Rich, B. A., “The Politics of Pain: Rhetoric or Reform,” DePaul Journal of Health Care Law 8 (2005): 519–558, at 520. Rich, in his excellent analysis of why physicians and health care institutions continue to not take seriously the treatment of pain, uses the phrase “politics of pain” in a much broader sense than I intend by the phrase “politics of palliative care.” Professor Rich chronicles some of the responses to the problem of under treated pain proposed and/or enacted by state legislatures, state medical boards, the Joint Commission for the Accreditation of Health Care Organizations, and the Agency for Health Care Policy and Research.Google Scholar

The federal government's enforcement of drug policy can have direct and immediate disastrous consequences even for patients. See Leelyn, S. W., “Failures in Pain Management: The Collision of Law and Medicine,” Thomas Jefferson Law Review 27 (2004): 133–157. Leelyn relates the story of 20 DEA agents entering a Dallas pain clinic and handcuffing every patient, including an elderly woman using an oxygen tank.Google Scholar

See Babington, C. and Goldstein, A., “Alito Stresses ‘Rule of Law’ in Opening Statement: Senate Questioning of Supreme Court Pick begins Today,” Washington Post, available at <http://www.washingtonpost.com/up-dyn/conten/article2006/01/09/AR2006010900669.html> (last visited December 17, 2006).Google Scholar

See Calvitto, C., “Senate Passes Abortion Ban,” Rapid City Journal, available at <http://www.rapidcityjournal.com/articles/2006/02/23/news/top/news01.txt> (last visited December 19, 2006); Goldenberg, S., “State's Abortion Ban Fires First Shot in a Long War Over Women's Rights,” The Guardian, available at <http://www.guardian.co.uk./usa/story/0,1725969,00.html> (last visited December 19, 2006).Google Scholar

See Babington, C., “Senator Links Violence to ‘Political’ Decisions: ‘Unaccountable’ Judiciary Raises Ire,” Washington Post, available at <http://www.washingtonpost.com/up-dyn/articles/A26236-2005Apr4.html> (last visited December 17, 2006).Google Scholar

Gonzales v. Raich, 125 S. Ct. 2195 (2005).Google Scholar

Ayotte v. Planned Parenthood of Northern New England, 126 S. Ct. 961 (2006).Google Scholar

Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 163 L. Ed. 2d 1017 (2006).Google Scholar

Gonzales v. Carhart, No. 05–380 (February 21, 2006). The case is Carhart v. Gonzales, 413 F. 3d 791 (8th Cir. 2005).Google Scholar

126 S. Ct. 904 (2006).Google Scholar

A large number of newspaper stories, articles, and book chapters have been written explaining the history and text of the CSA, chronicling passage of the ODWDA, and detailing and evaluating the federal government's attack on legalizing physician-assisted suicide. Many articles in the legal, medical, and ethics literature even provide in depth analysis of the connections between these three areas. See, for example, Leelyn, S. W. supra note 2; Quill, T. and Meier, D., “The Big Chill – Inserting the DEA into End-of-Life Care,” New England Journal of Medicine 354 (2006): 1–3; Rich, B., “A Prescription for the Pain: The Emerging Standard of Care for Pain Management,” William Mitchell Law Review 26 (2000): 1–84; Wiley, L., “Assisted Suicide: Court Strikes Down Ashcroft Directive,” Journal of Law, Medicine & Ethics 30 (2002): 459–460.Google Scholar

See Oregon, at 911.Google Scholar

Id., at 912, citing 21 C.F.R. § 1306.04(a).Google Scholar

Id., citing § 824(a) (4) and § 822(a) (2).Google Scholar

Id., citing § 823(f).Google Scholar

Id. Justice Kennedy quotes the pre-emption provision. “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…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…and that State law so that the two cannot consistently stand together.” Citing § 903.Google Scholar

Id., at 912–913.Google Scholar

Tucker, K., “Federalism in the Context of Assisted Dying: Time for the Laboratory to Extend Beyond Oregon, to the Neighboring State of California,” Willamette Law Review 41 (2005): 863–880, at 869.Google Scholar

Colburn, D., “Doctor-Assisted Suicide Cases Flat,” The Oregonian, March 10, 2006, available at <http://compassionoforegon.org/index.php?a=news> (last visited December 19, 2006); see also Oregon Department of Human Services, Eighth Annual Report on Oregon's Death With Dignity Act, March 9, 2006, available at <http://www.oregon.gov/DHS/ph/pas/ar-index.shtml> (last visited December 12, 2006). The annual report does note the first case of a failed assisted suicide. The patient, David Prueitt, from Estacada, was 42 years old and suffered from cancer. Mr. Prueitt took what he thought was a lethal dose of barbiturates on January 30, 2005, but awakened 65 hours later. He died of natural causes on February 15, 2005.Google Scholar

