posted November 10, 2004 10:13 PM         

November 10, 2004

`Right-to-die' law faces new siege
By Tim Christie
The Register-Guard

As U.S. Attorney General John Ashcroft is announcing he'll leave office, he's taking one last shot at the Oregon law that permits doctors to help terminally ill patients kill themselves.

Shortly before Ashcroft's resignation was announced Tuesday, his office asked the U.S. Supreme Court to overturn Oregon's groundbreaking doctor-assisted suicide law.

The request for review had been expected since May, when the 9th Circuit Court of Appeals ruled Ashcroft overstepped his authority when he tried, in November 2001, to hobble the only law of its kind in the nation.

Defenders of the law said Tuesday it's unlikely the high court will agree to hear the case, while an opponent expressed hope the justices would take it up.

Since voters approved the Death with Dignity Act in 1998, 171 terminally Oregonians have killed themselves with legally prescribed drugs. Most had cancer. The law lets patients with less than six months to live request a lethal dose of drugs after two doctors confirm the diagnosis and determine the person's mental competence to make the request.

While not as prominent as abortion, the issue is an important one for conservative Christians who helped President Bush win a second term last week. The government waited until Tuesday, the final day possible, to file paperwork at the high court.

Paul Clement, acting solicitor general, said in the appeal that the law conflicts with the federal government's powers. The attorney general's conclusion that doctors should not be allowed to treat patients with lethal doses of drugs ``is the position maintained by 49 states, the federal government and leading associations of the medical profession," he told justices.

The Supreme Court probably will decide early next year whether it will review the case. The court has been hearing cases now with eight members, because Chief Justice William Rehnquist is under treatment for thyroid cancer.

The case stems from a directive Ashcroft issued in November 2001 that attempted to stifle Oregon's controversial law. Ashcroft said doctor-assisted suicide was not a "legitimate medical practice" under federal drug laws, and he authorized federal drug agents to investigate and revoke the drug licenses of doctors who participated in the law.

The state of Oregon immediately sued Ashcroft, and in April 2002, U.S. District Judge Robert Jones in Portland ruled Ashcroft overstepped his authority.

"To allow an attorney general - an appointed executive whose tenure depends entirely on whatever administration occupies the White House - to determine the legitimacy of a particular medical practice without a specific congressional grant of such authority would be unprecedented and extraordinary," Jones ruled.

Last May, the 9th Circuit Court of Appeals upheld Jones' decision. Ashcroft's "unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide and far exceeds the scope of his authority under federal law," Judge Richard Tallman wrote in the appeals court's opinion.

Tallman relied on a states' rights opinion from the Supreme Court in the case of Gregory vs. Ashcroft. In that case, then-Missouri Gov. Ashcroft won the right to force state judges to retire at age 70, despite a federal law that frowns upon mandatory retirement policies. The high court, agreeing with Ashcroft, said such matters are entrusted to the states.

On Tuesday, Ashcroft asked the Supreme Court to reverse Tallman's opinion, which he faulted for ``misconstruing and dramatically expanding the scope of this court's decision in Gregory vs. Ashcroft.''

The high court has dealt with right-to-die cases before. Justices held in 1997 that while Americans have no constitutional right to assisted suicide, states may decide the issue for themselves. And in 1990, the court ruled that terminally ill people can refuse life-sustaining medical treatment.

Rehnquist wrote both opinions. In the 1997 ruling, he said the idea of having someone help end another's life conflicts with "our nation's history, legal traditions and practices."

Another conservative justice offered a clue to his thinking when he spoke in 2002 at Lewis & Clark College in Portland.

Justice Antonin Scalia told students he believes the issue is one of state's rights, and should not become part of a constitutional battle, according to published reports at the time.

"You want the right to die," Scalia said. "The Constitution said nothing about it."

After Scalia's comment, a woman in the audience called out, "We did that twice."

"That's right and that's fine," Scalia responded. "You don't hear me complaining about Oregon's law."

Kathryn Tucker, legal director for Compassion in Dying, said it's unlikely the Supreme Court will agree to hear Oregon vs. Ashcroft for several reasons.

First, she said, both Jones' and the 9th Circuit's rulings were narrowly drawn interpretations of federal law, supported by legislative history, that did not raise constitutional issues.

Second, she said, in its 1997 rulings, "What the court said was, `We want the states to go out front on this. We are not going to decide there is a federal constitutional right to make this choice. We are going to let one state grapple with this issue and let the other states watch and learn.' "

Kevin Neely, spokesman for Oregon Attorney General Hardy Myers, likewise expects the Supreme Court to pass on hearing the Oregon case.

"The issues are largely statutory, not constitutional," he said. "There is virtually no question as to whether or not states have authority to establish medical practices, and the answer is yes."

But Dr. Gregory Hamilton, spokesman for the Portland-based Physicians for Compassionate Care, which has supported Ashcroft's efforts, is hopeful the Supreme Court would agree to hear the case.

"No state can unilaterally exempt themselves from federal law," he said. "That's an important principle that needs to be upheld here."

U.S. Sen. Ron Wyden, D-Ore., said he is "extremely disappointed" Ashcroft has gone to the Supreme Court. "I certainly plan to look into how many taxpayer dollars Mr. Ashcroft has wasted in his attempt to disenfranchise Oregon voters," he said.

The Associated Press contributed to this report.

DOCTOR-ASSISTED SUICIDE

For more information on the Web, go to:

The Justice Department's petition and appendix are available at: wid.ap.org/documents/scotus/041109ashcroft.pdf

Compassion in Dying, which supports assisted suicide: compassionindying.org

Physicians for Compassionate Care, which opposes assisted suicide: www.pccef.org