High court takes up physician-assisted suicide

from the October 05, 2005 edition - http://www.csmonitor.com/2005/1005/p03s01-usju.html

At issue: Federal authority to enforce drug laws versus the power of the states to regulate medicine.

By Warren Richey Staff writer of The Christian Science Monitor

WASHINGTON - Oregon is the only state in the nation where an individual diagnosed as terminally ill can ask a physician to prescribe a lethal dose of drugs.

Since 1997, when the Oregon Death With Dignity Act took effect, more than 200 individuals have requested medical help to end their lives.

Supporters of the law call the process physician-assisted death. Opponents, including former Attorney General John Ashcroft, view it as state- sanctioned killing, and say it is incompatible with a physician's role as healer.

Wednesday, after four years of litigation, the issue arrives at the US Supreme Court where the justices must decide whether Mr. Ashcroft's efforts to undermine the Oregon law were a valid exercise of federal power.

At issue is a clash between the power of the federal government to reinterpret and enforce the nation's drug laws versus the power of the states to regulate the practice of medicine in ways supported by elected state officials and twice approved by Oregon voters.

"This is a case of who gets to choose what the policy is, the federal government or the states," says Kevin Neely, spokesman for the Oregon attorney general's office, which is defending the Oregon law. "Our history has put this power squarely in the hands of the states, and that's where it should be."

The Bush administration's solicitor general, Paul Clement, disagrees. He says the issue is who decides the scope of the federal drug laws, the attorney general, seeking to enforce a uniform national standard, or each of the 50 states with 50 different views on the subject.

The dispute began in 2001 when then Attorney General Ashcroft marshaled the full force of the federal government to undercut the Oregon law. He did it by rewriting regulations to make it a crime for any doctor to prescribe federally- controlled drugs for the purpose of ending a life.

Reversal from Clinton years

In rewriting the regulations, Ashcroft reversed an earlier legal determination by the Justice Department under Attorney General Janet Reno. Ms. Reno concluded that the Oregon law did not clash with federal drug laws.

In contrast, Ashcroft concluded that "the act's clearly stated purpose is to enhance and maintain life, not end it," according to the government's brief. This conclusion is entitled to the respect and deference of judges who should not second-guess the policy decisions of federal officials, Mr. Clement says.

Oregon countered by filing suit in federal court charging that Ashcroft was abusing his power as attorney general at the expense of the sovereign authority of the state. Oregon won - twice.
The case which began as Oregon v. Ashcroft has since become Gonzales v. Oregon, adopting the name of the new attorney general, Alberto Gonzales.

Some supporters of Ashcroft's position see the case as an opportunity for the high court to address the right to life. Matthew Staver, of the Florida-based group Liberty Counsel, says that by relying on federally-controlled drugs to carry out physician-assisted suicides Oregon is forcing the federal government to participate in ending a person's life.

"When a state undertakes efforts to undermine the right to life I think the federal government has the right to assert the preference for life," Mr. Staver says.

Supporters of the Oregon law say the central issue in the case is the balance of federal-state power. Federalism and states' rights is usually a priority of conservatives. The practice of medicine has traditionally been an area of state control.

But in this case the Bush administration is pushing to nationalize medical regulations at the expense of state regulations, they say.

An intrusion?

Such intrusion into state authority should not be permitted unless Congress made clear at the time it wrote the federal drug laws that state regulations would be preempted, supporters say.
"It is painfully ironic that such a conservative administration and conservative attorney general would be using an agency rule to dramatically expand the power of the [federal government] over the states," says Eli Stutsman, a Portland appellate lawyer who represents two Oregon physicians in the case.

Mr. Stutsman says the attorney general's job under the federal Controlled Substances Act has always been to battle drug trafficking, not to rewrite the law to undermine the lawful practice of medicine under state regulations. He says Ashcroft changed the law to reflect his own personal policy preferences rather than remaining faithful to the drug laws as written by Congress.

"He is not the FDA [Food and Drug Administration], he is the DEA [Drug Enforcement Administration], and his law enforcement role doesn't allow him to regulate medicine," Stutsman says.

Supporters of Ashcroft's approach say such efforts are important to prevent opening a Pandora's box of end-of-life issues. "Once you open the medical industry up to saying we are going to use medical ways of making people die, there is no way to stop that," says Mailee Smith of the Chicago-based group, Americans United for Life. "What the Oregon law says to people is that their life isn't worth anything once they get past a degree of illness," she adds.

Stutsman has a different perspective.

"There is nothing more thoughtful and profound than having the conversation that the Oregon Death With Dignity Act brings up," he says. "It is not anything that is done quickly, cheaply, or without thought. It is just the opposite."

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