Rich, B., “Oregon v. Ashcroft: The Battle Over the Soul of Medicine,” Cambridge Quarterly of Healthcare Ethics 12 (2003): 310–321, at 313.CrossRefGoogle Scholar

See Oregon, at 913.Google Scholar

See Rich, supra note 18, at 314. Rich reports that Senator Wyden of Oregon introduced a bill intended to compete with the Pain Relief Promotion Act titled the Conquering Pain Act of 1999. Senator Wyden's bill “…provided for much more substantial initiatives to improve end-of-life care, while leaving the issue of physician-assisted suicide where the U.S. Supreme Court said that it belonged – in the laboratories of the States,” Rich, at 320. Supporters of PRPA showed no interest in backing this alternative legislation. This somewhat obscure observation regarding Senator Wyden's proposed bill takes on added significance given the discussion of the politics of palliative care provided below.Google Scholar

Id. See also Tucker, K., “The Chicken and the Egg: The Pursuit of Choice for a Human Hastened Death as a Catalyst for Improved End-of-Life Care; Improved End-of-Life Care as a Precondition for Legalization of Assisted Dying,” New York University Annual Survey of American Law 60 (2004): 355–378, at 364.Google Scholar

See Rich, supra note 18, at 315, citing 66 C.F.R. 56608 (November 9, 2001).Google Scholar

Oregon, at 913–914, citing 66 C.F.R. 56608 (November 9, 2001).Google Scholar

Oregon v. Ashcroft, 192 F. Supp. 2d 1077 (D. Or 2002), opinion by Judge Robert E. Jones; State of Oregon v. Ashcroft, 368 F. 3d 1118 (9th Cir. 2004).Google Scholar

521 U.S. 702 (1997).Google Scholar

521 U.S. 793 (1997).Google Scholar

Justices Stevens, Souter, Breyer, O'Connor, and Ginsburg all expressed sympathy with the view that there might arise a case in which a plaintiff could successfully claim a constitutionally cognizable liberty interest in physician-assisted death. For an excellent and indepth discussion of this and other observations raised by the Justices in Glucksberg, see Suter, S. in Schneider, C., ed., “Ambivalent Unanimity: An Analysis of the Supreme Court's Holding,” in Law at the End of Life: The Supreme Court and Assisted Suicide (Ann Arbor: University of Michigan Press, 2000): 25–55.Google Scholar

See especially Justice Stevens and Justice O'Connor's concurring opinions in Glucksberg.Google Scholar

See Rich, supra note 18, at 317.Google Scholar

Transcript of Oral Argument in Gonzales v. Oregon, at 9.Google Scholar

Id., at 10.Google Scholar

See Oregon, at 911.Google Scholar

Id., citing Washington v. Glucksberg, 521 U.S. 702 (1997), at 735.Google Scholar

Two accounts in particular provide excellent summaries of Justice Kennedy's majority opinion and Justice Scalia's dissent. See Feudo, C. S., “Physician-Assisted Suicide: Supreme Court Strikes Down Federal Rule Blocking Physician-Assisted Suicide – Gonzales v. Oregon,” American Journal of Law & Medicine 32 (2006): 136–142; and Sclar, D., “U.S. Supreme Court Ruling in Gonzales v. Oregon Upholds Oregon Death With Dignity Act,” Journal of Law, Medicine & Ethics 34 (2006): 639–645.CrossRefGoogle Scholar

See Oregon, at 914.Google Scholar

Id., at 915.Google Scholar

519 U.S. 452 (1997).Google Scholar

467 U.S. 837 (1984).CrossRefGoogle Scholar

See Oregon, at 916. The majority observes that the phrase “legitimate medical purpose” is open to a multitude of understandings. I return to this observation below.Google Scholar

Id., at 917.Google Scholar

Id., at 917–918.Google Scholar

Id., at 918.Google Scholar

Id., at 920.Google Scholar

Id., at 922, citing Raich.Google Scholar

Id., citing United States v. Moore, 423 U.S. 122 (1975): at 143. The majority notes that the defendant physician in Moore “conceded in his brief that he did not observe generally accepted medical practices.” See Moore, at 126.Google Scholar

Id., at 926.Google Scholar

Id., at 927.Google Scholar

Webb v. United States, 249 U.S. 96 (1919). Justice Scalia's reference to Webb as support for an interpretation of “prescription” that requires a medical purpose that is legitimate as a matter of federal law is a little misleading. Webb, a practicing physician, collaborated with Goldbaum, a pharmacist, to obtain morphine to serve the habits of users. Webb did not consider the needs of individual patients and did not use his medical judgment and training.Google Scholar

