Pubdate: Thu, 9 Mar 2006
Source: New England Journal of Medicine (MA)
Volume: 354:993-995, Number 10
Copyright: 2006 Massachusetts Medical Society
Author: M. Gregg Bloche, M.D., J.D.
Cited: Gonzales v. Raich
Bookmark: (Cannabis - Medicinal)
Bookmark: (Gonzales v. Raich)


What role should physicians have in defining the purposes of their 
profession -- the functions that medicine should and should not 
serve? Many observers hold that medicine's aims are for doctors and 
patients to decide, without interference from the state.

But in fact, government limits medicine's purposes in many ways. 
Doctors cannot prescribe mind-altering substances for recreational 
use or anabolic steroids to enhance athletic performance. Physicians 
were once barred from terminating pregnancies, and today, in 49 
states, they are not allowed to assist the terminally ill in ending 
their lives.

In some jurisdictions, psychiatrists cannot medicate condemned 
prisoners to make them competent for execution.

And though federal law allows clinicians to ration care at the 
bedside, they can do so only within limits set by state medical 
malpractice law.

Government restrictions on the role of medicine are often bitterly 
disputed, and sometimes the warring parties carry their fights to the 
U.S. Supreme Court. Abortion, assisted suicide, and rationing of care 
are among the clinical issues the Court has considered. Commentary on 
such cases typically emphasizes questions of constitutional and 
statutory meaning, which vary greatly from case to case. As a result, 
observers have overlooked an emerging pattern -- the justices' 
deference to the medical profession's understanding of its purposes. 
This deference has taken several forms: regard for ethical 
pronouncements by professional organizations when construing 
ambiguous legal terms, reliance on professional self-regulation 
(through licensing boards, second opinions, and peer review) to 
restrain errant practitioners, and dependence on individual doctors' 
clinical judgments to safeguard (and balance) patients' rights and 
government interests.

A case in point, discussed by Annas in this issue of the Journal 
(pages 1079 1084), is the Court's response to the Bush 
administration's attempt to thwart assisted suicide in the lone state 
that allows it. Administration lawyers had seized on a federal 
statute that bars the prescribing of a controlled substance absent a 
"legitimate medical purpose." They argued that helping a patient to 
die is not a "legitimate medical purpose," so physicians cannot 
prescribe controlled substances to abet suicide.

The U.S. Attorney General claimed authority to read the statute this 
way, citing cases that allow the executive branch to define vague 
legislative terms. But the Court ruled, in Gonzales v. Oregon, that 
the purposes of medicine are not for the attorney general to decide. 
"The structure and operation" of controlled-substances law, Justice 
Anthony Kennedy wrote for the Court, "presume and rely upon a 
functioning medical profession regulated under the States' police 
powers." Physicians, Kennedy noted, tightly control assisted suicide 
under the Oregon law that allows it. Second opinions and oversight by 
professional disciplinary authorities circumscribe the discretion of 
individual doctors to issue terminal prognoses, determine competence, 
and prescribe lethal drugs.

Congress, Kennedy said, can bar such prescriptions, but it did not do 
so, and the attorney general cannot impose such a limit. "Medicine's 
boundaries," the Court concluded, are for the profession to 
determine, within the framework of state law.

What emerges from this and other Supreme Court rulings on the 
permissible roles of medicine is less a principle than an inclination 
- -- a propensity to give physicians a large say over the uses of their 
craft. This inclination was evident in the Court's only other 
engagement with assisted suicide, in two 1997 decisions dismissing 
constitutional challenges to state laws proscribing it.

Writing for the Court in one of these cases, Washington v. 
Glucksberg, the late Chief Justice William Rehnquist said that states 
have "an interest in protecting the integrity and ethics of the 
medical profession" that merits weight when courts consider whether 
laws that limit personal freedom are "rationally related" to 
legitimate state interests.

Rehnquist cited positions taken by physicians' groups, including the 
American Medical Association (AMA), as proof that many in the 
profession see abetting suicide as incompatible with the doctor's 
role as healer.

That Washington and Gonzales yielded superficially inconsistent 
results -- one affirming a ban on assisted suicide, the other 
upholding a law permitting it -- reflects the different ways in which 
the Court defers to professional opinion about medicine's permissible 
uses. In both cases, the justices let state laws stand, partly on the 
basis of input from physicians. In Washington, the Court relied on 
ethical pronouncements from the AMA and other professional groups 
(and rejected contrary arguments by some ethics scholars) in finding 
that state laws against assisted suicide have a rational basis and 
thereby pass constitutional muster.

In Gonzales, Oregon's reliance on physicians' judgment and 
self-policing influenced the Court's refusal to permit the U.S. 
Attorney General to proscribe it.

To be sure, the medical profession doesn't have carte blanche to 
determine its own social role.[1] For example, the Court ruled last 
year, in Gonzales v. Raich, that Congress's power to regulate 
interstate commerce permits it to bar therapeutic use of marijuana 
even if state law allows it and clinical judgment (backed by 
evidence) supports it. Actual and proposed limits on abortion, 
therapeutic cloning, and technologies that enhance physical and 
mental performance are other examples.

