prohibit the cultivation or possession of marijuana for medical purposes,
despite a California law that permitted it. Thus, federal authorities could prosecute
medical marijuana users as violating the CSA.
54 Id. at 922.
55 Skidmore, 323 U.S. at 140.
56 Gonzales, 126 S. Ct. at 922.
57 532 U.S. 483 (2001). For more information concerning this decision, see CRS Report
RL31100, Marijuana for Medical Purposes: The Supreme Court’s Decision in United States
v. Oakland Cannabis Buyers’ Cooperative and Related Legal Issues, by Charles Doyle.
58 __ U.S .__, 125 S. Ct. 2195 (2005). For more information concerning this decision, see
CRS Report RS22167, Gonzales v. Raich: Congress’ Power Under the Commerce Clause
to Regulate Medical Marijuana, by Todd B. Tatelman.
59 Oakland Cannabis, 532 U.S. at 491.
The Gonzales majority opinion did not expressly attempt to distinguish the use
of controlled substances for facilitating physician-assisted suicide from the medical
marijuana issue considered in Oakland Cannabis and Raich. This omission is
perhaps explained, in part, by the fact that the Gonzales Court was presented with “a
question of statutory interpretation, and not the extent of constitutionally permissible
federal power.”60 However, the Court noted that Congress has made an “express
determination that marijuana ha[s] no accepted medical use” by categorizing it as a
Schedule I controlled substance.61 In contrast, physicians acting pursuant to the
Oregon Death With Dignity Act prescribe Schedule II controlled substances to
facilitate their patients’ deaths; drugs classified in this schedule have accepted
medical uses, such as alleviating pain, if prescribed in lower dosages.
Examining the CSA’s text and design, the Court concluded that the CSA was
intended to regulate “medical practice insofar as it bars doctors from using their
prescription-writing powers as a means to engage in illicit drug dealing and
trafficking as conventionally understood.”62 With a nod towards the principle of
federalism, the Court observed that the CSA still permits the states to have a
considerable role in regulating the practice of medicine under their traditional police
powers. This intent to preserve, rather than displace, the states’ regulation of the
health and safety of their citizens is evidenced by the inclusion of a nonpreemption
provision in the CSA:
No provision of this subchapter shall be construed as indicating an intent on the
part of the Congress to occupy the field in which that provision operates,
including criminal penalties, to the exclusion of any State law on the same
subject matter which would otherwise be within the authority of the State, unless
there is a positive conflict between that provision of this subchapter and that63
State law so that the two cannot consistently stand together.
In the opinion of the Court, the Oregon Death with Dignity Act is an example
of a state law concerning a medical practice that Congress has not enacted explicit64
language to regulate. The Court rejected the government’s assertion that the CSA
impliedly criminalizes physician-assisted suicide, since the CSA is largely silent on
the practice of medicine and includes the nonpreemption provision that permits
continued state regulation of the medical profession.65
Prescription Requirement as an Insufficient Basis of Authority. The
Court was unpersuaded by the government’s argument that the CSA’s “prescription”
60 Gonzales, 126 S. Ct. at 941 (Thomas, J., dissenting).
61 Gonzales, 126 S. Ct. at 923.
62 Id. Justice Thomas’ separate dissenting opinion criticized the “hasty retreat” of the Court
in narrowly interpreting the purpose of the CSA after having reached far broader
conclusions about the scope of the same statute only seven months earlier in Raich. Id. at
63 21 U.S.C. § 903.
