The Supreme Court upheld the Oregon Death with Dignity Act today, which should serve as the final word on the statute’s legality. The Court concluded that the Attorney General does not have the authority to define what constitutes an “acceptable medical practice” under the federal Controlled Substances Act. The Court made the right call on this one. If it sided with the government, the AG would have broad authority to determine what practices in which physicians can and cannot engage. For example, the AG could decide that doctors cannot use a certain class of drugs to treat pain. Or the AG could determine that the prescribing a drug for off-label uses is not acceptable.
It’s important to note that both Kennedy and O’Connor sided with the majority. Kennedy seems positioned to assume the role of the Court’s swing vote. That’s why I haven’t gotten too excited about the confirmation of Alito. Under that veneer of inoffensive dullness, Alito is without a doubt a right-wing ideologue. But I’m hopeful that Kennedy will be a moderating influence on the Court, at least until we can get a Democratic president back in office.
