May 07, 2003
'In the Course of Professional Practice' Versus 'For a Legitimate Medical Purpose'
To my mind, in intellectual terms if not legal ones (although it was, in fact, brought up in court today as an important legal distinction), that is the issue at the crux of Oregon v. Ashcroft.
This morning at the Mark O. Hatfield U.S. Courthouse in downtown Portland, a 3-judge panel heard oral arguments in the matter of Oregon's "death with dignity" law, which establishes the right to physician-assisted suicide, and which has been under constant assault by the U.S. Department of Justice under Attorney General John Ashcroft.
(Some pre-hearing coverage and background on the case can be found in today's Oregonian. And KGW has some post-hearing wrap-up.)
Whether or not this particular distinction becomes a central element of whatever ultimately becomes of this case, it seems to me to be at the heart of the entire "disagreement." In this distinction rests the fundamental determination as to whose definition of medicine prevails, that of the United States government or that of the state of Oregon.
Ashcroft's position, as related in a statement from Assistant Attorney General Robert D. McCallum Jr., is that "Federal law has long authorized to prescribe controlled substances only for legitimate medical purposes." To the current government of the United States (the previous administration did not hold this view), "assisting suicide is not such a purpose."
Defenders of the Oregon law, however, assert that the relevant statutory language in the Controlled Substances Act is the phrase, "in the course of professional practice." Further, that the relevant sections of the CSA makes at least five explicit references to "state law" -- evidence, they argue, that even the CSA itself specifically continues the tradition that it is each state, and not the Federal government, which determines its own definitions of the practice of medicine.
In other words, if any given state should determine that physician-assisted suicide is consistent with duties performed "in the course of professional [medical] practice," then the Federal government cannot say otherwise.
Opponents of the law, on the other hand, argue that the "disagreement" is over whether a "2,000 year tradition dating back to Hippocrates" or a "10 year invention of Oregon" should hold sway. Of course, this sidesteps the mattters related above, in that it fails to even engage what should be the primary question: Just who gets to define the practice of medicine.
But to the Federal government, or so it would seem from their arguments today, instead wants the court to focus on Ashcroft's reading of the powers given him under the Controlled Substances Act. That reading would establish that control over certain substances is paramount under all circumstances, and exceptions are only to be granted grudgingly and based upon the whims (not that this is the word they use, of course) of whatever administration currently presides over the Dpeartment of Justice.
Supporters of the law, however, argue that in the scheme of the CSA, the central core is an acknowledgement that drugs have medical purposes, but that because we don't want highly problematic or damaging drugs to, shall we say, escape from those confines into an external environment where they can be bought, sold, traded, and abused, we need a mechanism in place which prevents such "escape."
In other words, the issue as far as the CSA is concerned is one of "diversion" of drugs from proper use into illicit trafficking and abuse. And that, supporter's of Oregon's law assert, is the way in which the CSA must be viewed. Framed this way, anything a state determines to be "medicine" must be respected by the Federal government, who must not use the CSA (intended, they say, to prevent "diversion") to interfere with medicine conducted "in the course of professional practice" in that state.
This is less confusing than I am making it out to be. More simply, the argument is this: That the CSA is designed to control illicit drug trafficking, not the practice of medicine. Therefore, it cannot be used to punish doctors for actions "in the course of professional practice" as determined by the state in which they are licensed.
As much as I am making of this particular element of the case, it was not all that was argued in the course of the hour-long session. But as I continued taking notes, and as I further digested those notes since the hearing concluded, I believe that this is the central issue, and so it's all I wanted to reflect upon here.
A ruling is not expected until sometime this Summer.
On a lighter and paranthetical note, I am always (well, okay, this is onnly the second time I've ever attended a Federal court hearing) struck by how much humor is involved in the exchanges between judges and attorneys. Although, to be honest, this humor comes much more from the bench than from the other side. I was especially amused at one judge's irritation at a red light on the courtroom camera, as he explained that there was an understanding that the taping was "not to bother" them.