64 Gonzales, 126 S. Ct. at 923.
65 Id. at 924.
requirement provides sufficient legal support for the Ashcroft Directive. The CSA
prohibits the dispensing of any Schedule II drug without the written prescription of
a practitioner.66 As noted earlier in this report, a regulation promulgated by the
Attorney General in 1971 interpreted the term “prescription” to mean one issued for
a “legitimate medical purpose.”67 Thus, according to the government, a Schedule II
drug may only be prescribed to a patient for a legitimate medical purpose.68 In the
government’s judgment, the term “medical” connotes healing, curing, treatment, or
prevention of disease, and therefore necessarily excludes “the intentional hastening
of a patient’s death.”69 The Government also offered the opinion and positions of
prominent professional medical organizations and the 49 other states that have not
legalized physician-assisted suicide as evidence that such medical practice is not a
Although the Court conceded the “reasonableness” of this characterization of
physician-assisted suicide, the majority opinion rejected the government’s reliance
on the prescription requirement as an independent basis for such an expansive federal
authority to regulate medicine practices:
The primary problem with the Government’s argument, however, is its
assumption that the CSA impliedly authorizes an Executive officer to bar a use
simply because it may be inconsistent with one reasonable understanding of
medical practice. Viewed alone, the prescription requirement may support such
an understanding, but statutes “should not be read as a series of unrelated and71
The Court noted that the legislative history and statutory scheme of the CSA suggests
“a more limited understanding” of the prescription provision.72 First, the CSA’s
legislative history reveals that Congress intended to limit the CSA to problems
associated with drug abuse and addiction.73 The CSA statutory text requires that the
Attorney General’s decisions to classify a substance in Schedules II through V must
be based, in part, on a substance’s psychological or physical dependence and abuse74
potential. The prescription provision must be considered in its context, the Court
66 21 U.S.C. § 829(a).
67 21 C.F.R. § 1306.04.
68 Gonzales, 126 S. Ct. at 924.
71 Id. (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995)).
72 Id. at 925.
73 The preamble to the CSA states its purpose: “to provide increased research into, and
prevention of, drug abuse and drug dependence; to provide for treatment and rehabilitation
of drug abusers and drug dependent persons; and to strengthen existing law enforcement
authority in the field of drug abuse.” Comprehensive Drug Abuse Prevention and Control
Act of 1970, P.L. 91-513, 84 Stat. 1236 (1970) (preamble).
74 21 U.S.C. § 811(c)(7).
stated, and thus it is “a provision that ensures patients use controlled substances
under the supervision of a doctor so as to prevent addiction and recreational abuse.”75
The Court agreed with the Ninth Circuit’s opinion that prescriptions for
physician-assisted suicide is not a “drug abuse,” but rather should be considered a
general medical practice to be regulated by the states.76 Attempting to characterize
physician-assisted suicide as a “drug abuse,” the Court asserted, is “discordant with
the phrase’s consistent use throughout the statute, not to mention its ordinary
meaning.”77 The Court refused to believe that Congress had the “far-reaching intent”
for the prescription requirement to delegate authority “to a single Executive officer
the power to effect a radical shift of authority from the States to the Federal
Government to define general standards of medical practice in every locality.”78
Dissenting Opinion. Justice Scalia, joined by Chief Justice Roberts and
Justice Thomas, would have reversed the Ninth Circuit’s opinion and upheld the
validity of the Ashcroft Directive on three independently sufficient grounds:79
!The Attorney General’s Directive was entitled to deference under the
Auer standard, because it is a valid interpretation of the “legitimate
medical purpose” phrase that is used in the Attorney General’s 1971
regulation, 21 C.F.R. § 1306.04.
!Even if the Directive is entitled to no judicial deference, the validity
of the interpretation is correct because “it is by far the most natural
interpretation of the Regulation.”
!Even if the Attorney General’s interpretation of the regulation is
incorrect, his interpretation of the CSA’s statutory phrases “public
interest” and “public health and safety” are entitled to Chevron
First, Justice Scalia believed that this case should have been resolved with a80
“straightforward application” of the Auer standard of judicial deference. He
questioned the majority’s actions in creating a “parroting” exception to the Auer rule,
without which Auer would have determined the judicial treatment of the case —
requiring the Court to respect the Attorney General’s Directive “unless plainly81
erroneous or inconsistent with the regulation.” Despite objecting to the newly
announced “parroting” rule, Justice Scalia asserted that the rule would not even apply
in this case. He observed that the regulation at issue, 21 C.F.R. § 1306.04, does not
merely “paraphrase the statutory language” as the majority claimed. The regulation
clarifies the undefined term “prescription” as it appears in the statutory language of
