Pubdate: Fri, 09 Nov 2001 Source: Register-Guard, The (OR) Copyright: 2001 The Register-Guard Contact: http://www.registerguard.com/ Details: http://www.mapinc.org/media/362 Author: David Steves, The Register-Guard Bookmark: http://www.mapinc.org/ashcroft.htm (Ashcroft, John) SUICIDE LAW IN EFFECT - FOR NOW PORTLAND -- A federal judge on Thursday temporarily restored the rights of terminally ill patients to end their lives with the help of a physician under Oregon's Death with Dignity Act. Judge Robert Jones delivered his temporary restraining order two days after U.S. Attorney General John Ashcroft directed federal drug agents to go after doctors who prescribe federally controlled drugs and pharmacists who supply them to help patients end their lives. At the conclusion of Thursday's two-hour hearing, Jones made clear that his order applies only until Nov. 20, and that larger legal questions must still be resolved about federal agencies' authority to quash Oregon's assisted suicide law, which has twice been upheld by voters. "I am not in a position at this juncture to make any prediction as to the ultimate outcome of this case," Jones told lawyers and audience members in his courtroom, as well as several federal attorneys who took part in the hearing via speakerphone from Washington, D.C. "I feel either side could prevail. ... This is not significant as to what the court may decide to do as to its merits." Jones rebuffed federal lawyers' argument that harm would result if he put Ashcroft's directive on hold so Oregon patients and physicians could continue using the nation's only assisted suicide law. He said the matter could not be that urgent to the Bush administration, given that Ashcroft's order was based on a legal memo dated June 29. "July passed. August passed. September and October passed and we're approaching the second week in November and suddenly the attorney general is issuing an edict for instant enforcement," Jones said. Jones has been assigned to preside over subsequent court actions, which are likely to include the pursuit of an injunction, which would preserve Oregon's law while federal lawyers and Oregon Attorney General Hardy Myers spar over Ashcroft's right to effectively block Oregon's Death With Dignity Act by invoking the DEA's authority under the federal Controlled Substances Act. The law was intended solely to prevent the trafficking and use of illicit drugs, critics of the Bush administration's action said. But in his memorandum, Ashcroft said the use of federally controlled substances for the purposes of physician-assisted suicide is not a "legitimate medical purpose" and could result in a physician losing his federal authority to prescribe drugs. No court dates have been scheduled for the case, but Jones set a Nov. 16 deadline for briefs to be submitted by state and federal lawyers as well as by attorneys for four terminally ill Oregon patients, a Salem physician and a Salem pharmacist. In Thursday's hearing, attorneys on both sides of Myers' lawsuit against the federal government had to demonstrate that irreparable harm would come - - either through the continuation or suspension of Ashcroft's order - and that they had a probability of winning the legal challenge itself. Assistant U.S. Attorney General Bill Howard argued that the greatest harm would result from a suspension of Ashcroft's order, allowing the resumption of the nation's only assisted suicide law. "What it comes down to is whether these patients will continue living while the court considers the questions that have been put before it," he argued through speakerphone from his Washington, D.C. office. "These individuals should continue living. Life is good." Stephen Bushong, representing the Oregon attorney general's office, contended that the state would be harmed by the infringement of federal agencies of the state's sovereign right to regulate the practice of medicine. He also argued that the state's regulatory interest, through the Department of Human Services, the Medical Examiners Board and the state Pharmacy Board, would be harmed. Nicholas van Aelstyn, a lawyer for Compassion in Dying, argued that the greatest harm would befall the four terminally ill Oregon patients he represented in the case against Ashcroft. Richard Holmes, 72, of Portland, has terminal colon cancer and is in "substantial pain," van Aelstyn said. He has made an oral request for a prescription for life-ending drugs and was in the midst of a 15-day waiting period to submit a second request in writing when Ashcroft's order was made. Karl Stansell, 67 of Medford has terminal throat cancer that "causes him agony when he eats," van Aelstyn said. He also was partway through the 15-day waiting period. James Romney of Portland has Lou Gehrig's disease and had yet to make an oral request for life-ending drugs. A fourth unidentified female patient has pancreatic cancer and had been in her 15-day waiting period. These individuals, van Aelstyn argued, have had their rights under the Death With Dignity Act "snatched away by a federal agency in Washington," causing irreparable harm if they are denied the chance to control the means by which they die. Jones' order means that these doctors and pharmacists will not lose their federal licenses to prescribe controlled substances. However, should the courts ultimately rule that Ashcroft and the Drug Enforcement Administration have the authority to go after medical professionals under his Tuesday directive, some question remained whether they would be prosecuted for actions taken after Ashcroft's order. Salem oncologist Dr. Peter Rasmussen, who was an intervener in the case, said he expected most doctors to hold off on prescribing life-ending drugs to qualifying patients, even though they are legally permitted to under Jones' order. "Doctors are basically very conservative people. If we have reason to think somebody is looking over our shoulder and may criticize our decision, it's going to be hard for physicians to be comfortable prescribing life-ending medications to our patients," he said. As for himself, Rasmussen said he may continue to do so, but added that "I'd have to get legal advice. I certainly wouldn't want to risk my medical career over this." Oregon U.S. Attorney Mike Mosman said after Jones' order that "I strongly doubt that will ever happen during the interim" between Tuesday's order by Ashcroft, his boss, and the final court ruling on its legality. WHAT'S NEXT Attorneys have until Nov. 16 to submit their written legal arguments in Oregon's challenge of Tuesday's federal administrative directive to strip doctors of their licences to prescribe federally controlled drugs if they help patients end their lives under Oregon's Death With Dignity Act. - --- MAP posted-by: Jackl