Clash in Court Over Oregon’s Law on Suicide

Atty. Gen. John Ashcroft has the right to ban Oregon physicians from prescribing lethal doses of controlled narcotics to terminally ill patients who want to die sooner, Justice Department lawyers argued Wednesday before federal appellate judges.

The drugs doctors prescribe under the state’s assisted-suicide law are regulated by the federal Controlled Substances Act, which restricts their use for medical purposes only, said lawyer Gregory G. Katsas. Assisting suicide is not a medical procedure, he said.

The Oregon attorney general’s office countered that the federal statute was designed to fight drug trafficking and drug abuse, and not impinge on state medical laws including physician-assisted suicide.

Under Ashcroft’s directive, doctors face a “Hobson’s choice” because they would be punished for trying to help their dying patients, said attorney Nicholas W. van Aelstyn, representing patients seeking a physician-assisted suicide.

Oregon is the only state in the nation to have an assisted-suicide law, which voters have approved twice since 1994. Under strict guidelines, it allows doctors to prescribe lethal cocktails of narcotics to terminally ill patients who meet specific criteria.

Ashcroft, who opposes assisted suicide, tried to overrule the state law in 2001 by prohibiting doctors from prescribing controlled substances for that purpose.

Oregon and suicide advocates went to court to challenge Ashcroft’s directive, and last year, U.S. District Judge Robert Jones ruled that Ashcroft had overstepped his authority by trying to dictate a state’s medical practices. Jones issued a permanent injunction blocking Ashcroft’s directive.

Ashcroft contested that ruling and a three-judge panel of the U.S. 9th District Court of Appeals heard the challenge Wednesday.

Two judges -- Clifford Wallace and Richard Tallman -- wondered whether physicians could get around Ashcroft’s ban by using other drugs, such as insulin.

“Practitioners won’t use anything but a controlled substance,” answered Eli Stutsman, an attorney representing a physician and pharmacist who are plaintiffs in the case. “You can’t meet the standard of care without using controlled substances.”

In focusing the legal debate, Tallman said, “The argument is not that the attorney general has prevented assisted suicides, but what drugs to use to assist suicide -- that ‘these are the medicines doctors can use.’

“So the question is, may Oregon adopt ... a medical practice that is in federal law prohibited?” Tallman asked.

Katsas acknowledged that states can craft their own medical laws, but he said suicide is not a medical mission, and chastised Oregon for trying to up-end a tradition of medical healing dating back to Hippocrates. Federal regulations on the use of controlled substance trump a state’s desire to want to use them for suicide, he said.

After the hearing, Van Aelstyn said, “I’m encouraged that there appeared to be an appreciation for the profoundly difficult situation the patients find themselves in if Ashcroft’s directive is allowed to be enforced.”

Justice Department attorneys declined comment outside the courtroom, but read a prepared statement. “Physicians have long sworn a sacred oath to ‘neither give a deadly drug to anybody if asked for it, nor ... make a suggestion to this effect,’ ” Assistant Atty. Gen. Robert D. McCallum Jr. said.

“In contrast to assisted suicide, the prescription of controlled substances for pain management has long been recognized as a legitimate medical purpose,” he said, “and appropriate pain management serves to protect the terminally ill at the time of their greatest vulnerability and to preserve human life.”

To qualify for physician-assisted suicide, an adult must be diagnosed as having a life expectancy of less than six months, and a second doctor must find the patient mentally competent and not suffering from depression. The patient must make two oral requests, and a third in writing, for a physician’s assistance, and then wait 15 days before receiving the prescription.

Since 1998, when the law took effect, 129 people in Oregon have committed suicide with prescribed narcotics.

A decision by the panel is expected this summer. Any ruling is likely to be appealed to the full 9th Circuit Court, or directly to the U.S. Supreme Court.