See Oregon, at 928. The emphasis is Justice Scalia's.Google Scholar

Id., at 929. The emphasis is Justice Scalia's.Google Scholar

Id., at 930. Justice Scalia maintains that “control,” when properly understood, refers to the processes of manufacture, distribution, and dispensing of controlled substances. The definition Justice Scalia cites defines “control” as “to exercise restraining or directing influence over; to dominate; regulate; hence, to hold from action; to curb.”Google Scholar

Id., at 931.Google Scholar

Id., at 932.Google Scholar

Id. The emphasis is Justice Scalia's.Google Scholar

Id., at 933.Google Scholar

Id, at 937.Google Scholar

Id, at 939.Google Scholar

Id. The emphasis is Justice Scalia's.Google Scholar

The first time the Supreme Court considered a case involving regulation of the medical profession was Dent v. West Virginia, 129 U.S. 114 (1889). At issue in Dent was a state statute requiring every person wishing to practice medicine to show proof that he had graduated from a medical school or that he had practiced in the state for at least ten years. Against the charge that the statute violated the Due Process Clause of the Fourteenth Amendment, the Court found in favor of the state.Google Scholar

For an excellent discussion of the federal government's role in regulating the practice of medicine see Noah, L., “Ambivalent Commitments to Federalism in Controlling the Practice of Medicine,” Kansas Law Review 53 (2004): 149–193.Google Scholar

Id., at 185. Noah elaborates on this problem of defining legitimate medical practice by noting that “[i]f it is contingent on something other than professional expertise, then it becomes less clear that the federal government has no legitimate role in providing an answer. Indeed, regulatory agencies with expertise related to questions of medical practice and public health consequences - whether they operate at the federal or the state level – may do a far better job of understanding when physicians create unacceptable threats to patient welfare. Whether or how the federal government should involve itself in such debates raises other important policy questions, and a posture of restraint probably makes the most sense, but nothing in the Constitution would prevent all potential forms of federal interference with the practice of medicine,” id., at 185–186. No doubt, health risks associated with various aspects of medical interventions at the end of life exist. However, it is not at all clear that a great deal of risk exists for physicians and patients operating under Oregon's regulatory scheme. One might well argue that the DOJ and DEA, as well as Justice Scalia and his two colleagues in dissent, should focus more on substantial risks to the public's health.Google Scholar

Sanger, C., “Infant Safe Haven Laws: Legislating in the Culture of Life,” Columbia Law Review 106 (2006): 753–829, at 760. Professor Sanger's discussion of the culture of life is presented in the context of her analysis and evaluation of infant safe haven laws that have been put in place by the states over the past decade. Professor Sanger is quite astute in noting the rhetorical value of the culture of life, and how politicians have enlisted that rhetoric in efforts to prohibit abortion. I am indebted to her excellent discussion.Google Scholar

Id., at 761.Google Scholar

Id., at 800–803.Google Scholar

Id., at 801. This reference appears in the papal encyclical Evangelium Vitae.Google Scholar

Id., at 802.Google Scholar

Klein, R., “Bush Vetoes Stem-Cell Research Bill: 1st Use of Such Power During his Presidency Survives a House Vote,” Boston Globe, available at <http://www.boston.com/news/nation/washington/articles/2006/07/20/bush> (last visited October 13, 2006).Google Scholar

See Sanger, supra note 68, at 806. Sanger provides several reasons to account for the political success of the culture of life.Google ScholarGoogle Scholar

Cantor, N., “On Hastening Death without Violating Legal and Moral Prohibitions,” Loyola University Chicago Law Journal 37 (2006): 407–431.Google Scholar

Id., at 413.Google Scholar

Noah, B., “Politicizing the End of Life: Lessons from the Schiavo Controversy,” University of Miami Law Review 59 (2004): 107–134, at 134.Google Scholar

Gostin, L., “Physician-Assisted Suicide: A Legitimate Medical Practice?” JAMA 295 (2006): 1941–1943, at 1943, citing Greenhouse, L., “Justices Reject U.S. Bid to Block Assisted Suicide,” New York Times, January 18, 2006, at A1.CrossRefGoogle Scholar

“Promoting Pain Relief and Preventing Abuse of Pain Medications: A Critical Balancing Act,” available at <http://www.lastacts.org> (last visited December 12, 2006).+(last+visited+December+12,+2006).>Google Scholar

Id. In the introduction to this document the parties write, “Both healthcare professionals, and law enforcement and regulatory personnel, share a responsibility for ensuring that prescription pain medications are available to the patients who need them and for preventing these drugs from becoming a source of harm or abuse. We all must ensure that accurate information about both the legitimate use and the abuse of prescription pain medications is made available.”Google Scholar