75 Gonzales, 126 S. Ct. at 925.
76 Ashcroft, 368 F.3d at 1125-26.
77 Gonzales, 126 S. Ct. at 925.
79 Gonzales, 126 S. Ct. at 926 (Scalia, J., dissenting).
80 Id. at 927.
81 Id. (quoting Auer, 519 U.S. at 461.)
21 U.S.C. § 829(a), by explicitly stating that any prescription, to be valid under the
CSA, may only be issued for a “legitimate medical purpose.” This regulation
“significantly clarifies the meaning of an otherwise ambiguous statutory provision,”
adds content to the statutory text, and thus “is not a ‘parroting’ regulation...”82
Justice Scalia thus concluded that since the regulation is not a mere duplication of the
statutory text, and since the Directive is the Attorney General’s interpretation of the
regulation, then the Auer deference standard is applicable. Using this standard,
Justice Scalia stated that the Directive is “controlling” on the Court because he did
not find the interpretation to be plainly erroneous or inconsistent with the
regulation;83 indeed, he opined that the Directive is a “perfectly valid” construction
of “legitimate medical purpose” that is within the Attorney General’s authority under
the CSA to make.84
Even if he were to accept the application of the “antiparroting canon” to this
case, Justice Scalia argued that the Directive would still be entitled to deference
under Chevron. He rejected as “manifestly erroneous” the Court’s use of the CSA’s
definition of “control” as it appears in one part of the statute, 21 U.S.C. § 802(5), to
restrict the Attorney General’s powers to control the manufacture, distribution, and
dispensing of controlled substances under 21 U.S.C. § 821.85 He stated that
We do not force term-of-art definitions into contexts where they plainly do not
fit and produce nonsense. What is obviously intended in § 821 is the ordinary
meaning of “control” — namely, “[t]o exercise restraining or directing influence86
over; to dominate; regulate; hence, to hold from action; to curb...”
Justice Scalia reasoned that if the Court had not incorrectly adopted the
artificially narrow definition of “control,” the Directive would likely have been
deemed to be within the Attorney General’s interpretive authority and thus worthy
of receiving Chevron deference. Unlike the majority of the Court, Justice Scalia was
not concerned that the Directive effectively created a criminal sanction for physician-
assisted suicide; this was an inevitable consequence of the CSA’s “prescription”
requirement: Since the Directive declared that assisting suicide is not a legitimate
medical purpose for a controlled substance prescription, the writing of such
82 Id. at 928.
83 Id. at 929.
84 Id. at 931.
85 21 U.S.C. § 802(5) provides that, as used “in this title,” the term “control” means to add
a drug or other substance, or immediate precursor, to a schedule under part B of this
subchapter, whether by transfer from another schedule or otherwise. [Emphasis added.] As
Justice Scalia correctly observed, Section 821 is not included in part B of the CSA
subchapter, but rather is located in part C. Thus, Justice Scalia argued, the majority opinion
should not have made the definition of “control” applicable to the Attorney General’s
powers under Section 821. Gonzales, 126 S. Ct. at 929 (Scalia, J., dissenting).
