States’ Rights at Heart of Oregon Suicide Lawsuit

Oregon went to court Friday to challenge U.S. Atty. Gen. John Ashcroft’s attempt to bar doctors from prescribing federally controlled drugs under the state’s landmark assisted-suicide law.

In a case that could define the boundaries of physician-assisted suicide across the country, Oregon is challenging Ashcroft’s threat to revoke the licenses of doctors who prescribe powerful barbiturate cocktails to hasten death for patients suffering the ravages of incurable, painful diseases.

The state has the nation’s only physician-assisted suicide statute, which voters have approved twice since 1994. Over the last four years, the law has allowed 91 patients to obtain a prescription to end their lives. The practice was legally sanctioned by the Clinton administration, but Ashcroft, fulfilling a campaign promise from President Bush, reversed former Atty. Gen. Janet Reno. He ruled in November that doctors who prescribe drugs that are intended to kill terminally ill patients are in violation of the federal Controlled Substances Act.

The case, argued Friday before U.S. District Judge Robert E. Jones, raises questions about the ability of states to regulate medical practices and potentially sets the stage for the U.S. Supreme Court to decide how far states can go in helping to relieve the suffering of terminally ill patients.

“This [law] enables them to choose to cross the threshold of death in a manner that’s consistent with their most deeply held values. That, your honor, serves the public interest,” argued Kathryn Tucker, legal director for Compassion in Dying, an assisted-suicide advocacy group that has joined the Oregon Department of Justice in the lawsuit.

But lawyers for the federal government cited a long medical tradition against physician-aided suicide, including the opposition of the American Medical Assn. They said suicide cannot be construed as a “legitimate medical purpose” under the 32-year-old federal law that governs drugs that have the potential for abuse.

“It is not about wholesale federalizing of the practice of medicine. It is about federal regulation of the dispensation of medicines, and that is an area in which the federal government has operated for 85 years,” Deputy Assistant Atty. Gen. Gregory G. Katsas said.

Jones, who has enjoined Ashcroft’s ruling from taking effect until the case has been decided, said he would rule in mid-April. He emphasized that his ruling would look not at the constitutionality of assisted suicide but at the federal government’s application of federal drug laws to the Oregon statute and the court’s own jurisdiction in the case.

Still, proponents of assisted suicide made it clear that they view the Oregon statute as an answer to the U.S. Supreme Court’s implicit invitation to individual states to draft assisted-suicide legislation, issued in 1997 when the court ruled there was neither a constitutional right to die nor necessarily a constitutional impediment to states legalizing the practice.

They argued vehemently that the contentious public policy issue of assisted suicide should be decided by public debate and legislative consensus, not by unilateral rulings on the part of the attorney general.

“There is no evidence that Congress intended to delegate a policy decision of this magnitude, this importance, to the attorney general,” said Stephen K. Bushong, a trial attorney for the Oregon Department of Justice, which brought the lawsuit. Congress twice in recent years failed to pass laws that would have outlawed physician-assisted suicide, the plaintiffs noted.

The U.S. Justice Department questioned Jones’ authority to decide the case, noting that appeals under the Controlled Substances Act are supposed to be filed directly with a federal appeals court. In any case, federal lawyers said, there is substantial case law setting the federal government’s authority to regulate controlled drugs.

Though the regulation of medicine normally is within the purview of the states, the Controlled Substances Act specifically bars dispensation of potentially abused drugs “except as authorized” by the statute, placing regulatory authority squarely on the federal government’s shoulders, Katsas argued.

Doctors repeatedly have been subject to federal prosecution for inappropriately prescribing controlled drugs, and their arguments that states have the authority to determine what is a “legitimate medical use” have been roundly rejected by the appellate courts, Katsas said. “In 49 other states, we construe federal law to prohibit the use of controlled substances for assisted suicide.”

Dozens of legal and medical organizations from around the country have weighed in on the debate, filing friend-of-the-court briefs. Those who support the state’s position include the American Civil Liberties Union, the California Medical Assn., the American Academy of Pain Management, the American Geriatrics Society, the Coalition of Mental Health Professionals and Gay Men’s Health Crisis. Most support the right of dying patients to seek death on their own terms.

The federal government has been backed by the National Right to Life Committee, Physicians for Compassionate Care and a coalition of disabled rights groups, who argue that public policy should be focused on relieving suffering for the terminally ill, not helping them to die.

“What people need to know is, we don’t need to be giving people overdoses to take care of them,” said Gregory Hamilton, a psychiatrist and spokesman for the physicians’ group.

But some of the most eloquent arguments presented to the court were not heard at all in Friday’s hearing. They were the testimony of dozens of terminally ill patients and their relatives who filed written declarations with the court. Their testimony starkly rebutted arguments that better pain management would alleviate the need for assisted suicide.

One woman told of her 25-year-old daughter, racked by the pain of bone cancer, begging her mother to help her die.

Several told of relatives who resorted to anything at hand to kill themselves because they had no access to drugs. Leslie Ghan of Huntington Beach told how her father, dying last year of emphysema, lighted a charcoal grill in his room and died of carbon monoxide poisoning. Marcia Angell, editor emeritus of the New England Journal of Medicine, told how her 81-year-old father, dying of prostate cancer, shot himself in the head.

“If physician-assisted dying had been available to my father, as it is to the people of Oregon,” she wrote, “I have no doubt that he would have chosen a less violent and lonely death.”