Fishman, S., “In the Spotlight: An Interview with Scott M. Fishman,” Hospice News Network: What the Media Said about End-of-Life Care this Week (March 14, 2006): at 1. Fishman's observations regarding the government's refusal to participate in the project fits perfectly with what I am calling the Bush administration's politics of palliative care. Fishman observes, “If you treat too aggressively, in a way we don't agree with, and we're not going to tell you what we don't agree with, it's not that we're going to take your license away and punish you through the medical board, it's that we're going to take your license away but we're going to charge you as a federal criminal.”Google Scholar

See Oregon, at 915.Google Scholar

Id., at 935.Google Scholar

State of Oregon v. Ashcroft, 368 F. 3d 1118 (9th Cir., 2004), at 1148.Google Scholar

See Souter, supra note 30, at 30–35.Google Scholar

See Gonzales, supra note 8.Google Scholar

See Orentlicher, D., Matters of Life and Death: Making Moral Theory Work in Medical Ethics and the Law (Princeton: Princeton University Press, 2001). See especially chapter four.Google Scholar

Kay, R., “Causing Death for Compassionate Reasons in American Law,” The American Journal of Comparative Law 54 (2006): 693–715, at 715.CrossRefGoogle Scholar

See Oregon, supra note 85.Google Scholar

Brody, H., “Physician-Assisted Suicide in the Courts: Moral Equivalence, Double Effect, and Clinical Practice,” in Schneider, C., ed., Law at the End of Life: The Supreme Court and Assisted Suicide (Ann Arbor: University of Michigan Press, 2000): 101–122, at 115.Google Scholar

See Oregon, at 916.Google Scholar

See Moore supra note 52.Google Scholar

See Moore supra note 52.Google Scholar

See Oregon, at 924.Google Scholar

Id., at 923.Google Scholar

Id, at 924, citing 42 U.S.C. § 290bb-2a.Google Scholar

Id., at 937–938.Google Scholar

497 U.S. 261 (1990).Google Scholar

Id., at 293.Google Scholar

While it is beyond the scope of this article, I would argue that Supreme Court justices should make at least an attempt to acquaint themselves with the basics of medical ethics. As the last several years have demonstrated, ignorance of and indifference to the fundamentals of medical ethics have contributed to several justices making some rather strange and problematic assertions. An excellent starting point for making a case for justices learning more about ethical reasoning and ethical concepts is Justice Scalia's closing statement in his dissent in Oregon.Google Scholar

While it is true that Justice Kennedy, the author of the majority opinion in Oregon, joined Justice Rehnquist in his opinions for the Court in Cruzan and Glucksberg without filing an opinion of his own in either case, the other members of the majority in Oregon have had occasion to share their views on patient suffering at the end of life, physician intentions in treating that suffering, and state and federal interference with physicians' actions and patients' autonomous wishes. I think it is fair to say that many of these justices are sympathetic toward laws and policies that would allow physicians to aggressively treat pain, even if such treatment hastened death.Google Scholar

See Tucker, supra note 21, at 358.Google Scholar

See Cantor, supra note 78, at 431. For an excellent and indepth discussion of these measures for hastening death as well as their legal and moral status, see Cantor, N. and Thomas, G. III, “The Legal Bounds of Physician Conduct Hastening Death,” Buffalo Law Review 48 (2000): 83–173.Google Scholar

See Oregon, at 924.Google Scholar

Jonsen, A., Siegler, M., and Winslade, W., Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine, 5th ed. (New York: McGraw-Hill, 2002): at 15.Google Scholar

See, for example, Jonsen, A., A Short History of Medical Ethics (Oxford: Oxford University Press, 2000).Google Scholar

410 U.S. 113 (1973). See Justice Blackmun's opinion for the Court discussing why the Hippocratic Oath does not provide a convincing argument against physicians performing abortion, at 130–132.Google Scholar

Council on Ethical and Judicial Affairs of the American Medical Association, Code of Medical Ethics, 2004–2005 Edition, § 2.211.Google Scholar

See Tucker, K. supra note 21.Google Scholar

See Tucker, K. supra note 15, at 864.Google Scholar

See Feudo, C. supra note 34, at 142. Senator Orrin Hatch, one of the original opponents of ODWDA, asserted that “[s]ince this case involves the Court's interpretation of a statute – and not its interpretation of the Constitution – I anticipate Congress will now take steps to solve the problems created by this decision.”Google Scholar

530 U.S. 914 (2000): at 962.CrossRefGoogle Scholar