0-2 IN 9TH, ASHCROFT MAY SEEK REVIEW

AT ISSUE ARE MEDICAL POT, ASSISTED SUICIDE.

Washington-Before the end of the year, the U.S. Supreme Court may be asked
to wade once again into the legal thicket surrounding assisted suicide and
the medical use of marijuana because of recent court defeats suffered by
the Bush administration.

Attorney General John Ashcroft already has petitioned the high court to
review the medical marijuana decision issued by the 9th U.S. Circuit Court
of Appeals last December. Ashcroft v. Raich, No. 03-1454. And Department of
Justice officials are now considering whether to go to the high court or to
seek en banc review by the 9th Circuit of the May 26 assisted suicide
ruling, said a department spokesman. Oregon v. Ashcroft, No. 02-35587.

Both rulings stem from long-running battles between the Justice Department
and two states, California and Oregon, whose laws legalizing medical
marijuana use and assisted suicide have come up against Ashcroft's
interpretation of a federal criminal statute, the Controlled Substances Act
of 1970 (CSA).

Both cases share common ground in the significant legal questions that they
raise, said Marc Spindelman of Ohio State University College of Law, who
has written about the issues.

"There are questions about the authority of the federal government and the
states' authority to determine what medical practice is," he said. "There
are questions about what the purpose of the Controlled Substances Act is.
And there are questions about Congress' authority to regulate commerce when
it involves controversial medical decisions, and what tools, if any, the
federal government should use in the national debate about how medical
practice should or shouldn't evolve."

And both cases have triggered criticism by some litigants and others that
Ashcroft is pursuing a personal or political agenda instead of a law
enforcement one.

That criticism is not unusual given the nature of the issues in both cases,
said Spindelman, who described himself as someone who disagrees with many
of Ashcroft's initiatives.

"In both cases, the decision being made at the local level has national
implications, so it's not surprising there is a federal response to the
local initiatives," he explained. And the criticism, he added, is
"certainly not surprising where the initiatives at the local level tend to
be viewed, even if they are not, as 'liberal' projects, and the federal
government has, at least in the executive branch, a 'conservative' agenda."

Ashcroft may be more vulnerable to the criticism because his legal
arguments in both cases seem undercut by recent Supreme Court rulings, said
high court scholar Douglas Kmiec of Pepperdine University School of Law,
who shares Ashcroft's opposition to assisted suicide.

"But the attorney general has a responsibility to defend the institution's
mission and that mission is very much shaped by the control of drugs," he
added. "The attorney general may be guided by that law enforcement mission
and may decide to leave the constitutional questions to someone else."

Regulating Drugs

In the marijuana litigation, Angel McClary Raich and Diane Monson use
marijuana for medical purposes on the recommendation of their doctors.
After agents from the Drug Enforcement Administration seized Monson's six
cannabis plants, the two women, fearing future raids, sued Ashcroft. They
sought a declaration that the CSA was unconstitutional as applied to the
medical use of marijuana and an injunction. At that time, Alaska, Arizona,
California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington had
passed laws permitting the cultivation and use of medicinal marijuana.

The CSA establishes five "schedules" of certain drugs and substances and
designates them "controlled substances." Under the act, marijuana is a
schedule I controlled substance because it has no currently accepted
medical use, it has a high potential for abuse and there is a lack of
accepted safety for its use under medical supervision.

After losing in the district court, Raich and Monson appealed to the 9th
Circuit. Ruling 2-1, a panel agreed with the women in holding that the CSA,
as applied to them, is an unconstitutional exercise of Congress' commerce
clause authority. The majority, led by Judge Harry Pregerson, noted that
the circuit had upheld the CSA under the commerce clause in prior cases,
but here the class of activities was very different from the earlier cases
that concerned drug trafficking.

The class of activities at issue in Raich, said the majority, was
intrastate, noncommercial cultivation, possession and use of marijuana for
personal medical purposes on the advice of a physician and in accordance
with state law.

The court looked to U.S. v. Morrison, 529 U.S. 598 (2000), a commerce
clause challenge to the Violence Against Women Act, to analyze whether the
activity in Raich substantially affects interstate commerce. Morrison sets
out four factors for answering that question. Under each factor, the panel
majority found no substantial effect on commerce.

Senior Circuit Judge C. Arlen Beam of the 8th Circuit, sitting by
designation, dissented, saying he found it impossible to distinguish the
conduct surrounding the cultivation and use of marijuana from the that of a
wheat crop for family use, which the Supreme Court held did affect
interstate commerce in Wickard v. Filburn, 317 U.S. 111 (1942).

