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.
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