Pubdate: Fri, 22 Mar 2002
Source: Register-Guard, The (OR)
Copyright: 2002 The Register-Guard
Contact:  http://www.registerguard.com/
Details: http://www.mapinc.org/media/362
Author: William McCall, Associated Press
Bookmark: http://www.mapinc.org/ashcroft.htm (Ashcroft, John)

JUDGE TO RULE ON STATE'S SUICIDE LAW

PORTLAND - The legal showdown between Attorney General John Ashcroft and 
the state of Oregon over the nation's only physician-assisted suicide law 
goes back to court Friday, and a judge will decide whether to uphold the 
state law that was twice approved by voters.

Ashcroft issued a directive on Nov. 6 that would have prohibited doctors 
from prescribing a lethal dose of drugs to terminally ill patients.

U.S. District Judge Robert Jones, however, blocked Ashcroft with a 
temporary restraining order on Nov. 8. The judge later criticized the 
Justice Department for waiting nearly five months to issue the directive 
after staff attorneys recommended it to Ashcroft.

Following Friday's hearing, Jones will consider how to resolve the conflict 
between federal drug regulations and the long-recognized responsibility of 
states to regulate medical practice. He has promised to rule within 30 days 
of the hearing.

"The main issue is the scope of the federal Controlled Substances Act and 
who is empowered to determine what constitutes a legitimate medical 
practice - is it up to the individual states or is it something the federal 
government can mandate?" said Kathryn Tucker, legal director for Compassion 
in Dying, a Seattle-based group that supports physician-assisted suicide.

First passed in 1994 and affirmed three years later, the law allows 
patients with six months to live or fewer to ask a doctor to prescribe a 
lethal combination of drugs. The patient must choose to die voluntarily, 
and must be able to physically take the pills without any help.

At least 91 people have used the law to end their lives, according to an 
article published in the New England Journal of Medicine last month.

Ashcroft said in his Nov. 6 order that helping a terminally ill patient 
commit suicide is not a legitimate medical practice, which is a requirement 
to prescribe and dispense federally controlled drugs.

The state immediately went to court to challenge Ashcroft's move.

Steve Bushong, an Oregon assistant attorney general, argued that Ashcroft 
overstepped his authority by interfering with a carefully considered 
medical practice that applies only to a select group of people who use the 
law as a last resort.

In a recent court filing, Bushong said that even if Ashcroft did have the 
authority, he did not follow proper procedure for overriding a state law 
because it was issued without any public comment or debate, unlike the 
years of public debate that preceded approval of the Oregon law.

"The directive presumes that Congress intended to give the Attorney General 
authority to decide - as a matter of federal law - sensitive public policy 
issues like the 'legitimacy' of physician assistance in hastening death," 
Bushong said, a presumption he called "fundamentally flawed."

Bushong also said U.S. Supreme Court cases consistently have favored the 
right of states to enact laws that do not violate the U.S. Constitution.

Recent cases, in fact, indicate the Supreme Court "is more likely to expand 
the sovereign rights of states to legislate free of federal interference," 
Bushong said.

But Craig Casey, the assistant U.S. attorney representing Ashcroft, 
repeated the government's argument that Ashcroft has the power to interpret 
the federal Controlled Substances Act because the federal government has a 
national interest in enforcing drug laws uniformly and protecting public 
health.

"Nothing in the CSA, its legislative history, or any implementing 
regulation supports" the state claim that Congress authorized doctors to 
make the final decision to assist dying patients, Casey said.

The Ashcroft directive reversed a 1998 opinion by then-Attorney General 
Janet Reno, who concluded that the Oregon law did not conflict with the 
federal Controlled Substances Act.
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MAP posted-by: Jay Bergstrom