Whew! That's the sound of 50 million chronic pain patients exhaling now that Oregon v. Gonzalez has been decided in favor of Oregon. Many people were unaware of the implications this case had for medical practice--but it could have been devastating to anyone suffering pain or anxiety had it gone the other way.
The case was framed as a debate over physician-assisted suicide, but it was actually a battle over whether the U.S. Attorney General or your physician gets to decide the "legitimate medical purpose" of controlled substances like morphine and Valium. If the federal government had won, it would have meant that DEA agents and the Justice Department had the right to determine when prescribing pain and anti-anxiety medication was legitimate medical practice--something that has traditionally been regulated by state medical boards.
The DEA has recently prosecuted dozens of pain physicians for allegedly "over-prescribing" medications like Oxycontin--and advocates for pain patients like the Pain Relief Network say that it has become increasingly difficult to get doctors to prescribe the medications they need to function. With this decision, however, relief may once again be in sight.
The history of the Oregon case begins in 1994, when the state enacted a law allowing doctors to prescribe such medications in huge doses for the express purpose of permitting terminal patients to end their lives. Two separate referenda affirmed Oregon's voters support for the legislation. But in 2001, then-attorney John Ashcroft sued to try to stop the state, claiming that the federal Controlled Substances Act (CSA) gave him this power, because assisted suicide is not a "legitimate" use of these medications.
But the lower courts, affirming Oregon's right to regulate medicine, scorned this view of federal power. One judge wrote, "The CSA was never intended, and the USDOJ and the DEA were never authorized, to...act as a national medical board. To allow an attorney general -- an appointed executive whose tenure depends entirely on whatever administration occupies the White House -- to determine the legitimacy of a particular medical practice without a specific congressional grant of such authority would be unprecedented and extraordinary."
Justice Anthony Kennedy, writing for the majority, agreed, saying, that the "authority claimed by the attorney general is both beyond his expertise and incongruous with the statutory purposes and design."
PRN's Siobhan Reynolds sees this as a huge victory for pain patients and doctors. She notes that the decision may put many of the recent prosecutions of physicians in jeopardy, because they were convicted after federal prosecutors argued that their prescribing of painkillers wasn't for a "legitimate medical purpose."
Until recently, that would have been seen as enough only to convict of malpractice--not crime. In order to be criminally convicted, the doctors would have had to have acted intentionally as drug dealers. The prosecution would have had to prove that they knew patients were faking their pain and that they sought to profit by selling drugs to them anyway or did other criminal acts like trading drugs for sex.
Under the interpretation of the Controlled Substances Act argued by the Justice Department in Oregon, however, if the Attorney General believed that a patient's dose was too high to be "legitimate" or if he believed that strong painkillers should only be used for the dying, not for chronic pain, the doctors could have been convicted, essentially, of becoming drug dealers without even knowing it!
Thankfully, the Supreme Court favored Oregon. Reynolds now wants to appeal one physician's case, that of Deborah Bordeaux, to the Supreme Court. She believes that the doctor was convicted of "overprescribing" under the wrong standard.
"This creates real conflict between the 4th Circuit [which recently upheld Bordeaux's conviction] and the U.S. Supreme Court," she says, adding, "They upheld a conviction based on federal agents taking issue with the medical practice of Dr. Bordeaux and with this ruling, it's become even more clear that this is not the proper basis for the criminal prosecution of physicians."
By ruling in favor of Oregon, the court ruled that doctors, not prosecutors, should determine the boundaries of pain medicine and the treatment of anxiety disorders. "It's a step in the right direction," says Reynolds, "But we still have a long way to go."