86 Id. (citations omitted)
prescriptions could subject the physician to prosecution for engaging in conduct that
violates the CSA.87
Second, Justice Scalia opined that even in the absence of any judicial deference
to it, the Directive is “the most reasonable” interpretation of the regulation and of the
statute, and is valid upon de novo review.88 His conclusion relied on the
“overwhelming weight of authority” that has excluded intentionally assisting suicide
from the definition of “legitimate medical purpose.”89 In addition, “virtually every
medical authority from Hippocrates to the current American Medical Association
(AMA) confirms that assisting suicide has seldom or never been viewed as a form
of ‘prevention, cure, or alleviation of disease,’” which is the typical dictionary
definition of medicine.90 Furthermore, Justice Scalia declared in dicta that “[i]f the
term ‘legitimate medical purpose’ has any meaning, it surely excludes the
prescription of drugs to produce death.”91
He also criticized the majority’s efforts to limit the scope of the CSA to only
“addiction and recreational abuse.” Although conceding that drug abuse is a
principal concern of the statute, he argued that such purpose is not its exclusive
concern.92 The majority opinion correctly noted that the CSA requires that the
Attorney General must consider a drug’s addictive properties in making scheduling
determinations,93 but Justice Scalia asserted that the Court had failed to discuss
another factor that the Attorney General must evaluate: “[w]hat, if any, risk there is
to the public health.”94 In addition, the Attorney General may refuse to register a
physician to prescribe controlled substances if such registration “would be
inconsistent with the public interest;”95 in determining the “public interest,” the
Attorney General must consider “[s]uch other conduct which may threaten the public
health and safety.”96 In his view, the majority opinion erred when it apparently
disregarded these public interest, public health, and public safety objectives in
87 Id. at 931.
89 Id. at 932.
91 Id. at 939.
92 Id. at 933 [emphasis in the original]. Justice Scalia explained: “We have repeatedly
observed that Congress often passes statutes that sweep more broadly than the main problem
they were designed to address. ‘[S]tatutory prohibitions often go beyond the principal evil
to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather
than the principal concerns of our legislators by which we are governed.’” Id. (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998)).
93 21 U.S.C. §811(c)(7).
94 21 U.S.C. § 811(c)(6).
95 21 U.S.C. § 823(f).
96 21 U.S.C. § 823(f)(5).
determining that the Attorney General’s authority under the CSA’s prescription
requirement applies only in the context of preventing drug abuse.97
Justice Scalia points out that the CSA’s nonpreemption clause does not support
the Court’s declaration that the CSA contemplates a role for the states in regulating
controlled substances; rather, the clause “merely disclaims field pre-emption, and
affirmatively prescribes federal pre-emption whenever state law creates a conflict.”98
Furthermore, the Ashcroft Directive does not preempt the Oregon state law because
the Oregon law does not require assisted suicide; rather, the Directive interprets the
CSA to prohibit conduct that is permitted under Oregon law.99
Finally, Justice Scalia explained that even if the Attorney General’s
interpretation of “legitimate medical purpose” is incorrect, Chevron deference should
still be applied to the Directive under yet another independent basis — the Attorney
General’s authority to interpret the term “public health and safety” as it is used in the
CSA’s grant of power to him to deregister physicians for conduct that is inconsistent
with the public interest.100 He criticized the Court’s Mead analysis that had resulted
in applying Skidmore deference to the Directive rather than Chevron. Justice Scalia
suggested that Congress, by leaving the terms “public interest” and “public health
and safety” ambiguous in the CSA, implicitly empowered the Attorney General to
interpret those factors.101 Although such delegation of authority to interpret these
terms may not be explicit in the statute, in his judgment, Chevron would be
warranted because even an implicit delegation of authority could still entitle an
agency interpretation to substantial deference,102 and in any event, the CSA explicitly
delegates to the Attorney General the power to promulgate rules and regulations
regarding the registration and control of the manufacture, distribution, and dispensing
of controlled substances.103
That the design of the CSA divides decision-making authority between the
Attorney General and the Secretary of Health and Human Services failed to convince
Justice Scalia of the majority’s claim that the Attorney General has no role in making
determinations concerning the legitimacy of medical practices. Charged with the
power to register and deregister physicians for prescribing and dispensing controlled
substances, and the power to prosecute those who violate the CSA, the Attorney
General should have discretion over the substantive standards by which such a
97 Gonzales, 126 S. Ct. at 933 (Scalia, J., dissenting) (“All of these provisions, not just those
selectively cited by the Court, shed light upon the CSA’s repeated references to the
undefined term ‘abuse.’”).
