As U.S. Supreme Court Justice Anthony Kennedy wrote in 2003, "A basic principle of federalism is that each state may make its own reasoned judgment about what conduct is permitted or proscribed within its borders." But at other times Congress tells the states, "Sorry, you have to do it our way."
These turf issues can become heated. Let's take assisted suicide as an example.
There is no federal law banning physician-assisted suicide, although Congress could certainly legislate in this field. In 1997, in a majority opinion upholding a Washington law banning physician-assisted suicide, the late Chief Justice William Rehnquist encouraged individual states to continue to debate "the morality, legality and practicality of physician-assisted suicide." In a separate concurrence in that same case, Justice Sandra Day O'Connor agreed that the individual states, which have historically been encouraged to serve as laboratories for experimentation, were the best place to deal with the difficult end-of-life decisions.
At present, Oregon is the only state that permits physician-assisted suicide. In 1994 and again in 1997, the citizens of Oregon passed the Death With Dignity Act, which allows doctors to prescribe but not administer lethal drugs to competent, terminally ill patients under very strictly regulated circumstances.
John Ashcroft is personally uncomfortable with the notion of physician-assisted suicide. When he was a U.S. Senator, he supported unsuccessful legislative efforts to prevent assisted suicide. When he became U.S. Attorney General, he figured out a better way.
Back in 1970, Congress passed the Controlled Substances Act (CSA). In doing so, Congress was concerned with illegal drug trafficking and with drug abuse. To deal with these problems, controlled substances are classified into five schedules, based on medicinal value, harmfulness and potential for addiction and abuse. The mechanism for how drugs are scheduled or transferred from one category to another is covered in the act.
Schedule I drugs have a high potential for abuse and no currently recognized medical use.
Heroin, peyote and mescaline are schedule I drugs. For the record, so is marijuana.
Many drugs on the other four schedules have completely useful and legitimate medical purposes and are commonly prescribed by doctors in routine medical care. An example of a schedule III drug is Vicodin. An example of a schedule IV drug is Valium.
Scheduled drugs are available only by prescription. Any prescription for these drugs must be for a legitimate medical purpose. Doctors who prescribe scheduled drugs must be registered with the attorney general and must comply with his rules and regulations. Dispensing controlled substances without a valid prescription is a federal crime.
In 2001, U.S. Attorney General Ashcroft issued an interpretative rule stating that prescribing scheduled drugs to assist suicide was not a legitimate medical purpose. Barbiturates, the most commonly prescribed drugs for assisted suicide, are schedule II controlled substances.
Under this interpretative rule, doctors prescribing these drugs for assisted suicide were violating the law -- a federal offense -- and doctors doing so could be denied the right to write all prescriptions. He issued a directive to the Drug Enforcement Administration to go after doctors who prescribed drugs for this purpose, even though doing so was completely legal in Oregon.
The attorney general of Oregon -- joined by a doctor, a pharmacist and some terminally ill Oregon citizens -- challenged Ashcroft's interpretative rule in court. Could the U.S. Attorney General stop doctors from prescribing drugs regulated under the CSA for a purpose expressly permitted under Oregon law? Ultimately, who decides what is a legitimate medical purpose?
A 6-3 majority of the U.S. Supreme Court sided with Oregon. The case is Gonzales v. Oregon (current U.S. Attorney General Alberto Gonzales decided to continue with the appeal of the case). The majority decided this case on the basis of statutory interpretation, not on constitutional issues.
When Congress passed the CSA, it included a provision that it didn't intend to intrude on state authority. The regulation of the practice of medicine has traditionally been a state matter. Both of these matters were significant to Kennedy. In unusually sharp language invalidating Ashcroft's interpretative rule, he found that the attorney general's power under the CSA was both narrow and limited and absolutely didn't include the power to determine the legitimate practice of medicine.
"The structure of the CSA, then, conveys unwillingness to cede medical judgments to an executive official who lacks medical expertise," Kennedy wrote.
In characteristically impolitic language, Justice Antonin Scalia, joined by Justice Clarence Thomas and Chief Justice John Roberts, dissented. Scalia found the directive totally valid and well within the power granted by Congress to the attorney general. Roberts added nothing of his own. But Thomas wrote a separate dissent, joined by no one, in which he made a very interesting point.
At the end of the high court's term last June, a majority held that a California law permitting the medical use of marijuana violated the very same CSA at issue in this case. Why? Because the majority determined "the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes and in what manner," Thomas wrote. Noting that "today the majority beats a hasty retreat from these conclusions," he chided the court for this major inconsistency.
The determination of what aspects of medical practice should be uniform and which left to state-by-state interpretation is not an easy one. While I applaud the majority decision in Gonzales v. Oregon, it's because I favor Oregon's position and not because of any faith in states' rights.
For example, if Roe v. Wade were overturned, a prospect more likely than it was before the confirmation of Justice Samuel Alito, I would not find the idea of leaving the regulation of abortion solely to each state at all comforting. If we leave all controversial medical issues to a state-by-state determination, a blue person in a red state could be very blue indeed.
Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.