The assisted suicide case, unlike the medical marijuana case, was not a
constitutional ruling, but one involving a statutory interpretation.

A doctor, a pharmacist, several terminally ill patients and the state of
Oregon challenged the so-called Ashcroft Directive, an interpretative rule
stating that physician-assisted suicide violates the CSA. The directive
criminalizes conduct authorized by Oregon's Death with Dignity Act of 1994.

After the plaintiffs won in the lower court, a 9th Circuit panel, led by
Richard C. Tallman, held, 2-1, that the directive "invokes the outer limits
of Congress' power by encroaching on state authority to regulate medical
practice." Because Congress did not clearly authorize that intrusion, the
majority said, the directive violates the clear-statement rule.

The CSA, according to the majority, expressly limits federal authority to
the field of drug abuse, and physician-assisted suicide is not a form of
drug abuse that Congress intended the CSA to cover. And the majority noted
that the Supreme Court, in its first look at the assisted suicide issue,
had said that the debate about the morality, legality and practicality of
the practice belongs to state lawmakers. Washington v. Glucksberg, 521 U.S.
702 (1997).

But Judge J. Clifford Wallace dissented, saying that the act's text
furnishes "ample evidence" that Congress was concerned with any improper
drug use that might have a detrimental effect on the public health, and
"nothing in the Controlled Substances Act's text precludes its application
to physician-assisted suicide." Deference is owed Ashcroft's
interpretation, he said.

Who Can Regulate?

"The seed in both cases is the recognition that the regulation of the
practice of medicine has historically been within states' power," said
Kathryn Tucker of Compassion in Dying, co-counsel in the Oregon case for
the individual plaintiffs. "That's really why when Raich came out, we did a
supplemental citation on it," she added. "We thought it was an important
decision."

The Oregon decision, she said, was a victory on two levels: "It preserved
the laboratory of the states on the assisted suicide question, which the
Supreme Court felt should go forward, and it protects dying patients in all
50 states from having their pain management imperiled.

"When Ashcroft announced the department would be scrutinizing doctors in
Oregon, it made all doctors all over country fearful about their
prescriptions for pain," explained Tucker.

But James Bopp of Bopp Coleson & Bostrom in Terre Haute, Ind., who filed an
amicus brief in the Oregon case supporting Ashcroft, sees the two cases
differently. "They're related because of the general proposition that the
federal government has the authority to regulate the use of drugs-an
authority that certainly had not been disputed until most recently," Bopp said.

Federal laws are supreme so state laws just give way, he said. "If you go
back far enough, the federal government didn't do anything, but over time
those state regulations of areas that were historically viewed as of
particular state concern have given way to federal laws," he said. "Unless
there is some constitutionally protected right to practice medicine, which
the Supreme Court has regularly turned down, then there is nothing peculiar
about the practice of medicine as opposed to being a plumber in terms of
the relevant power of the state or federal government to regulate."

Applying the CSA to assisted suicide is not at odds with the notion that a
state can legalize assisted suicide, he added. "They just have to use some
other means-strangulation, ropes, ladders, trees. But they made the choice
of using a controlled substance and when they made that choice, they ran up
against a federal law."

Ohio State's Spindelman said a states' rights argument in the context of
health care is hard to sustain, particularly after the 9/11 attacks.

"We're now thinking about mass inoculations or other interventions in case
of a terrorist strike," he said. "Are we going to say the federal
government's effort to coordinate responses in the unhappy event we need to
have massive public health intervention is going to be hamstrung or subject
to veto by the states?

"Where is the authority of the federal government to make the determination
that marijuana does not have a medical purpose, or to classify marijuana in
the way it has in the CSA, if direct control of medical practice is beyond
the power of the federal government? Where does the federal government get
the authority to regulate medical experimentation? Isn't that ever control
of medical practice?"

Pepperdine's Kmiec, a former Reagan Justice Department official, sees
trouble for the government's position in both cases if they are taken by
the Supreme Court.

In the assisted suicide case, he said, "To assume the same level of
statutory deference would be given to the attorney general's interpretation
after the Supreme Court had already, in essence, invited Oregon to have its
own debate and reach its own conclusion was unfortunate and an incorrect
assumption."

In the medical marijuana case, Kmiec noted that judges appointed by
presidents Reagan, Clinton and both Bushes have been saying for some time
that an activity that is neither interstate nor commercial in nature is not
easily regulated as interstate commerce.