98 Id. at 934 [emphasis in the original].
99 Id. [emphasis in the original].
100 Id. at 935-36.
101 Id. at 936.
102 Id. (“The Court’s exclusive focus on the explicit delegation provisions is, at best, a fossil
of our pre-Chevron era; at least since Chevron, we have not conditioned our deferral to
agency interpretations upon the existence of explicit delegation provisions.”)
103 21 U.S.C. § 821.
decision is made, he reasoned. Such a determination “ultimately rests, not on
‘science’ or ‘medicine,’ but on a naked value judgment.”104 He explained:
Far from establishing a general principle of Secretary supremacy with regard to
all scientific and medical determinations, the fact that Congress granted the
Secretary specifically defined authority in the areas of scheduling and addiction
treatment, without otherwise mentioning him in the registration provisions,
suggests, to the contrary, that Congress envisioned no role for the Secretary in
that area — where, as we have said, interpretive authority was both implicitly105
and explicitly conferred upon the Attorney General.
However accurate as a matter of statutory interpretation and administrative law
that he felt his dissenting opinion may have been, Justice Scalia evidently failed to
convince the six Justices voting in the majority. Justice Kennedy’s opinion
represents the judgment of the Court in Gonzales v. Oregon, holding that the
Attorney General exceeded his legal authority when he proclaimed that it is not a
legitimate medical purpose under the Controlled Substances Act for physicians to
prescribe controlled substances to facilitate an individual’s death. As noted earlier,
the Court’s opinion did not rule on the constitutionality of the Oregon law that
authorizes physician-assisted suicide practices.106 The Court also did not address the
question of whether Congress had the power to override such a state law. The
narrow legal inquiry answered by the Court was the authority of the Attorney General
under the Controlled Substances Act to make a decision that interferes with a medical
practice sanctioned by state law. Perhaps influenced in part by principles of
federalism and the recognition that states have traditionally enjoyed the independent,
sovereign power to regulate the practice of medicine, the Court rejected an executive
action that, in its view, was beyond the authority that Congress had granted to the
However, Justice Scalia in dissent observed the following: “The Court’s
decision today 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.” In Washington v. Glucksberg, the Court had stated that “throughout the
Nation, Americans are engaged in an earnest and profound debate about the morality,
legality, and practicality of physician-assisted suicide. Our holding permits this
104 Gonzales, 126 S. Ct. at 937 (Scalia, J., dissenting).
106 In Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court held that the right
to assisted suicide is not a fundamental liberty interest protected under the Due Process
Clause of the Fourteenth Amendment.
107 The concerns of the Court are evidenced by the words chosen to describe the powers
claimed by the Attorney General in promulgating the Directive: “extraordinary authority”
and “unrestrained” power. Gonzales, 126 S. Ct. at 918.
debate to continue, as it should in a democratic society.”108 Former Justice Sandra
Day O’Connor offered a concurrence in that opinion, in which she stated that
There is no reason to think the democratic process will not strike the proper
balance between the interests of terminally ill, mentally competent individuals
who would seek to end their suffering and the State’s interests in protecting those
who might seek to end life mistakenly or under pressure. ... States are presently
undertaking extensive and serious evaluation of physician-assisted suicide and
other related issues. ... In such circumstances, “the ... challenging task of crafting
appropriate procedures for safeguarding ... liberty interests is entrusted to the109
‘laboratory’ of the States ... in the first instance.”
The Gonzales Court also permits the debate over physician-assisted suicide to
continue. It is uncertain what role the federal government may play in the
“democratic process” that resolves this contentious issue, but the Gonzales Court
made it clear that the Controlled Substances Act, as it is currently written, cannot be
used as a basis for the Attorney General to act unilaterally to prohibit this medical
practice authorized by the state of Oregon.
108 Glucksberg, 521 U.S. at 735.
109 Id. at 737 (O’Connor, J., concurring) [citations omitted].