Yet medical opinion influences such limits through myriad pathways, 
at the levels of both public policy and case-by-case clinical 
judgment. Legislative advocacy, expert testimony in court and agency 
proceedings, and positions taken in pathbreaking litigation are among 
the means by which the medical profession shapes its social role, in 
negotiation with other political and legal actors.

The Supreme Court's recent efforts to shore up the states' authority 
vis-a-vis the federal government have enhanced medicine's influence. 
Medical societies hold considerable sway with state legislatures -- a 
level of influence underscored by the proliferation of state laws 
reining in managed care and limiting medical liability.

And state law governing malpractice and review of denials of medical 
coverage looks to medical custom as the primary source of standards of care.[2]

Even when the justices have treated federal law as controlling, they 
have shown remarkable deference to the medical community, to the 
point of allowing the profession's understanding of its role to shape 
the content of federal constitutional rights.

In holding that a hospital's disclosure to law-enforcement 
authorities of the results of patients' drug tests constituted an 
unreasonable search under the Fourth Amendment (Ferguson v. City of 
Charleston), the Court relied on the contention by the AMA and other 
medical groups, in an amicus brief, that such results should be confidential.

In other cases, the justices have extended such deference to 
individual doctors.

Indeed, the right affirmed in Roe v. Wade was not a woman's right to 
abortion itself but, rather, her right to her doctor's unfettered 
medical judgment regarding pregnancy termination. Reliance on 
individual caregivers to shape the content of constitutional rights 
has been strongest in decisions involving the rights of the mentally 
ill. The Court has looked to clinical judgment to protect patients' 
constitutional interests in freedom from unreasonable physical 
restraints (in Youngberg v. Romeo) and, in prison settings, unwanted 
psychiatric medication (in Washington v. Harper). In a series of 
decisions on prisoners' rights to refuse medication, the Court 
rejected calls for strict due-process safeguards. Psychiatric 
assessment suffices, the Court has said, to take account of 
prisoners' "medical interests" and civil liberties, as well as the 
government's interest in prison safety and securing defendants' 
competence to stand trial.

The Court's deference to medical authority has drawn fire from 
dissenting justices on both the left and the right.

With regard to the treatment of prisoners, Justice John Paul Stevens 
criticized the Court for withholding procedural safeguards, allowing 
psychiatrists to conflate therapeutic and security purposes, and 
thereby enabling them to medicate inmates for "institutional 
convenience" under therapeutic cover.

And Justice Antonin Scalia has repeatedly insisted that the purposes 
of medicine are not for the profession to decide. Scalia's dissent in 
Gonzales v. Oregon (joined by Chief Justice John Roberts) drew a 
bright line between the profession's technical expertise and social 
role. The latter, he says, is a matter of "public morality," the 
province of elected officials.

Will Scalia's view gain traction?

He has already brought the new chief justice on board, and many 
expect Justice Samuel Alito to concur with Scalia, Roberts, and 
Justice Clarence Thomas on questions of public morality, including 
those that implicate medicine.

For some, this is a chilling prospect, portending an era of Big 
Brother intrusion into the doctor patient relationship. For others, 
the promise is one of democratic empowerment -- the making of moral 
choices by popularly chosen leaders instead of technocratic elites.

We may soon learn whether Scalia's perspective will prevail.

The justices' decision last month to consider a congressional ban on 
so-called partial-birth abortion poses the question of medicine's 
authority in stark form. Six years ago, the Court struck down a 
similar state law because it lacked an exception for maternal medical 
need. But Congress tried an end run around this ruling, in the form 
of a "finding" that such abortions are "never medically necessary." 
Physicians who perform abortions say otherwise.

Lower courts have deferred to their views, dismissing this "finding" 
as unreasonable and concluding that the congressional ban is unconstitutional.

Proponents of the ban insist that Congress, not the medical 
profession, is entitled to deference on the question of clinical 
need. Abortion-rights advocates counter that pregnant women's health 
needs are for them and their doctors to determine.

Central to the latter claim is the premise that the medical judgment 
to which a woman is entitled encompasses the moral dimensions of the 
decision to abort. Should the former view prevail, public authority 
over medicine's morality and purposes will greatly expand.

The justices would do well to weigh the consequences for caregivers' 
ability to address patients' varying needs.

Source Information

Dr. Bloche is professor of law at Georgetown University and a 
visiting fellow at the Brookings Institution, both in Washington, 
D.C., and adjunct professor at Bloomberg School of Public Health, 
Johns Hopkins University, Baltimore.


1. Bloche MG. Medical ethics in the courts. In: Danis M, Clancy C, 
Churchill LR, eds. Ethical dimensions of health policy. New York: 
Oxford University Press, 2002:133-56.

2. Henderson JA Jr, Siciliano JA. Universal health care and the 
continued reliance on custom in determining medical malpractice. 
Cornell Law Rev 1994;79:1382-1404.
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