Pubdate: Wed, 21 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) JUDGE LETS LAW STAND ON SUICIDE PORTLAND - Despite the Bush administration's attempt to shut down Oregon's Death with Dignity Act, the nation's only assisted suicide law will remain in place for at least four more months under a federal judge's order Tuesday. U.S. District Judge Robert Jones, after four hours of courtroom debate, decided to extend until the spring a temporary restraining order he first ordered nearly three weeks ago. The decision, a second straight victory for the state of Oregon, means dying patients can continue to seek prescriptions for life-ending medication under the assisted suicide law that voters approved in 1994 and upheld in 1997. Jones sought to make clear during comments from the bench that his order will give absolute legal protection to medical practitioners who prescribe or fill prescriptions for patients who qualify under the state law. U.S. Attorney General John Ashcroft on Nov. 6 directed the federal Drug Enforcement Administration to go after doctors who prescribe drugs under the Oregon law, effectively ending their medical practices by revoking their licenses to prescribe federally scheduled controlled substances. Two days later, Jones issued a temporary restraining order that was to expire Tuesday. In the wake of that order, many doctors expressed reservations about prescribing life-ending drugs to patients, and at least one dying patient's doctor said he wouldn't fill any such prescriptions without greater assurances that the DEA wouldn't come after him. As long as his restraining order is in place, Jones said, it effectively "nullifies giving any legal effect to the directive issued by John Ashcroft." The extension is meant to give lawyers for the state of Oregon, as well as terminally ill patients, a physician and a pharmacist who are part of the legal action, 60 days to prepare their written arguments. Then federal lawyers will have 30 days to review and rebut those arguments with briefs of their own, and Oregon lawyers will have 14 days from there to prepare responses. Jones said he planned to set the next court date for some time in early March and to give his final decision on the challenge by late that month or early in April. Jones extended the restraining order, rather than grant a preliminary injunction as Oregon lawyers had sought, because he wanted to expedite what is expected to be a lengthy legal fight. Unlike a preliminary injunction, a restraining order can't be appealed. Some have said they expect the case to take three to four years and to eventually end up in the hands of the U.S. Supreme Court. Although the case could lead to a landmark decision on state sovereignty, the federal government's mandate to protect life and individual rights to make end-of-life decisions, Tuesday's legal contest focused on more narrow issues. Steve Bushong, a state lawyer under Oregon Attorney General Hardy Myers, contended that Ashcroft lacked the legal authority to impose such a directive. Under federal law, Ashcroft could only have issued such a directive after giving public notice and allowing for public comment on his proposal, Bushong argued. No such process took place, despite a letter from Myers to Ashcroft in February, asking for a chance to weigh in on any efforts to pre-empt the state's assisted-suicide law. When Ashcroft's predecessor in the Clinton administration, Janet Reno, deliberated over whether the Controlled Substances Act should prevent Oregon doctors from prescribing drugs to allow patients to commit suicide, she opened the process for public comment. In 1997, Reno determined that Oregon's law did not conflict with the federal act. Bushong contrasted that with Ashcroft's approach. "We know what process was used. It was a secret process. No public notice. No public comment," he said. "The important public dialogue never happened here." Gregory Katsas, deputy assistant U.S. attorney general, countered that no public process was required before Ashcroft's directive because it was "interpretive" in relation to the 1971 Controlled Substances Act, rather than "substantive" in creation of a wholly new policy. Katsas also sought to refute Oregon lawyers' arguments that the legal system gave states the authority to regulate the practice of medicine. And he countered claims that the Bush administration was misusing the Controlled Substances Act because it was intended strictly to prosecute those engaged in the trade and use of illicit drugs - not to stop states from drafting their own laws about end-of-life medical practices. Citing the history and various elements of the act, he told Jones that it was clear Congress intended to establish "a single, medically based standard" for the dispensation of controlled substances by licensed medical professionals. Since Oregon's suicide law went into effect in 1998, at least 70 terminally ill people have used the law to end their lives. WHAT'S NEXT Attorneys have 104 days to complete written legal arguments in Oregon's challenge of a federal directive to strip doctors of their licenses to prescribe drugs if they help patients end their lives under the state's assisted suicide law. A U.S. District Court judge will then hear arguments from both sides. He plans to issue a ruling within 30 days. - --- MAP posted-by: Terry Liittschwager