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Response or Comment

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The Supreme Court's recent decision in Gonzales v. Oregon, like its decision last year in Gonzales v. Raich (the "medical marijuana" case), again raises questions about the bioethical consequences of the Controlled Substances Act. When, in 1970, Congress passed that act, it placed problematic drugs in one of five "schedules," and it authorized the U.S. attorney general to add or subtract drugs from the schedules. Drugs in schedule II have both a medical use and a high potential for abuse. Doctors may prescribe such drugs if they "obtain from the Attorney General a registration issued in accordance with the rules and regulations promulgated by him." The attorney general may deny or revoke a doctor's registration if registration would be "inconsistent with the public interest." In evaluating "the public interest," the attorney general considers, among other things, "conduct which may threaten the public health and safety." In 1971 the attorney general issued a regulation requiring that prescriptions for controlled substances "be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." So far, so good; this is all common ground. The issues Gonzales v. Oregon presents had their origins in 2001, when Attorney General Ashcroft promulgated an "Interpretive Rule" which "determine[d] that assisting suicide is not a 'legitimate medical purpose' within the meaning of 21 CFR Sec. 1306.4 (2001), and that prescribing, dispensing, or administering federally controlled substances violates the CSA. Such conduct by a physician ... may 'render his registration ... inconsistent with the public interest.'"


Reprinted with the permission of the Hastings Center Report and Wiley-Blackwell.