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Justices Hear Oregon Right-to-Die Case

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Times Staff Writer

The Supreme Court and its new chief justice, John G. Roberts Jr., heard the Bush administration’s challenge to the nation’s only right-to-die law Wednesday, a case that pits social conservatives against those who believe the terminally ill should be allowed medication that will end their lives.

At issue is whether Oregon or the federal government has the power to decide whether doctors may prescribe lethal doses of medication.

During arguments Wednesday, the justices sounded closely split. Roberts, who sharply questioned lawyers on both sides, did not tip his hand as to how he would vote.

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The first major test of the Roberts court may not be decided until after President Bush’s nominee to succeed retiring Justice Sandra Day O’Connor is confirmed by the Senate.

Oregon’s voters have twice approved the Death With Dignity Act, which lets terminally ill people seek lethal medication from a doctor. Two physicians must confirm that the patient is likely to die within six months and is capable of making an independent decision.

The Oregon law took effect in late 1997; through 2004, 208 people had used the law to end their lives by taking medication.

Social conservatives, including then-Sen. John Ashcroft (R-Mo.) and Rep. Henry J. Hyde (R-Ill.), opposed the Oregon law because it authorized a form of suicide. President Clinton’s attorney general, Janet Reno, refused their pleas to challenge the Oregon law.

The regulation of medicine and the licensing of doctors long have been left to the states.

But shortly after Bush took office in 2001, his new attorney general, Ashcroft, decreed that doctors who prescribe a legal drug for the purpose of ending a life were in violation of federal drug control laws.

A federal judge in Portland and the U.S. Court of Appeals in San Francisco have blocked Ashcroft’s decree from taking effect. They said the federal drug control laws were directed at drug traffickers, not doctors and the practice of medicine.

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The case, Gonzales vs. Oregon, may turn the issue of states’ rights versus federal power on its head.

Conservatives traditionally lean in favor of states, while liberals are more inclined to support federal authority. But Wednesday’s arguments hinted that the court’s conservatives and liberals might switch sides on doctor-assisted suicides.

As a lawyer arguing before the high court, Roberts was adept at giving crisp, direct answers to justices’ questions. He showed a similar skill as chief justice Wednesday, posing short, pointed questions that highlighted a key issue.

Arguing for the Bush administration, U.S. Solicitor General Paul D. Clement maintained that Congress had given federal authorities the power to regulate how drugs were used.

“The most natural reading of the Controlled Substances Act is that this falls within the authority of the attorney general,” he said.

Roberts questioned that premise.

“What’s the closest analog to this?” he asked Clement, pressing for an example of a U.S. attorney general overruling the states and their doctors on the use of legal drugs.

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Clement paused and then responded that the Food and Drug Administration had objected in the 1970s when several states allowed the use of laetrile as a cancer treatment.

“That’s the FDA. What about the attorney general?” Roberts repeated.

Clement could not cite a specific example of an attorney general overruling state medical authorities on the use of prescription drugs.

Roberts’ question highlighted the fact that the attorney general was claiming a new power to regulate the use of prescription drugs.

Oregon Assistant Atty. Gen. Robert M. Atkinson picked up on that point, saying that “for the first time in our history ... a single, unelected federal official has decided what is accepted state medical practice.”

But Roberts challenged Atkinson’s claim that state authority trumps the federal drug laws.

Suppose one state decided to let people freely obtain morphine from their doctors because “it makes people feel better,” Roberts said.

“Doesn’t that undermine the effectiveness of the federal law?” he asked.

Atkinson, thrown off balance, responded that state medical authorities had not abused their power in the past. “Congress believed states could be trusted to act responsibly, and that’s what Oregon has done here.”

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This marks the second time in a year in which the high court has confronted a case that pits the conservative Bush administration against relatively liberal West Coast voters on an issue involving drugs, disease and pain.

California voters approved a measure in 1996 that permitted seriously ill people to obtain marijuana for medical purposes. About 10 states adopted similar measures. In June, however, the court in a 6-3 decision agreed with the Bush administration that federal agents could arrest those who possessed or used marijuana, despite California’s law.

Justice Antonin Scalia, the court’s leading conservative, led the attack against Oregon’s law and spoke in favor of federal authority.

“Assisted suicide would have been unthinkable” when Congress passed the drug control act in 1970, Scalia said. Lawmakers would not have permitted the use of drugs for dying, he said, had they considered such a possibility.

Justices David H. Souter and Ruth Bader Ginsburg, part of the court’s liberal wing, responded that federal authorities never claimed such broad power over medicine and drugs. The drug control law “was about drug abuse, drug pushing,” Souter said, not about regulating how doctors use medications.

Along with Souter and Ginsburg, Justices John Paul Stevens, Sandra Day O’Connor and possibly Stephen G. Breyer sounded as though they believed the attorney general overstepped his bounds.

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However, O’Connor’s impending retirement leaves open the possibility of a 4-4 tie, if Roberts, Scalia and Justices Clarence Thomas and Anthony M. Kennedy vote in favor of the Bush administration and the others vote against it.

O’Connor’s vote will not count if the Senate confirms her successor and she steps aside before the court’s decision is ready. If the court is tied, the justices are likely to rehear the case once the new member is seated.

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